1
1 STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
2
SUGAR CANE GROWERS COOPERATIVE OF
3 FLORIDA, INC., ROTH FARMS, INC.,
and WEDGWORTH FARMS, INC.,
4
and
5
FLORIDA SUGAR CANE LEAGUE, INC.,
6 UNITED STATES SUGAR CORPORATION,
and NEW HOPE SOUTH, INC.,
7
and
8
FLORIDA FRUIT AND VEGETABLE CASE NOs. 92-3038
9 ASSOCIATION, LEWIS POPE FARMS, 92-3039
W.E. SCHLECHTER & SONS, INC., and 92-3040
10 HUNDLEY FARMS, INC.,
11 Petitioners,
12 vs.
13 SOUTH FLORIDA WATER MANAGEMENT
DISTRICT,
14
Respondent,
15
and
16
MICCOSUKEE TRIBE OF INDIANS OF
17 FLORIDA, the UNITED STATES OF
AMERICA, FLORIDA DEPARTMENT
18 OF ENVIRONMENTAL REGULATION, and
FLORIDA WILDLIFE FEDERATION,
19
Intervenors.
20 . . . . . . . . . . . . . . . . . . . /
21
22
23 DEPOSITION OF RANDALL L. ARMSTRONG
24 February 11, 1993
25
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1
2 DEPOSITION OF RANDALL L. ARMSTRONG
3 Taken in the above-styled cause, pursuant to
4 notice, at the Phoenix Environmental Group, Inc., 911 East
5 Park Avenue, Tallahassee, Florida, on February 11, 1993,
6 commencing at 9:00 a.m.
7
8 Reported by:
9 JERRY L. ROTRUCK
10 Certificate of Merit
11
12
13
14
15
16
17
18
19
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1 APPEARANCES OF COUNSEL:
2 On behalf of the Petitioners Florida Sugar Cane League,
Inc., United States Sugar Corp. and New Hope
3 South, Inc.:
4 William L. Hyde, Esq.
Peeples, Earl & Blank
5 215 South Monroe Street
Suite 350
6 Tallahassee, FL 32301
7 On behalf of the Intervenor United States of America:
8 Steve Bartell, Esq.
U.S. Department of Justice
9 Environmental and Natural Resources Division
General Litigation Section
10 601 Pennsylvania Avenue, N.W.
Fifth Floor, Room 5613
11 Post Office Box 663
Washington, D.C. 20004-0663
12 (202) 272-4248
13 On behalf of the Intervenor Department of Environmental
Regulation:
14
Keith C. Hetrick, Esq.
15 Donna LaPlant, Esq.
Assistant General Counsel
16 State of Florida
Department of Environmental Regulation
17 Twin Towers Office Building
2600 Blair Stone Road
18 Tallahassee, FL 32399-2400
19
20
21
22
23
24
25
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1 INDEX TO WITNESS
2 RANDALL L. ARMSTRONG Page
3 Examination by Mr. Hetrick 6
4
5
6
7
8
9 INDEX TO EXHIBITS
10 No. Marked
11 1 10
12 2 167
13 3 170
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1 S T I P U L A T I O N
2 IT IS STIPULATED AND AGREED by and between counsel
3 appearing for the respective parties as follows:
4 THAT the deposition of RANDALL L. ARMSTRONG was
5 taken by agreement for the purpose of discovery, for use as
6 evidence, and for such other purposes as may be permitted
7 by the Florida Rules of Civil Procedure and other
8 applicable law;
9 THAT all objections, except as to the form of the
10 question, are reserved until the trial of this cause;
11 THAT by agreement of the witness and all parties,
12 reading and signing of the deposition was not waived.
13
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1 D E P O S I T I O N
2 Whereupon,
3 RANDALL L. ARMSTRONG
4 was called as a witness, having been first duly sworn to
5 speak the truth, the whole truth, and nothing but the
6 truth, was examined and testified as follows:
7 EXAMINATION
8 BY MR. HETRICK:
9 Q Mr. Armstrong, my name is Keith Hetrick. I am an
10 Assistant General Counsel with the Department of
11 Environmental Regulation, and I am here to depose you to
12 find out your opinions regarding the SWIM challenge that is
13 at issue here.
14 Have you ever been deposed before?
15 A Yes, I have.
16 Q Then you have been through this before and you
17 probably know somewhat how it works, but let me just run
18 through it briefly.
19 I am here, as I said, to find out what you know
20 about the case and what your opinions are going to be about
21 this case and the basis for those opinions and what you are
22 going to testify to, so I will be asking you a series of
23 questions. You need to answer those questions to the best
24 of your knowledge and ability. If you don't understand the
25 question, let me know, and I will rephrase the question.
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1 If your counsel objects, you need to go ahead and answer
2 the question anyway, unless he instructs you not to
3 answer. We will try to resolve the objection as we go
4 along.
5 If you get tired, if you want to take a break,
6 just let me know, and we can recess at any point in time to
7 take a break or whatever.
8 Do you understand how this works, then?
9 A Yes, I do.
10 Q Let me -- let's go through the notice of
11 deposition first. I just want to run through documents. I
12 am not going to attach this as an exhibit.
13 MR. HETRICK: Off the record.
14 (Discussion off the record.)
15 MR. HETRICK: Let's go back on the record.
16 BY MR. HETRICK:
17 Q I am going to show you a copy, it is not going to
18 be attached as an exhibit since it is a pleading document,
19 but Mr. Armstrong, have you seen this document?
20 A Yes, I have.
21 Q Have you reviewed it with your counsel?
22 A Yes, I have.
23 Q I would like to go through it one by one and
24 see -- it is my understanding you do not have any documents
25 to produce, is that correct?
