                      CALIFORNIA REGIONAL WATER CONTROL BOARD         

                                 NORTH COAST REGION                   

                                     ---oOo---                        

              In the Matter of:                                       
                                                                      
              ADMINISTRATIVE CIVIL LIABILITY                          
              Complaint No. R1-2009-0095.                             
                                                                      
              ______________________________/                         
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                   Deposition of:                     
                                                                      
              
                                 KASON VERNE GRADY                    
              
                              Volume II, Pages 180-335                
              
                                                                      
                            Wednesday, November 10, 2010              
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
              Reported by:                                            
              MAREE N. ARMSTRONG                                      
              CSR #11284                                              
                                                                      
                                                                      
                                                                      
                                                                      
                                                                      
                             COASTAL REPORTING SERVICES               
                           Certified Shorthand Reporters              
                           131-A Stony Circle, Suite 500              
                               Santa Rosa, CA  95401                  
                                   (707) 573-9766                     
                                                                      
                                                                      
                                                                   180

          1             Deposition of KASON VERNE GRADY, taken        

          2   pursuant to agreement at the North Coast Regional Water 

          3   Quality Control Board, 5550 Skylane Boulevard, Suite A, 

          4   in the City of Santa Rosa, County of Sonoma, State of   

          5   California, on Wednesday, the 10th day of November,     

          6   2010, commencing at the hour of 9:24 a.m., thereof,     

          7   before MAREE N. ARMSTRONG, CSR No. 11284, a California  

          8   Certified Shorthand Reporter.                           

          9                                                           

         10                    A P P E A R A N C E S                  

         11                                                           

         12   FOR THE CALIFORNIA REGIONAL WATER QUALITY CONTROL       
              BOARD, NORTH COAST REGION:                              
         13                                                           
                         STATE WATER RESOURCES CONTROL BOARD          
         14              1001 I Street, 16th Floor                    
                         Sacramento, California  95814                
         15              (916) 341-6847                               
                                                                      
         16              BY:  Julie E. Macedo                         
                              Attorney at Law                         
         17                                                           
                                                                      
         18                                                           
              FOR MCM CONSTRUCTION, INC.:                             
         19                                                           
                         DIEPENBROCK HARRISON                         
         20              Attorneys at Law                             
                         A Professional Corporation                   
         21              400 Capitol Mall, Suite 1800                 
                         Sacramento, California  95814                
         22              (916) 492-5050                               
                                                                      
         23              BY:  Sean K. Hungerford                      
                              Attorney at Law                         
         24                                                           
                                                                      
         25                                                           

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   181

          1   APPEARANCES (cont'd)                                    

          2                                                           

          3   FOR MCM CONSTRUCTION, INC.:                             
                                                                      
          4             MCM CONSTRUCTION, INC.                        
                        General Engineering Contractors               
          5             Post Office Box 620                           
                        North Highlands, California  95660            
          6             (916) 334-1221                                
                                                                      
          7             By: Barbara Brenkus                           
                            Assistant General Counsel                 
          8                                                           
                                                                      
          9                                                           
              FOR THE STATE OF CALIFORNIA, DEPARTMENT OF              
         10   TRANSPORTATION:                                         
                                                                      
         11             STATE OF CALIFORNIA                           
                          DEPARTMENT OF TRANSPORTATION                
         12             Legal Division                                
                        595 Market Street, Suite 1700                 
         13             San Francisco, California  94105              
                        (415) 904-5700                                
         14                                                           
                        By:  Ardine Zazzeron                          
         15                  Deputy Attorney                          
                                                                      
         16                                                           
                                                                      
         17                                                           

         18                                                           

         19                                                           

         20                                                           

         21                                                           

         22                                                           

         23                                                           

         24                                                           

         25                                                           

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   182

          1                          I N D E X                        

          2                                                           

          3   WITNESS:  KASON VERNE GRADY                    Page No. 

          4            Examination by Mr. Hungerford             183  

          5                                                           

          6                           ---oOo---                       

          7                                                           

          8   Nos.                                           Page No. 

          9    1     Article beginning "The Second Stream        333  
                     Crossing by Heavy Equipment...",                 
         10          pages 13 through 18.                             
                                                                      
         11    2     Letter to Mr. David Leland from             333  
                     Donna M. Clark, Caltrans, dated                  
         12          March 5, 2007.                                   
                                                                      
         13                                                           
                                                                      
         14                                                           
                                                                      
         15                                                           
                                                                      
         16                                                           
                                                                      
         17                                                           
                                                                      
         18                                                           
                                                                      
         19                                                           
                                                                      
         20                                                           
                                                                      
         21                                                           
                                                                      
         22                                                           
                                                                      
         23                                                           
                                                                      
         24                                                           
                                                                      
         25                                                           

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   183

          1                      KASON VERNE GRADY,                   

          2   having been previously duly sworn or affirmed by the    

          3   certified shorthand reporter in all respects as         

          4   required by law, proceedings were had as hereinafter    

          5   set forth:                                              

          6                         EXAMINATION                       

          7   BY MR. HUNGERFORD:                                      

          8        Q.   You have already been sworn in, but please    

          9   state your name again for the record.                   

         10        A.   Kason Grady.                                  

         11        Q.   Mr. Grady, we were here back on October 21st, 

         12   I believe, and this is the continuation of your         

         13   deposition from that day.                               

         14             I believe where we left off was, we had just  

         15   finished with the October 26th, 2008 date in            

         16   Appendix A-C.                                           

         17        A.   You mean 2006 date?                           

         18        Q.   I'm sorry, 2006.  So we will continue on with 

         19   the October -- I'm sorry, October 28th, 2006.           

         20             Do you have a copy of the appendices to the   

         21   Complaint in front of you?                              

         22        A.   Yes.                                          

         23        Q.   And I see the October 28th violation says:    

         24                 "Welding slag continued to fall into      

         25             the river without adequate mitigation."       

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   184

          1             Do you see that?                              

          2        A.   Yes.                                          

          3        Q.   Do you have any documents that you relied on  

          4   for this violation?                                     

          5        A.   Yes.                                          

          6        Q.   Can you identify them?                        

          7        A.   The CD of biology monitoring reports, which   

          8   was received in our office on November 20th, 2006.      

          9        Q.   Are there any particular passages or          

         10   documents within that CD that you believe are relevant  

         11   to this violation?                                      

         12        A.   Just the referenced quote:                    

         13                 "Welding slag continued to fall into      

         14             the river without adequate mitigation."       

         15        Q.   Do you have the document in front of you?     

         16        A.   No.                                           

         17        Q.   Okay.  I will give you a copy of my version,  

         18   which appears to be a partial version of that           

         19   biological report.  If you would review it for a        

         20   moment.                                                 

         21                 (Witness examines document.)              

         22             THE WITNESS:  Okay.                           

         23   BY MR. HUNGERFORD:                                      

         24        Q.   Okay.  Does that appear to you to be an       

         25   excerpt from a document prepared by Carl Page, the      

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   185

          1   biological monitor?                                     

          2        A.   Yes.                                          

          3        Q.   Do you see the passage on the second page     

          4   that you quoted in the Complaint?                       

          5        A.   Yes.                                          

          6        Q.   Is there anything in that document that ties  

          7   that statement to this particular date?                 

          8        A.   Just the date under which -- the heading date 

          9   under which the narrative resides.                      

         10        Q.   Is there any other information that you're    

         11   aware of that ties that particular statement to this    

         12   October 28th date?                                      

         13        A.   No.                                           

         14        Q.   Does it appear to you that that passage could 

         15   be a general statement applying to other dates, you     

         16   know, within that general time frame?                   

         17             MS. MACEDO:  Objection.  Calls for            

         18   speculation.                                            

         19             THE WITNESS:  No.                             

         20   BY MR. HUNGERFORD:                                      

         21        Q.   Why not?                                      

         22        A.   Because it is my impression that, due to the  

         23   location of that phrase underneath that heading, that   

         24   it was intended to describe that day.                   

         25        Q.   Okay.  Thank you.  Are there any other        

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   186

          1   documents or photographs, specifically, that you're     

          2   aware of that support this particular violation?        

          3        A.   No.                                           

          4        Q.   The next violation is the October 30th, 2006  

          5   violation, correct?                                     

          6        A.   Correct.                                      

          7        Q.   And you have identified a number of           

          8   photographs in support of this violation; is that       

          9   right?                                                  

         10        A.   Yes.                                          

         11        Q.   Do you have those handy?                      

         12        A.   I believe so.  Yes, I have them.              

         13        Q.   Let me take a look just to make sure your     

         14   photographs and mine match.                             

         15        A.   Yes.                                          

         16        Q.   Do you know who took these photographs?       

         17        A.   I believe they were taken by Carl Page or his 

         18   colleague, Bradford Norman.                             

         19        Q.   What do they show to you?                     

         20        A.   Steel debris in the river.                    

         21        Q.   Do you have any reason to believe that this   

         22   debris was not cleaned up as part of the Caltrans or    

         23   the contractor's practice?                              

         24        A.   No, I do not.                                 

         25        Q.   Do you know how long the debris had been in   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   187

          1   the river at the time this photograph was taken?        

          2        A.   Offhand, I do not know.  Although, I'm sure I 

          3   could find some sort of indication of that, at least    

          4   for the larger piece in Photo 061030-06.                

          5             It is a larger piece that there may be an     

          6   indication of how long that was in the river in the     

          7   photographic record.                                    

          8        Q.   So what would you look for to try to answer   

          9   that question?                                          

         10        A.   Other photos of the same thing.               

         11   Cross-reference that with Biological Monitoring         

         12   Reports.                                                

         13        Q.   But as you sit here, you're not aware of any  

         14   information, specifically?                              

         15        A.   Not specifically other than other photos and  

         16   what I just mentioned.                                  

         17        Q.   Are there any other documents or evidence     

         18   that you're relying on to support this particular       

         19   violation?                                              

         20        A.   No.                                           

         21        Q.   Are you aware of any reports, including       

         22   Biological Monitoring Reports, that describe this       

         23   condition other than in the photographs that you        

         24   provided?                                               

         25        A.   There could be.  I just don't recall at this  

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   188

          1   time.                                                   

          2        Q.   Okay.  If you would turn to the next          

          3   violation dated October 31st, 2006.  And there are two  

          4   photographs that you have identified in support of this 

          5   violation; is that correct?                             

          6        A.   Yes.                                          

          7        Q.   Are there any other documents other than the  

          8   photographs that you're aware of that support this      

          9   violation specifically?                                 

         10        A.   No.                                           

         11        Q.   Would you, please, turn to those photographs. 

         12        A.   Okay.                                         

         13        Q.   Would you show them to me just so --          

         14        A.   It could be this one, too.                    

         15        Q.   Let's see.  They are 061031-01 and -02; is    

         16   that right?                                             

         17             Okay, those are the ones.  And what do these  

         18   photographs show?                                       

         19        A.   Metal debris in the river.                    

         20        Q.   And that would be the -02 photograph shows    

         21   what appears to be a metal plate, correct?              

         22        A.   Yes.                                          

         23        Q.   And the -01 photograph, what does that appear 

         24   to be to you?                                           

         25        A.  Flaky rust.  It looks like flakes of rust --   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   189

          1   it appears to be.                                       

          2        Q.   Do you know what the source of this           

          3   particular material would have been?                    

          4        A.   No.                                           

          5        Q.   Do you have any information to tell you how   

          6   long these flakes or the piece of metal had been there  

          7   at the time the picture was taken?                      

          8        A.   The flakes of rust, no.  The piece of metal,  

          9   my answer would be the same as the -- just the          

         10   violation on October 30th, which is there may be some   

         11   more information in the photographic record and         

         12   Biological Monitoring Reports, but none that I'm        

         13   specifically aware of other than this photo.            

         14        Q.   If you look back at the previous day's        

         15   violation, you identified three photographs, correct?   

         16        A.   Correct.                                      

         17        Q.   And it appears to me that one of the          

         18   photographs identified for October 30th, specifically,  

         19   061030-06, is the picture of the same metal plate that  

         20   is shown in the October 31st photograph of 061031-2;    

         21   would you agree with that?                              

         22        A.   Yes.                                          

         23        Q.   If you turn to the next entry, it is November 

         24   1st, 2006.  And you have a number of photographs for    

         25   this violation; is that right?                          

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   190

          1        A.   Yes.                                          

          2        Q.   Other than the photographs, are there any     

          3   other documents, reports or written materials that      

          4   you're aware of that specifically support this          

          5   violation on this day?                                  

          6        A.   No.                                           

          7        Q.   The first photograph is 061101-01; is that    

          8   right?                                                  

          9        A.   Yes.                                          

         10        Q.   What does that show?                          

         11        A.   It shows sparks from welding or steel cutting 

         12   falling onto the river bank.                            

         13        Q.   Do you have any idea how much -- first of     

         14   all, what is your understanding of what the sparks are  

         15   composed of?                                            

         16        A.   Metal.                                        

         17        Q.   Okay.  Do you have an understanding of how    

         18   many sparks on this event would have reached the        

         19   riverbed, or what volume of material would have reached 

         20   the riverbed?                                           

         21        A.   No.                                           

         22        Q.   If you turn to the -02 photograph, that       

         23   appears to be just a zoomed-in version of the prior     

         24   photograph; is that right?                              

         25        A.   I don't believe it is the same photograph     

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   191

          1   zoomed in, although, it appears to be the same angle    

          2   and another set of sparks.                              

          3        Q.   Okay.  And if you look at the -03 photograph, 

          4   what does that show?                                    

          5        A.   It shows a worker welding on the trestle      

          6   deck.                                                   

          7        Q.   How does this photograph support your claim   

          8   of a violation?                                         

          9        A.   It is helping to paint the picture of what is 

         10   happening and causing the sparks to fall onto the       

         11   riverbed and into the river, and it shows an apparent   

         12   lack of containment.                                    

         13        Q.   As we have discussed in your first day of     

         14   deposition, we talked about your statements as far as   

         15   why these were violations of Condition 9 of the         

         16   Certification, correct?                                 

         17        A.   Yes.                                          

         18        Q.   Is there anything here that you're aware of   

         19   within the Certification or the application materials   

         20   that specifies precisely how sparks or welding slag     

         21   need to be contained?                                   

         22        A.   There is no explicit description of how it is 

         23   to be contained because that is not our approach to     

         24   permitting.  We do not describe the method and manner   

         25   of how something is to be done.  We leave that to the   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   192

          1   permittee to propose best management practices of how   

          2   to contain wastes sufficiently to meet the requirements 

          3   of the permit.                                          

          4        Q.   So if I may paraphrase, you leave it to the   

          5   discretion of Caltrans and the directors how they will  

          6   comply with the permit?                                 

          7             MS. MACEDO:  Objection.  Misstates his        

          8   testimony.                                              

          9             THE WITNESS:  There's a process that needs to 

         10   be followed.  If there's ever a question on the part of 

         11   Caltrans about how to comply with the permit, then      

         12   there is a process requirement for them to come back to 

         13   the Water Board and ask for a modifications of a best   

         14   management practice, or to begin a discussion on what   

         15   the best management practice needs to be and what the   

         16   level of expectation is to satisfy those requirements.  

         17   BY MR. HUNGERFORD:                                      

         18        Q.   As you just stated, the Water Board and the   

         19   Certification don't provide a specific direction as to, 

         20   exactly, what BMPs or how BMPs should be implemented    

         21   throughout the project, correct?                        

         22        A.   Correct.                                      

         23        Q.   So is it true that Caltrans, as the           

         24   permittee, you know, is responsible for determining,    

         25   you know, what BMPs are appropriate and how they should 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   193

          1   be implemented?                                         

          2             MS. MACEDO:  Objection.  Calls for a legal    

          3   conclusion.                                             

          4             MS. ZAZZERON:  Objection.  Lacks foundation   

          5   and compound.                                           

          6             THE WITNESS:  No.  I do not believe that they 

          7   are in a position to make that decision and             

          8   determination, that if there is any doubt into -- if    

          9   there is a situation where there's not an agreed upon   

         10   BMP for such a practice, and there's a discharge, then  

         11   the process is for the permittee to communicate that    

         12   with the Water Board to determine a BMP for that        

         13   activity.                                               

         14   BY MR. HUNGERFORD:                                      

         15        Q.   So are you saying that all BMPs used on the   

         16   project need to be vetted by the Water Board prior to   

         17   being implemented?                                      

         18        A.   If they have a link or a connection to a      

         19   permit condition in one of our permits.                 

         20             There are BMPs for other practices unrelated  

         21   to water quality that, perhaps, are required from       

         22   other -- other agencies, and in those situations it     

         23   wouldn't have to go through the Water Board, but if     

         24   there's a practice that could affect one of the permit  

         25   conditions or requirements in one of our permits, then  

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   194

          1   yes.                                                    

          2        Q.   Tell me what BMPs on this project were        

          3   developed by Caltrans that they then submitted to the   

          4   Water Board for review and concurrence?                 

          5        A.   I could not answer that.                      

          6        Q.   Do you know of any?                           

          7        A.   It's not my job to review those and to be     

          8   part of that process.                                   

          9        Q.   Do you have a basic understanding as to       

         10   whether or not that's what occurred on this project?    

         11        A.    I believe that it occurred for -- to some    

         12   degree a discharge of cementitious wastes through some  

         13   communication between Caltrans and Dean Prat, of our    

         14   staff, and some e-mail correspondence and some          

         15   discussions about what will be authorized.  Whether or  

         16   not that applies to the BMP approval process, I'm not   

         17   quite sure.                                             

         18        Q.   I'm certainly aware of those communications.  

         19             Is it reasonable to assume, based on your     

         20   knowledge of the project, that there was a wide range   

         21   of BMPs that were used in this project on a wide range  

         22   of issues?                                              

         23        A.   Yes.                                          

         24        Q.   Are you telling me that it is your            

         25   expectation or -- strike that.                          

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   195

          1             Are you telling me it is the Water Board's    

          2   expectation under the permit that all of the BMPs that  

          3   relate to conditions of the Certification would need to 

          4   be reviewed by the Water Board before being             

          5   implemented?                                            

          6        A.   Yes.                                          

          7        Q.   Where does it say that in the permit or --    

          8   I'm sorry, in the Certification?                        

          9        A.   I'm not aware of anyplace that it states      

         10   that.                                                   

         11        Q.   What direction then was provided to Caltrans  

         12   or the contractors that would have advised them that    

         13   that was necessary?                                     

         14        A.   I do not know.  That is part of the           

         15   permitting process that I was not involved in.          

         16        Q.   Let me direct your attention to Condition 7   

         17   of the Certification, just as an example.  Are you      

         18   there with me?                                          

         19        A.   Yes.                                          

         20        Q.   And that says:                                

         21                 "Adequate BMPs for sediment and           

         22             turbidity control shall be implemented and    

         23             in place prior to, during, and after          

         24             construction."                                

         25             Correct?                                      

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   196

          1        A.   Correct.                                      

          2        Q.   Now, it doesn't say that those BMPs need to   

          3   be reviewed by the Water Board prior to being           

          4   implemented; is that right?                             

          5        A.   That is right.                                

          6        Q.   And you're not aware, I take it, of any other 

          7   statements or direction within this Certification that  

          8   apply that requirement that the Water Board review BMPs 

          9   prior to implementation, right?                         

         10        A.   Right.                                        

         11        Q.   Is it reasonable to assume that there were    

         12   any number of BMPs that might have been developed and   

         13   implemented unilaterally by Caltrans, the contractors,  

         14   without the Water Board's involvement in this project?  

         15        A.   Not only is it probable, but I believe it to  

         16   be true.                                                

         17        Q.   Would that constitute a violation of the      

         18   Certification?                                          

         19        A.   I don't know.  I don't believe so, looking at 

         20   the specific additional conditions that I used to       

         21   review violations, but I don't know.                    

         22        Q.   So you're not aware of any condition in the   

         23   Certification that would have made it a violation of    

         24   the Certification had Caltrans, the contractors, not    

         25   submitted proposed BMPs to the Water Board for review,  

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   197

          1   correct?                                                

          2        A.   Correct.                                      

          3        Q.   To your knowledge, back to the violations,    

          4   within this same date on November 1st, 2006, the next   

          5   photograph that we haven't discussed is 061101-03; do   

          6   you see that?                                           

          7        A.   Yes.                                          

          8        Q.   And what about this photograph?               

          9        A.   Is that 04?  That's the way it is numbered in 

         10   my document.                                            

         11        Q.   I'll show you what I have for 03 -- oh,       

         12   sorry, it is 04.  Are you with me?                      

         13        A.   Yes.                                          

         14        Q.   What about this photograph supports the       

         15   violation for this date?                                

         16        A.   Again, it is showing what is happening        

         17   on-site together with other pictures, specifically, the 

         18   following picture in the sequence, 061101-05, is        

         19   showing a welder in a -- in a basket, a metal basket,   

         20   up high on the trestle deck.  It is showing the         

         21   location of the activity that occurred.                 

         22        Q.   And looking through the rest of the           

         23   photographs that you have assigned to this date, they   

         24   all show more or less the same thing in the sense that  

         25   they show sparks and possible welding slag; is that     

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   198

          1   right?                                                  

          2        A.   Yes.                                          

          3        Q.   And, again, you say that you believe this was 

          4   just metal falling, but you don't have, I take it, any  

          5   specific knowledge of the composition of this material? 

          6        A.   No.                                           

          7        Q.   And, again, you don't have any knowledge of   

          8   what volume of material might actually have reached the 

          9   riverbed throughout all of these photos?                

         10        A.   Correct.                                      

         11        Q.   We are moving on to  Appendix A-E.  This is   

         12   discharge violations, correct?                          

