THE COURT: Okay, we’re back on the record in People versus Mercier and Henderson. All the parties are here. Miss Lamp, next witness?
MS. LAMP: Yes, Your Honor. We’ll call Rachel Matthews to the stand.
THE COURT: Step up please. Raise your right hand. Do you solemnly swear or affirm the testimony you will give in this matter will be the truth, so help you God?
MS. MATTHEWS: I do.
THE COURT: Come on around here. Watch out for the easel there. The chair is on rollers, so be careful. The microphone is not going to make you any louder, so make sure you speak up loudly and distinctly for us. State your full name.
THE WITNESS: Rachel Matthews.
THE COURT: How do you spell your first name?
THE WITNESS: R-a-c-h-e-l.
THE COURT: And your last name?
THE WITNESS: M-a-t-t-h-e-w-s.
THE COURT: Thank you. Miss Lamp?
RACHEL MATTHEWS
Called at 4:30 p.m. by the People, sworn by the court, testified:
DIRECT EXAMINATION
BY MS. LAMP:
Q. Miss Matthews, where are you employed?
A.
With the DEQ, State of
Q. And in what capacity?
A. I’m an environmental quality analyst for the Jackson District Office.
Q.
And in your professional capacity did you have occasion to be called to
the Turn Three Ranch located at
A. Yes, I was.
Q. Okay. And what was the purpose for you being called to that ranch?
A. There were some environmental concerns being that, that there was a stream that runs through the back property behind where the horses are kept and there was some concern with some erosion and what part of that might have on the water quality as well as any manure that might have gotten into the water.
Q. And when did you get called in there?
A. On March twenty-first.
Q. Okay. And can you describe the observations that you made upon arriving there at the farm?
A. Most of it what I would consider the difference between pasture and seeing open lot, I considered it an open lot. There was very little green, if any. The fences were not working properly so the horses were able to get down into the stream. Some of the areas were considered very eroded, other areas, there was actually some trash in, in the stream bed and I did take samples the very next day to see what kind of, you know, if there was any manure, E coli is what we look specifically for in the water to verify any further problems.
Q. Okay. And so the next day you came and took samples. Is that correct?
A. Yes.
Q. And do you have a special way of doing the samples to keep, to insure the accuracy of the tests?
A. Yes, we do. We have to take upstream and downstream samples in order to see if there’s any violations based on what might actually be upstream. One of the tests that we do, of course I mentioned E coli, that is from warm blooded animals. Most people might have heard, you know, the E coli scare with spinach, so it might give you a little idea of where that comes from. Upstream sampling came back little to none. Downstream samples significantly higher, about six hundred, and we normally take three samples because you don’t want to take just one sample and have a blip on the radar. We want to see at least three samples and see what those look like.
Q. Three samples up and three samples down?
A. Exactly.
Q. Okay. And can you quantify the amount of E coli that you found in the downstream sample?
A. I did bring the samples with me. The, if you would like me to tell you what those samples were.
Q. Yes, please.
A. I remember offhand they were over six hundred, but I don’t have the exact numbers in my mind. One was six fifty, one was seven eighty and the other one was six seventy. So they’re pretty close together. And the upstream, two of them were less than ten and we never really have them come back as zero, they just say less than ten, and then the other one was at ten.
Q. Okay. And is this a stream or ditch, if you know?
A. It’s technically a county road, or a county drainage ditch.
Q. Okay.
A. But it does lead to waters of the state. We do consider the drainage ditch a waters of the state, but if you were to look at say recreational opportunities or fishing opportunities or boating or anything like that, that ditch does lead to lakes.
Q. Okay. What lakes does it lead to?
A.
I don’t remember, I’ll have to look at the map real quick. The first one it hits is called Leoni Mill
Pond which is a very small lake, but then that eventually discharges to
Q.
Is that the lake in
A. Um…
Q.
Is it called
A.
No. The lake is called
Q. Okay, all right. I’m not personally familiar with the lake, but just thought I’d clarify. And is there a danger to having E coli in the water?