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1 A That is correct.
2 Q Let's just go through each one of these, and I
3 want to make sure that the production to the best of your
4 ability is done for each one of these.
5 No. 1, have you produced any and all documents
6 relied upon in preparing, formulating, developing,
7 authoring, co-authoring, reviewing or organizing
8 anticipated expert testimony relating to the subject matter
9 of this action?
10 A Yes, I have.
11 Q Have you complied with -- would you take a second
12 to review paragraph 2, any and all documents relating to
13 DER policies and procedures about which you anticipate
14 testifying in this case?
15 A Yes, I have.
16 MR. HYDE: Let me interject for a moment.
17 MR. HETRICK: Sure.
18 MR. HYDE: I hurriedly this morning prepared a
19 privileged list that consists of two documents. I will
20 give them to you right now. It is correspondence
21 between Randy and myself.
22 MR. HETRICK: Okay.
23 MR. HYDE: I apologize for not having provided it
24 to you earlier. I was going to send out a copy of this
25 to everyone.
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1 MR. HETRICK: Thank you.
2 BY MR. HETRICK:
3 Q No. 3?
4 A Yes.
5 Q And No. 4?
6 A Yes.
7 MR. HYDE: I would also like to make another
8 point for the record. Given Mr. Armstrong's former
9 employment for the Department, many of the documents
10 that are called for in this notice are, in fact, in the
11 Department's possession.
12 MR. HETRICK: The only thing I would like to say
13 on the record is, that may be true, but if he is going
14 to -- we have millions of documents on file. If he is
15 going to rely on a particular document at trial and
16 have that introduced or rely on it in any way, I think
17 it is within the scope of the rules to have that
18 document produced, even though it may be in our files.
19 MR. HYDE: I have no dispute with that. I am just
20 saying that, for example, paragraph 4 -- well, I guess
21 not even paragraph 4 has anything to do with it, but
22 any and all documents in No. 3, well, that could
23 theoretically go back to all of the correspondence that
24 goes with earlier drafts of the SWIM Plan, too, so --
25 MR. HETRICK: But to illustrate my point, if he is
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1 going to rely on a particular document, then I would
2 expect him to produce that document.
3 MR. HYDE: As far as the reliance thing goes,
4 correct.
5 BY MR. HETRICK:
6 Q No. 5?
7 A Yes, I supplied this to my attorney.
8 Q And No. 6?
9 A Yes.
10 Q And No. 7?
11 A Yes.
12 Q Now I would like to kind of go through your
13 resume, and I do have copies of that.
14 MR. HETRICK: I would like to attach this as
15 Exhibit 1.
16 (Whereupon, Exhibit No. 1 was marked for
17 identification.)
18 BY MR. HETRICK:
19 Q Mr. Armstrong, I would like to ask you a series of
20 questions about your education and experience in various
21 areas including job responsibilities, day-to-day work, so
22 we can determine -- explore some of your background.
23 Let's start with your education. Where and when
24 did you obtain your college degree?
25 A I received a Bachelor of Science degree in June of
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1 1971 from Florida State University. My degree was in
2 education, with a major emphasis on biology.
3 Q Was there a thesis at all connected with that
4 degree?
5 A No, there was not.
6 Q Did you have any particular area of concentration?
7 A My particular area of concentration in the field
8 of biology was in ecology, but that is a very broad term,
9 of course.
10 Q What kinds of coursework did you have in
11 connection with the ecological focus?
12 A I had a number of courses in population dynamics
13 and succession and primarily general courses in ecology,
14 dealing with both aquatic and terrestrial systems, more
15 terrestrial than aquatic; basically just a broad range of
16 studies in that field.
17 Q Did you have any coursework in chemistry at all?
18 A Quite a bit.
19 Q Can you describe what coursework in chemistry?
20 A I had qualitative and quantitative analysis. I
21 had organic chemistry. I had specific courses I really
22 cannot remember the names of. I had I believe around 20
23 hours, quarter hours of chemistry, which would have, if I
24 recall, would have qualified me for a minor in chemistry
25 had we had a minor program in education.
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1 Q Did you have any physics courses?
2 A Yes, I did.
3 Q How many physics courses did you have?
4 A Two or three.
5 Q How about mathematical?
6 A Quite a bit. I had geometry and trigonometry up
7 through two courses of calculus, I believe.
8 Q I notice from your resume it talks about further
9 studies. Can you describe those further studies?
10 A Yes. When I graduated from Florida State
11 University, I lived in Orlando for a couple of years and,
12 in fact, worked at Florida Technological University which
13 is now the University of Central Florida, and in the course
14 of that, the study that I was working on, I took several
15 courses in primarily entomology, which is the study of
16 insects and so forth, that were related to the research
17 that I was doing at FTU.
18 Q What was the purpose of your further technical
19 studies?
20 A At the time I had plans to enter the graduate
21 program at Florida Technological University. The graduate
22 program did not get established in roughly the year that I
23 was there, so I moved on to another position, but my intent
24 was to pursue a graduate degree in marine science.
25 Q I notice it says here, "Various water sampling,
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1 analysis and modeling courses," and then it has paren,
2 "(DER, USGS and EPA)," end parens. What is that?
3 A For a number of years while I was working for the
4 Department of Environmental Regulation, there were courses
5 offered by the Department and by the U.S. Geological Survey
6 and Environmental Protection Agency dealing with water
7 quality analysis and computer modeling and the development
8 of wasteload allocations, which was a field that I worked
9 in for the Department for approximately 11 years.