         13        A.   Each of these Appendices state discharge      

         14   violations.                                             

         15        Q.   You're right.  So A-E would correspond to     

         16   that portion of the Complaint that deals with           

         17   insufficient turbidity measurement violations; is that  

         18   right?                                                  

         19        A.   Correct.  So are we on A-E?                   

         20        Q.   Yes, we are on A-E.                           

         21        A.   Okay.                                         

         22        Q.   And the first date of violation that is in    

         23   the Complaint for this table is August 29, 2006; is     

         24   that correct?                                           

         25        A.   Yes.                                          

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   199

          1        Q.   What specific documents have you provided in  

          2   support of this violation?                              

          3        A.   There is a quote from the Biological          

          4   Monitoring Report.                                      

          5        Q.   Do you have a copy of that document handy?    

          6        A.   No, I do not.                                 

          7        Q.   I'll provide you with a one-page review.      

          8        A.   (Witness nods head.)  Okay.                   

          9        Q.   Do you have any photographs or other          

         10   documents other than the Biological Monitoring Report   

         11   that you're aware of that supports this violation?      

         12        A.   No.                                           

         13        Q.   Okay.  And you have alleged that this         

         14   violates Condition 9 of the Certification; is that      

         15   right -- I'm sorry, 19?                                 

         16        A.   Nineteen.                                     

         17        Q.   Explain to me why is it that -- first of all, 

         18   back up.                                                

         19             The information that is in the Biological     

         20   Monitoring Report, what does it indicate to you?        

         21        A.   That after a long period of dewatering there  

         22   was a turbidity plume in the river.                     

         23        Q.   Do you have any idea how long the plume was?  

         24        A.   No.                                           

         25        Q.   Do you have any idea for how long a period of 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   200

          1   time the plume remained?                                

          2        A.   No.                                           

          3        Q.   Do you have any photographs of the plume      

          4   itself?                                                 

          5        A.   I don't believe so.                           

          6        Q.   Now, certainly, from the biological           

          7   monitoring notes, the plume was observed by at least    

          8   one person, correct?                                    

          9        A.   Yes.                                          

         10        Q.   And you have alleged this is a violation of   

         11   Condition 19, right?                                    

         12        A.   Yes.                                          

         13        Q.   How does it violate Condition 19?             

         14        A.   Assuming the quote to be true that, indeed,   

         15   there was a substance seeping through the bar that      

         16   would have increased turbidity in the river, this would 

         17   be a violation of Condition 19 because there were no    

         18   field turbidity measurements collected, which are       

         19   required whenever a project activity causes turbidity   

         20   in the river to be increased above background.          

         21        Q.   Okay.  Please define for me what are field    

         22   turbidity measurements?                                 

         23        A.   Standard field turbidity measurements are     

         24   performed by a turbidity meter measured in              

         25   nephelometric turbidity units, abbreviated NTU.  That   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   201

          1   is the standard method used for field turbidity         

          2   measurements.                                           

          3        Q.   Are there other methods that can be used for  

          4   measuring field turbidity?                              

          5        A.   Not that I'm aware of.                        

          6        Q.   Where in the Certification does it state that 

          7   field turbidity measurements must be taken by an NTU    

          8   meter?                                                  

          9        A.   To my knowledge, there is no specific         

         10   location describing that.                               

         11        Q.   Your definition that you just provided me for 

         12   field turbidity measurements, can you cite for me any   

         13   recognized publication, works, regulations, or other    

         14   information that have that definition of field          

         15   turbidity measurements?                                 

         16        A.   No.                                           

         17        Q.   So I take it it is just your understanding    

         18   that it is the practice in the industry that field      

         19   turbidity measurements use NTU meters?                  

         20        A.   Yes.                                          

         21        Q.   Are you generally familiar with the general   

         22   permits for construction industrial discharges of       

         23   stormwater?                                             

         24        A.   Yes.                                          

         25        Q.   Are you aware that most of those or all of    

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   202

          1   those permits require some form of turbidity            

          2   measurements?                                           

          3        A.   Yes.                                          

          4        Q.   Do you know whether those permits require NTU 

          5   meters as the sole method of measuring turbidity?       

          6        A.   I do not know the exact requirements          

          7   contained in those permits.  There is a new general     

          8   construction permit that may specify that.  I believe   

          9   it does, but I couldn't guarantee it.                   

         10        Q.   Other than the lack of an NTU meter, is there 

         11   anything else about these facts that establishes the    

         12   violation for this day?                                 

         13        A.   Yes.                                          

         14        Q.   What is that?                                 

         15        A.   The additional Condition 19 further requires  

         16   that turbidity measurements shall be collected upstream 

         17   within 50 feet of project activities to determine       

         18   background and downstream within 100 feet of the source 

         19   of turbidity.  We have no evidence that that occurred.  

         20        Q.   Let's assume that this plume was, you know,   

         21   10 feet or less, would those measurements still be      

         22   required?                                               

         23        A.   Yes.                                          

         24        Q.   Let's assume that the plume was 5 feet or     

         25   less, would those measurements still be required?       

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   203

          1        A.   Yes.                                          

          2        Q.   With an NTU meter?                            

          3        A.   Yes.                                          

          4        Q.   Let's assume that visual monitoring was an    

          5   acceptable method of field turbidity measurements,      

          6   would there be a violation of this Certification        

          7   condition?                                              

          8             MS. MACEDO:  Objection.  Incomplete           

          9   hypothetical.                                           

         10             THE WITNESS:  First of all, I don't believe   

         11   that visual monitoring would be adequate for field      

         12   turbidity measurements, at least on the basis that      

         13   Condition 19 distinguishes between visual observations  

         14   and field turbidity measurements.                       

         15   BY MR. HUNGERFORD:                                      

         16        Q.   Where does it make that distinction?          

         17        A.   Condition 19, the first sentence reads:       

         18                 "Visual observations of the South Fork    

         19             Eel River shall be conducted whenever a       

         20             project activity has the potential to         

         21             mobilize sediment."                           

         22             The second sentence describes field turbidity 

         23   measurements.  That is an apparent distinction between  

         24   the two types of monitoring.                            

         25        Q.   Although, it doesn't say that you need to use 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   204

          1   an NTU meter, does it?                                  

          2        A.   No.                                           

          3        Q.   Would you turn to the next violation,         

          4   August 30th, 2006.                                      

          5        A.   Okay.                                         

          6        Q.   And what information did you rely on for this 

          7   particular violation?                                   

          8        A.   A quote from the same Biological Monitoring   

          9   Report that we just looked at.                          

         10        Q.   And it has a very similar description to the  

         11   prior date, doesn't it?                                 

         12        A.   Yes.                                          

         13        Q.   And I take it that -- well, let me ask you.   

         14   Do you have any other information, photographs,         

         15   reports, other than this Biological Monitoring Report,  

         16   to support this violation on this day?                  

         17        A.   No.                                           

         18        Q.   Do you know how long this turbidity event     

         19   lasted?                                                 

         20        A.   No.                                           

         21        Q.   Do you know how long any turbidity plume was, 

         22   or how large it was?                                    

         23        A.   No.                                           

         24        Q.   And I take it that your rationale for         

         25   including this as a violation is virtually identical to 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   205

          1   what we described for the previous day?                 

          2        A.   Yes.                                          

          3        Q.   Would you turn to the next violation.  It is  

          4   September 1st, 2006.                                    

          5             What documents and photographs or other       

          6   evidence is this violation based on?                    

          7        A.   I believe it is based on a report submitted   

          8   by Caltrans to the Regional Water Board commonly        

          9   referred to as Attachment K.                            

         10        Q.   Do you have a copy of that?                   

         11        A.   Back there.                                   

         12        Q.   Is the Attachment K the source of the quote   

         13   that you included in the Complaint?                     

         14        A.   This is on September 1st?                     

         15        Q.   Yes.                                          

         16        A.   I'm not quite sure that that is a quote.      

         17        Q.   That's not a quote, it is just possibly a     

         18   description?                                            

         19        A.   It could be a quote.  I don't know.           

         20        Q.   So the Attachment K, I take it, would be the  

         21   September 16, 2006 Attachment K?                        

         22        A.   No.  Correct me if I'm wrong, but according   

         23   to the footnote reference in Appendix E it refers to    

         24   the October 6th Attachment K, but it could refer to     

         25   another one.                                            

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   206

          1             MR. HUNGERFORD:  Well, I'll hand you the      

          2   Attachment K that I had the impression supported this   

          3   violation.  If you would take a moment to review.       

          4                 (Witness examines document.)              

          5             THE WITNESS:  Okay.                           

          6   BY MR. HUNGERFORD:                                      

          7        Q.   I have handed you a copy of the September     

          8   16th, 2006 Attachment K form; is that right?            

          9        A.   Yes.                                          

         10        Q.   After reading this, is it your understanding  

         11   that that is the Attachment K that you had in mind that 

         12   supports this violation?                                

         13        A.   Yes.                                          

         14        Q.   Are you aware of any other documents that     

         15   support this violation?                                 

         16        A.   The final Biological Monitoring Report might  

         17   also refer to this to some degree.                      

         18             MR. HUNGERFORD:  Well, I'll hand you a copy   

         19   of a Biological Monitoring Report, and just take a      

         20   moment.                                                 

         21                 (Witness examines document.)              

         22             THE WITNESS:  Okay.                           

         23   BY MR. HUNGERFORD:                                      

         24        Q.   And you also have a photograph, correct?      

         25        A.   In the report you just showed me?             

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   207

          1        Q.   No.  That you have identified in support of   

          2   this violation?                                         

          3        A.   Yes.                                          

          4        Q.   Do you have that handy?                       

          5        A.   Yes.                                          

          6        Q.   What does the photograph show?                

          7        A.   Actually -- so there is a photograph, but I   

          8   believe that references another violation on this day.  

          9   It says two on September 1st.  Do you want to clarify   

         10   which one we are talking about?                         

         11        Q.   We are talking about the first violation:     

         12                 "Insufficient turbidity measurements,     

         13             sediment plume that lasted two minutes."      

         14             Are you aware of any reports that supports    

         15   this particular violation?                              

         16        A.   No.                                           

         17        Q.   Okay.  Now, do you have the Attachment K in   

         18   front, or do you need to see it again?                  

         19        A.   You can show me again.                        

         20        Q.   Okay.  Towards the bottom of the page, the    

         21   Attachment K says:                                      

         22                 "The disturbance caused a plume of        

         23             sediment about 20 feet in length and          

         24             lasting approximately two minutes.  The       

         25             discharge was monitored by a biologist who    

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   208

          1             confirmed that background turbidity levels    

          2             are not increased as measured from a point    

          3             100 feet downstream."                         

          4             Do you see that?                              

          5        A.   Yes.                                          

          6        Q.   Based on that, it certainly appears that some 

          7   form of visual turbidity monitoring or measurements     

          8   took place, correct?                                    

          9        A.   Correct.                                      

         10        Q.   And the author of the Attachment K certainly  

         11   had in mind this condition of the Certification, and    

         12   the 100 foot turbidity standard in Condition 19,        

         13   correct?                                                

         14             MS. MACEDO:  Objection.  Calls for            

         15   speculation.                                            

         16             THE WITNESS:  What was the question?  The     

         17   author --                                               

         18   BY MR. HUNGERFORD:                                      

         19        Q.   The author certainly appeared to have in mind 

         20   the 100 foot standard within Condition 19 of the        

         21   Certification, correct?                                 

         22        A.   Sure, yes.                                    

         23        Q.   Other than the fact that there's -- well, it  

         24   is true that there's no evidence of an NTU meter being  

         25   involved here, correct?                                 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   209

          1        A.   There may be in evidence.  There is some      

          2   evidence.  The final Biological Monitoring Report has   

          3   some evidence that there was some use on-site, but --   

          4        Q.   But for this particular violation?            

          5        A.   In the document you're showing me, no.        

          6             For this violation, there may -- I would have 

          7   to look at the final Biological Monitoring Report to    

          8   reference that.                                         

          9        Q.   I'll ask you this.  Is this violation based   

         10   on the absence of the use of an NTU meter?              

         11        A.   I couldn't say that.  It would be based on    

         12   the absence of quality data required by Condition 19.   

         13        Q.   Okay.                                         

         14        A.   Which not only requires field turbidity       

         15   measurements 100 feet downstream but also 50 feet       

         16   upstream.                                               

         17        Q.   Just to be clear, why don't you tell me what  

         18   is the basis for this violation, factually?             

         19        A.   The basis is a lack of sufficient turbidity   

         20   measurements to comply with the condition.              

         21        Q.   And the lack of measurements is shown by      

         22   what, exactly?                                          

         23        A.   By a lack of quantified or -- scratch that.   

         24   A lack of field turbidity measurements 50 feet upstream 

         25   and 100 feet downstream from the source of turbidity;   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   210

          1   and a lack of evidence that the monitoring continued    

          2   every hour during the period of increased turbidity     

          3   until the measurements demonstrated compliance with the 

          4   receiving water limitations and -- well, I was trying   

          5   to paraphrase from Condition 19, but Condition 19 is    

          6   very explicit in what it requires, and I have no        

          7   evidence to demonstrate that sufficient data was        

          8   collected during this event.                            

          9             MR. HUNGERFORD:  Off the record for a minute. 

         10                          (Recess.)                        

         11             MR. HUNGERFORD:  Back on the record.          

         12             We started up on Appendix A-D -- I'm sorry,   

         13   A-E, and we want to be with A-E.  I'm just going to     

         14   direct your attention to a couple of these.  If you go  

         15   to Appendix A-D, the August 30th, 2006, violation.      

         16             THE WITNESS:  Okay.                           

         17             MR. HUNGERFORD:  Now, we have already talked  

         18   about, you know, the facts supporting this particular   

         19   violation, but we didn't talk about the certifications  

         20   and why you feel they were violated.                    

         21   BY MR. HUNGERFORD:                                      

         22        Q.   You have identified two conditions of the     

         23   Certification, Nos. 7 and 9, as being violated here; is 

         24   that right?                                             

         25        A.   Yes.                                          

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   211

          1        Q.   Why do these facts violate Condition 7 of the 

          2   Certification?                                          

          3        A.   Condition 7 requires:                         

          4                 "Adequate BMPs for sediment and           

          5             turbidity control."                           

          6             The facts that this event occurred the day    

          7   after a similar event occurred is a piece of evidence   

          8   that -- that the discharger could have done something   

          9   more to prevent this.  It wasn't an unexpected          

         10   occurrence or event.                                    

         11             Furthermore, on August 30th, 2006, there was  

         12   a discharge of turbidity into the river seeping through 

         13   the gravel bar.  BMPs are required to be in place to    

         14   prevent discharges of sediment into the river and the   

         15   BMPs were clearly inadequate to do that.                

         16        Q.   If a BMP exists and is being implemented and  

         17   there's a discharge nonetheless, is it a violation      

         18   under this permit?                                      

         19        A.   Under this condition?                         

         20        Q.   Yes.                                          

         21        A.   Yes.                                          

         22        Q.   Condition 7 says adequate BMPs shall be in    

         23   place.  So that, to me, appears to be a requirement for 

         24   adequate BMPs.                                          

         25             If a BMP is in place, and it doesn't provide  

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   212

          1   100 percent protection, does that, also, establish a    

          2   violation of Condition 7?                               

          3        A.   Yes.  Because it would be an inadequate BMP.  

          4        Q.   Aren't BMPs developed in kind of an iterative 

          5   process so that if a BMP doesn't prove completely       

          6   effective you can go back and revise it to improve it?  

          7        A.   Yes.                                          

          8        Q.   Isn't that kind of the practice that the      

          9   Regional Board is following?                            

         10        A.   As far as I know.                             

         11        Q.   Is that practice incorporated into this       

         12   Certification?                                          

         13        A.   I don't know if it is explicitly              

         14   incorporated.                                           

         15        Q.   Is there an understanding on the part of the  

         16   Regional Board that if a BMP does not prove to be 100   

         17   percent effective, then there is an iterative process   

         18   that would then apply allowing for the improvement of   

         19   that BMP without there being a violation?               

         20        A.   No.                                           

         21        Q.   So a violation occurs regardless of whether   

         22   the BMPs are then improved and revised?                 

         23        A.   Yes.                                          

         24        Q.   And you, also, mention the Condition 9 is     

         25   violated by these facts.  What is the basis for that?   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   213

          1        A.   The mobilization of sediment into the active  

          2   water source.                                           

          3        Q.   So it is just the presence of the sediment in 

          4   the water source establishes the violation, is that     

          5   what you're saying?                                     

          6        A.   (Witness nods head.)                          

          7             MS. ZAZZERON:  Is that a "yes"?               

          8             THE WITNESS:  I nodded.  I meant "yes."       

          9   BY MR. HUNGERFORD:                                      

         10        Q.   Okay.  You know that Condition 9 says:        

         11                 "That no debris soil, silt, sand" --      

         12             et cetera, et cetera -- "other than           

         13             authorized by this permit shall be allowed    

         14             to enter into waters of the State."           

         15             Right?                                        

         16        A.   Right.                                        

         17        Q.   To your knowledge, are there any discharges   

         18   that are allowed by this permit?                        

         19        A.   Yes.                                          

         20        Q.   What are those?                               

         21        A.   I believe that discharge of cleaning wastes   

         22   from concrete cleaning tools and equipment discharges   

         23   to a fully contained area would be permitted.           

         24        Q.   But that wouldn't be waters of the State,     

         25   right?                                                  

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   214

          1        A.   Right.  Was your question, specifically, to   

          2   waters of the State?                                    

          3        Q.   Exactly.  My question is, this Condition 9,   

          4   it says, essentially:                                   

          5                 "No material including silt, sediment,    

          6             rubbish, cement" -- et cetera -- "other       

          7             than authorized by this permit shall be       

          8             allowed to be entered into waters of the      

          9             State."                                       

         10             So my question is, what if any materials are  

         11   allowed into the waters of the State under this         

         12   permit?                                                 

         13        A.   I believe that the modification of            

         14   Condition 13 to allow for the operation of vehicles in  

         15   waters of the State is an effective allowance for that  

         16   practice.  Other than control and limited operation of  

         17   vehicles in waters of the State, which isn't a          

         18   discharge but it is an operation of -- other than that, 

         19   no, I do not know of any.                               

         20        Q.   Being generally familiar with this project    

         21   doesn't that put Caltrans and the contractors in a      

         22   difficult situation given that we are talking about the 

         23   construction of a bridge that inevitably is going to    

         24   involve numerous small discharges given that you're     

         25   working with an active river?                           

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   215

          1             MS. MACEDO:  Objection, vague.                

          2             THE WITNESS:  I believe it is in a difficult  

          3   position to be in, and I would disagree that discharges 

          4   are necessarily inevitable based on the requirements of 

          5   this permit.  And if they were, then perhaps Caltrans   

          6   and the contractor should have requested modifications  

          7   to the permit prior to starting the project.            

          8   BY MR. HUNGERFORD:                                      

          9        Q.    If you go to the September 7th, 2006         

         10   violation under Appendix A-D, what is this violation    

         11   based on in terms of records, documents, and            

         12   photographs?                                            

         13        A.   The only source of evidence that I'm aware is 

         14   an Engineering Diary.                                   

         15        Q.   And do you have that handy?                   

         16             MS. ZAZZERON:  Which one are we on?           

         17             THE WITNESS:  September 7th.                  

         18             MR. HUNGERFORD:  September 7th.  We might     

         19   need to go back to September 1st, but we will do this   

         20   first.                                                  

         21             MS. ZAZZERON:  A-D?                           

         22             MR. HUNGERFORD:  Yes.                         

         23             THE WITNESS:  Yes, I believe I have the       

         24   correct Engineering Diary.                              

         25   /////                                                   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   216

          1   BY MR. HUNGERFORD:                                      

          2        Q.   All right.  Would you just take a moment to   

          3   read that.  And I take it this is a quoted passage that 

          4   is in the violation?                                    

          5        A.   I believe so, yes.                            

          6                 (Witness examines document.)              

          7             THE WITNESS:  Okay.                           

          8   BY MR. HUNGERFORD:                                      

          9        Q.   The quoted section refers to a quoted         

         10   conversation between Gene Leo and Walt Dragaloski,      

         11   correct?                                                

         12        A.   Yes.                                          

         13        Q.   And that seems to be recorded by Rich         

         14   Thompson in his daily report, right?                    

         15        A.   Yes.                                          

         16        Q.   And the date of the report is September --    

         17   I'm sorry, the date of the report is -- what is the     

         18   date of this report?                                    

         19        A.   September 7th, 2006.                          

         20        Q.   September 7th, 2006, yes, you're right.       

         21             Is there anything in this quoted section that 

         22   indicates that the conditions being discussed in this   

         23   conversation, actually, took place on September 7,      

         24   2006?                                                   

         25        A.   Other than it is all contained on the daily   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   217

          1   report under the heading "September 7th, 2006."         

          2        Q.   Is it possible that this conversation that is 

          3   recorded in this report could have referred to events   

          4   on a different date?                                    

          5        A.   It could have.                                

          6        Q.   Let me go back to -- I did skip one -- the    

          7   prior violation for September 1st, 2006.  Are you with  

          8   me?                                                     

          9        A.   Yes.                                          

         10        Q.   And this is:                                  

         11                 "Temporary plume of fine sediments        

         12             from cement seeping out bottom when seal      

         13             cement poured."                               

         14             Correct?                                      

         15        A.   This is September 1st?                        

         16        Q.   Yes, September 1st, 2006.                     

         17        A.   Yes.                                          

         18        Q.   What is this violation based on in terms of   

         19   facts, photographs and evidence?                        

         20        A.   It is based on Biological Monitoring Report   

         21   and a photo.                                            

         22        Q.   Okay.  And what does the photograph show?     

         23        A.   The photo shows turbidity in the river        

         24   surrounding cofferdam.                                  

         25        Q.   Do you have any sense for what that material  

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   218

          1   might be that is forming turbidity?                     