A. Well, when, during certain times of the year we have full body contact and then of course other times of the year we have partial body contact, and of course right now is full body contact season, kids are swimming, there’s boaters, people are getting their face in the water, so that’s a big concern, potential ingestion of the water. Partial body contact of course anytime anybody has a cut or sore or something like that, it can potentially get through that way and not like ingestion obviously, but just depending on what time of year, you want to use a little common sense on how we look at, how it’s going to affect mostly kids or humans just swimming in the water.
Q. And let me ask you if you noticed any other violations there in addition to the E coli testing. I assume that’s a violation of something.
A. That would be a violation of our E coli standards. We do have what we call water quality standards and there are several different standards beside E coli. We have other types. We take general chemistry as well, just to look at some of the other effects, such as ammonia or phosphorus, BOD, which is biochemical oxygen demand, basically how much oxygen is getting sucked out of the water, depending on how much stuff is in the water that’s using up that oxygen. That’s about as simple an explanation as I can say it. Other things such as nitrogen nutrients, nitrogen and phosphorus are two nutrients that can cause overgrowth of plants, and that’s one of our biggest problems with some of our lakes and ponds, is if you get an overgrowth of plants, of course you get that really bad smell in the summertime. So we’re very concerned with different types of nutrients.
Q. Okay. Did you make any other findings from the other testing then that you did?
A. Yes. I made some and I will just touch on a couple. Another one we look at is turbidity and that’s kind of the cloudiness of the water. We do have some different standards, I mean we even have standards on taste and odor, I don’t taste out in the field, but smell can be an issue too. The turbidity was none detected upstream, but 7.4 downstream. So that was actually a significant change, and some of the nutrients such as phosphorus, orthophosphate particularly which is the phosphorus that plants can use right away, it doesn’t have to break down, so plants are able to use orthophosphate right away, there was an increase by .04, and that doesn’t sound like a lot, but it doesn’t take a whole lot of phosphorus to increase plant activity. Nitrogen such as nitrate and nitrite, it’s broken down to the different kinds. There’s a tiny increase. Nitrite, there’s also a tiny increase. As I mentioned, some of these, some of the increases don’t sound large, but it could make a difference.
MR. DUNGAN: What was the nitrogen?
THE WITNESS: The nitrate-nitrite on the downstream sample was 6.1 and actually upstream was 6.2, so there could be some changes based on chemistry too, because like I said, we do take it out, like ammonia, nitrite, nitrate, those are all different nitrogens, so they change as they’re going through the system. Ammonia is probably the one, that’s a type of nitrogen. None detected upstream, but .1 downstream. My biggest concern would be more the E coli, that’s usually what I check out in the field. I work with a lot of the farms for turbidity. The E coli is mostly what we look at unless there’s a huge significant change in say ammonia, which is a big concern, or phosphorus, which is our big concern. So that’s mostly what we look at. And if you want further information on the intricacies of some of the other information such as how ammonia is a toxicity to fish or aquatic life, I would recommend discussing it more with our surface water assessment section.
BY MS. LAMP:
Q. Okay.
A. That’s their specialty there.
Q. Was there any other violation, erosion or anything like that that you observed?
A. We don’t have say a violation for erosion. It’s mostly how does it affect upstream versus downstream. So if there is a significant increase in one of our water quality parameters downstream, then we look at that. There was some erosion problems, the turbidity had changed, it was non-detected upstream and 7.4 downstream. So we know based on that that there is some cloudiness in the water and it’s most likely caused by erosion and of course some of it could be caused by any manure runoff as well.
Q. Did you find any violation--
THE COURT: What was that last one? Erosion of what?
THE WITNESS: In manure runoff.
THE COURT: Thank you.
BY MS. LAMP:
Q. Did you find any violations of any of the regulations of the Department of Environmental Quality?
A. Definitely E coli. Let me explain that too. What we have is total body contact and partial body contact and three hundred is our total body contact and that’s just a one time sampling. We also have a geometric mean of a hundred and thirty. So if we took so many samples and divided it out over a period of time, it’s a mathematical equation basically, it can’t be over a hundred and thirty. So we’re reaching seven eighty I think was the max. Now, in the middle of winter of course the max can be a thousand and we’re getting pretty close. So if we’re in the middle of winter, you know, technically it wouldn’t be a violation, but not right now of course, it certainly would be. And if the geometric mean of course was above a hundred and thirty, that would be a violation.