10 Those courses dealt with field measurements and
11 field techniques and laboratory analysis of collected water
12 quality data, and then scientific analysis of the data
13 using either statistical or computer-based techniques.
14 Q You took those courses while you were working with
15 the Department?
16 A That is correct.
17 Q Over the entire span of time you were working for
18 the Department, or was there a specific period of time?
19 A I took a number of courses over the 18 plus or
20 minus years I was with the Department, but I believe about
21 11 of those years when I was in the Water Quality Analysis
22 Section I probably took the majority of those courses.
23 That was probably the most technical position or series of
24 positions that I held for the Department, and many of us in
25 that program were trying to take as many related courses as
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1 we could during that period.
2 Q What kinds of water sampling modeling did you
3 undertake?
4 A Sampling, modeling, or both?
5 Q Sampling, let's start with that.
6 A We took physical, chemical and biological
7 measurements in support of those job responsibilities, and
8 others with the agency, but primarily while I was with that
9 section.
10 Physical measurements included velocity and flow
11 measurements and water clarity and things like that.
12 Chemical included the whole range of water quality
13 parameters that the Department normally focuses on.
14 Biological included some microinvertebrate sampling,
15 bacteriological sampling, parameters such as those.
16 Q What kind of modeling type courses?
17 A We were developing water quality models of rivers
18 and streams and lakes and estuaries around the state,
19 primarily for the purpose of developing wasteload
20 allocations which were used in the Department's regulatory
21 process.
22 Q At the time that you were developing wasteload
23 modeling procedures, did you do any work in the
24 Everglades?
25 A Yes.
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1 Q And what were the circumstances surrounding that?
2 A Well, there were a number of issues dealing with
3 Lake Okeechobee and the Everglades that surfaced during
4 that period. We looked at several of the municipalities
5 that are located around Lake Okeechobee and on the edge of
6 the Everglades for development of sewage treatment and
7 disposal options for those cities.
8 We were involved in trying to secure grant funding
9 from the Environmental Protection Agency for many of those
10 cities.
11 I got involved some in the modeling of Lake
12 Okeechobee for addressing water quality problems in the
13 lake, and as a result of that was involved in a peripheral
14 sense in the issue of back pumping water south into the
15 Everglades as opposed to discharging into Lake Okeechobee.
16 I don't recall any specific Everglades issues, but
17 those were related to the whole situation of flow regime
18 and drainage system in the Everglades and Lake Okeechobee.
19 Q Were you concerned with any specific water quality
20 violations in either Lake Okeechobee or the Everglades in
21 connection with your work down there?
22 A Yes, I was.
23 Q What kinds of specific --
24 A The majority of our work in those days dealt with
25 the dissolved oxygen standard, with nutrients, nutrient
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1 controls, with bacteriological standards, and I would say
2 those were the primary areas of focus.
3 Q Let's run through your work experience, and kind
4 of start from when you got out of school, and if you could
5 just kind of run through and explain, start with the
6 National Science Foundation, 6/71 to 9/71. What did you do
7 with the National Science Foundation?
8 A When I graduated from Florida State University, I
9 accepted a teaching position in Orlando for the Orange
10 County School Board. During the summer prior to the start
11 of the 1971 school session, I participated in a National
12 Science Foundation grant to develop an aquatic ecology
13 curriculum for the Orange County School Board.
14 We were involved in actually sampling and analysis
15 of water quality data for about half of the time, and the
16 other half of the time we were developing the curriculum,
17 looking for textbooks and procedures that we could use in a
18 high school classroom situation, and we were to begin
19 teaching those courses that we developed in the fall of
20 1971.
21 Q What kinds of -- it says here "biological
22 parameters." What kinds of biological parameters were you
23 concerned with?
24 A We did bacteriological sampling, we did
25 chlorophyll analysis as a measurement of algal activity.
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1 We did some qualitative microinvertebrate sampling; a
2 fairly broad-brush analysis.
3 Q Was this a limited three-month grant?
4 A Yes, it was.
5 Q And the next position?
6 A I actually began teaching in September of 1971 at
7 Edgewater High School in Orlando. I taught the courses
8 that we had developed through the summer to accelerated
9 high school science students. I did teach, although I
10 don't believe it is reflected here, I taught a couple of
11 just basic biology courses, but my primary responsibilities
12 were in teaching the courses that I had developed through
13 the summer.
14 Q Did you do any research while you were --
15 A No, I did not, not at the Edgewater High School
16 position.
17 Q And the next position?
18 A I left.
19 Q Excuse me, before I go to that, I notice Edgewater
20 was only one month, or is that --
21 A That is not a typo.
22 Q What was the reason for one month at Edgewater?
23 A I actually -- before I started teaching at
24 Edgewater, one of the four professors that were managing
25 the grant that we were working on through the summer, the
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1 National Science Foundation grant, had offered me a
2 position as a research biologist at Florida Technological
3 University doing the same type of work I had been doing
4 through the summer. The university was planning to start
5 the Master's program, and I was interested in pursuing a
6 Master's degree.
7 The work that we would do in the Institute had not
8 been funded at that point in time, so I discussed with the
9 Edgewater High School principal the option of beginning to
10 teach the school year, but they knew that I was going to be
11 leaving and going to Florida Technology University. The
12 grant then came through within a month or so after starting
13 the high school term, and I resigned and accepted a
14 position at Florida Technological University.
15 Q And that was the next position you went to on your
16 resume?
17 A That is correct.
18 Q It says here that you -- your primary job was as a
19 research biologist, and, "Major functions consisted of
20 planning and conducting a systematic survey of aquatic
21 weeds and related problems in the central Florida area."