          2        A.   The quote to some degree implies that it      

          3   would be cementitious, that it occurred when the seal   

          4   cement was poured.                                      

          5        Q.   Is there anything about the photograph that,  

          6   to you, provides evidence that this, in fact, was       

          7   cementitious?                                           

          8        A.   Not specifically.                             

          9        Q.   Does it appear from the photograph that this  

         10   could have simply been turbidity in the form of silt or 

         11   natural sediments displaced as part of the construction 

         12   process?                                                

         13        A.   It could be.                                  

         14        Q.   Just to be clear, is this the quote that has  

         15   been included in the September 1st violation, and what  

         16   is its source?                                          

         17        A.   The Biological Monitoring Report.             

         18        Q.   Do you have a copy of that report, and can    

         19   you point me to that passage?                           

         20        A.   I would have to look in my documents behind   

         21   me.                                                     

         22        Q.   I'll just show it.                            

         23             I have a copy of the Biological Monitoring    

         24   Report, I believe, that you're referring to, but the    

         25   wording is a little different than your quote, which is 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   219

          1   why I ask the question.  So if you could just tell me   

          2   that that is the Biological Monitoring Report that      

          3   you're referring to, then I'm content.                  

          4        A.   I don't believe that it is, necessarily,      

          5   referring to that specific report, although, that       

          6   report might also be referring to the same event.       

          7   There are multiple reports.                             

          8        Q.   Okay.  Well, I just want to ask this          

          9   question.  Your Complaint has a quote.  The quote says: 

         10                 "Temporary plume of fine sediments        

         11             from cement seeping out bottom when seal      

         12             cement poured."                               

         13             I want to know, what is the source of that    

         14   quote?  And if it is this document, then can you        

         15   confirm for me that the quote is a little bit different 

         16   than what the document says?                            

         17        A.   In order to determine that I would have to    

         18   take the CD of Biological Monitoring Reports received   

         19   on November 20, 2006, open it up on my computer and     

         20   check the document.                                     

         21        Q.   Okay.  If you would turn to, next, the second 

         22   September 2006 violation, please -- I'm sorry,          

         23   September 7th.                                          

         24        A.   Did we ever go over the first September 7th?  

         25        Q.   Yes, we did.  And we are going to go in order 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   220

          1   now, I promise.                                         

          2        A.   So we are on the second one?                  

          3        Q.   We are on the second one, September 7th,      

          4   2006.  It begins with the quote, it says:  "Late this   

          5   afternoon."  Do you see that?                           

          6        A.   Yes.                                          

          7        Q.   This is the same quote that was referred to   

          8   for the first September 7th violation in this           

          9   appendices, right?                                      

         10        A.   It is partly the same quote.                  

         11        Q.   What is different from this first September   

         12   7th violation to the second September 7th violation?    

         13        A.   The first one refers to dewatering into a     

         14   settlement basin and, after about eight hours of        

         15   pumping, some turbidity was noticed emanating from the  

         16   gravel bar.                                             

         17        Q.   Okay.                                         

         18        A.   The second one refers to small discharge      

         19   noticed during the seal course placement at trestle     

         20   bent 3 foundation.                                      

         21        Q.   So we are talking about the same conversation 

         22   recorded, two different site conditions?                

         23        A.   Correct.                                      

         24        Q.   Right.  For the first September 7th violation 

         25   that we talked about a moment ago, you mentioned that   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   221

          1   it was possible that the conversation that was being    

          2   recorded in this report might have referred to events   

          3   of a different day.  Do you remember that?              

          4        A.   It is possible to the degree that these daily 

          5   reports refer to other days.  I'm unfamiliar with the   

          6   extent that that happens.                               

          7        Q.   And that's exactly my point, that it is       

          8   possible that these daily reports could be referring to 

          9   events that took place on other days, right?            

         10        A.   It could.                                     

         11        Q.   Is it equally possible that, in this          

         12   particular violation, that the quoted section that you  

         13   have included in the Complaint, actually, refers to     

         14   events on a date different than September 7th, 2006?    

         15        A.   It is possible.                               

         16        Q.   Okay.  Let's turn to the September 9th, 2006. 

         17   And we have here -- what is the basis for this          

         18   violation?                                              

         19        A.   The basis is a quote from a quote contained   

         20   in the Response to the Notice of Violation from         

         21   Caltrans.                                               

         22        Q.   So I'll go through the information that I     

         23   have as far as violation.                               

         24             First, I have a copy of a daily report from   

         25   Rich Thompson dated September 11th, 2006, which appears 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   222

          1   to have the quoted section you have included in the     

          2   Complaint.  Do you have a copy of that document?        

          3        A.   September 11th, you say?                      

          4        Q.   Yes.                                          

          5        A.   Rich Thompson?  I believe I do.               

          6        Q.   Why don't you take a look at that.  Why don't 

          7   you read through that document very quick.              

          8        A.   Yes.  It appears that my last statement that  

          9   it was from the binders -- Response to Notice of        

         10   Violation is incorrect.  I noticed that the reference   

         11   in the Appendix, actually, refers to Engineering        

         12   Diaries, so --                                          

         13        Q.   Okay.  Now, the date of this report is        

         14   September 11th, correct?                                

         15        A.   Correct.                                      

         16        Q.   But the violation is dated September 9th;     

         17   isn't that right?                                       

         18        A.   Correct.                                      

         19        Q.   Where in the report does it refer to these    

         20   events being described as occurring on September 9th?   

         21        A.   I don't believe it does.                      

         22        Q.   Does that indicate to you that we have the    

         23   wrong date here for this particular violation?          

         24        A.   Possibly.                                     

         25        Q.   This violation appears, at least in part, to  

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   223

          1   be based on a conversation -- I'm sorry, a report by    

          2   Rich Thompson describing statements by a man named Ron  

          3   den Heyer, correct?                                     

          4        A.   Yes.                                          

          5        Q.   And what is the basis for this violation of   

          6   Condition 9?                                            

          7        A.   The existence of turbidity from drilling      

          8   debris in the water around trestle foundation.          

          9        Q.   And do we have photographs of that?           

         10        A.   Yes.                                          

         11        Q.   Okay.  And I have two photographs, 060909-01, 

         12   and -02.  Are those the two photographs that you have   

         13   presented in support of this violation?                 

         14        A.   Yes.                                          

         15        Q.   Are you aware of any other photographs,       

         16   reports or documents that, specifically, support this   

         17   violation on this date?                                 

         18        A.   No.                                           

         19        Q.   Okay.  These photographs, at least my copies, 

         20   don't actually have an index on the photograph with     

         21   dates.  Are they on yours?                              

         22        A.   Yes.                                          

         23        Q.   Okay.  And the date stamps --                 

         24        A.   September 9th.                                

         25        Q.   -- shows September 9th?                       

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   224

          1        A.   Yes.                                          

          2        Q.   Given that the report that we just looked     

          3   from the assistant structural representative is on      

          4   September 11th, does it appear possible to you that the 

          5   photographs relate to different events than were        

          6   recorded in the conversation?                           

          7        A.   Yes.                                          

          8        Q.   What do the photographs show you?             

          9        A.   A turbidity plume in the river.               

         10        Q.   And based upon your prior testimony it is the 

         11   existence of the plume that establishes the violation,  

         12   correct?                                                

         13        A.   Well, the existence of substance, turbidity,  

         14   and other pollutants that would cause the plume.        

         15        Q.   Do you have any information as to what is the 

         16   composition, chemically at least, of this particular    

         17   plume?                                                  

         18        A.   No, not exactly.                              

         19        Q.   Is this violation based on the presence of a  

         20   cementitious plume, or just the fact that there's a     

         21   plume there?                                            

         22        A.   I believe it is based on the presence of a    

         23   cementitious plume.  Let me check, though.              

         24             No.  That would be just a plume, not a        

         25   cementitious plume.                                     

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   225

          1        Q.   Now, the conversation that is included in     

          2   this September 11th report, that refers to turbidity    

          3   from drilling debris, right?                            

          4        A.   Correct.                                      

          5        Q.   Okay.  And the photographs that you have      

          6   included don't relate to drilling debris, do they?      

          7        A.   I don't know.  They could.                    

          8        Q.   Let's turn to the September 22nd, 2006.  All  

          9   right.  This is based on a heavy vehicle crossing that  

         10   created a 400-foot plume; is that right?                

         11        A.   Yes.                                          

         12        Q.   Okay.  And what documents -- well, let's      

         13   start it this way.                                      

         14             The documents that I have in support of this  

         15   violation, the first is what appears to be a portion of 

         16   a water quality monitoring report by URS.  Do you have  

         17   that in your records?                                   

         18        A.   I believe it is in the records.               

         19        Q.   Well, let me ask you this.  What is the       

         20   source of this quote?  Do you have that document?       

         21        A.   That is the final Biological Monitoring       

         22   Report and the -- yeah, which I believe refers to the   

         23   same URS document that you were referring to.           

         24        Q.   Okay.  Do you have a copy of that?            

         25        A.   In our records.                               

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   226

          1        Q.   Is it handy to you in any way?                

          2        A.   I'm not exactly sure where that is.  Let      

          3   me --                                                   

          4                   (Pause in proceedings.)                 

          5             THE WITNESS:  I couldn't readily find that    

          6   document, but I did find a Biological Monitoring Report 

          7   that refers to that event.                              

          8             MR. HUNGERFORD:  Okay.  Let me see a copy of  

          9   that.                                                   

         10             THE WITNESS:  But it is not the same document 

         11   that you're referring to.                               

         12   BY MR. HUNGERFORD:                                      

         13        Q.   Is that a document that you have relied upon  

         14   to support this violation?                              

         15             MS. ZAZZERON:  Excuse me.  We should identify 

         16   the document for the record.                            

         17             MR. HUNGERFORD:  Sure.                        

         18             THE WITNESS:  The document that we are        

         19   talking about is the Response to the Notice of          

         20   Violation from Caltrans received by the Water Board in  

         21   December 14th of 2006.                                  

         22             MS. ZAZZERON:  Okay.                          

         23             THE WITNESS:  There are photos referenced in  

         24   this document that are the same photos referenced in    

         25   the Complaint.                                          

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   227

          1             In terms of the quote, I don't believe that   

          2   the quote is referred to in here.  I think it is from   

          3   the document that you're referring to.                  

          4             MR. HUNGERFORD:  Okay.  Well, I'll provide    

          5   you with an excerpt.                                    

          6   BY MR. HUNGERFORD:                                      

          7        Q.   Let me ask you, first of all, the document    

          8   that you just referred to that has the photographs, is  

          9   there anything in the text that you're aware of that    

         10   supports this violation?                                

         11        A.   Yes.                                          

         12        Q.   Why don't we attach -- we will mark this      

         13   particular portion of the report.                       

         14        A.   Okay.  It is 6.1.                             

         15        Q.   We are going to mark it.  We are going to     

         16   have the court reporter mark it.                        

         17        A.   Okay.                                         

         18        Q.   I'll provide you with a copy of my version of 

         19   the URS Report, which I believe provides the quoted     

         20   material that is in the Complaint.  If you would take a 

         21   look at that, please.                                   

         22        A.   Okay.                                         

         23                 (Witness examines document.)              

         24   BY MR. HUNGERFORD:                                      

         25        Q.   Have you had a chance to look at that?        

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   228

          1        A.   Yes.  But I haven't been able to find the     

          2   rest of the quote.  Oh, there we go.                    

          3             Anyway, I can't find all of the quote.  I     

          4   don't know that that really matters.                    

          5        Q.   The quote appears to come from that document, 

          6   correct?                                                

          7        A.   Right.                                        

          8        Q.   And it is a URS document, right?              

          9        A.   Yes.                                          

         10        Q.   Do you know what the purpose was of this      

         11   document?                                               

         12        A.   Not exactly.                                  

         13        Q.   Do you know what URS's involvement was with   

         14   this project?                                           

         15        A.   No.                                           

         16        Q.   And there's also a number of photographs that 

         17   you have included as part of this violation, right?     

         18        A.   Yes.                                          

         19        Q.   And do you have those handy, generally?       

         20        A.   Yes.                                          

         21        Q.   I have reviewed them without going to each    

         22   one in particular.                                      

         23             They all appear to me to be a photograph of a 

         24   piece of heavy equipment passing across the river and   

         25   the resulting sediment plume.  Would you agree with     

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   229

          1   that?                                                   

          2        A.   Yes.  Multiple pieces of equipment.           

          3        Q.   So the photographs, to you, show more than    

          4   one crossing over the -- I'm sorry, you're right.       

          5             Other than the photographs and the URS Report 

          6   that we just reviewed, are there any other reports,     

          7   documents, or other evidence that you're aware of that, 

          8   specifically, supports this violation on this date?     

          9        A.   Other than the URS Report, the photos, and    

         10   the Biological Monitoring Report?                       

         11        Q.   And the Biological Monitoring Report?         

         12        A.   No.                                           

         13        Q.   What is the basis for this violation of this  

         14   condition?                                              

         15        A.   The transport of sediment to the river        

         16   because cleaning the equipment was not done prior to    

         17   crossing, as evidenced by the photographs.              

         18        Q.   Where is the requirement that equipment must  

         19   be cleaned of sediment prior to crossing?               

         20        A.   That is additional Condition No. 9, which     

         21   requires that no sediment or silt shall be placed in    

         22   waters of the State; and, by not cleaning the equipment 

         23   prior to crossing, sediment was transported to the      

         24   river.                                                  

         25        Q.   Okay.  Doesn't the Certification, also,       

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   230

          1   acknowledge in Condition 19 that turbidity potentially  

          2   will be created by crossings?                           

          3        A.   No, I don't believe so.                       

          4        Q.   Have you read the application for this        

          5   project?                                                

          6        A.   Yes, at one point.                            

          7        Q.   Do you recall that Caltrans specified in the  

          8   application that a number of crossings would occur?     

          9        A.   Yes.                                          

         10        Q.   Okay.  And these crossings, inevitably, will  

         11   produce some turbidity, would you agree with that?      

         12        A.   It all depends on how they are performed.     

         13   If -- I would say that, yes, when crossing through the  

         14   channel like this, that it is likely to produce some    

         15   amount of turbidity.                                    

         16        Q.   I'll ask more directly.  Do you think it is   

         17   at all possible to drive a heavy piece of equipment     

         18   across the river without creating turbidity in this     

         19   river?                                                  

         20        A.   Without building a bridge, no.                

         21        Q.   Is it your position that any creation of      

         22   turbidity from that crossing would then create a        

         23   violation of the Certification?                         

         24        A.   Not automatically.                            

         25        Q.   What is it about this crossing on this date   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   231

          1   that establishes a violation then?                      

          2        A.   The transportation of sediment into the       

          3   system.  If it has stirred up sediments that were       

          4   existing there on the bottom of the riverbed, then      

          5   there wouldn't have been a mobilization of sediment     

          6   into the system from an outside source.                 

          7             And I believe I would have to cross-reference 

          8   with one of the other appendices, but there's also the  

          9   potential to collect insufficient turbidity             

         10   measurements.  And I presume, in this instance, that is 

         11   also one of the violations.                             

         12        Q.   Do you know what the source was of the        

         13   sediment that was introduced into the system?           

         14        A.   Tracked by the equipment from an upland area. 

         15        Q.   Does that say that in the quote?              

         16        A.   There is language in there that talks about   

         17   that.                                                   

         18             MS. ZAZZERON:  I'm sorry to have to           

         19   interrupt, but I have got to make that call.  If I'm    

         20   not back in 15 minutes, just go ahead and start.  Sorry 

         21   about that.                                             

         22             Off the record.                               

         23             MR. HUNGERFORD:  We will finish with this     

         24   one, then we will go off.                               

         25             THE WITNESS:  Okay.  You asked if there was   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   232

          1   anything in particular in the quote in the appendix to  

          2   the Complaint that explicitly talked about the source   

          3   of the sediment or -- that was transferred to the       

          4   river, right?                                           

          5             MR. HUNGERFORD:  Yes.                         

          6             THE WITNESS:  I don't believe that there is   

          7   any particular thing stating it was from an upland      

          8   area, although, the quote in the appendix states that   

          9   cleaning appeared not to have been done for the second  

         10   crossing, that there was mud still caked on after going 

         11   through the clean cobble riverbed.                      

         12             And then in this other document which we      

         13   flagged the response to the Notice of Violation in the  

         14   caption to one of the photos, which is also referenced  

         15   in the appendix, states that:                           

         16                 "The first unit to cross this week        

         17             note caked mud in tracks.  This is not        

         18             from the crossing because it is cobble and    

         19             no such mud it (sic) at the cross site."      

         20   BY MR. HUNGERFORD:                                      

         21        Q.   Okay.  So it is your position that this       

         22   violation is established because there's an             

         23   introduction of sediment into the river from somewhere  

         24   outside the river?                                      

         25        A.   (Witness nods head.)                          

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   233

          1             MS. MACEDO:  Is that a "yes"?                 

          2             THE WITNESS:  Yes.  Thank you.                

          3             MR. HUNGERFORD:  All right.  We will stop     

          4   there.                                                  

          5                          (Recess.)                        

          6             MR. HUNGERFORD:  Back on the record.          

          7             I have a couple of things I want to ask about 

          8   this vehicle crossing.  Since we were working just on   

          9   my version of the URS Report, I'll give this to you     

         10   again.                                                  

         11             The bottom of page 6-19 describes the first   

         12   wet channel crossing.  Would you take a look at that    

         13   real quick                                              

         14                 (Witness examines document.)              

         15             THE WITNESS:  Just the first crossing?        

         16             MR. HUNGERFORD:  Yes.                         

         17             THE WITNESS:  Okay.  I'm done.                

         18   BY MR. HUNGERFORD:                                      

         19        Q.   Okay.  So there were three wet channel        

         20   crossings.  The Regional Board only selected the second 

         21   one as the basis for the violation on September 22nd,   

         22   correct?                                                

         23        A.   Correct.                                      

         24        Q.   Why did the first wet channel crossing not    

         25   result in a violation?                                  

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   234

          1        A.   It was based on the apparent cleaning of the  

          2   equipment prior to crossing that would have removed any 

          3   sediment that would have been transported into the --   

          4   into the waters of the U.S.                             

          5        Q.   I'll read the passage to you:                 

          6                 "The first wet channel crossing           

          7             occurred on September 6 resulted in a         

          8             sediment plume with a maximum that            

          9             extended over 200 feet in length that         

         10             lasted 25 minutes."                           

         11             So we can tell from that that a sediment      

         12   plume, a fairly lengthy one, was created, correct?      

         13        A.   Correct.                                      

         14        Q.   Other violations that you have alleged are    

         15   based on the mere existence of sediment plumes.  Why    

         16   does this particular instance not merit a violation?    

         17        A.   I don't believe that other violations are     

         18   based on the mere existence of sediment plumes, unless  

         19   that sediment was from a source that is contributing to 

         20   the river.  Correct me if I'm wrong.                    

         21        Q.   Well, let me go back to Condition 9 of the    

         22   Certification, which says that:                         

         23                 "No debris, soil, silt" --                

         24             et cetera -- "other than authorized by        

         25             this permit, shall be allowed to enter        

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   235

          1             into, be placed or washed into the waters     

          2             of the State."                                

          3             Now, how is this particular -- well, let me   

          4   back up.                                                

          5             Would you agree that the first equipment      

          6   crossing established a discharge by creating a          

          7   sediment?                                               

          8        A.   Not necessarily.  If all the sediment was     

          9   within the system it is not a discharge into the        

         10   system, it is a discharge of in-stream sediments into   

         11   the system, if you want to call it that.                

         12        Q.   So if, hypothetically, on this project a      

         13   worker were to have, you know, stood in the river and   

         14   kicked up sediment, thereby, creating a plume, that     

         15   wouldn't establish a violation?                         

         16        A.   Well, it would trigger the need to monitor    

         17   turbidity.                                              

         18        Q.   Okay.                                         

         19        A.   Although I wouldn't consider it triggering a  

         20   violation of Condition 9.                               

         21        Q.   So just to be clear, the first equipment      

         22   crossing isn't a violation because the turbidity is     

         23   created by sediment that's within the riverbed,         

         24   correct?                                                

         25        A.   Correct.  Not that because it is sediment     

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   236

          1   from within the riverbed -- sorry, let me correct that. 

          2   Because we don't have sufficient evidence that the      

          3   sediment came from an outside source.                   

          4        Q.   So only when the sediment comes from an       

          5   outside source and creates turbidity is it then a       

          6   violation of this condition?                            

          7        A.   That was the way that I interpreted it.       

          8        Q.   So the creation of turbidity in the first     

          9   equipment crossing isn't a discharge at all?            

         10        A.   It depends on where the sediment that caused  

         11   the plume came from.  Right now we don't have enough    

         12   evidence to indicate that it -- that it was a           

         13   discharge.                                              

         14        Q.   Okay.  Well, let's be clear.                  

         15             Let's assume that the turbidity created in    

         16   the first vehicle crossing came exclusively from the    

         17   bottom of the active river.  Does the creation of       

         18   turbidity -- is that a discharge as defined by the      

         19   Certification?                                          

         20                 (Witness examines document.)              

         21             THE WITNESS:  I don't believe so.             

         22   BY MR. HUNGERFORD:                                      

         23        Q.   Okay.  How relevant is it to the first        

         24   crossing that there was some greater degree of cleaning 

         25   that may have taken place prior to the crossing?        

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   237

          1        A.   It is the crux of the issue, is it not,       

          2   that -- and I have just stated that because there was   

          3   more cleaning and that the -- there were no upland      

          4   sediments transported to the river, I didn't consider   

          5   it a violation.                                         

          6        Q.   All right.  Let me ask you something else     

          7   about the URS Report.                                   