Q. And what was the number on this again?
A. Well, between the three of them, one was seven eighty, one was six fifty, the other one was six something. Six fifty and six seventy.
MS. LAMP: Okay. Thank you. Nothing further.
CROSS-EXAMINATION(at 4:41 p.m.)
BY MR. DUNGAN:
Q. Miss Matthews, when you say water quality standards, what are those?
A. They’re part four of the administrative rules developed by DEQ under the--
Q.
A. Yes.
Q. From the administrative code?
A. Yes.
Q. So you can get on Michigan.gov, we can look them right up on a computer.
A. Right. I don’t know if you can just punch in part four and get it, I mean, that’s kind of our way of saying it. It would be under Water Quality Standards and you could probably find it that way.
Q. All right. And when you say that you found six fifty, seven eighty and six seventy E coli, I’m assuming that’s parts per something.
A. Let me explain that a little bit more. It’s basically a hundred mil sample.
Q. Hundred milliliter?
A. Yes, hundred milliliter sample.
Q. Okay.
A. And you have these little units basically, it’s a colony, it’s a forming unit, so if they’re counting six hundred and fifty, they’re counting six hundred colony forming units, so they call it CFU per one hundred mils, would be the standard way of writing it.
Q. So you essentially take hundred mil samples?
A. I’ll take three upstream and three downstream. That’s the standard.
Q. Then you take them back for testing.
A. Right.
Q. What does the actual testing consist of?
A. The laboratory would have to explain it.
Q. So you don’t-—
A. I drop them off and then I get, I get the samples back.
Q. So you take the samples, you bring them back, you drop them off at the lab and wait for a report.
A. Right.
Q. So however the testing was done or--
A. Our samples are actually--I’m sorry?
Q. You can’t explain to us how the testing is done?
A. No, because I’m not a laboratory, I don’t work in a laboratory.
Q. All right.
A. Our samples are taken to the DEQ laboratory though, so it’s the only lab in the state that we’ll take our samples to.
Q. E coli is present in water to some extent, isn’t it, virtually in all water?
A. Generally speaking you are going to find E coli in most waters. You can find some places that you won’t detect E coli. There was one sample that showed less than, or two samples that showed less than ten. Like I said, I’ve not seen one that shows zero.
Q. Right.
A. But I don’t know if they actually say, ever say zero because the only ones I have ever seen are less than ten.
Q.
And the standards for what is a tolerable level are different depending
on the time of year in
A. That’s the violation. Not whether or not we see degradation. It’s just a violation. Of that particular water quality standard.
Q. All right.
A. Which is for E coli specific.
Q. The standards are different depending on the season and the temperature apparently?
A. For E coli.
Q. Right. And when you say total or full body contact standard of three hundred plus would be a violation, that’s when the water’s warm enough for us to go in there swimming?
A. There is what we call total body contact and partial body contact. Let me see if I can find them. In our part four rules, which is our water quality standards, and it explains as a designated, it’s basically under designated use so you’d probably have to do a search under designated use. Partial body contact means any activities normally involving direct contact of some part of the body with the water but not normally involving immersion of the head or ingesting water, including fishing, wading, hunting and dry boating, and of course we have an explanation for full body contact.
Q. Which is?
A. Or total body contact. Any activities normally involving direct contact with the water to the point of complete submergence, particularly immersion of the head with considerable risk of ingesting water, including swimming.
Q. Okay. So these levels that we’re talking about of six fifty, seven eighty and six seventy, would be acceptable for partial body contact.
A. They would just be, it wouldn’t be considered a violation.
Q. Okay.
A. During that time.
Q. All right. But they would not be considered, or they would be considered a violation for full body contact.
A. Right.
Q. And the date that you sampled this was what, the third week of March?
A. March twenty-second.
Q. All right. Too cold to swim that day. Would you agree with that?
A. I wouldn’t be swimming that day. But I wouldn’t be swimming in a ditch.
Q. Okay. The stream that you looked at itself, I mean, you can’t, the stream’s not big enough where you’re going to go swimming in it.