22 A Yes.
23 Q Would you elaborate on that a bit?
24 A The study was funded by the State of Florida
25 through the Department of Natural Resources. The emphasis
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1 of the work was on assessing the extent of the aquatic weed
2 problem in central Florida. Aquatic weeds were affecting
3 navigation and the flow of water and perhaps the quality of
4 many of the area lakes and streams.
5 We were charged with assessing the extent of the
6 problem, determining which aquatic weed species were
7 causing the problem and doing some general studies of the
8 biological -- let me see if I can rephrase that -- the
9 extent, the health of those aquatic weeds.
10 We were looking, for example, at what insects were
11 feeding on those weeds and other animals, because the
12 ultimate product of the study was to be -- was hopefully
13 going to be a biological control program for those aquatic
14 weeds.
15 Q What kinds of weeds were you concerned with?
16 A We were looking primarily at hydrilla and hyacinth
17 and to a lesser extent alligator weed and a few other less
18 extensive weeds in terms of coverage.
19 Q What were your conclusions reached on that
20 study?
21 A In general, I would say we concluded that there
22 was an extensive aquatic weed problem. We covered many of
23 the waters in the central Florida area and found, of
24 course, varying degrees of weed coverage, but an extensive
25 problem. We found a few insects primarily that were
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1 feeding on both emergent and submerged aquatic weeds,
2 floating weeds like hyacinth being one and submerged weeds
3 like hydrilla being another, but one of our conclusions was
4 that those insects that are normally found in Florida were
5 not doing much to control those weeds.
6 One of our recommendations which ought to be
7 considered in this effort was to use some of those insects
8 perhaps as vectors for diseases that might be introduced
9 and spread by those insects. Those were the major
10 conclusions.
11 Q By "extensive problems," do you mean an increase
12 in the amount of weeds?
13 A Well, in the short term of our study we really
14 couldn't document whether the extent of the problem was
15 increasing or decreasing, but when we looked in this period
16 of time, there was an extensive problem. Many of the
17 waterways were virtually clogged with these weeds, and it
18 was not an isolated problem. We found it throughout the
19 state, central part of the state.
20 Q And the resolution to this problem?
21 A The problem has not been resolved. One of our
22 conclusions was that the weeds were not going to be
23 controlled by the biological processes that were going on
24 in the state right now, but those processes such as insects
25 feeding on those weeds might be used in conjunction with
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1 other techniques to introduce control measures that were
2 not in place at that time.
3 Q And your next position?
4 A The grant that I was working on began winding
5 down, and I had an opportunity to accept a position as a
6 laboratory technician with the Florida Department of
7 Pollution Control in their Central Region office in
8 Orlando. I moved to that position in July of 1972.
9 Q It says here, "Responsibilities included the
10 design, development and maintenance of a regional
11 microbiological laboratory."
12 A That is correct.
13 Q Did that come about?
14 A Yes.
15 Q What was the purpose of that project?
16 A The Department did not have microbiological
17 sampling capabilities in its district offices. It had
18 relied on the health department, health departments around
19 the state for microsampling, and the Department purchased
20 equipment and placed it in the district offices, and one of
21 my responsibilities was to install that equipment, get it
22 up and running and begin actual sampling of water bodies in
23 our region.
24 Q It says here, "A significant amount of time was
25 also spent conducting biological and chemical surveys at
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1 proposed dredge and fill sites." What kinds of sites?
2 A Any proposed dredging and filling activities, such
3 as the development of a new marina, housing project, road-
4 widening project or new road location. It was basically
5 the forerunner of the current Department's dredge and fill
6 program.
7 Q Were you restricted primarily to the Orlando area,
8 or did you cover different counties?
9 A We had -- it varied because the boundaries shifted
10 somewhat, but we had about 10 or 12 counties in the
11 central Florida area, centered around Orlando, of course.
12 Q And your next position, which was, I believe, from
13 4/73 to 8/73?
14 A Basically, the position I was in there was
15 upgraded, the responsibilities were very similar. Again, I
16 was working in -- on the dredge and fill program and doing
17 actual water quality analysis and including not just
18 microbiological but chemistry and biology samples as well.
19 Q And the next position?
20 A In August of 1973, I accepted a position in
21 Tallahassee, in the Department's headquarters office, in
22 the Water Quality Analysis Section. We were at that time
23 collecting and summarizing water quality data in
24 preparation of what was called 303e basin plans.
25 These were -- this was a planning effort required
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1 by the Environmental Protection Agency to look at the water
2 quality of the hydrologic basins in the state of Florida,
3 assess the quality of those basins, assess the discharges
4 and activities that were impacting that water quality and
5 begin to develop a basin-wide plan for protecting and
6 improving water quality around the state.
7 Q What were you particularly concerned with with
8 regard to these kinds of discharges?
9 A The majority of the work in those basins was on
10 sewage treatment and industrial discharges. My particular
11 area of focus was on biological data, but the overall
12 thrust of the effort was to look at permitted sewage and
13 industrial discharges or discharges that should have been
14 permitted and had not been at that time.
15 Q Where were these 303e basin plans? What area did
16 they cover?
17 A They covered the entire state.
18 Q Did you get into the Everglades at all in that
19 position?
20 A Yes, we did.
21 Q What was your involvement in the Everglades in
22 connection with this position?
23 A My involvement in the Everglades was very
24 limited. There were four of the basins in the state that
25 were done primarily under contract, the south Florida basin
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1 being one of them, east coast, St. Johns, and I don't
2 remember the fourth one, but our group basically had a
3 project management role in the south Florida area because
4 much of that work was done under contract.