          8             If you look at Page 6-20 of the report, it    

          9   refers to turbidity monitoring reading on a visual      

         10   scale referring to values of zero and 3.  Do you see    

         11   that?                                                   

         12        A.   Yes.                                          

         13        Q.   Would that appear to you to be field          

         14   turbidity measurements that were taken on that          

         15   occasion?                                               

         16        A.   No.                                           

         17        Q.   Because there's no NTU meter being used?      

         18        A.   Correct.  It is a subjective measurement that 

         19   has no way to be standardized.                          

         20        Q.   Well, there is clearly a scale being used,    

         21   correct?                                                

         22        A.   Yes.                                          

         23        Q.   Are you familiar with what that scale is?     

         24        A.   No, not exactly.                              

         25        Q.   One other question about this crossing, do    

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   238

          1   you have any idea where the equipment would have been   

          2   cleaned prior to sending vehicles across?               

          3        A.   No.  I would presume right before they        

          4   crossed.                                                

          5        Q.   Are you aware of any requirements or          

          6   specifications that deal with cleaning equipment?       

          7        A.   No.  There may be some BMPs about it, but I'm 

          8   no aware of it particularly.                            

          9        Q.   If the equipment would have been cleaned      

         10   outside of the 100-year floodplain in some upland area, 

         11   would that have been an acceptable location to clean    

         12   equipment?                                              

         13        A.   I don't believe so.  Granted I wouldn't be    

         14   the person to make that decision.                       

         15             I think the most relevant place to clean the  

         16   equipment -- you could do a prior cleaning anywhere,    

         17   but it is right before you cross the stream.            

         18        Q.   Well, how do you think the cleaning would     

         19   take place?                                             

         20        A.   With full containment to prevent a discharge  

         21   to the river.                                           

         22        Q.   But you're not aware of any specifications in 

         23   this Certification, correct?                            

         24        A.   No.                                           

         25        Q.   Are you aware of any BMPs in this regard that 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   239

          1   were brought to your attention by Caltrans and the      

          2   contractors?                                            

          3        A.   No.                                           

          4        Q.   Turn to the September 29th, 2006, and there   

          5   are two for September 29th, correct?                    

          6        A.   Yes.                                          

          7        Q.   And the first one starts with a quote that    

          8   says that:  "Sandbags were then placed."                

          9             Right?                                        

         10        A.   Yes.                                          

         11        Q.   The source of the quote, according to my      

         12   information, is an engineer's report dated September    

         13   29th, 2006.  Do you have a copy of that?                

         14        A.   Yes.                                          

         15        Q.   Okay.  It states that, during the placement   

         16   of concrete within a CMP, that concrete escaped from    

         17   the CMP leaving a plume, right?                         

         18        A.   Yes.                                          

         19        Q.   And then there's three photographs that you   

         20   have attached, also, in support of this violation,      

         21   right?                                                  

         22        A.   Yes.                                          

         23        Q.   Okay.  And the first, which is 060929-01,     

         24   shows a picture of the CMP and a worker standing in the 

         25   river, correct?                                         

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   240

          1        A.   Yes.                                          

          2        Q.   Also shows what appears to be a plume coming  

          3   from the base of the CMP, right?                        

          4        A.   Yes.                                          

          5        Q.   The other two photographs also show what      

          6   appears to be a plume in the river, right?              

          7        A.   Yes.                                          

          8        Q.   Do you have any information to support the    

          9   statements made in the report that this is, in fact,    

         10   cement or cementitious material escaping from the CMP?  

         11        A.   Other than the photos showing pouring of      

         12   cement into the CMP and subsequent plume coming around  

         13   from what appears to be the base of the CMP and the --  

         14   and the quote which is from an Engineering Diary, would 

         15   be the professional opinion of an engineer hired by     

         16   Caltrans.                                               

         17        Q.   Well, we don't know this is a professional    

         18   opinion of an engineer, it is simply a law, right?      

         19        A.   I would presume that the laws would be their  

         20   professional opinions.                                  

         21        Q.   I wouldn't make that assumption.              

         22             Is there anything about the photographs that  

         23   indicate that this is cement as opposed to just         

         24   sediment stirred up in the bottom of the river?         

         25        A.   Other than the photo and the quote, no.       

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   241

          1        Q.   Are you aware of any testing or sampling or   

          2   any other information that would establish that this is 

          3   cementitious material and not sediment?                 

          4        A.   No.                                           

          5        Q.   Let's turn to the next one, September 29th.   

          6   And this -- well, it is the second one of September     

          7   29th, and this is a quote that is contained in the same 

          8   engineer's report, correct?                             

          9        A.   Yes.                                          

         10        Q.   And we also have a couple of -- three         

         11   photographs, right?                                     

         12        A.   Yes.                                          

         13        Q.   And 060929-04, -05 and -06, right?            

         14        A.   Yes.                                          

         15        Q.   Other than this engineer's report and the     

         16   photographs, are you aware of any other information,    

         17   documents or evidence that specifically supports this   

         18   violation on this date?                                 

         19        A.   No.                                           

         20        Q.   And the engineer's report indicates that the  

         21   contractor's tremie came off and while trying to        

         22   reattach the tremie the contractor worked around the    

         23   CMP standing on sandbags, right?                        

         24        A.   Yes.                                          

         25        Q.   Is there any photograph in the series that    

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   242

          1   you have included that, specifically, shows that event? 

          2        A.   No.                                           

          3        Q.   What about these photographs support this     

          4   violation?                                              

          5        A.   The plumes.                                   

          6        Q.   Well, I will look at the first one.           

          7             The photograph designated -04 shows what      

          8   appears to be some plume, but doesn't show where that   

          9   plume is coming from, correct?                          

         10        A.   Correct.                                      

         11        Q.   This photograph identified as -05, also,      

         12   appears to show a plume but not where it is coming      

         13   from, correct?                                          

         14        A.   Correct.                                      

         15        Q.   And the photograph of -06 may show a plume,   

         16   but, again, doesn't indicate where it is coming from,   

         17   right?                                                  

         18        A.   Correct.                                      

         19        Q.   And there's the statement in the engineer's   

         20   report.  It indicates some uncertainty as to whether    

         21   the plume was created by concrete or algae, correct?    

         22        A.   The quantity of how much was algae or         

         23   concrete was hard to determine.                         

         24        Q.   So it is fair to state that it was unclear to 

         25   the person making the observations, you know, whether   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   243

          1   it was concrete or algae?                               

          2             MS. MACEDO:  Objection.  Misstates his        

          3   testimony, and the document speaks for itself.          

          4             THE WITNESS:  Agree, the document speaks for  

          5   itself.  The unsure about how much was concrete or      

          6   algae.                                                  

          7   BY MR. HUNGERFORD:                                      

          8        Q.   Well, at the very least the quoted statement  

          9   reflects some difficulty distinguishing between         

         10   concrete and algae; would you agree?                    

         11             MS. MACEDO:  Asked and answered.              

         12             THE WITNESS:  I don't know if I could come to 

         13   that conclusion.                                        

         14             MR. HUNGERFORD:  Okay.                        

         15             THE WITNESS:  I don't think so.  I think that 

         16   you could distinguish between concrete and algae and    

         17   still be uncertain as to the quantity of each in terms  

         18   of a percentage of discharge.                           

         19   BY MR. HUNGERFORD:                                      

         20        Q.   Well, putting aside the percentage of         

         21   discharge, would you agree that this statement          

         22   indicates that the observer could not easily            

         23   distinguish between a possible concrete discharge and   

         24   possible algae?                                         

         25             MS. MACEDO:  Objection.  Calls for            

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   244

          1   speculation.  Argumentative.                            

          2             THE WITNESS:  No, I would disagree.  I think  

          3   that it --                                              

          4             MS. MACEDO:  No.  You answered it.  Please    

          5   stop.                                                   

          6   BY MR. HUNGERFORD:                                      

          7        Q.   The statement, "was hard to determine," what  

          8   is your understanding of what was hard to determine     

          9   from this quote?                                        

         10        A.   How much was concrete or how much was algae.  

         11        Q.   Okay.  What is the basis for the violation of 

         12   Condition 9 in this violation?                          

         13        A.   The discharge of concrete and/or sediment     

         14   into the river.                                         

         15        Q.   Well, I don't see -- what, in the photographs 

         16   or the engineer's report, references discharges of      

         17   sediment?                                               

         18        A.   The contractor worked around the CMP standing 

         19   on the sandbags.  It is possible that there was fine    

         20   sediment contained in the sandbags.                     

         21        Q.   Is it equally possible that standing on a     

         22   sandbag could have disturbed the riverbed, thereby,     

         23   creating a plume?                                       

         24        A.   Yes.  But I find it very unlikely and nearly  

         25   impossible that standing on sandbags could possibly     

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   245

          1   cause a turbidity plume of that magnitude.              

          2        Q.   How big was the turbidity plume?  You're just 

          3   basing that on the photographs?                         

          4        A.   Yes.                                          

          5        Q.   How much, if any, concrete was discharged     

          6   giving rise to this violation?                          

          7        A.   It is hard to determine.                      

          8        Q.   Certainly, it was difficult to determine for  

          9   the person making the statement, correct?               

         10        A.   Correct.                                      

         11        Q.   It is certainly possible from this statement  

         12   that none of it was concrete and all of it was algae;   

         13   is that true?                                           

         14        A.   It is hypothetically possible, highly         

         15   unlikely.  Based on the way he phrased his statement as 

         16   well as the visual observations of the photographs, it  

         17   does not appear to be algae.  Algae does not look gray. 

         18        Q.   But as you know it also could be sediment     

         19   rather than concrete, right?                            

         20        A.   Portions of it could also be sediment.        

         21        Q.   It's fair to state, from the photographs, we  

         22   don't really know what exactly the material is that we  

         23   are seeing in the plume, correct?                       

         24             MS. MACEDO:  Objection.  The photographs      

         25   speak for themselves.                                   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   246

          1             THE WITNESS:  I still have to answer this; is 

          2   that correct?                                           

          3             MS. MACEDO:  Yes.                             

          4             THE WITNESS:  From the photographs alone you  

          5   cannot determine exactly what the pollutant is.         

          6   Together with the quote it indicates that a portion of  

          7   it is concrete.                                         

          8   BY MR. HUNGERFORD:                                      

          9        Q.   If you turn to the October 7th, 2006 event,   

         10   and, again, there are two of them, so we will look at   

         11   the first one.                                          

         12        A.   There are three of them.                      

         13        Q.   You're right, there are three of them.        

         14             Okay.  So the first one appears to be based   

         15   on two photographs and a report by the resident         

         16   engineer -- the assistant resident engineer, correct?   

         17        A.   Yes.                                          

         18        Q.   And the- - assistant resident engineer's      

         19   report is dated October 7th, 2006 and contains a quote  

         20   referring to the number of passes made by a contractor  

         21   that escaped through a silt fence; is that right?       

         22        A.   Yes.                                          

         23        Q.   And we also have two photographs denominated  

         24   061007-01 and -02, correct?                             

         25        A.   Yes.                                          

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   247

          1        Q.   Other than this engineer's report and the     

          2   photographs, is there any other evidence, document or   

          3   report that you're aware of that, specifically, address 

          4   this violation on this day?                             

          5        A.   Yes.  A letter that we received from Caltrans 

          6   on March 12, 2007.                                      

          7        Q.   Do you have a copy of that?                   

          8        A.   In our file.                                  

          9        Q.   I would like to see that.  Is it handy?       

         10        A.   Yes.                                          

         11                   (Pause in Proceedings.)                 

         12             THE WITNESS:  Okay.  Do you want me to pull   

         13   it out?                                                 

         14             MR. HUNGERFORD:  If you could just show me    

         15   what it is, the letter.                                 

         16             THE WITNESS:  There.                          

         17             MR. HUNGERFORD:  Could I see it, please?      

         18   BY MR. HUNGERFORD:                                      

         19        Q.   Okay.  What you have handed me is a March 5,  

         20   2007 letter from California Department of               

         21   Transportation addressed to David Leland at the         

         22   Regional Board, correct?                                

         23        A.   Correct.                                      

         24        Q.   Can you point to me the section that deals    

         25   with this particular violation?                         

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   248

          1        A.   It's in the discussion of Additional          

          2   Condition No. 7 on the second page.                     

          3        Q.   Okay.  I'll mark this letter as the next      

          4   exhibit.                                                

          5             Describe for me what the basis is for this    

          6   violation?                                              

          7        A.   Violation 9 or 17?                            

          8        Q.   Well, it is the same factual scenario.  It    

          9   supports both, correct?                                 

         10        A.   Correct.                                      

         11        Q.   Why don't you just give me the factual        

         12   scenario as you understand it?                          

         13        A.   Okay.  The contractor -- let me get my        

         14   photo.  The contractor was operating a heavy piece of   

         15   equipment, an excavator, and was doing some digging,    

         16   and it appears to be in the river channel itself.  And  

         17   there is a wooden crossing spanning the active channel, 

         18   and there's a silt fence in the river, presumably,      

         19   intended to hold back the sediment stirred up through   

         20   the excavation.                                         

         21        Q.   Okay.  How is this a violation of Condition   

         22   No. 9?                                                  

         23        A.   Through the excavation of the river channel,  

         24   the mobilization of sediments into the river occurred.  

         25        Q.   Is there any indication that the mobilization 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   249

          1   of sediments was from other than sediments within the   

          2   river itself?                                           

          3        A.   No.                                           

          4        Q.   Now, you testified earlier that sediments in  

          5   the river that are disturbed and then create plumes of  

          6   turbidity aren't necessarily violations of Condition 9; 

          7   isn't that right?                                       

          8        A.   Correct.                                      

          9        Q.   So what is it about this discharge of         

         10   in-river sediment that establishes a violation of       

         11   Condition 9?                                            

         12        A.   This could be a potential inconsistency, and  

         13   this could be a violation that we would be willing to   

         14   reconsider moving forward with if we reevaluate and     

         15   look at the evidence and determine that that would be   

         16   consistent with our interpretation of Condition 9       

         17   throughout the Complaint.                               

         18        Q.   I'm having a difficult time understanding     

         19   your response.  I'll break this up into two parts.      

         20             First of all, is there anything about this    

         21   mobilization of in-stream sediments that violates       

         22   Condition 9?                                            

         23        A.    If, indeed, it is only in-stream sediments,  

         24   then perhaps it is not a violation of Condition 9 and   

         25   perhaps we would reconsider moving forward with it as a 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   250

          1   violation.                                              

          2        Q.   Is that a revisitation that the Regional      

          3   Board intends to make?                                  

          4        A.   I will discuss that with our management.      

          5        Q.   Okay.  Moving to condition 17, what is it     

          6   about, you know, this factual scenario that violates    

          7   that condition?                                         

          8        A.   The admission by Caltrans is that it was not  

          9   a proper BMP makes it pretty cut and dry that           

         10   insufficient or inadequate BMPs were in place.          

         11        Q.   So Caltrans statement here that this wasn't   

         12   the BMP that they felt was appropriate establishes the  

         13   violation of Condition 17, is that what you're telling  

         14   me?                                                     

         15        A.   Yes.                                          

         16        Q.   Apart from Caltrans and possible              

         17   acknowledgements of whether or not this was an          

         18   appropriate or inappropriate BMP, is there anything     

         19   that the Regional Board noted about the use of this BMP 

         20   that the Regional Board felt independently it was       

         21   inappropriate?                                          

         22        A.   I believe that -- it is my understanding that 

         23   silt fences are not designed to be used in -- submerged 

         24   in water as such and an inadequate BMP for the          

         25   containment of sediment.                                

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   251

          1        Q.   And to the best of your knowledge, is that    

          2   the basis for -- strike that.                           

          3             What would be an appropriate BMP for          

          4   in-stream sediment control?                             

          5        A.   I don't know.                                 

          6        Q.   Okay.  Turn to the next October 7th           

          7   violation.  And this one is based on a quote from       

          8   Engineering Diary dated October 7th, 2006 by Mitch      

          9   Shands, correct?                                        

         10        A.   Well, let me find the document.               

         11        Q.   Sure.                                         

         12        A.   Okay.                                         

         13        Q.   So we have an Engineering Diary.  Are there   

         14   any other photographs, reports, evidence that you're    

         15   aware of that, specifically, supports this violation on 

         16   this date?                                              

         17        A.   No.                                           

         18        Q.   Okay.  Now, my reading of the report is that  

         19   there are a number of passes with the excavator within  

         20   the active riverbed, correct?                           

         21        A.   Correct.                                      

         22        Q.   And that, you know, as with the last          

         23   violation on the same day, that there was silt that was 

         24   created as a result of those activities and was         

         25   escaping through silt fence, right?                     

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   252

          1        A.   Yes.                                          

          2        Q.   What is the difference between this violation 

          3   and the last one?                                       

          4        A.   Timing.                                       

          5        Q.   So that there were three passes made and this 

          6   is the second pass?                                     

          7        A.   No, I don't believe so.  There are three      

          8   events.  I believe the first event included three       

          9   passes.                                                 

         10        Q.   Okay.  Let me ask you this.  How does this    

         11   event violate Condition 9?                              

         12        A.   My statement would be similar to the previous 

         13   one.                                                    

         14        Q.   Okay.  And, again, to the effect that if this 

         15   is in-river sediment that is being undisturbed, that    

         16   that wouldn't be a condition of Violation 9, correct?   

         17        A.   That we will reevaluate whether that is or    

         18   not.  It is my impression that it would not be.         

         19        Q.   So with respect to Condition 17, what is the  

         20   basis for that violation?                               

         21        A.   The same as the previous.                     

         22        Q.   The fact that an inappropriate BMP was used   

         23   in the form of a silt fence?                            

         24        A.   Correct.                                      

         25        Q.   Let's go to the next violation on the same    

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   253

          1   date of October 7th.  In here we have again as          

          2   evidence, as I understand it, the same engineer's       

          3   report, correct?                                        

          4        A.   Correct.                                      

          5        Q.   And apart from this engineer's report are     

          6   there any other reports, photographs or evidence that   

          7   you are aware of that support this violation?           

          8        A.   No.                                           

          9        Q.   And the quote says that -- it begins with     

         10   "Mr. Ham," and to paraphrase, it says he was going to   

         11   go back down and complete excavation work.              

         12             What is the basis for the violations of       

         13   Conditions 9 and 17?                                    

         14        A.   The same as the previous two.                 

         15        Q.   The thing that struck me about this was it -- 

         16   well, strike that because I don't want to make a        

         17   statement, I'll ask a question.                         

         18             Is there anything about this statement, or in 

         19   other evidence that you might have, that indicates that 

         20   Mr. Ham, actually, went down and did additional work at 

         21   the site?                                               

         22        A.   No.                                           

         23        Q.   And if he didn't, in fact, go down and        

         24   perform that work, then there would be no violations    

         25   for this particular event?                              

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   254

          1        A.   Correct.                                      

          2        Q.   And as I understand it, the basis for the     

          3   violations that are alleged, you know, requires the     

          4   assumption that he, actually, did go down and perform   

          5   work in substantially the same manner as the prior two  

          6   violations?                                             

          7        A.   Correct.                                      

          8        Q.   Move on to the next violation dated           

          9   October 16th, 2006.  And I have as evidence an          

         10   assistant resident engineer's daily log dated that      

         11   date, October 16th.  Do you have that, as well?         

         12        A.   Yes.                                          

         13        Q.   I don't have any photographs or any other     

         14   evidence that I'm aware of.  Is there any other         

         15   evidence in the form of reports, photographs, or other  

         16   documents that you're aware of that supports this       

         17   particular violation?                                   

         18        A.   No.                                           

         19        Q.   And you have Condition 9 as being violated.   

         20   What is the basis of that violation?                    

         21        A.   The discharge of concrete waste into the      

         22   river.                                                  

         23        Q.   The basis for your statement that it is a     

         24   discharge is, I take it, exclusively this statement in  

         25   the resident engineer's daily log?                      

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   255

          1        A.   Yes.                                          

          2        Q.   Are you aware of any other -- any testing or  

          3   other observations that support this was concrete as    

          4   opposed to sediment or some other type of material?     

          5        A.   We have no evidence that, as far as I'm aware 

          6   of, that the contractor or Caltrans ever tested for pH  

          7   levels if there was a concrete waste discharge for the  

          8   river.                                                  

          9        Q.   Do you know where this leak occurred?         

         10        A.   Not exactly.                                  

         11        Q.   Do you know if it came out the top of the     

         12   CMP, or the bottom of the CMP, or anywhere else?        

         13        A.   No.                                           

         14        Q.   Do you even know whether this came out of a   

         15   CMP?                                                    

         16        A.   No.                                           

         17        Q.   Okay.  If you could turn to the January 5th,  

         18   2007 date.                                              

         19        A.   Did you intentionally skip --                 

         20        Q.   Did I skip one?  Oh, yes, I did.  I'm sorry.  

         21   I did not intentionally skip one.                       

         22             So October 20th, 2006, and the allegation is  

         23   a cement discharge to the river, correct?               

         24        A.   Yes.                                          

         25        Q.   Okay.  And I have, as evidence, two           

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   256

          1   documents.  One is an excerpt from what appears to be a 

          2   Biological Monitoring Report and the other is a         

          3   photograph designated 061020-02.  Do you have those, as 

          4   well?                                                   

          5        A.   Yes.                                          

          6        Q.   Are you aware of any other documents,         

          7   photographs, or evidence supporting this particular     

          8   violation?                                              

          9        A.   No.                                           

         10        Q.   And this is a violation of Condition 9,       

         11   correct?                                                

         12        A.   Correct.                                      

         13        Q.   What is the basis for the violation?          

         14        A.   The discharge of cementitious waste to the    

         15   river from the concrete seal course pour.               