A. No.
Q. Okay.
A. My concern would be more where it’s leading to, which of course is a lake that’s open for swimming and fishing.
Q. The lake that that is leading to, was that tested to see if it’s being contaminated by the E coli from this stream?
A. No. We don’t need to do that. We need to take upstream and downstream to see if there’s an actual, either a violation or a change.
Q. Did you consider the amount of E coli that you found on this date in March to be a violation?
A. I would have to look and see what, if we actually have specific dates for total and partial. But we also have other sections in part four that don’t reference total body contact or partial body contact, so in essence there are other areas that we look besides just E coli. That’s usually our main concern because that’s what makes people sick.
Q. So as we’re sitting here right now, you can’t tell us that this amount of E coli is a violation or not.
A. For that time of the year I’m not sure if it is. But there are other violations on the site, so that’s not the only thing that I would bring in. That’s our main concern. Usually.
Q. Okay. But just to make sure I understand. The amount of E coli that was found in the stream on that day you’re not sure is a violation or not.
A. I’d have to make sure of the dates for total body contact and partial body contact.
Q. And if I tell you—-
A. I don’t have that right here in my notes.
Q. Okay. Now, the turbidity is essentially how clear or not clear the water is.
A. Right.
Q. And that was seven point four.
A. That was seven point four.
Q. And is that again the CFU per one hundred milliliters?
A. No. That’s specific, the CFU is specific to E coli.
Q. Okay. What, all right. Then with turbidity it’s seven point four per what?
A. It’s called NTU, and--
Q. Which stands for?
A. That’s what I’m trying to remember. Like I said, I’m not the lab person so I don’t keep track of all the bits and pieces.
Q. Is the seven point four NTU of whatever of turbidity, is that a violation?
A. There is not specific number on turbidity. I’m actually looking that up to see so I can read it to you. There are, there is information on, here we go. Under physical characteristics, we have a section under physical characteristics, would include things that basically you can see, touch, feel, taste, smell. Surface waters of the state shall not have any of the following physical properties and unnatural properties which are or may become injurious to any designated use. And pretty much we always refer to designated use. Turbidity, color, oil films, floating solids, foam, sedible solids, suspended solids and deposits. So I mean to be kind of graphic I guess, you know, chunks of poop and garbage or anything like that, or erosion that’s getting in there that’s not, that shouldn’t be happening, that all can get lumped in basically that little section. And that is 323.1050 under our part four regulations.
Q. But apparently turbidity is quantifiable into a numerical value, because you said seven point four.
A. Right.
Q. Is there--
A. I mean, they have to measure it somehow.
Q. Is there anything in your book that says what number is acceptable or not acceptable or a violation or not a violation?
A. No. That’s where we have to come in and look at upstream and downstream. That’s one of the reasons why we take upstream samples.
Q. Was there a turbidity violation on these guys’ farm?
A. I would say because I saw a significant difference between upstream and downstream, yes. There was nothing--
Q. A significant difference in turbidity?
A. There was no turbidity measured at all upstream. It was clear water.
Q. And then seven point four downstream.
A. Yes.
Q. Okay. But you don’t have to have zero turbidity to not be in violation. Right?
A. No. I’ll give you another example. If say upstream I had found the same or similar turbidity because there’s erosion that somebody else is causing, it would be very difficult for me to measure between two different sites. If there’s an upstream problem and then you’ve got a problem where I’ve been called out on, then it makes my job much harder. In this particular case there was no problem upstream, so I didn’t have to measure, you know, a potential problem coming from somewhere else. We do have situations that, that have problems upstream as well as downstream from a site that has manure runoff or erosion and then we have to track that down as well.
Q. So if your upstream and downstream samples were both seven point four, would you have concern?
A. I would still have concerns on the turbidity, but I wouldn’t say that I’d have concerns on that particular site. There’s a different way--
Q. So it’s the consistency that seems to be important to you on turbidity?
A. Partly. Yes, consistency as well. Water quality is not always easy. You have to look at what’s happening upstream, because anybody’s septic can be going into that ditch.