5 Q Did you look at any form of nutrient impacts on
6 the Everglades in connection with that position, or
7 agricultural runoff?
8 A I don't recall specifically that I did. I
9 remember that being addressed in a very general sense in a
10 report. I did not have much involvement in that work.
11 Q Do you recall what kinds of nutrients at all might
12 have been discussed?
13 A Not specifically, no.
14 Q And your next position -- you were there at this
15 Environmental Specialist II for 10 months?
16 A Yes.
17 Q And then were you promoted?
18 A Yes, I was.
19 Q And you were promoted to a Biologist III?
20 A That is correct.
21 Q And what was the difference between that position
22 and your previous position?
23 A The new position as a Biologist III was in the
24 same bureau but in the biological section. It was the
25 technical assistance section to other units within the
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1 Department.
2 My primary focus was on the collection and
3 analysis of biological data that was being collected by the
4 Department's biologists around the state. We had a
5 monitoring program consisting of, give or take, 100
6 sampling points around the state. Our district biologists
7 were collecting data at those sampling points and
8 submitting it to Tallahassee. I analyzed and summarized
9 that information.
10 Q Did you look at any specific kind of data?
11 A We were collecting primarily microinvertebrate
12 data, data on aquatic insects, for example, to determine
13 the relative health of water bodies.
14 Q Your next position?
15 A I moved back to the Water Quality Analysis
16 Section, again, had a promotion, and began developing
17 wasteload allocations, which were water quality studies of
18 bodies of water for the purpose of developing permit
19 limitations for discharges to those water bodies.
20 This was basically an extension of the earlier
21 effort that had gone on with respect to 303e basin
22 planning. The Department began to focus on problem reaches
23 of water bodies that had been identified in the 303e basin
24 plans and developing permit limitations for discharges
25 within those basins.
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1 Q Did you end up developing permit limitations?
2 A Actually, what we developed was what we called
3 wasteload allocations. Those were recommended discharge
4 limitations that were then sent to our district offices for
5 consideration in the permitting process. We did not
6 develop permit limitations, per se. That, the permitting
7 was done by the district offices.
8 Q What did those discharge limitations consist of,
9 or those allocations, wasteload allocations?
10 A We were primarily looking at discharge
11 constituents that might cause dissolved oxygen problems and
12 violations of the Department's DO standard. We looked at
13 nutrient discharges, and in some cases, looked at other
14 constituents. For example, there were some industries that
15 might be discharging metals and other parameters of
16 concern.
17 Q Did you look specifically at phosphorus, do you
18 recall?
19 A Yes, we did.
20 Q Did you reach any conclusions specifically with
21 regard to phosphorus as a discharge?
22 A Can you be a little more specific?
23 Q As a discharge, as a limitation, as part of a
24 wasteload allocation limitation.
25 A In some cases, we did restrict or develop
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1 recommended restrictions for the discharge of phosphorus.
2 Q Were they numeric limitations?
3 A Yes.
4 Q Do you recall -- can you give me any examples in
5 any specific scenarios?
6 A For specific water bodies?
7 Q For specific water bodies.
8 A Yes. We looked at many of the lakes in the St.
9 Johns River basin and in the Kissimmee River basin. We
10 actually developed computer models of those lakes for the
11 purpose of restricting discharges of both nitrogen and
12 phosphorus from point sources or sewage and industrial
13 treatment plants that might be located on those lakes or
14 immediately adjacent to them.
15 Q Tell me a little bit more about the St. Johns.
16 When was that? When did that occur?
17 A Well, I am not sure I can give you specific dates,
18 but in this period of time, we were going back and focusing
19 on basins where we had identified problems. There were a
20 number of dischargers in the Kissimmee and St. Johns
21 basins, dischargers that -- whose discharge entered the
22 lakes within those basins. Many of them were sewage
23 treatment plants. A number of them were citrus processing
24 discharging plants, and through our basin planning effort,
25 we had identified some water quality problems in those
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1 lakes and began to go back and focus on those specific
2 problems.
3 Much of our work was in support, in this period of
4 time was in support of an EPA grant funding program for the
5 upgrading of municipal sewage treatment plants, so a lot of
6 our work was not really geared to an enforcement mode or
7 even a permit modification mode as much as it was to
8 analyze alternatives that the municipalities would then
9 come back and request funding to implement.
10 Q Did you reach any conclusions as to the cause of
11 the problems in the St. Johns-Kissimmee River basin? Let
12 me be more specific.
13 A Please.
14 Q With regard to phosphorus and nitrogen?
15 A The modeling analyses that we did in that period
16 were based on a model that was developed at the University
17 of Florida that assumed that nitrogen and phosphorus acting
18 as nutrients were equally important in causing water
19 quality problems, and where we did an analysis that
20 indicated that nutrients were a problem in a water body, we
21 would restrict both the discharge of nitrogen and
22 phosphorus to some level that we considered acceptable
23 based on that model.
24 Q Did you have any fixed numeric limits that you
25 established for that water body?
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1 A No.
2 Q Did you ever determine what the source of the
3 discharge was for those water bodies?
4 A That was --
5 Q The Kissimmee to St. Johns River basin?
6 A Well, that was the focus of our study. We were
7 looking for each -- for any water body that we studied, we
8 were looking for the sources of nutrients and for the
9 control of those sources of nutrients, and then the
10 Department through the regulatory process would address
11 those sources through permits or through upgrading of those
12 discharges, or perhaps development, to developing alternate
13 sources of discharge.
14 Q Were they point source discharges?
15 A Yes.
16 Q Did you reach any conclusions as to what those
17 sources of discharge were?