         16        Q.   Do you have a copy of the Biological          

         17   Monitoring Report in front of you?                      

         18        A.   Yes.                                          

         19        Q.   I'll quote it:                                

         20                 "I observed one very minimal sediment     

         21             plume event during the seal pour of the       

         22             in-stream falsework footings."                

         23             And that quote doesn't refer to a concrete    

         24   plume, it refers to a sediment plume; isn't that right? 

         25        A.   Yes.                                          

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   257

          1        Q.   Do you have any evidence that the plume was   

          2   composed of cementitious material?                      

          3        A.   Other than the fact that this plume occurred  

          4   during the seal pour and that it could be referring to  

          5   a cement discharge, you could refer to a cement plume   

          6   as a sediment plume.  But, no, other than that, no, I   

          7   do not.                                                 

          8        Q.   Is it possible that the activity of pouring   

          9   concrete could disturb in-stream sediments that would   

         10   create a small plume like this?                         

         11        A.   Yes.                                          

         12        Q.   So it is certainly what could have happened   

         13   in this case?                                           

         14        A.   Yes.                                          

         15        Q.   Assuming that this was a small sediment plume 

         16   rather than cementitious material, is it possible that  

         17   this is not a violation of Condition 9 given that that  

         18   would have been in-river sediment?                      

         19        A.   It is possible.                               

         20        Q.   Off the record -- take it back.  We have one  

         21   more in this section.                                   

         22             Okay.  If you go to the next violation dated  

         23   January 5th, 2007 -- are you with me?                   

         24        A.   Yes.                                          

         25        Q.   Okay.  It says:                               

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   258

          1                 "Turbid discharge to river,               

          2             approximately 170 gallons of stormwater       

          3             discharged."                                  

          4             Correct?                                      

          5        A.   Correct.                                      

          6        Q.   And this is based on, as I have it, an e-mail 

          7   dated February 21st, 2007.  It looks like from Walt     

          8   Dragaloski at Caltrans to a number of people at the     

          9   Water Board.                                            

         10             Do you also have that e-mail?                 

         11        A.   I believe it is in the file.  I could look    

         12   for it.                                                 

         13        Q.   Well, I'll let you take a look at my copy.    

         14   If you would review that for a moment.                  

         15                 (Witness examines document.)              

         16             THE WITNESS:  Okay.                           

         17   BY MR. HUNGERFORD:                                      

         18        Q.   Are there any other documents, photographs,   

         19   or reports, or evidence that you're aware of that       

         20   supports this violation?                                

         21        A.   No.                                           

         22        Q.   Is this violation based exclusively on this   

         23   e-mail?                                                 

         24        A.   I don't know.                                 

         25        Q.   Well, are you aware of any other information  

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   259

          1   you relied on in drafting this particular violation?    

          2        A.   No.                                           

          3        Q.   Are you aware of any other information other  

          4   than this e-mail that supports this particular          

          5   violation?                                              

          6        A.   Not particularly.  It could be other          

          7   information in the file.                                

          8        Q.   Okay.  The e-mail indicates that a maximum    

          9   amount of 170 gallons broke and fell; isn't that        

         10   correct?                                                

         11        A.   Yes.                                          

         12        Q.   Do you know where this fluid would have       

         13   landed?                                                 

         14        A.   No.  Although the pipe spanned the river, so  

         15   somewhere in the river channel.                         

         16        Q.   Would you regard anything above the 100-year  

         17   floodplain as being an upland area?                     

         18        A.   More or less.                                 

         19        Q.   Do you have an understanding of precisely how 

         20   this particular line was situated above the river in    

         21   that portion of it that could have been above the       

         22   100-year floodplain?                                    

         23        A.   Is your question that could it have been?     

         24        Q.   Sure.                                         

         25        A.   Then yes.                                     

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   260

          1        Q.   And the discharge, the estimate of 170        

          2   gallons, appears to have been based on an estimate of   

          3   the maximum volume that could have been held by the     

          4   pipe; is that your understanding?                       

          5             MS. MACEDO:  Objection.  The document speaks  

          6   for itself.                                             

          7             THE WITNESS:  Yes, that's what the document   

          8   states.                                                 

          9   BY MR. HUNGERFORD:                                      

         10        Q.   Do you have any other information to support  

         11   this statement that 170 gallons was discharged and not  

         12   some other volume?                                      

         13        A.   No.                                           

         14             MR. HUNGERFORD:  Off the record for a second. 

         15            (Lunch break from 12:10 to 12:55 p.m.)         

         16             MR. HUNGERFORD:  So we are going to move on   

         17   to Appendix A.  We already started with a couple of     

         18   those beginning today, so we are going to skip down to  

         19   the September 6th, 2006 event.                          

         20   BY MR. HUNGERFORD:                                      

         21        Q.   Are you with me?                              

         22        A.   Um-hmm.                                       

         23        Q.   Now, this one, the only evidence I have is a  

         24   photograph, and I understand there was a Biological     

         25   Monitoring Report that, also, supports this?            

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   261

          1        A.   Yes.                                          

          2        Q.   Why don't you just list for me what items of  

          3   evidence are being offered in support of this           

          4   violation?                                              

          5        A.   The photo, the biological monitoring report,  

          6   and then I would also say that the Engineering Diaries  

          7   would also include information relevant to this event,  

          8   although, they are not included here explicitly.        

          9        Q.   Okay.  Let's start with the Engineering       

         10   Diaries.  Are you aware of any specific statements or   

         11   facts in the diaries, or you're just saying that        

         12   because, in a general sense, that they reinforce this   

         13   violation?                                              

         14        A.   Yes.                                          

         15        Q.   Is there a Biological Monitoring Report that  

         16   addresses this violation on this day?                   

         17        A.   I believe the Biological Monitoring Report we 

         18   looked at earlier, the final report by URS, referred to 

         19   all three crossings, and then there's individual        

         20   Biological Monitoring Reports organized by date, so --  

         21        Q.   So let's look at the -- I have the URS        

         22   Report, when I find it.  The individual monitoring      

         23   report I don't have handy, so if you could find that,   

         24   that would be helpful.                                  

         25        A.   Okay.                                         

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   262

          1        Q.   Okay.  So let me take a look at that.         

          2             Okay.  So this is a Biological Monitoring     

          3   Report.  This one page of the Biological Monitoring     

          4   Report says the channel crossing -- do you know the     

          5   date of this report so we could identify it on the      

          6   record?                                                 

          7        A.   It may be, if we go back further --           

          8   September 9th, 2006.                                    

          9        Q.   Okay.                                         

         10        A.   And so it was written a few days after the    

         11   event.                                                  

         12        Q.   And this report appears to have a photograph  

         13   dated September 6th on this one page.  Is there         

         14   anything in the text here that describes this specific  

         15   event on September 6th?                                 

         16        A.   Yes.                                          

         17        Q.   And what does it say happened?                

         18        A.   Would you like me to read it?                 

         19        Q.   You could paraphrase.  Tell me what your      

         20   understanding is of what happened based on your reading 

         21   of it?                                                  

         22        A.   About 8:12 in the morning an excavator, a     

         23   loader, and a utility type pickup truck crossed the     

         24   river creating a sediment plume about 12 minutes in     

         25   duration, approximately 70 to 85 feet in length.        

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   263

          1        Q.   And down below you notice that there is       

          2   crossings by three vehicles, an excavator, a loader and 

          3   a pickup truck, correct?                                

          4        A.   Correct.                                      

          5        Q.   And then we have a photograph which is        

          6   designated 060906-01; is that right?                    

          7        A.   Yes.                                          

          8        Q.   And that shows a picture of an excavator on   

          9   the bank of the river?                                  

         10        A.   Yes.                                          

         11        Q.   And then you mentioned you're also relying on 

         12   the URS Report, and it is the same URS Report that we   

         13   previously discussed at pages 6-19 and 6-20 of that     

         14   report described in the crossings.                      

         15             Is there any other photographs, evidence, or  

         16   other documents that you're aware of that support this  

         17   specific violation?                                     

         18        A.   No.                                           

         19        Q.   Okay.  You say this is a violation of         

         20   Condition 19, correct?                                  

         21        A.   Correct.                                      

         22        Q.   What is the basis for a Condition 19          

         23   violation?                                              

         24        A.   There was a plume in the river that was not   

         25   monitored for turbidity.                                

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   264

          1        Q.   Meaning, not monitored by using an NTU meter? 

          2        A.   Correct.                                      

          3        Q.   Had an NTU meter been used, would there be a  

          4   violation?                                              

          5        A.   It depends on if the NTU meter provided       

          6   adequate data to determine compliance with the          

          7   condition.  If they didn't properly operate and         

          8   maintain the piece of equipment, they didn't calibrate  

          9   it and keep proper records of that to provide the       

         10   correct data, then a violation would have still         

         11   occurred.                                               

         12        Q.   Okay.  Well, let's just look at Condition 19. 

         13   Condition 19 begins by saying:                          

         14                 "Visual observations shall be             

         15             conducted whenever a project activity has     

         16             the potential to mobilize sediment and        

         17             increase the turbidity of the South Fork      

         18             Eel River."                                   

         19             Now, stopping right there, there does appear, 

         20   do you agree, to be evidence that visual observations   

         21   were conducted?                                         

         22        A.   Yes.                                          

         23        Q.   The condition then goes on to say:            

         24                 "Field turbidity measurements shall be    

         25             collected whenever a project activity         

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   265

          1             causes turbidity to be increased above        

          2             background concentrations."                   

          3             Do you see that?                              

          4        A.   Yes.                                          

          5        Q.   As you previously testified, the field        

          6   turbidity measurements must be measured using an NTU    

          7   meter, right?                                           

          8        A.   Yes.                                          

          9        Q.   Would you agree that in this case there also  

         10   appears to have been -- there is evidence of visual     

         11   measurements being taken of the turbidity created by    

         12   the crossings?                                          

         13        A.   Visual observations?                          

         14        Q.   Yes.  And, in fact, those visual observations 

         15   resulted in estimates regarding the size, length and    

         16   duration of the plume; would you agree?                 

         17        A.   Yes.                                          

         18        Q.   But as you have testified, you don't believe  

         19   that those satisfy the requirements of the condition    

         20   because there's no NTU meter being used?                

         21        A.   Because there is no accurate calibratable,    

         22   repeatable scientific measurement that is not           

         23   subjective being taken in order to demonstrate          

         24   compliance with a 20 percent limitation contained in    

         25   the basin plan.                                         

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   266

          1        Q.   Based on the information contained in the URS 

          2   Report and the Biological Monitoring Report, does it    

          3   appear that the 20 percent past 100 feet standard was   

          4   violated?                                               

          5        A.   I think we have inadequate, insufficient data 

          6   to make that assertion.                                 

          7        Q.   What additional data would you require?       

          8        A.   The type of data that I just discussed.       

          9        Q.   Turning to the Biological Monitoring Report,  

         10   there is a fairly distinct description of the plume.    

         11   The report says it lasted about 12 minutes and was      

         12   about 70 to 85 feet in length, correct?                 

         13        A.   Correct?                                      

         14        Q.   Doesn't that provide evidence that the 100    

         15   foot, 20 percent turbidity standard, was not violated?  

         16        A.   No.  Because 20 percent turbidity cannot      

         17   always be visually determined.  The background can be   

         18   so clear that 20 percent is just not visual.            

         19        Q.   What would 100 percent turbidity be?  What    

         20   would that look like?                                   

         21        A.   It would be completely opaque.  You           

         22   couldn't -- light would not be able to pass through the 

         23   water.                                                  

         24        Q.   Let's assume that a turbidity meter had been  

         25   used in this case and the results were precisely the    

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   267

          1   same as were indicated in the Biological Monitoring     

          2   Report, that the plume lasted -- it was no more than 80 

          3   feet in length and lasted only 12 minutes.  Would you   

          4   then be able to determine whether there was a           

          5   violation of turbidity standard of 100 feet at 20       

          6   percent?                                                

          7             MS. MACEDO:  Objection to the term "turbidity 

          8   meter."  Do you mean NTU meter?                         

          9             MR. HUNGERFORD:  Yes.                         

         10             THE WITNESS:  Assuming we had adequate data   

         11   taken at the correct locations, then we could ascertain 

         12   that whether or not it was a violation of the basin     

         13   plan 20 percent condition.                              

         14   BY MR. HUNGERFORD:                                      

         15        Q.   So you know with those qualifications, yes,   

         16   you would be able to determine compliance with that     

         17   basin plan requirement?                                 

         18        A.   Yes.                                          

         19        Q.   Turning to the December 7th, 2006, at least   

         20   the first of them.  It looks like there are three       

         21   September 7th, here?                                    

         22        A.   I see two.                                    

         23        Q.   Let's see.  Table A-E, September 7th.  Oh,    

         24   you're correct, there are two.                          

         25             Both of them relate to quotes contained in    

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   268

          1   the September 7th, 2006 daily report by Rich Thompson,  

          2   correct?                                                

          3        A.   Correct.                                      

          4        Q.   Now, we have already discussed this factual   

          5   scenario in relation to other violations, haven't we?   

          6        A.   Yes.                                          

          7        Q.   And we have already considered the            

          8   possibility that the conversations that occurred here   

          9   were describing events from a date other than September 

         10   7th; isn't that right?                                  

         11        A.   Yes.                                          

         12        Q.   Now, what is being alleged here, which is     

         13   different, is violations of Condition 19, right?        

         14        A.   Yes.                                          

         15        Q.   What is it in this daily report which         

         16   establishes violations of Condition 19?  And, you know, 

         17   feel free to answer with respect to both of these       

         18   September 7th violations.                               

         19        A.   In both situations there were distinct        

         20   discharges to the river that would have triggered the   

         21   requirement for turbidity monitoring 50 feet upstream   

         22   and 100 feet downstream over a period of time to        

         23   demonstrate compliance with the basin plan, and the     

         24   monitoring was not done adequately.                     

         25        Q.   We have noted, in many of these cases, there  

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   269

          1   was a biological monitor or other persons on-site that  

          2   were at least visually monitoring turbidity, correct?   

          3        A.   Correct.                                      

          4        Q.   The basis, as I understand it for these two   

          5   September 7th violations, is that someone -- there's no 

          6   evidence that someone was there with an NTU meter; is   

          7   that right?                                             

          8        A.   And if there were somebody there with an NTU  

          9   meter because, at times, there were, it was             

         10   insufficiently maintained, calibrated and then operated 

         11   to provide quality data that would be sufficient for    

         12   the requirement of the condition.                       

         13        Q.   Now, you remember from the first day of our   

         14   deposition we talked in a little more detail about the  

         15   turbidity created by the use of isolated Pool B; do you 

         16   remember that?                                          

         17        A.   Yes.                                          

         18        Q.   In those instances, and I'll speak generally  

         19   from my memory, most of those turbidity events were     

         20   relatively minor in a sense that less than 20 feet in   

         21   length was the size of the plume.  Do you remember      

         22   that?                                                   

         23        A.   Yes, I do.                                    

         24        Q.   Let's assume that we have a very small amount 

         25   of turbidity in a plume that appears to be no more than 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   270

          1   10 feet in length based on visual observations.  Is     

          2   that a situation where an NTU meter would be required?  

          3        A.   Yes.                                          

          4        Q.   Why is that?                                  

          5        A.   As I said before, you cannot visually         

          6   determine whether or not 20 percent is being increased  

          7   downstream at 100 feet.                                 

          8        Q.   So there's no point, there's no size of plume 

          9   that can't be measured with visual measurements as      

         10   opposed to an NTU meter to determine compliance with    

         11   basin plan standards?                                   

         12        A.   No.                                           

         13        Q.   So, hypothetically, if it was a three-foot    

         14   plume that was created, that also would require an NTU  

         15   meter?                                                  

         16        A.   Yes.                                          

         17        Q.   Is it any defense to a violation like this    

         18   that a turbidity event may be unexpected?               

         19        A.   I don't believe so.  I have to look back at   

         20   Condition 19 to see if there's a provision that allows  

         21   for that.                                               

         22        Q.   Well, let me ask this just as a mechanical    

         23   issue, I suppose.  Let's say, hypothetically, that you  

         24   know a worker working in the live stream drops a beam   

         25   or some other, you know, large item into the river      

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   271

          1   which then causes some turbidity, which is, of course,  

          2   an unexpected event.  At that point, how would an NTU   

          3   meter be used under the terms of this Condition?        

          4        A.   You would measure upstream 50 feet and        

          5   downstream within 100 feet for the duration prescribed  

          6   in Condition 19 to determine compliance.                

          7        Q.   So someone would need to go upstream 50 feet, 

          8   take NTU readings, and then that same person would run  

          9   downstream --                                           

         10        A.   It wouldn't have to be one person.            

         11        Q.   So you might have two people with two meters, 

         12   one upstream and one downstream at the same point in    

         13   time?                                                   

         14        A.   Possibly.                                     

         15        Q.   But the Certification doesn't describe,       

         16   exactly, how that is supposed to occur?                 

         17        A.   Correct.                                      

         18        Q.   Are you aware of any other sources or         

         19   materials or guides relied on by the Regional Board or  

         20   other people, you know, in the industry that provide    

         21   direction or guidance for the use of NTU meters in      

         22   these types of situations?                              

         23        A.   There's just standard methods which we        

         24   commonly refer to in the permits that I write, and      

         25   there very well could be guidance by State Board, or    

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   272

          1   individual permits, or general permits.                 

          2             I'm not familiar enough with Caltrans general 

          3   stormwater permit to know if it talks about it --       

          4        Q.   Okay.                                         

          5        A.   -- but at least standard methods.             

          6        Q.   Are you aware of, specifically, of any        

          7   standard methods, or that's just your general belief?   

          8        A.   Standard method is a book that contains all   

          9   of the standard methods that are used in -- that we use 

         10   for compliance with the permits that we write.          

         11        Q.   Who publishes that book?                      

         12        A.   I don't recall.                               

         13        Q.   Is it referred to anywhere in the             

         14   Certification?                                          

         15        A.   No.                                           

         16        Q.   To your knowledge, is it a book that is       

         17   commonly used in the industry as guidance for using NTU 

         18   meters and possibly other subjects?                     

         19        A.   Yes.                                          

         20        Q.   In this case are you aware of, you know --    

         21   strike that.                                            

         22             What information, to your knowledge, would    

         23   have been available to Caltrans or the contractors on   

         24   this project in terms of guidance as to how NTU meters  

         25   should be used?                                         

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   273

          1        A.   I believe that all engineers who graduate     

          2   with a bachelor's degree are familiar with standard     

          3   methods.  It is part of the common curriculum.  Beyond  

          4   that, I don't know to what degree Caltrans engineers    

          5   use standard methods in their practice.                 

          6             And from our agency, you know, I was not      

          7   involved in the permitting process for this, so I can't 

          8   speak to that.                                          

          9        Q.   Okay.  Let's move to the September 9th, 2006  

         10   violation, and this relates to sediment plume from      

         11   placement of trestle footings.  And there's a familiar  

         12   conversation involving Ron den Heyer, correct?          

         13        A.   Correct.                                      

         14        Q.   And I have three items that I have as         

         15   evidence for this particular violation.  The first is a 

         16   September 11th, 2006 daily report by Rich Thompson, and 

         17   the other two are photographs designated 060901-01      

         18   and -02; is that right?                                 

         19        A.   Yes.                                          

         20        Q.   Now, we have talked about these same          

         21   photographs in this document in relation to another     

         22   violation but not for Condition 19.  What is the        

         23   evidence here that Condition 19 was violated?           

         24        A.   There was -- turbidity was increased above    

         25   background in the river, which would have triggered the 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   274

          1   field turbidity measurements that we have already       

          2   discussed.                                              

          3        Q.   Is your violation based on the fact that you  

          4   just simply have no evidence that an NTU meter was      

          5   used, or do you have affirmative evidence that an NTU   

          6   meter wasn't used?                                      

          7        A.   I do not have affirmative evidence that an    

          8   NTU meter wasn't used.  In fact, it may have.           

          9   Although, I reviewed the data whenever a meter was      

         10   used, and none of the data appeared adequate that was   

         11   ever used on-site, so -- and in all instances, in       

         12   Appendix A-E, whenever there was any evidence of a      

         13   sediment plume in the river, insufficient turbidity     

         14   measurements were taken.                                

         15        Q.   Okay.  I want to ask you something about this 

         16   engineer's report.                                      

         17             We have talked earlier about whether or not   

         18   this refers to events that occurred on this date or a   

         19   different date, and I have the same question here.      

         20   Specifically, this 10-10 entry, it states:              

         21                 "Ron den Heyer who came to my office      

         22             with Carl Page and a photo of turbidity       

         23             from drilling debris."                        

         24             Do you see that?                              

         25        A.   Yes.                                          

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   275

          1        Q.   And then further down in that passage it      

          2   says:                                                   

          3                 "John wasn't there this morning and       

          4             when Mitch went down to the gravel bar        

          5             after looking at the trestle                  

          6             super-structure, he saw MCM's crew using a    

          7             baffle to keep anchor rod hole cleanout       

          8             debris within the CSP and some known          

          9             turbidity in the water."                      

         10             Do you see that?                              

         11        A.   Yes.                                          

         12        Q.   From those passages does it appear possible,  

         13   does it seem possible to you that the photo of          

         14   turbidity referenced in the first part of that passage  

         15   was from a date other than September 11th?              

         16        A.   It is possible.                               

         17        Q.   Okay.  I mean, is there anything else in this 

         18   document that you see that establishes unmonitored or   

         19   unmeasured turbidity on that day?                       

         20        A.   Yes.  Later on in the middle of the paragraph 

         21   it says:                                                

         22                 "Mitch said Carl didn't say anything      

         23             to him about debris spraying into the         

         24             water when they were at the foundation        

         25             work this morning.  Carl said he saw it       

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   276

          1             before Mitch came down, and he also saw       

          2             some SAT when he and I were on the job."      