Q. Sure.
A. And of course you’re going to find E coli if you have a septic system going into the ditch. Where that E coli is coming from you may not know. But if you show nothing upstream or very little upstream and much more downstream, it’s very easy to tell where it’s coming from. Same with turbidity or nutrients. Anything like that. If you show nothing upstream and then all of a sudden downstream you’re showing a change, something’s happening between there.
Q. The phosphorus issues that you talked about, the point zero four. Again, point zero four what?
A. I think it’s milligrams per liter on phosphorus. It’s usually pretty typical. It would be milligrams per liter. Most everything else is milligrams per liter. There’s a couple that are, you look at a little bit differently.
Q. Now, is that number with the phosphorus, is that a violation of the water standards?
A. Phosphorus is a little bit different. Let me find it. We don’t have it specific for phosphorus. We call it plant nutrients. Consistent with Great Lakes protection, phosphorus which is or may readily become available as a plant nutrient shall be controlled from point source discharged--I want to make a distinction when I read that--to achieve one milligram per liter of total phosphorus is a maximum monthly average, effluent concentration, that’s a point source, so that’s somebody who’s permitted like a waste water treatment plant and they’re allowed to have a certain amount go into the water.
Q. Which is one?
A. Which is one. But then there’s a second part to that section. It says, in addition to the protection provided under sub rule one which I just read of this rule, nutrients shall be limited to the extent necessary to prevent stimulation of growth of aquatic rooted, attached, suspended and floating plants, fungi or bacteria which are or may become injurious to the designated uses of the surface waters of the state.
Q. Did you see any of that?
A. Did I see plants growing in there?
Q. Yeah.
A. Yes.
Q. Okay. But again, there’s not one of those regulations that tell us if phosphorus, phosphorus point zero four, is too much, too little, violation or not a violation?
A. No. The only specific reference to the one milligram of course is through the point source.
Q. All right.
A. Which of course, most farms are not considered point sources.
Q. And then the number that you came up with for the nitrogen, the six point one, six point two, is that a violation?
A. It would fall under plant nutrients. The same thing. The first one I read of course is specific to phosphorus because they’re referring to a point source. The second one is just general as far as plant nutrients.
Q. So did you have certain recommendations then for whoever is responsible for the farm?
A. Yes, I actually did. I spoke with Mr. Henderson and told him generally speaking when somebody wants to have livestock near a stream they should have a proper fence, a buffer strip, filter strip of some sort, and I recommended that he talk to the conservation district, they usually work with farmers on technical health. Sometimes they can get them into programs to get proper buffer strips. They’ll look at the size of the lot, determine how much rain they normally get to help them decide what size buffer or what kinds of grasses to grow, when to mow it, et cetera. It’s a management program to help farms--
Q. This isn’t something that you were going to classify as some kind of immediate threat hazard?
A. The problem on the site?
Q. Yeah.
A. I wouldn’t call it an immediate threat hazard. I mean, when you’re dealing with six thousand cows versus seventy horses, I’ve got to set my priorities.
Q. All right. So you’ve seen a lot worse than this before.
A. Oh, much. But I’ve also seem much better and he really does need to put a buffer strip and some better fencing which was my suggestion.
MR. DUNGAN: Okay, thank you. I don’t have any other questions, Your Honor.
THE COURT: Mr. Hurst?
MR. HURST: No, Your Honor.
THE COURT: Miss Lamp?
MS. LAMP: Nothing further.
THE COURT: Miss Matthews, you said you talked with James Henderson?
THE WITNESS: Yes, sir.
THE
COURT: In person or on the phone?
THE WITNESS: On the phone.
THE COURT: Now, you say all these things about the stream. What’s this mean to horses? Horses drink out of it. What does this mean?
THE WITNESS: Oh, yes, sir. Well, my understanding is the horses were trying to get down into the stream to drink out of it.
THE
COURT: Well, could you tell that from
your observations by the stream?
THE WITNESS: I think that was part of the reason for the
erosion which is one of the reasons why it’s so important to have a proper
fence and proper crossing. There is a
crossing, it just wasn’t managed properly in my opinion.