18 A If I understand the question, we did in the sense
19 that we wrote up our results and submitted those for
20 review, and in those analyses we identified the sources
21 that we had either sampled or gathered data on from some
22 source and then analyzed through the wasteload allocation
23 process; so in a sense, we reached conclusions that yes,
24 there were discharges in some cases, and here was our
25 assessment of their causes or contribution to causes of
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1 nutrient problems and other parameters.
2 Q You say you wrote up analyses. Were there reports
3 on this?
4 A Yes, there were.
5 Q Do you recall what reports or where I could find
6 those reports?
7 A I believe most of them are right behind me on that
8 back shelf. As far as I know, all of those reports would
9 be in the files of the Wasteload Allocation Group here in
10 the Department. I believe they were all published, to my
11 knowledge, and are on file with the Department.
12 Q Did you determine particular entities in
13 connection with the St. Johns-Kissimmee River basin that
14 were particularly responsible for discharges into the water
15 body that were causing phosphorus, nitrogen, nutrient --
16 A When you say particular entities, specific
17 dischargers?
18 Q Right.
19 A Yes, we did.
20 Q In those reports are identified?
21 A Yes.
22 Q Do you recall what types of entities they were?
23 A We identified various sources of what I would
24 consider point and non-point sources, non-point being
25 stormwater discharges and point sources being primarily
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1 sewage and industrial sources.
2 Q Any farming sources?
3 A Yes.
4 Let me add a parenthetical note if I can. In
5 describing this process we were focusing on that 1975- '76
6 period, but the process I am describing is basically the
7 process that we were going through for a number of years.
8 I was in that section for a number of years in different
9 positions, so in answering your questions, some of the
10 dates get a little fuzzy that many years ago.
11 Q Sure.
12 A But I am speaking in general to that period of
13 time, not just November of '75 to April of '76.
14 Q In connection with the Kissimmee-St. Johns, we
15 have talked about nitrogen and phosphorus. Were there any
16 other constituents that you looked at in particular?
17 A Yes. As I mentioned earlier, we also looked at
18 dissolved oxygen parameters, constituents within the
19 discharges that might affect the water body's ability to
20 meet the dissolved oxygen standard. We also looked at
21 bacteria and other pollutants that we might identify in our
22 analysis for which the Department had standards that needed
23 to be protected.
24 So nutrients and dissolved oxygen were the two
25 primary ones, but there were others, given the particular
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1 water body that we were looking at.
2 Q Of the nutrients that you looked at in that
3 particular water body area, was there a particular nutrient
4 or -- was there any primary nutrient that was the primary
5 cause of the problem that you recall?
6 A No.
7 Q Was it a combination of factors?
8 A For the most part, our assumption in the
9 techniques that we used equated nitrogen and phosphorus.
10 We assumed those two nutrients were equally responsible for
11 water quality conditions that we observed that related to
12 nutrient discharges.
13 Q Did they, in fact, impact DO, the level of DO?
14 A Yes, they can.
15 Q In what way?
16 A It was our experience that when nutrient
17 concentrations were high and other water quality problems
18 became apparent, such as increased algal activity or
19 increased macrophyte growth, that dissolved oxygen
20 conditions in the water body could be affected, and we did
21 some sampling and analysis to measure the degree of change
22 or the amount of the effect in the water bodies.
23 Q Did you establish any correlations?
24 A Not a specific one. Basically, we found that
25 those changes were water-body-specific. They were not
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1 measured to be the same in the different water bodies that
2 we analyzed. There were other factors that might affect
3 the condition in the water body besides just the nutrient
4 discharges.
5 Q Are you saying that they affected different water
6 bodies in different ways?
7 A That is correct.
8 Q Let's move on to the next position, which is, I
9 guess 4/76 to 4/79?
10 A Yes. I was an Environmental Specialist IV, which
11 was basically a subsection supervisor within that same
12 Water Quality Analysis Section. In addition to the
13 technical responsibilities that I was just describing, I
14 had some supervisory responsibilities in terms of
15 scheduling and managing people that worked for me,
16 supervising people that worked for me.
17 Q Would you say at that point that was the better
18 part of your job, you did more management than technical,
19 or was it about the --
20 A Better in the sense that I enjoyed it more.
21 Q More or less, in terms, did you do more
22 supervisory work than technical work, or did you do more
23 technical work than supervisory work?
24 A In that position, I probably did more technical
25 work than supervisory work. In working my way up through
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1 the ranks in that section, I was working elbow to elbow
2 with people that I worked with at the same level in terms
3 of position previously, and those people were professionals
4 and knew their jobs. I didn't really -- it didn't require
5 much supervision on my part. What I primarily did was
6 focus on the technical problems that they were dealing with
7 and help them develop solutions to those technical
8 problems. So my responsibilities, I think, remained
9 primarily technical in that position.
10 Q In the technical sense, did you do -- did you
11 handle similar types of responsibilities as in your
12 previous position?
13 A Yes, I did.
14 Q And your next position?
15 A I became the administrator of the Water Quality
16 Analysis Section in February of 1979. I held that position
17 for four or five years, five years, and in that position my
18 responsibilities were more supervisory in nature and less
19 technical.
20 Q I notice that it says, "Supervised staff engaged
21 in analysis of data and development of wasteload
22 allocations for discharge to state waters." The
23 development of wasteload allocations, is that a continuous
24 process? I notice that seems to be a continuing theme in
25 the previous --
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1 A It is a continuous process in a number of ways.