          3        Q.   So that statement suggests to you that there  

          4   might have been some turbidity?                         

          5        A.   Yes.                                          

          6        Q.   It doesn't say turbidity, though, it just     

          7   says debris spray into the water?                       

          8        A.   It talks about debris spraying into the       

          9   water, and earlier in the paragraph -- "Ron den Heyer   

         10   came to the office with Carl Page and a photo of        

         11   turbidity and Carl said he saw it before" -- it appears 

         12   to me to imply that there was turbidity in the water    

         13   earlier that morning.                                   

         14        Q.   Is it true that -- let's back up.             

         15             Do you have any information or evidence of    

         16   what debris would have been sprayed in the water in     

         17   this statement that you referred to?                    

         18        A.   Just contextually, and in an entire paragraph 

         19   earlier on it says, "anchor rod hole cleanout debris."  

         20        Q.   But we don't know, you know, precisely what   

         21   type of debris, or how much, or, you know, where it     

         22   would have hit the water, or other information, do we?  

         23        A.   No.                                           

         24        Q.   Or whether, in fact, that observation of, you 

         25   know, debris spraying the water would have created what 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   277

          1   is commonly understood as being turbidity?              

          2        A.   Correct.                                      

          3        Q.   Turn to the September 22nd violation, and     

          4   this is:                                                

          5                 "Turbid discharge to river.  Second       

          6             heavy vehicle crossing."                      

          7             Now, the information that we have in support  

          8   of this violation first is a number of photographs; is  

          9   that right?                                             

         10        A.   Yes.                                          

         11        Q.   Do you have those photographs handy?          

         12        A.   Yes.  We have reviewed them already.          

         13        Q.   It is the same set of photographs that we     

         14   have looked at before.  Just to identify them,          

         15   060922-07 through -15.  And they show, generally, a     

         16   number of vehicles crossing over the river; is that     

         17   correct?                                                

         18        A.   Yes.                                          

         19        Q.   In addition to the photographs, you also cite 

         20   the Biological Monitoring Report.  Do you happen to     

         21   have that report or that excerpt handy?                 

         22        A.   Yes.                                          

         23        Q.   If you could show me that passage?            

         24        A.   It is the one --                              

         25        Q.   It is the one that we already marked.         

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   278

          1             Is the basis for this violation that an       

          2   equipment crossing took place without an NTU meter      

          3   being used?                                             

          4        A.   I don't believe so because one of the         

          5   pictures shows a piece of equipment, apparently,        

          6   measuring turbidity.                                    

          7        Q.   Well, just to be clear, you have read the URS 

          8   Report which I provided you earlier, right?             

          9        A.   Yes.                                          

         10        Q.   And I will quote this from the URS Report.    

         11   It talks about three crossings, and it talks about the  

         12   use of the turbidity meter.                             

         13             Well, actually, rather than do it that way,   

         14   I'm just going to give this to you so you can review it 

         15   for yourself and make your own conclusions; and I would 

         16   look at pages 6-20 and 6-21.  Take a look at that.      

         17                 (Witness examines document.)              

         18             THE WITNESS:  Okay.                           

         19   BY MR. HUNGERFORD:                                      

         20        Q.   So that report describes three different      

         21   crossings, right?                                       

         22        A.   Yes.                                          

         23        Q.   Does it also say that the first two did not   

         24   involve the use of an NTU meter but the third did?      

         25        A.   Yes.                                          

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   279

          1        Q.   So for this particular violation we are       

          2   talking about the second of those crossings, aren't we? 

          3        A.   Yes.                                          

          4        Q.   And so is this violation based on the fact    

          5   that an NTU meter was not being used?                   

          6        A.   In part.                                      

          7        Q.   What else is it based on?                     

          8        A.   There's many different parts to the 401       

          9   Certification Condition 19, so we do not have evidence  

         10   that any of them had been complied with.                

         11             We don't have evidence that an NTU was used   

         12   50 feet upstream or 100 feet downstream, or during the  

         13   period of time that would have been required to         

         14   demonstrate compliance with the 20 percent above        

         15   background requirement.                                 

         16             But the use of an NTU meter is integral to    

         17   each of those conditions.                               

         18        Q.   In the URS Report you noted that, or did you  

         19   note that there was a visual scale used for turbidity   

         20   monitoring on this second crossing?                     

         21        A.   Yes.                                          

         22        Q.   Okay.  Looking at Condition 19, just to       

         23   divide it into its components, the first section says:  

         24                 "Visual observations shall be             

         25             conducted and there's potential increased     

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   280

          1             turbidity."                                   

          2             Correct?                                      

          3        A.   Correct.                                      

          4        Q.   And, certainly, here, visual observations     

          5   were conducted?                                         

          6        A.   Correct.                                      

          7        Q.   The second says:                              

          8                 "Field turbidity measurements shall be    

          9             collected when activity increases             

         10             turbidity above background."                  

         11             Right?                                        

         12        A.   (Witness nods head.)                          

         13        Q.   And in this case we have visual measurements  

         14   and a visual scale was used, correct?                   

         15        A.   Correct.                                      

         16        Q.   But not an NTU meter?                         

         17        A.   Correct.                                      

         18        Q.   So am I correct in assuming that your basis   

         19   for this violation, at least in part, is because an NTU 

         20   meter was not used?                                     

         21        A.   Yes.                                          

         22        Q.   Now, going on to the rest of the condition.   

         23   There is next direction that --                         

         24                 "Turbidity measurements shall be taken    

         25             upstream and downstream from the source of    

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   281

          1             turbidity."                                   

          2             Right?                                        

          3        A.   Yes.                                          

          4        Q.   Okay.  And should I take it that the basis    

          5   for the violation is that there wasn't an NTU meter     

          6   being used upstream and downstream?                     

          7        A.   In part, yes.                                 

          8        Q.   At the end of this condition there is a       

          9   requirement that:                                       

         10                 "Turbidity monitoring results be          

         11             reported when there is an increase in over    

         12             the basin plan standards."                    

         13             Is that right?                                

         14        A.   Yes.                                          

         15        Q.   Is there a violation of that here?            

         16        A.   It is not being assessed -- well, I don't     

         17   believe that was the foundation of my putting it in     

         18   here, although, it is possible that it was not reported 

         19   in the appropriate time.                                

         20        Q.   So just so I understand this, the primary     

         21   basis, at least for this violation, is that an NTU      

         22   meter wasn't used, and it wasn't used in the manner     

         23   that the Regional Board believes it should have been?   

         24             MS. MACEDO:  Objection.  Misstates testimony. 

         25             THE WITNESS:  I'll answer "yes" as long as it 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   282

          1   is understood that by use of the NTU meter, we -- I     

          2   mean that sufficient data was not collected to          

          3   demonstrate compliance with the receiving water         

          4   limitations.                                            

          5   BY MR. HUNGERFORD:                                      

          6        Q.   Isn't it true that the only method of         

          7   demonstrating compliance that you described as          

          8   acceptable is the use of an NTU meter?                  

          9        A.   Yes.                                          

         10        Q.   Are there any other acceptable methods of --  

         11   of --                                                   

         12        A.   It is possible.  I believe there is another   

         13   method, but I don't know the name of it.                

         14        Q.   What does it involve?                         

         15        A.   It's similar to an NTU meter, but --          

         16        Q.   It involves using some instrumentation?       

         17        A.   Yes.                                          

         18        Q.   You don't know what that is called, though?   

         19        A.   I believe they measure it in terms of JTUs,   

         20   maybe, but I think it is an older method, and I'm not   

         21   quite sure if it is still used.                         

         22             I think it may, actually, have been used on   

         23   this project, but we still didn't have sufficient       

         24   information, sufficient data to determine compliance    

         25   with the condition.                                     

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   283

          1        Q.   Turn to September 28th.  And for this one the 

          2   violation appears to be based on the Biological         

          3   Monitoring Report and three photographs; is that right? 

          4        A.   Yes.                                          

          5        Q.   Okay.  And the photographs are numbered       

          6   060928-1, -02 and -03, correct?                         

          7        A.   Yes.                                          

          8        Q.   Beginning with the photographs -- looking at  

          9   the Biological Monitoring Report, the Biological        

         10   Monitoring Report shows a Figure 1 that indicates a     

         11   September 28th --                                       

         12                 "Sediment plume caused by workers in      

         13             channels moving gravels off bedrock to set    

         14             CMP footings, cofferdams."                    

         15             Right?                                        

         16        A.   Yes.                                          

         17        Q.   And this is, I take, the factual basis for    

         18   this violation; is that right?                          

         19        A.   Yes.                                          

         20        Q.   Do you have the Biological Monitoring Report  

         21   in front of you?  Why don't you get that.               

         22        A.   Okay.                                         

         23        Q.   On the second page it talks about a number of 

         24   different plumes.  Is there any particular one that     

         25   forms the basis of this violation?  Where is the        

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   284

          1   violation?  Is it based generally on these activities   

          2   generally this day?                                     

          3        A.   I believe that, in an attempt to show         

          4   discretion, we lumped them together.                    

          5        Q.   Okay.  Let's turn to the photographs.  The    

          6   first photograph shows a number of workers standing in  

          7   the river; is that right?                               

          8        A.   I would like to correct my last statement     

          9   just because I notice that there is another violation   

         10   19 on the same date, and this refers to two plumes, and 

         11   I believe those two plumes refer to two different       

         12   violations.  So, no, we did not lump them together.     

         13        Q.   We are on September 28th, right?  I only see  

         14   a single violation for that day.                        

         15        A.   I think you're right.                         

         16             Okay.  Looking in the same Biological         

         17   Monitoring Report earlier on at the beginning, the      

         18   section entitled "Settlement Plumes," it says:          

         19                 "I observed two distinct sediment         

         20             plumes this week, one related to the" --      

         21             Well, I won't read it all, and I think that   

         22   that is referring to the two, one on the 28th and one   

         23   on the 29th.                                            

         24        Q.   Okay.                                         

         25        A.   So that later on, when it appears to say the  

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   285

          1   second plume -- perhaps referring to the second one     

          2   that he observed that week.                             

          3        Q.   I see.  I think you're probably right, and    

          4   thank you for clarifying that.                          

          5             So we are looking just at the September 28th, 

          6   and we have a number of photographs, and the first one  

          7   appears to be a number of workers standing in the       

          8   river; do you see that?                                 

          9        A.   Yes.                                          

         10        Q.   And my interpretation of this is that the     

         11   workers standing in the river, or the work that they    

         12   are doing is creating some turbidity that we see in the 

         13   foreground of the photograph.  Would you agree with     

         14   that?                                                   

         15        A.   Yes.                                          

         16        Q.   Okay.  Is that the plume that you believe is  

         17   being referred to by the Biological Monitoring Report?  

         18        A.   Yes.                                          

         19        Q.   Looking at the next two photographs, you see  

         20   what appears to be a much broader view of the site.  It 

         21   is from a different vantage point than the first        

         22   photograph.                                             

         23             What is it about these two photographs that   

         24   document the violation?                                 

         25        A.   It may not appear directly from looking at    

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   286

          1   this small of a photo that there's a turbidity plume,   

          2   but this turbidity event lasted four hours, and this    

          3   picture could be depicting the turbidity plume, which,  

          4   when looked at on a computer, you might be able to see  

          5   it better.                                              

          6        Q.   Do you have an understanding of What the      

          7   workers were doing in the river at this time?           

          8        A.    They were using shovels, perhaps, to         

          9   excavate a clean area for a pier footing for the        

         10   trestle deck.  Yes, for the trestle.                    

         11        Q.   I think you're probably right.                

         12             I take it with -- you know, as similar to     

         13   some of the other violations regarding this condition,  

         14   is this violation, also, based on the lack of           

         15   information showing that a turbidity meter was being    

         16   used?                                                   

         17        A.   And that -- yes.  And that lack of quality    

         18   data.                                                   

         19        Q.   Now, looking at the first photograph, these   

         20   workers standing in the river, it appears that their    

         21   activities have created some turbidity, correct?        

         22        A.   Correct.                                      

         23        Q.   It would also suggest that turbidity is being 

         24   created as a result of the disturbance of in-stream     

         25   sediments.  Would you agree with that?                  

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   287

          1        A.   I can say that it appears that way.           

          2        Q.   Okay.                                         

          3        A.   I couldn't guarantee it.  I mean, they could  

          4   be doing other things that I'm not aware of, but first  

          5   glance, yes, it appears that they are using shovels in  

          6   the river and that turbidity is coming from in-stream   

          7   sediments.                                              

          8        Q.   Thank you.  Other than the Biological         

          9   Monitoring Report and these photographs, are you aware  

         10   of any other specific information that supports this    

         11   particular violation?                                   

         12        A.   No.                                           

         13        Q.   Turning to the first of two September 29th,   

         14   violations, both rely on a September 29th assistant     

         15   resident engineer's daily report.  The first one also   

         16   relies on three photographs, and those are 060929-1, 2, 

         17   and 3; is that right?                                   

         18        A.   Yes.                                          

         19        Q.   Do you have those photographs handy?          

         20        A.   Yes.                                          

         21        Q.   I have numbers 2 and 3 but not, apparently, 1 

         22   handy.  Could you show me that?                         

         23             Okay.  We have seen this before.              

         24             Other than the photographs and the assistant  

         25   resident engineer's daily report, do you have any other 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   288

          1   specific facts, documents or evidence in support of     

          2   this particular violation?                              

          3        A.   Not particularly.                             

          4        Q.   So the assistant resident engineer's report   

          5   describes, and I'll paraphrase, that there is some      

          6   turbidity created from the placement of concrete into a 

          7   CMP; is that correct?                                   

          8        A.   Correct.                                      

          9        Q.   And is this violation based on the lack of a  

         10   turbidity meter as well as the lack of acceptable data  

         11   to demonstrate compliance with the basin plan           

         12   standards?                                              

         13        A.   Yes.                                          

         14        Q.   Which is similar to the other violations in   

         15   this series that we talked about?                       

         16        A.   Yes.                                          

         17        Q.   Is there anything else about this particular  

         18   violation, this particular factual scenario, that       

         19   establishes the violation of Condition 19?              

         20        A.   Not that I know of.                           

         21        Q.   Turning to the next event on the same date,   

         22   which also relies on the same assistant resident        

         23   engineer's report, other than the report and the three  

         24   photographs that you have referenced in the Complaint,  

         25   are you aware of any other evidence, facts or           

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   289

          1   information that support this particular violation?     

          2        A.   I'll just repeat that, in general, you know,  

          3   all of the documents in our file are -- they are        

          4   supportive of the allegations here, and there are other 

          5   photos that provide context to each of these photos.    

          6   We have a whole stack of CDs and there are other        

          7   photos, and we have gone over that earlier in the       

          8   deposition, but I want to reiterate that.  Other than   

          9   that, no.                                               

         10        Q.   Absolutely.  And I understand completely      

         11   that, as a contextual matter, you're relying on the     

         12   entire record.  So when I ask those types of questions  

         13   it relates to just specific documentary evidence.       

         14             So on this particular occasion, we looked at  

         15   this before, it refers to a detached tremie and workers 

         16   standing on sandbags, which then created a plume that   

         17   might have had some combination of concrete and/or      

         18   algae; is that right?                                   

         19        A.   Yes.                                          

         20        Q.   And other than the lack of an NTU meter being 

         21   used, or other acceptable data for the Regional Board   

         22   to establish basin plan compliance, is there anything   

         23   else about this factual scenario that establishes a     

         24   violation of Condition 19?                              

         25        A.   No.                                           

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   290

          1        Q.   Let's turn to the next violation, which       

          2   appears to be October 2nd.  This October 2nd, 2006,     

          3   this is the third heavy vehicle crossing, correct?      

          4        A.   Correct.                                      

          5        Q.   So let's take a look at the evidence that has 

          6   been submitted here.                                    

          7             First, we have one photograph designated      

          8   061002-01; is that correct?                             

          9        A.   Yes.                                          

         10        Q.   Which shows an excavator in the middle of the 

         11   river; is that right?                                   

         12        A.   Yes.                                          

         13        Q.   And then we also have a Biological Monitoring 

         14   Report that describes the crossings which we have       

         15   already marked as an exhibit to this deposition; is     

         16   that right?                                             

         17        A.   Yes.                                          

         18        Q.   Let me back up.                               

         19             The Biological Monitoring Report, which one   

         20   are you relying on, just so I know?                     

         21        A.   Which entry?                                  

         22        Q.   Yes.  Which entry in the Biological           

         23   Monitoring Report.                                      

         24        A.   The one that is quoted in the appendix.  Are  

         25   you asking the source of that?                          

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   291

          1        Q.   Yeah.  I want to just determine whether or    

          2   not the exhibit we have already marked is the same      

          3   Biological Monitoring Report that you're referring to   

          4   here in this violation.                                 

          5        A.   I believe it might be the URS Report.         

          6        Q.   Okay.  I'll cut through this.  I will hand    

          7   you a copy of what appears to be one page from a        

          8   Biological Monitoring Report, with the date of          

          9   October 9th, 2006 on the top.  Would you take a look at 

         10   that?                                                   

         11        A.   Okay.                                         

         12        Q.   Is that the same quote that is contained in   

         13   the Complaint?                                          

         14        A.   Yes.                                          

         15        Q.   What does it indicate?                        

         16        A.   It indicates that turbidity measurement 100   

         17   feet below the crossing was taken.                      

         18        Q.   Okay.                                         

         19        A.   And that there was a reading of two NTUs on   

         20   the meter.                                              

         21        Q.   Okay.  And so how did that violate Condition  

         22   19?                                                     

         23        A.   All of the NTU readings provided by Caltrans  

         24   and the biological monitor were inadequate to determine 

         25   compliance.  They were questioned by the biological     

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   292

          1   monitor as to being valid and were inadequate for       

          2   compliance determination; and, therefore, insufficient  

          3   to comply with the requirements of 19.                  

          4        Q.   How was the use of the NTU meter or the       

          5   readings obtained inadequate?                           

          6        A.   We have no evidence that the meter was        

          7   properly maintained, calibrated, operated.  And in the  

          8   data in the URS Report, the data is starred as being    

          9   questionable and not accurate.                          

         10        Q.   Let me start with the first part of that.     

         11             So you have no evidence of proper maintenance 

         12   or calibration.  Is that something that you require to  

         13   be maintained in Caltrans and contractors' files?       

         14        A.   In order to follow the standard method you    

         15   need to properly operate and maintain your equipment    

         16   and calibrate it, and in all the permits that I write   

         17   that is a requirement.  It is not explicit in the       

         18   Certification.                                          

         19        Q.   Okay.  Do you have any evidence that this     

         20   particular piece of equipment wasn't adequately         

         21   maintained or calibrated?                               

         22        A.   In the file there is an indication that the   

         23   equipment wasn't properly maintained through its life   

         24   on-site.                                                

         25        Q.   I will want to see that reference.            

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   293

          1        A.   I would have to dig for it.  I haven't        

          2   reviewed all of these documents in quite some time,     

          3   although, I do recall statements that the meter hadn't  

          4   been maintained for quite some time.                    

          5             In fact, at the end of that report, you don't 

          6   appear to have it all copied, but at the very end of it 

          7   there's a data table showing all of the turbidity       

          8   measurements, and it has them starred as inaccurate.    

          9   And the information that you're requesting might be in  

         10   other parts of that document or in other documents that 

         11   I have.  I would have to dig for them.                  

         12        Q.   Because I don't have this information in      

         13   front of me, and it sounds like it is going to be       

         14   difficult for you to find, let me make sure I           

         15   understand your testimony correctly.                    

         16             The information that you have that this       

         17   equipment was not correctly maintained or calibrated at 

         18   this time is based on an asterisk that is contained in  

         19   the full URS Report; is that right?                     

         20        A.   That's part of the evidence.                  

         21        Q.   Other than that asterisked section of the URS 

         22   Report, what else?                                      

         23        A.   What other evidence do I have that indicated  

         24   that the equipment was not properly maintained?         

         25        Q.   Yes.                                          

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   294

          1        A.   There's a narrative language from the -- I    

          2   believe from the Biological Monitor describing how --   

          3   when it was calibrated and how, even after it was       

          4   calibrated, the data was still questionable.  I would   

          5   have to look into it to try to gather up all of that    

          6   information, and I can do that.                         

          7        Q.   You didn't quote any of that in your          

          8   Complaint, did you?                                     

          9        A.   No.                                           

         10        Q.   Let's assume that the evidence were to show   

         11   that this equipment was adequately maintained and       

         12   calibrated.  Would there be a violation of              

         13   Condition 19?                                           

         14        A.   In this instance?                             

         15        Q.   Yes.                                          

         16        A.   No.  There would be a violation of            

         17   Condition 14.                                           

         18        Q.   Okay.  But Condition 14 isn't alleged as      

         19   being violated in this particular instance, is it?      

         20        A.   Based on the lack of quality data.  If,       

         21   indeed, the data was quality, then the data given       

         22   demonstrates an increase above 20 percent of            

         23   background.                                             

         24        Q.   Okay.  Is it your understanding that the      

         25   Certification does not, under any circumstances, allow  

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   295

          1   greater than 20 percent above background at 100 feet?   

          2        A.   Correct, it does not allow that.  It says     

          3   that --                                                 

          4                 "At which point it is determined that     

          5             it is greater than 20 percent at 100 feet,    

          6             then BMPs shall be modified."                 

          7        Q.   So let's assume that the first event of this  

          8   type of activity has caused an exceedance of the 20     

          9   percent standard of 100 feet, and thereafter, you know, 

         10   corrective measures are taken to improve the BMPs.      