THE COURT: Well, we talked about downstream—-well, let me ask you this. How far downstream do you go?
THE WITNESS: Right at the road actually, at the very beginning of the property.
THE COURT: And then how far upstream?
THE WITNESS: Right at the end of the property.
THE
COURT: All right. So if we talk about the streams going to end
up going to Leoni Mill Pond and
THE WITNESS: Correct.
THE COURT: What about horses drinking there? Does it have an impact on the horses, hurt them, doesn’t make any difference?
THE WITNESS: That could have an impact. I mean, if I compare horses with humans we know that E coli causes diarrhea in humans. I’m not a veterinarian, sir, so I’m not sure. I would not want my horses drinking water with E coli in it.
THE COURT: Why?
THE WITNESS: I would have the same concerns for them as I would have for my own child drinking it.
MR. DUNGAN: Your Honor, just—-
THE COURT: Sure.
MR. DUNGAN: --so I’m clear and I appreciate the court asking good questions.
THE COURT: Sure.
MR. DUNGAN: But as far as her--and I mean that sincerely. As far as her--
THE COURT: I don’t take it any other way, Mr. Dungan.
MR. DUNGAN: Good. You can see right through me. As far as her giving an opinion whether it’s safe for the horses to drink out of that stream, I’m assuming you’re not accepting that as an expert opinion. I mean, I think we would need--
THE COURT: I didn’t really get any opinion at all as far as horses.
MR. DUNGAN: Okay.
THE COURT: I got opinion as to whether or not we should swim in it at Center Lake---
MR. DUNGAN: Well, she kind of said I wouldn’t let my horse drink out of it.
THE
COURT: --and I guess that’s up to
MR. DUNGAN: We’ll get Terry Gillette in here.
THE COURT: --it causes diarrhea in people, but I don’t think we got an opinion as far as horses which is what I was most interested in.
MR. DUNGAN: Okay, all right.
THE WITNESS: Your Honor, I could probably touch on that a little if you’d like. Through our part thirty-one which is actually a state statute.
THE COURT: All right. Let’s touch a little bit.
THE WITNESS: Under 324.3109, which is our state statutes under 452, 1994, in case you’re all trying to write this down. A person---
THE COURT: Three twenty-four what?
THE WITNESS: This would be Public Act 451 of 1994.
THE COURT: But you gave me a section, 324 point…
THE WITNESS: Yes. 324.3109.
THE COURT: Okay. Go ahead.
THE WITNESS: Okay. It’s discharge into state water prohibition violation penalties and abatement. That’s the section it’s called.
THE COURT: Okay.
THE WITNESS: It says, a person shall not directly or indirectly discharge into the waters of the state a substance that is or may become injurious to any of the following. And there’s a huge list and one of them is, to domestic, commercial, industrial, agricultural, recreational, other uses that are made or may be made of such waters. And another one is also includes to livestock, wild animals, birds, fish, aquatic life or plants, or to the growth, propagation of the growth, the propagation thereof-—sorry about that, be prevented or injuriously affected or weighed by the value of fish and game is or may be destroyed or impaired. So those two parts, those two sections of that part bring in agricultural as well as livestock. I’m not an expert on horses, but I do know that those sections are in our part thirty-one statutes.
THE COURT: So you’re not supposed to do something that could be injurious to horses.
THE WITNESS: Correct.
THE COURT: But you don’t know if this is.
THE WITNESS: I’m not a vet, so I wouldn’t know that.
THE COURT: Okay. Anything else?
MR. DUNGAN: No, sir, thank you.
THE COURT: Miss Lamp?
MS. LAMP: No, nothing further, Your Honor.
THE
COURT: Okay. May Miss Matthews be excused?
MS. LAMP: Yes, please, Your Honor.
THE COURT: Thank you very much. Watch your step going down. Thanks for coming in and your patience with us.
(At 5:00 p.m. witness excused)
THE COURT: Miss Lamp?
MS. LAMP: Your Honor, I don’t have any further presentation.
THE COURT: Okay. And you are, have witnesses tomorrow?