2 The process continued primarily because we did not have
3 enough staff to go in and development wasteload allocations
4 for all of the dischargers of the state in a short period
5 of time. There were many, many of those dischargers. We
6 revised those based on the basin planning effort and tried
7 to go in and focus on the ones that seemed to have the
8 problems that needed addressing.
9 It was also continuous in the sense that the
10 Department was continuing to develop new standards and
11 continued to collect water quality data that pointed out
12 problems that we may not have known about in the past, and
13 also continuous in the sense that new dischargers were
14 requesting permits to discharge to State waters. So the
15 process continued throughout this period and I guess
16 continues today.
17 Q And your next position?
18 A I accepted a lateral transfer to another bureau in
19 the Department and became, for a short term, at least,
20 administrator of the Water Resources Planning Section.
21 Q How long were you in that position?
22 A About a month.
23 Q I seemed to have lost --
24 A That was from the period of September '84 to
25 October of '84.
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1 Q Was that a temporary --
2 A No. It was a permanent position. I was requested
3 by the division director to consider a lateral transfer to
4 that position. That was part of a reorganization effort
5 that was underway in the division at the time.
6 Q What did the -- what was the Outstanding Florida
7 Water Program?
8 A We were focusing on two primary areas. One was
9 the possible designation of waters -- well, back up a
10 minute.
11 The Outstanding Florida Water Program is a program
12 that is included in the Department's rules where the
13 Department provides a higher degree of protection to water
14 bodies that are considered outstanding and have certain
15 attributes and resources that the Department feels warrants
16 a higher degree of protection.
17 We looked at two primary areas. One was water
18 bodies that were -- that had received some other
19 designations, for example, state parks and aquatic
20 preserves that might be designated under another program,
21 either state or federal. The other would be water bodies
22 that just because of the quality of those waters were
23 worthy of additional protection.
24 We held public workshops to gather information,
25 and we polled citizens and other agencies about those water
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1 bodies and ultimately made recommendations to the
2 Environmental Regulation Commission for possible
3 designation of waters as Outstanding Florida Waters.
4 Q Had any waters been designated at that time as
5 Outstanding Florida Waters?
6 A Yes, they had.
7 Q Were you, in effect, making recommendations to
8 improve an existing program?
9 A Well, I would consider that part of my
10 responsibilities in my position with the Department.
11 Q Let's go to the next employment.
12 A In October of 1984, I became bureau chief of the
13 Bureau of Laboratories and Special Programs. This was a
14 newly created bureau that was part of the reorganization
15 effort that I mentioned a few moments ago. We had four
16 sections within that bureau, the Drinking Water Section,
17 the Biology and Chemistry Sections and the Water Resources
18 Section that I mentioned earlier and was administrator of a
19 month or so before.
20 Q In connection with that position, did you do more
21 management than supervisory or technical work?
22 A Yes, I did.
23 Q And did you, in your technical capacity -- well,
24 in any of those sections, at the time, was any work ongoing
25 in the Everglades specifically that you focused on or any
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1 of your units that you were responsible for focused on,
2 that you recall?
3 A Yes.
4 Q Can you describe what that work consisted of?
5 A I can give you some examples. Our -- at this
6 point in my career with the Department, we had many, many
7 ongoing activities all around the state, but, for example,
8 as the administrator of the Water Resources Section and as
9 the bureau chief of the Bureau of Laboratories and Special
10 Programs, we managed the public works program, which was a
11 program where we actively sought federal support, financial
12 support for water resources projects around the state.
13 Many of those projects were identified by the South Florida
14 Water Management District, for example, for improvements
15 and maintenance of the water management system within the
16 Everglades. So that is an example of direct involvement in
17 the Everglades issues.
18 The Outstanding Florida Water Program included a
19 number of water bodies that were designated as OFW or
20 Outstanding Florida Waters in the Everglades.
21 Q Do you recall what those water bodies were in the
22 Everglades that were designated as OFWs?
23 A They are scattered throughout. The Loxahatchee is
24 a good example. The Biscayne Bay Aquatic Preserve is an
25 example; many of them in that area scattered throughout the
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1 general region.
2 MR. HYDE: I think we are running into some
3 confusion here with the generic use of the term
4 "Everglades." I -- "Everglades" could mean Everglades
5 National Park, it could mean the Everglades Protection
6 Area, which is the subject matter of the Everglades
7 SWIM Plan, and it could mean, in a more historic sense,
8 virtually all of south Florida. So I would like to --
9 perhaps we could be more specific as to what type of
10 Everglades we are referring to in those questions.
11 BY MR. HETRICK:
12 Q Are you familiar with the Everglades Protection
13 Area?
14 A In a general sense.
15 Q Can you tell me if all designations were made to
16 Outstanding Florida Waters during your tenure?
17 A I can tell you they were not.
18 Q During your tenure as bureau chief, were there any
19 specific designations of Outstanding Florida Waters made to
20 the Everglades Protection Area?
21 A I don't recall any. There may have been. I don't
22 recall specific --
23 Q Were there any existing designations during your
24 tenure as bureau chief, designations that had already been
25 made to the Everglades Protection Area?
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1 A I believe so. I am actually not real sure what
2 those boundaries were at that time.
3 Q Do you recall if the Loxahatchee had been
4 designated?
5 A It was my recollection that it was, it had been.
6 Q How about the Everglades National Park?
7 A I believe so.
8 Q Your next position?
9 A That would be May of 1986 to February of 1987?
10 Q Right.
11 A I accepted a position as the bureau chief of the
12 Bureau of Permitting with the Department in the Tallahassee
13 office.
14 Q Why did you go from one bureau chief to the other
15 bureau chief?