         11   Would that first event still establish a violation of   

         12   the basin plan?                                         

         13        A.   If it was increased above 20 percent?         

         14        Q.   Yes.                                          

         15        A.   Yes.                                          

         16        Q.   So is it correct then that improvements made  

         17   to BMPs, as required by 19, will not protect an         

         18   activity from violating the basin plan?                 

         19        A.   Well, the idea of a BMP is that it does not   

         20   cause a violation on the basin plan.  So if the BMPs    

         21   are working properly, then it will not violate the      

         22   basin plan.                                             

         23        Q.   Have you alleged violation of Condition 14    

         24   anywhere in the Complaint?                              

         25        A.   I don't believe so.                           

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   296

          1        Q.   If you could turn to the next event.  It is   

          2   October 7th, 2006.                                      

          3             And this is a familiar situation that we have 

          4   talked about before.  This is using a silt fence to     

          5   control in-stream turbidity by an excavator; is that    

          6   right?                                                  

          7        A.   Yes.                                          

          8        Q.   And we have seen the photographs before and   

          9   we have also seen the assistant engineer's daily        

         10   report, correct?                                        

         11        A.   Correct.                                      

         12        Q.   So I think we have a basic understanding of   

         13   the factual scenario, so the question is this:  Is the  

         14   basis for the violation of Condition 19, the absence of 

         15   evidence that an NTU meter was used and the absence of  

         16   other acceptable evidence, bearing on the basin plan    

         17   compliance?                                             

         18        A.   Yes.                                          

         19        Q.   Is there anything else about this factual     

         20   scenario that violates Condition 19?                    

         21        A.   No.                                           

         22        Q.   Let's turn to the next, October 7th, 2006.    

         23             Here we have a very similar situation.  The   

         24   same date, relying on the same engineer's report, and   

         25   this is the second attempt to excavate footings.  And   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   297

          1   am I correct in assuming that the violation of          

          2   Condition 19 is based on the same premise?              

          3        A.   Yes.                                          

          4        Q.   And then let's turn to the next October 7th,  

          5   and this is the statement by Mr. Ham that he was at     

          6   least two-thirds complete, might go back down to        

          7   finish.                                                 

          8             Do you see that?                              

          9        A.   Yes.                                          

         10        Q.   And so am I correct that your testimony is    

         11   that you don't know whether or not Mr. Ham, actually,   

         12   went down and did additional work?                      

         13        A.   Correct.                                      

         14        Q.   And so the violation is based on the          

         15   assumption that he did go down and perform that work,   

         16   and that the results of that work were substantially    

         17   similar to the earlier two passes?                      

         18        A.   Yes.                                          

         19        Q.   Okay.  If we could go to the next one,        

         20   October 14th, 2006.                                     

         21             And this is another insufficient turbidity    

         22   measurements regarding discharges during construction   

         23   of in-stream footings.  We have no photographs for      

         24   this, correct?                                          

         25        A.   Yes.                                          

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   298

          1        Q.   What we have appears to be a quote from a     

          2   Biological Monitoring Report by Carl Page; is that      

          3   right?                                                  

          4        A.   I believe so.                                 

          5        Q.   Go ahead and --                               

          6        A.   I have to find it.                            

          7        Q.   Yes, find it if you could.                    

          8        A.   Okay.                                         

          9        Q.   Other than Mr. Page's report, do you have any 

         10   other specific facts, evidence or documentation that    

         11   supports this violation?                                

         12        A.   No.                                           

         13        Q.   Is this violation, as with others in the      

         14   series, based on the absence of an NTU meter or other   

         15   acceptable evidence to satisfy the basin plan           

         16   standards?                                              

         17        A.   Yes.  But it is not just the basin plan       

         18   standards, it is also, you know, the requirements in    

         19   Condition 19 --                                         

         20        Q.   Okay.                                         

         21        A.   -- that are in place to implement the basin   

         22   plan standards.                                         

         23        Q.   Got it.  Anything else about this factual     

         24   scenario that establishes a violation of Condition 19?  

         25        A.   No.                                           

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   299

          1        Q.   Okay.  Turn to the next October 16th, 2006.   

          2   And we have here two documents that I have in support   

          3   of this violation.  The first is an October 23rd report 

          4   to Susan Leroy (phonetic) by the Biological Monitor,    

          5   and the second is a photograph designated 061016-01.    

          6   Am I correct on both?                                   

          7        A.   You would have to show me the quote for me to 

          8   find it.                                                

          9             Okay.                                         

         10        Q.   Other than these two items are you aware of   

         11   any other specific evidence that supports this          

         12   violation?                                              

         13        A.   No.                                           

         14        Q.   And the Biological Monitoring Report here     

         15   says that there's a discharge from a person working     

         16   that channel which created a plume of about 8 feet long 

         17   by about 3 feet wide for about 15 minutes; is that      

         18   right?                                                  

         19        A.   Yes.                                          

         20        Q.   What is the basis for the violation of        

         21   Condition 19?                                           

         22        A.   Lack of sufficient turbidity measurements     

         23   with the appropriate meter and the appropriate          

         24   distances for the appropriate amount of time.           

         25        Q.   And we, certainly, do have visual monitoring, 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   300

          1   though, of this particular event, right?                

          2        A.   Correct.                                      

          3        Q.   And visual monitoring did produce an estimate 

          4   of the size, length and time of the plume, right?       

          5        A.   Yes.                                          

          6        Q.   But as you previously testified, the visual   

          7   monitoring, in your view, doesn't satisfy the           

          8   requirements of Condition 19?                           

          9        A.   Correct.                                      

         10        Q.   Do you have any idea what this worker is      

         11   doing?                                                  

         12        A.   No.                                           

         13        Q.   All right.  Turn to the next one.  The next   

         14   one is October 16th, 2006.  Again, we have seen this    

         15   before.  We have a one page of the assistant resident   

         16   engineer's daily, dated October 16th, 2006; is that     

         17   right?                                                  

         18        A.   Yes.  I believe we have already looked at     

         19   that.                                                   

         20        Q.   We have looked at that in relation to another 

         21   violation.  We don't have any photographs, correct?     

         22        A.   No.                                           

         23        Q.   Are you aware of any other reports, evidence, 

         24   or documents that support this particular violation on  

         25   this day?                                               

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   301

          1        A.   No.                                           

          2        Q.   Now, you have quoted a section in the report  

          3   that says that, during a concrete pour, there was a     

          4   minor leak, correct?                                    

          5        A.   Correct.                                      

          6        Q.   Now, since your violation is based on an      

          7   increase in turbidity, what is it about this statement  

          8   that demonstrates that there was an increase of         

          9   turbidity in the active river channel?                  

         10        A.   I don't see any.                              

         11        Q.   Am I correct in saying that it refers to a    

         12   leak but not necessarily turbidity?                     

         13        A.   Correct.                                      

         14        Q.   And we don't really understand what the -- or 

         15   to state it more accurately, we don't have any          

         16   information at this point what the circumstances were   

         17   of that leak, do we?                                    

         18        A.   Correct.                                      

         19        Q.   So with this in mind, is it possible that     

         20   there's no evidence of an increase in turbidity that    

         21   would have required action to be taken under            

         22   Condition 19?                                           

         23        A.   Not that I can see.                           

         24        Q.   Okay.  If you would turn to the next one,     

         25   October 18th.  And we have here two documents, by my    

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   302

          1   count, in support of this violation.                    

          2             First is an October 18th passage in a         

          3   Biological Monitoring Report and the second is a        

          4   photograph designated 061018-02.  Do you have the same  

          5   things?                                                 

          6        A.   The photo, yes.                               

          7        Q.   Can you show me the photograph that you have  

          8   to make sure that we are looking at the same thing?     

          9        A.   You can look at the number below it.  It is   

         10   02, I think.                                            

         11        Q.   Okay.  So the factual scenario here is the    

         12   installation of metal sheet piles in the active river   

         13   channel which resulted in a plume estimated to be 25    

         14   feet by 6 feet for 20 minutes; is that correct?         

         15        A.   Correct.                                      

         16        Q.   Other than the photograph and the Biological  

         17   Monitoring Report, are you aware of any other facts,    

         18   documents or evidence that, specifically, supports this 

         19   violation?                                              

         20        A.   No.                                           

         21        Q.   So the Biological Monitoring Report           

         22   identifies -- based apparently on visual monitoring --  

         23   a 25 by 6 foot plume, correct?                          

         24        A.   Correct.                                      

         25        Q.   So, certainly, there was visual observations  

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   303

          1   and visual field estimates made of the plume, correct?  

          2        A.   Correct.                                      

          3        Q.   Should I take it the violation is based on    

          4   the absence of any evidence that a turbidity meter was  

          5   used?                                                   

          6        A.   Yes.                                          

          7        Q.   And should I also assume that the violation   

          8   is based on the absence of any other acceptable         

          9   evidence to the Regional Board that would establish     

         10   compliance with the basin plan or Certification         

         11   standards?                                              

         12        A.   Yes.                                          

         13        Q.   Is there anything else about this factual     

         14   situation that, in your view, establishes the violation 

         15   of Condition 19?                                        

         16        A.   No.                                           

         17        Q.   Turn to the October 20th event.  And I have   

         18   two items in support of this.  One is an October 20th   

         19   entry in a Biological Monitoring Report and the other   

         20   is a photograph designated 061020-02.  Do you have the  

         21   same two things?                                        

         22        A.   Yes                                           

         23        Q.   Can I see your photograph to make sure we are 

         24   looking at the same thing.                              

         25        A.   (Indicating.)                                 

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   304

          1        Q.   Thank you.                                    

          2             The Biological Monitoring Report states that  

          3   the monitor observed a minimal sediment plume event     

          4   during the seal pour that lasted five minutes and was   

          5   about 2 feet by 4 feet; is that correct?                

          6        A.   Correct.                                      

          7        Q.   First of all, other than the monitoring       

          8   report and the photograph, are you aware of any other   

          9   specific documents, facts, or evidence that support     

         10   this violation?                                         

         11        A.   No.                                           

         12        Q.   Is this violation, as with others in this     

         13   series, based on the absence of evidence that an NTU    

         14   meter was used?                                         

         15        A.   Yes.                                          

         16        Q.   Is it also based on the lack of acceptable    

         17   evidence of the Regional Board to establish compliance  

         18   with the basin plan or the Certification standards?     

         19        A.   Yes.                                          

         20        Q.   Is there anything else that this violation is 

         21   based on?                                               

         22        A.   No.                                           

         23             MR. HUNGERFORD:  Let me take just a quick     

         24   break.                                                  

         25                          (Recess.)                        

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   305

          1             MR. HUNGERFORD:  So we are moving on now to   

          2   the next category of violation.  This is A-F Appendix,  

          3   and they deal with alleged improper disposal of cement  

          4   waste.                                                  

          5             The first of these violations -- there's      

          6   actually a pair of them, is dated August 29th, 2006.    

          7   The first August 29th violation appears to be based on  

          8   a quote.  It states that:                               

          9                 "On August 29th, during placing           

         10             concrete in a corrugated steel pipe within    

         11             the river, the water level rose, and to       

         12             prevent it from overflowing into the          

         13             river, the water was pumped to the            

         14             dewatering basin."                            

         15             Do you see that there?                        

         16        A.   Yes.                                          

         17        Q.   What is the source of that quote?             

         18        A.   I believe it is the Response to the Notice of 

         19   Violation.                                              

         20        Q.   You cited Biological Monitoring Report as,    

         21   unless I'm mistaken here -- yes, a Response to the      

         22   Notice of Violation.  And you don't have any            

         23   photographs or any other evidence that you have cited,  

         24   correct?                                                

         25        A.   Correct.                                      

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   306

          1        Q.   Are you aware of any other evidence or other  

          2   information, facts or documents that specifically       

          3   support this violation?                                 

          4        A.   No.                                           

          5        Q.   Okay.  Now, the quoted section is a response  

          6   to Notice of Violation.  It appears to be an excerpt    

          7   from a letter dated December 13th, 2006; is that        

          8   correct?                                                

          9        A.   It is probably in here somehow, but I don't   

         10   see it.                                                 

         11        Q.   Well, I can provide you with my own excerpt   

         12   just for reference.                                     

         13        A.   Oh, yes.  It is in the front.  Okay.          

         14        Q.   My question is that, I would assume that a    

         15   statement like this, that is contained in a letter,     

         16   would be accompanied somewhere by some other            

         17   documentation of the events that were summarized in the 

         18   letter.  Are you aware of any other documentation in    

         19   that regard?                                            

         20        A.   No.  I mean, this is all we have to rely on   

         21   is what Caltrans provides us.                           

         22        Q.   It indicates that a certain amount of water   

         23   that had come into contact with cement was pumped into  

         24   the water basin, correct?                               

         25        A.   Correct.                                      

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   307

          1        Q.   Do you have any idea how much water was       

          2   pumped?                                                 

          3        A.   It appears to relate to an event described in 

          4   one of the documents that we have already referenced,   

          5   one of the Biological Monitoring Reports, where it is   

          6   stated that there is seeping through the bar after      

          7   eight hours of pumping from the cofferdams.             

          8             So in terms of a volume, no, I do not have an 

          9   estimate, but supposedly eight hours of pumping.        

         10        Q.   I would disagree with you on -- not to be     

         11   argumentative, but simply because I don't --            

         12        A.   You may be right.                             

         13        Q.   Reading this passage alone, which is all that 

         14   I have to go on based on the information provided in    

         15   connection with the Complaint, it states that, you      

         16   know:                                                   

         17                 "Water was pumped during placement of     

         18             concrete from a CSP into the basin."          

         19             Given that this line of violation is based on 

         20   the cement discharges or improper disposal of cement    

         21   waste, my assumption is that this violation was based   

         22   on the fact that isolated Pool B, presumably, or some   

         23   other basin, was used to dispose of water that came in  

         24   contact with cement.                                    

         25        A.   You're right.  The other one I was referring  

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   308

          1   to is probably construction dewatering, and this is     

          2   cement contact watering, which are different events, so 

          3   I'll retract that last --                               

          4        Q.   So I'm correct that this is based on cement   

          5   contact water?                                          

          6        A.   Yes.                                          

          7        Q.   And is the violation based on -- why don't    

          8   you tell me what the violation is based on?             

          9        A.   It is based on the quote.                     

         10        Q.   Okay.  Specifically, what about the quote?    

         11   Well, let's go to the violations first.  We have        

         12   Violations 9 and 17.                                    

         13             Condition 9 is what we have already looked    

         14   at -- no concrete washings other than authorized by     

         15   this permit shall be allowed to enter into a place or   

         16   be washed into waters of the State.                     

         17             How is that condition violated by this quote? 

         18        A.   This would be cement or concrete washings.    

         19   It could fall under the category of -- that was the     

         20   most relevant category.  It was allowed to enter into   

         21   waters of the State.                                    

         22        Q.   And what specific waters of the State?  The   

         23   quote doesn't indicate that it was washed into the      

         24   river, for example.                                     

         25        A.   It is considered that the dewatering basin    

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   309

          1   commonly used isolated Pool B as waters of the State.   

          2        Q.   Do we know whether this is isolated Pool B    

          3   that was used here?                                     

          4        A.   No.                                           

          5        Q.   You were making that assumption?              

          6        A.   It is an educated guess based on the only     

          7   evidence that we have, is that that is the only basin   

          8   used on the north bridge gravel bar.  It was also used  

          9   on that date for other dewatering activities.  We have  

         10   no evidence to the contrary.                            

         11        Q.   Okay.  Do we have any idea how much water was 

         12   pumped into the isolated Pool B, assuming that was the  

         13   basin?                                                  

         14        A.   No.                                           

         15        Q.   Do you have any evidence of what the pH of    

         16   that water might have been?                             

         17        A.   Cement -- if it is concrete contact water, it 

         18   would be a relatively high pH.                          

         19        Q.   So it is possible, but we don't have any      

         20   evidence, do we?                                        

         21        A.   This quote is evidence.                       

         22        Q.   Well, the quote is evidence that there was    

         23   contact water, contact -- that came into contact with   

         24   cement was placed in the basin.  But does it, actually, 

         25   provide evidence that this was high pH water?           

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   310

          1        A.   If it came into contact with concrete it      

          2   would have had high pH unless it was otherwise          

          3   remedied -- adjusted.                                   

          4        Q.   Okay.  We might have covered this the first   

          5   day but the statement "waters of the State" in          

          6   Condition 9, how are "waters of the State" defined?     

          7             MS. MACEDO:  Objection.  Calls for a legal    

          8   conclusion.                                             

          9             THE WITNESS:  So we -- "waters of the State"  

         10   is -- I defer to my legal counsel to make a legal       

         11   determination of that.                                  

         12   BY MR. HUNGERFORD:                                      

         13        Q.   Sure.  You can tell me your understanding.    

         14        A.   My understanding is that "waters of the       

         15   State" includes both surface waters and groundwaters.   

         16        Q.   The quoted section indicates that had this    

         17   water not been pumped to the dewatering basin that it   

         18   potentially could have overflowed into the river.       

         19   Would you agree with that?                              

         20        A.   Yes.                                          

         21        Q.   Putting aside whether there is a violation of 

         22   Condition 9, or any other condition, would you agree    

         23   that that's a mitigating condition that would play a    

         24   role in the application of the adjustment factors?      

         25        A.   No.                                           

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   311

          1        Q.   Why not?                                      

          2        A.   Because it would have been a violation had it 

          3   discharged to the stream channel, and it would have     

          4   been a violation had it discharged -- to the stream     

          5   channel.                                                

          6        Q.   So you're saying it makes no difference       

          7   whether it overflowed into the live river or whether it 

          8   was pumped to a dewatering basin?                       

          9        A.   They both are violations and due to the type  

         10   of material both are egregious, and there may be lesser 

         11   impacts to salmonides -- salmon species or other        

         12   in-stream aquatic life.                                 

         13             On the other hand, there are other aquatic    

         14   life in the in-stream gravels of the gravel bar.  So    

         15   both have their impacts.                                

         16        Q.   You mentioned that this is an egregious       

         17   violation.  What is that based on?                      

         18        A.   Based on the high pH and the associated       

         19   impacts associated with that.                           

         20        Q.   Isn't it true that you're just making an      

         21   assumption that this is high pH water based on the fact 

         22   that it is contact water, not based on any direct       

         23   information of the particular discharge?                

         24        A.   I don't believe that's an assumption.  I      

         25   believe that is implied by the evidence that we have.   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   312

          1   Just because we don't have quantifiable evidence        

          2   doesn't mean it is an assumption.                       

          3        Q.   We, also, don't know how much water was       

          4   pumped from the CMP to the sedimentation basin, do we?  

          5        A.   No.                                           

          6        Q.   So your statement that this is an egregious   

          7   violation is based solely on the fact that this appears 

          8   to have been cement contacted water; it was pumped      

          9   somewhere into a sedimentation basin?                   

         10        A.   Within waters of the State, and that this     

         11   activity was foreseeable and had been communicated      

         12   between the Water Board and Caltrans prior to issuance  

         13   of the Certification.                                   

         14             It is part of the application, and Dean went  

         15   out of his way to make it very clear that no disposal   

         16   of cement waste or contact water is allowed on this     

         17   site and that it should be fully contained.             

         18        Q.   Having reviewed all of the other evidence     

         19   connected with the Complaint, did you see a regular     

         20   practice being engaged in to dispose of cement contact  

         21   water into the sedimentation basin, or would this be    

         22   more accurately characterized as an isolated event?     

         23        A.   I would not consider it an isolated event,    

         24   although, it may not be generally common practice.      

         25   There are other analogous events here on the table,     

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   313

          1   although, it is not as common of a practice as other    

          2   events based on the evidence that we have.              

          3        Q.   I'll just go through the rest in a moment.    

          4   I'm going to the next event, which is, also,            

          5   August 29th.                                            

          6             First, the violation appears to rely on the   

          7   same quote that we just discussed from the December     

          8   13th, 2006 letter to Catherine Coleman; is that         

          9   correct?                                                

         10        A.   This is the second event that occurred on     

         11   October 29?                                             

         12        Q.   Yes.                                          

         13        A.   It is the same -- yes, it is addressed to     

         14   Catherine Coleman, but it is the Response to the Notice 

         15   of Violation, and this is the cover sheet to that.      

         16        Q.   I'm sorry, maybe I said October --            

         17   August 29th.                                            

         18        A.   Yes.  Same paragraph, same document.          

         19        Q.   Okay.  Let me I apologize.  Let me back up to 

         20   the last because I neglected to ask you something.      

         21             You also allege this is a violation of        

         22   Condition 17.  This is with the first August 29th       

         23   event, right?                                           

         24        A.   Yes.                                          

         25        Q.   What is it about this that violates           

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   314

          1   Condition 17?                                           

          2        A.   As I referred to just a moment ago, that this 

          3   was foreseeable and -- foreseen in the application and  

          4   permit process.                                         

          5             Condition 17 requires that all activities,    

          6   BMPs, shall be conducted as described in the permit and 

          7   application, and this activity was not conducted in     

          8   that manner, which would have required full containment 

          9   of cement contact water.                                

         10        Q.   Okay.  Let's go to the next August 29th.  So, 

         11   again, we don't have, other than this quote, any other  

         12   facts, photographs or documentary evidence supporting   

         13   this particular violation, do we?                       

         14        A.   No.                                           

         15        Q.   So focusing just on the quoted language, it   

         16   says:                                                   

         17                 "After placing the concrete seal          

         18             course, the contractor cleaned the hopper,    

         19             tremie and shovels in a footing excavation    

         20             in the river bar."                            

         21             So what is your understanding, factually, of  

         22   what happened there?                                    

         23        A.   The document speaks for itself.  I mean, I    

         24   don't know how else I could explain it without          

         25   hypothesizing.                                          

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   315

          1        Q.   Let me ask you a couple of questions then.    

          2             It appears from this statement that the       

          3   contractor had a number of tools or other equipment     

          4   that had come into contact with cement.  I'm making     

          5   that assumption.  Is that also the assumption that you  

          6   are using?                                              

          7        A.   Yes.                                          

          8        Q.   Now, it says it cleaned them in a footing     

          9   excavation in the river bar.                            

         10             What exactly would a footing excavation have  

         11   been?                                                   

         12        A.   It would have been an excavated portion of    

         13   the gravel bar.                                         

         14        Q.   Do you know whether that would have been a    

         15   contained area?                                         

         16        A.   I have no evidence of any contained areas on  

         17   the river bar.                                          

         18        Q.   Let me ask you this.  Let's use a clear       

         19   situation.                                              

         20             You're now familiar with the CMPs, right?     

         21        A.   Yes.                                          

         22        Q.   And that there was -- a CMP was, essentially, 

         23   a contained area that would be created either in the    

         24   gravel bar or in a river where water would be pumped    

         25   out and concrete would be pumped in.  Would that be     

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   316

          1   correct?                                                

          2        A.   Correct.                                      

          3        Q.   Let's say the contractor who had tools that   

          4   came into contact with cement and then cleaned those in 

          5   a CMP after a concrete pour had already been made in    

          6   that CMP, would that be a violation?                    

          7        A.   It depends if there's potential discharge to  

          8   the river.  If it is completely sealed and contained,   

          9   then it could be considered as not a violation.         

         10   Although, I would argue that is probably not a BMP.     

         11        Q.   But, certainly, in that situation, there      

         12   would be no discharge, for instance, correct?           

         13        A.   That was my caveat, that if there's no        

         14   potential for discharge, then --                        

         15        Q.   So looking at this situation with this quote  

         16   relating to August 29th, are you making an assumption   

         17   here that these tools were cleaned in an uncontained    

         18   area?                                                   

         19        A.   Yes.                                          

         20        Q.   Do you have any specific information on       

         21   whether this area was contained or uncontained?         

         22        A.   No.                                           

         23        Q.   Had this been -- well, let me start over.     

         24             If the facts were to prove that this was a    

         25   contained area, then, if I understand your testimony    

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   317

          1   correctly, it is conceivable that this would not amount 

          2   to a violation?                                         

          3        A.   It could be construed as such.  We would      

          4   still need to consider whether or not there was -- it   

          5   was a best management practice whether 17 was violated  

          6   or not, but --                                          

          7        Q.   But with respect to --                        

          8        A.   -- with respect to Condition 9.               

          9        Q.   What about with respect to Condition 10?      

         10        A.   Condition 10 requires containment -- "shall   

         11   be adequately contained and shall be disposed of        

         12   properly."  Whether that is proper disposal, I'm not    

         13   the expert to make that decision, but it could be       

         14   construed, as well, that 10 would not be a violation.   

         15        Q.   Okay.  Turn to the next one.  This is the     

         16   August 30th, 2006.  And what we have here, the          

         17   allegation is:                                          

         18                 "Concrete washout to unlined area."       

         19             And I have two photographs in support of this 

         20   violation.  One is designated 060830-01 and the other   

         21   is 060830-02.  Do you have those?                       

         22        A.   Yes.                                          

         23        Q.   I have no reports, records, logs or other     

         24   evidence in support of this violation, specifically, do 

         25   you?                                                    

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   318

          1        A.   No.                                           

          2        Q.   Are you aware of any?                         

          3        A.   No.                                           

          4        Q.   So we are relying just on the photographs.    

          5   Do you know who took those photographs?                 

          6        A.   I believe it was a Biological Monitor.        

          7        Q.   Do you know where these photographs were      

          8   taken?                                                  

          9        A.   Near the cement plant.                        

         10        Q.   Where in relation to the bridge was the       

         11   cement plant?                                           

         12        A.   I believe it was to the northeast -- a few    

         13   hundred yards from the northeastern part of the bridge  

         14   trestle.                                                

         15        Q.   Certainly away from the riverbed itself,      

         16   correct?                                                

         17        A.   Correct.                                      

         18        Q.   What does the photograph appear to show to    

         19   you?                                                    

         20        A.   It appears to show concrete washout to an     

         21   unlined area.                                           

         22        Q.   What is "concrete washout" specifically or -- 

         23   let me rephrase that.                                   

         24             What is your understanding of what happened   

         25   here to create the situation that you see in the        

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   319

          1   photographs?                                            

          2        A.   It is alleged that there's concrete tools or  

          3   other equipment that needed to be cleaned and washed    

          4   and the wastes were deposited at this location.         

          5        Q.   Let me just refer to tools and other things,  

          6   equipment that was washed.  Where do you get that from  

          7   in relation to these photographs?                       

          8        A.   It is just a hypothetical of how cement       

          9   contact water could get into this location.             

         10        Q.   So that's generally your understanding of how 

         11   these things might get out there.  You don't know what  

         12   sort of vehicle, for instance, if any, deposited this   

         13   material here?                                          

         14        A.   No.                                           

         15        Q.   And, I take it, we don't know precisely what  

         16   day this material was placed here either?               

         17        A.   No.                                           

         18        Q.   And we don't know precisely where this        

         19   material came from, do we?                              

         20        A.   No.                                           

         21        Q.   This concrete plant, do you know who was      

         22   operating the concrete plant?                           

         23        A.   Caltrans, I believe, or one of their          

         24   subcontractors.                                         

         25        Q.   Do you know if it was used exclusively to     

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   320

          1   serve the project, or might it have had other uses?     

          2        A.   Specifically for the project.                 

          3        Q.   Do you know that, or are you making an        

          4   assumption?                                             

          5        A.   I've been out on-site, and I believe this was 

          6   constructed for this project.                           

          7        Q.   Do you know whether this was at any point in  

          8   time ever cleaned up?                                   

          9        A.   No.                                           

         10        Q.   No, you don't know, or --                     

         11        A.   No, I do not know.                            

         12        Q.   Okay.  So what violations are being           

         13   alleged -- I'm sorry, what conditions are being         

         14   violated based on the allegations?                      

         15        A.   Condition 9 and 17.                           

         16        Q.   Okay.  Nine states that -- I'll paraphrase -- 

         17   that no concrete washings other than authorized for     

         18   this permit shall be allowed to enter into or placed    

         19   where it may be washed by rainfall into waters of the   

         20   State, correct?                                         

         21        A.   Correct.                                      

         22        Q.   Now, if this material that was placed here    

         23   was entirely cleaned up, would there still be a         

         24   violation of Condition 9?                               

         25        A.   Yes.                                          

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   321

          1        Q.   Why is that?                                  

          2        A.   Because it was placed in a location that      

          3   could be washed by rainfall into waters of the State.   

          4        Q.   And it makes no difference whether or not     

          5   this material was subsequently cleaned?                 

          6        A.   Well, cleaning -- cleanup of a discharge is a 

          7   factor that we take into consideration when assessing a 

          8   penalty.                                                

          9        Q.   So your position is that the violation was    

         10   established, simply, by the placement in this location? 

         11        A.   Yes.                                          

         12        Q.   Okay.  Turning to Condition 17:               

         13                 "All activities, BMPs, and associated     

         14             litigation be conducted as described in       

         15             the permit and the application."              

         16             What is it about this condition that violates 

         17   Condition 17?                                           

         18        A.   Contact water shall be fully contained per    

         19   the application and permit.                             

         20        Q.   What would be the total containment?  Is      

         21   there a prescribed method for what constitutes          

         22   containment?                                            

         23        A.   I believe Caltrans has a BMP to address that  

         24   issue.  There are many different types of minor systems 

         25   that could be considered full containment.  It depends  

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   322

          1   on what waste we are talking about.                     

          2        Q.   Okay.  Let me turn to the next event.  This   

          3   is September 8, 2006.                                   

          4             What we have here are two photographs and an  

          5   acting structural representative's daily report dated   

          6   September 7th, correct?                                 

          7        A.   Yes.                                          

          8        Q.   Are there any other facts, documents or       

          9   evidence, other than shown here in these photographs or 

         10   this daily report, that you're aware of that,           

         11   specifically, supports this violation?                  

         12        A.   No -- well, no.                               

         13        Q.   Looking just at the September 7th log,        

         14   there's a quoted section, which says:                   

         15                 "The water was tested for pH, treated     

         16             for muriatic acid, and pumped into the        

         17             settlement basin."                            

         18             Do you see that?                              

         19        A.   Yes.                                          

         20        Q.   How is this a violation of Condition 9 and 17 

         21   of the --                                               

         22        A.   The same as before.  Condition 9:             

         23                 "No concrete washings shall be placed     

         24             in or allowed to enter into waters of the     

         25             State."                                       

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   323

          1             In this case it was discharged into a         

          2   settlement basin, which was waters of the State.        

          3             And Condition 17 is:                          

          4                 "All cement wastes shall be fully         

          5             contained."                                   

          6        Q.   Now, one piece of information that is         

          7   different here compared to the last allegation is that  

          8   there was treatment that took place, correct?           

          9        A.   Correct.  I guess you could consider it       

         10   treatment.                                              

         11        Q.   Well, let's explore that just briefly.        

         12             What is your understanding of what muriatic   

         13   acid does?                                              

         14        A.   It would lower the pH.  On the other hand --  

         15   so it would treat the pH to some extent, but we have no 

         16   indication whether that was an effective or appropriate 

         17   method.  It was a process of communicating that with us 

         18   that was not adhered to or followed.                    

         19             We do not know any of the other constituents  

         20   contained in the muriatic acid that may have water      

         21   quality impacts in and of themselves.  We don't know to 

         22   what pH it was treated or tested to.                    

         23        Q.   So if I can understand your answer correctly, 

         24   the use of muriatic acid as a form of treatment isn't   

         25   something that has been considered or approved by the   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   324

          1   Regional Board in this project, correct?                

          2        A.   Correct.                                      

          3             MS. MACEDO:  Objection -- go ahead.           

          4   BY MR. HUNGERFORD:                                      

          5        Q.   Let's assume that muriatic acid wasn't an     

          6   acceptable form of treatment to reduce the pH.  Would   

          7   that remedy these violations?                           

          8        A.   No.                                           

          9        Q.   Why?                                          

         10        A.   Because Condition 9 is -- does not speak      

         11   about adjusting pH and neither does Condition 17, and   

         12   so that would not affect the substance of either        

         13   violation.  Although, if it were an approved method for 

         14   buffering pH or reducing pH, then that might be a       

         15   mitigating factor that we could take into consideration 

         16   in terms of cleanup, et cetera.                         

         17             But it wasn't a controlled process that       

         18   was -- it didn't go through the regular process of      

         19   approval through the Water Board, we have no            

         20   quantifiable evidence to show what pH level it was      

         21   treated to, or all of the other constituents that we    

         22   talked about previously.                                

         23        Q.   Looking at the photographs, the first         

         24   photograph shows what appears to be isolated Pool B.    

         25   Would you agree with that?  And this is, specifically,  

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   325

          1   060908-1.                                               

          2        A.   Yes.                                          

          3        Q.   Do you have any understanding as to whether   

          4   or not this shows the water that was referred to in the 

          5   quoted passage, or whether this is just a               

          6   representative photo of isolated Pool B?                

          7        A.   I would have to ask the Biological Monitor if 

          8   they recalled what they took the photos of.  Although,  

          9   the two photos, one shows one end of the pipe being in  

         10   the corrugated metal pipe -- from one end, and the      

         11   other photo shows the other end of the pipe, isolated   

         12   Pool B.                                                 

         13             So, no, we do not know that these are the     

         14   exact photos of that event, but they seem relevant to   

         15   what occurred on that date --                           

         16        Q.   Okay.                                         

         17        A.   -- for the quote.                             

         18        Q.   Now, looking at the September 7th passage     

         19   that you have quoted?                                   

         20        A.   September 7th?                                

         21        Q.   Yes.  We are on the same violation we have    

         22   been talking about.                                     

         23             MS. ZAZZERON:  The 8th.                       

         24             THE WITNESS:  The 8th or the 7th?             

         25   /////                                                   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   326

          1   BY MR. HUNGERFORD:                                      

          2        Q.   Okay.  It is the 8th, I'm sorry.  We are on   

          3   the September 8th photograph, but it is the September   

          4   7th daily report that you used; is that right?          

          5        A.   Correct, it is the September 7th daily        

          6   report.                                                 

          7        Q.   And the statement you quoted, actually,       

          8   begins with:                                            

          9                 "The next day the water was tested for    

         10             pH, treated with muriatic acid, and then      

         11             pumped into the settlement basin."            

         12             Are you making an assumption that the, quote, 

         13   "next day," end quote, was September 8th?               

         14        A.   Apparently, that's what I had decided.        

         15        Q.   Okay.  But it is also possible this could be  

         16   from a different date; is that correct?                 

         17        A.   It is possible.                               

         18        Q.   All right.  Now, let's turn to the next one.  

         19   Okay.  Now we are going to September 13, 2006.  And I   

         20   have here -- let's see.                                 

         21             We have photograph 060913 -01, and there's    

         22   also a quote.  What is the quote from?                  

         23        A.   I believe that's from the URS Report.         

         24        Q.   Okay.  Do you happen to have that handy?      

         25        A.   No.                                           

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   327

          1        Q.   Well, I'm going to ask you, between now       

          2   and -- considering if you're likely to come back to     

          3   finish your deposition another day -- to see if you     

          4   could locate that document because I don't have a copy  

          5   of a document that contains that quote.                 

          6        A.   Well, let me just check here.  Maybe, it is   

          7   in here.                                                

          8             It doesn't appear to be in here.  Okay, I can 

          9   find it.                                                

         10        Q.   So just do me that favor and see if you can't 

         11   find that.                                              

         12        A.   Okay.                                         

         13        Q.   Let's look at the photograph.  What does this 

         14   show to you that establishes violations for Conditions  

         15   9 and 17?                                               

         16        A.   Condition 9, cement wastes were disposed of   

         17   on the gravel bar which -- waters of the State; and     

         18   Condition 17 is that -- refers to the application,      

         19   which requires all cement wastes to be fully contained. 

         20        Q.   Okay.  Does the Certification make any -- let 

         21   me ask you this.                                        

         22             Is there any distinction between cement       

         23   contact water and, you know, dry cement material in the 

         24   eyes of the Certification in the Regional Board?        

         25        A.   Dried -- yes.  There is a distinction that    

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   328

          1   once it is fully dried and cured it no longer has the   

          2   pH -- potential pH impacts that wet cement has.         

          3             On the other hand, both of these conditional  

          4   violations would still be violated because 9 still      

          5   covers debris, rubbish, soil, et cetera, which, you     

          6   know, once it dried would fall under the category of    

          7   debris.                                                 

          8             And then 17 is BMPs and that -- throwing      

          9   debris on the gravel bar like that is definitely not a  

         10   best management practice.                               

         11        Q.   Do you know where this is on the gravel bar?  

         12        A.   I would have to look at the photo             

         13   documentation --                                        

         14        Q.   Okay.  Do you know --                         

         15        A.   -- the photo record to get the context and    

         16   everything.                                             

         17        Q.   Do you know whether this material was placed  

         18   on this specific date or a different date?              

         19        A.   I do not know, exactly, but I believe that    

         20   this document that I will find might refer to a date.   

         21        Q.   Okay.  And do you know whether this material  

         22   was ever eventually cleaned up?                         

         23        A.   No.                                           

         24        Q.   Okay.  If you turn to the next, September     

         25   29th, 2006.  And this is a familiar statement.  Maybe   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   329

          1   it is not -- I see we have a violation of Conditions 9  

          2   and 17.                                                 

          3             The items I have in support of this violation 

          4   are three photographs and a statement from the          

          5   assistant resident engineer's daily report.  Is that    

          6   what you have, as well?                                 

          7        A.   Let me find it.                               

          8        Q.   Sure.                                         

          9        A.   That's assistant resident engineer Mitch      

         10   Shands?                                                 

         11        Q.   Yes.  And the three photographs are 060929-7, 

         12   8 and 9, correct?                                       

         13        A.   Correct.                                      

         14        Q.   The statements that you have quoted in the    

         15   Mitch Shands report state, and I'm paraphrasing, that   

         16   to prevent water from overflowing the CMP, untreated    

         17   water was pumped onto the gravel bar.  Do you see that? 

         18        A.   Yes.                                          

         19        Q.   Do you have any understanding as far as where 

         20   on the gravel bar this was pumped to?                   

         21        A.   It appears in or near isolated Pool B.        

         22        Q.   Do you base that on the photograph            

         23   designated -09?                                         

         24        A.   That, and my recollection of photos in and    

         25   around that in the record.                              

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   330

          1        Q.   Now, looking at the photographs, do any of    

          2   these photographs show the actual activity here of      

          3   pumping water from the CMP or putting it in isolated    

          4   Pool B?                                                 

          5        A.   No.  060929-07 shows a better indication of   

          6   where the pipe is coming from and going to, but it does 

          7   not show the active -- the activity of discharging      

          8   occurring.                                              

          9        Q.   So am I correct in understanding that these   

         10   photographs are, you know, more representative          

         11   photographs showing, you know, the area relating to     

         12   this violation rather than, actually, showing the       

         13   active event?                                           

         14        A.   Correct.                                      

         15        Q.   And do we have any information as far as how  

         16   much water would have been pumped in this case?         

         17        A.   No.                                           

         18        Q.   And the basis for the violations of 9 and 17, 

         19   I take it, are more or less the same as we described    

         20   for the prior, you know, event involving the potential  

         21   overflow where water was pumped to isolated Pool B?     

         22        A.   Yes.                                          

         23        Q.   Is there anything else other than what we     

         24   have already discussed about this particular event that 

         25   establishes a violation of those conditions?            

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   331

          1        A.   No.                                           

          2             MR. HUNGERFORD:  Off the record for a second. 

          3                          (Recess.)                        

          4             MR. HUNGERFORD:  All right.  So we are moving 

          5   on to the last item in this particular series.          

          6   BY MR. HUNGERFORD:                                      

          7        Q.   This is the September 29th, 2006 violation;   

          8   is that correct?                                        

          9        A.   Yes.                                          

         10        Q.   And what we have in support of that is just a 

         11   single document which appears to me to be an assistant  

         12   resident engineer's daily report by Mitch Shands dated  

         13   September 29th, 2006; is that correct?                  

         14        A.   Yes.                                          

         15        Q.   Are you aware of any other photographs,       

         16   documents or evidence that support this violation,      

         17   specifically?                                           

         18        A.   No.                                           

         19        Q.   What is your understanding of the factual     

         20   scenario supporting this violation?                     

         21        A.   It is my understanding that the equipment,    

         22   hopper, tremie and shovels, were cleaned in an area     

         23   that was uncontained.                                   

         24             Here it is described as a "glory hole for 2   

         25   through 7s FTG," and that it was not fully contained,   

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   332

          1   and it was not an adequate BMP.                         

          2        Q.   What is the basis for your statement that it  

          3   was not fully contained?                                

          4        A.   It is an assumption.                          

          5        Q.   This would follow your testimony earlier with 

          6   respect to a different violation in which you believe,  

          7   and correct me if I'm wrong, that if this was fully     

          8   contained, then it might not be a violation of          

          9   Conditions 9 or 10, but possibly of 17; is that         

         10   correct?                                                

         11        A.   Yes.                                          

         12        Q.   So in this case whether or not the            

         13   Certification has been violated depends largely on      

         14   whether or not this was a contained area; is that       

         15   right?                                                  

         16        A.   Yes.                                          

         17        Q.   But the information we have in front of us is 

         18   not determinative on that, is it?                       

         19        A.   No.                                           

         20             MR. HUNGERFORD:  All right.  We will stop     

         21   there for today.                                        

         22                       (Whereupon, Exhibit Nos. 1 and 2    

         23                       were marked for identification.)    

         24                                                           

         25         (The deposition was adjourned at 3:15 p.m.)       

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   333

          1                    CERTIFICATE OF WITNESS                 

          2           I, KASON VERNE GRADY, hereby declare under oath 

          3   that I have read the foregoing testimony recorded on    

          4   pages 183 to 333, inclusive, and that the same is a     

          5   true and correct transcript of my said testimony,       

          6   except as I have corrected any answer ink, initialed    

          7   such correction, and stated on the margin my reason for 

          8   making same.                                            

          9                                                           

         10                                                           

         11                                                           

         12                              ____________________________ 

         13                              KASON VERNE GRADY            

         14                                                           

         15                                                           

         16   DATE: ____________________                              

         17                                                           

         18                                                           

         19                                                           

         20                                                           

         21                                                           

         22                                                           

         23                                                           

         24                                                           

         25                                                           

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   334

          1                    REPORTER'S CERTIFICATE                 

          2            I, MAREE N. ARMSTRONG, a duly qualified        

          3   certified shorthand reporter for the state of           

          4   California, do hereby certify that the witness in the   

          5   foregoing deposition named, to wit:  KASON VERNE GRADY, 

          6   was by me duly sworn to testify to the truth, the whole 

          7   truth and nothing but the truth in the within-entitled  

          8   cause; that said deposition was taken at the time and   

          9   place therein stated in my presence; that the testimony 

         10   of said witness was recorded by me stenographically,    

         11   and was at my direction thereafter transcribed into     

         12   typewriting.                                            

         13            I further certify that I am not a relative or  

         14   employee or attorney or counsel of any of the parties,  

         15   nor am I a relative or employee of such attorney or     

         16   counsel, nor am I financially interested in the within  

         17   action.                                                 

         18            In witness whereof, I have hereunto set my     

         19   hand this 22nd day of November, 2010.                   

         20                                                           

         21                            ______________________________ 

         22                            MAREE N. ARMSTRONG, CSR #11284 

         23                                                           

         24                                                           

         25                                                           

                    COASTAL REPORTING SERVICES  (707) 573-9766        
                                                                   335