16 A It was an opportunity to learn about other
17 programs within the Department. I was encouraged by the
18 Secretary to take that position. I had not had direct
19 experience in permitting at that point, and because of some
20 changes within the Bureau of Permitting and the Division of
21 Environmental Permitting, the Secretary asked me if I would
22 consider moving to that position.
23 Q And your next position?
24 A I became director of the Division of Environmental
25 Permitting, which included the Bureau of Permitting that I
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1 had been responsible for, in March of 1987, and continued
2 in that position for a little over a year.
3 Q Did your position consist mostly of management, in
4 that division director position?
5 A Yes, it did.
6 Q Did you do any technical work at that time?
7 A Not personally. I reviewed technical work and
8 participated in attempts to resolve technical problems, but
9 my primary day-to-day responsibilities focused on
10 supervision and management.
11 Q In your next position, you went to division
12 director of Water Management?
13 A That is correct.
14 Q And what was the purpose for that change?
15 A We -- the Department was reorganized, and we
16 established a division of responsibility based on
17 programmatic areas. The particular programs that I ended
18 up responsible for, if you will, were primarily dredge and
19 fill and stormwater management, coastal zone management.
20 Q Were you out of the permitting aspect of it at
21 that time?
22 A No.
23 Q So even as, in your division director capacity of
24 Water Management, you still performed activities in the
25 area of permitting?
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1 A Related to permitting, that is correct.
2 Q As division director, it lists a litany of
3 statewide programs. It mentions surface water improvement
4 and management and coastal management. What did you do
5 specifically in connection with surface water management
6 and improvement? What programs were you involved in in
7 that case, in that connection?
8 A In both of those areas?
9 Q Surface water improvement and management, those
10 areas.
11 A In surface water improvement and management, we
12 were -- in those days, we were beginning to set up a
13 program that had been created by the Legislature for --
14 called Surface Water Improvement Management, or SWIM, for
15 short. The program had been established and funded. We
16 began developing the rules for the implementation of that
17 program, and the funding procedures. The majority of money
18 that was allocated by the Legislature was going to the five
19 water management districts in the state, so we began
20 developing the process to get that money to the water
21 management districts and oversee the development of the
22 SWIM planning effort by the water management districts.
23 Q What kind of process was that?
24 A In a sense, it was similar to the 303e basin plan.
25 It was in that that the water management districts were
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1 required to assess their water resources problems in their
2 areas, prioritize the water bodies based on the extent of
3 the problems and develop plans for improving water quality
4 and water resources within those water bodies, the high
5 priority water bodies that they had identified.
6 Q Do you recall if the South Florida Water
7 Management District undertook such a process and program?
8 A Yes, it did.
9 Q Do you recall how many water bodies they had to
10 prioritize, just a rough estimate?
11 A Well, the -- it is not that they had to prioritize
12 any particular number. Some did more than others. In
13 south Florida, they were primarily focused on the Lake
14 Okeechobee and Everglades systems.
15 Q Let's go on to your next position.
16 A Well, I left the Department at the end of October
17 1991, and --
18 MR. HYDE: Excuse me, '90 or '91?
19 THE WITNESS: Excuse me, 1990, and established a
20 private environmental consulting firm called Phoenix
21 Environmental Associates, Inc., Tallahassee, Florida.
22 BY MR. HETRICK:
23 Q Why did you leave the Department?
24 A I am not sure; maybe a mid-life crisis. I felt it
25 was time for a change. I had been planning for a number of
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1 years to perhaps go on my own in the environmental
2 consulting field. I had an opportunity to do that with
3 some people that I knew from outside the Department that
4 encouraged me to do that, and I decided to take that
5 plunge.
6 Q What were your -- can you tell me what your
7 responsibilities are with the Phoenix -- you are still with
8 the Phoenix Environmental Group?
9 A You skipped a position, actually.
10 Q Okay.
11 A From October of 1990 to October 1991, I was
12 president of Phoenix Environmental Associates, Inc., and
13 still am, in fact.
14 Q Okay.
15 A My partner and I decided rather than setting up
16 one company, we would set up two different companies. He
17 had his own company and I had mine, and there were just the
18 two of us for that first year.
19 In November of 1991, we formed a third company,
20 the Phoenix Environmental Group, Incorporated, which
21 basically was a merger of our two companies, and we hired
22 employees and began to expand. Phoenix Environmental
23 Associates still exists but is inactive, and I am working
24 as executive vice-president of the Phoenix Environmental
25 Group, Incorporated.
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1 Q You say you have a partner in this position?
2 A Yes.
3 Q Who is that?
4 A His name is Russell Danser.
5 Q How many employees do you have?
6 A Six, including myself and Mr. Danser.
7 Q You have here, from 10/90 to 10/91, a series of --
8 a description as to the types of projects that you worked
9 on. Are there any other project types that you worked on
10 besides what you have listed here?
11 MR. HYDE: Everglades SWIM plans.
12 BY MR. HETRICK:
13 Q Would that be about it, Everglades SWIM plans?
14 A Well --
15 MR. HYDE: He is not completely sucked into the --
16 THE WITNESS: No. Actually, I am involved in a
17 number of studies around the state. Probably the one
18 that is demanding the majority of my time right now is
19 I am actually under contract to the Department of
20 Environmental Regulation to look at State assumption of
21 the federal 404 wetland permitting process, but we do a
22 lot of actual permitting for private clients around the
23 state. I occasionally act as an expert witness in
24 proceedings, usually administrative proceedings around
25 the state.
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1 BY MR. HETRICK:
2 Q What is the federal Section 404 program?
3 A It is basically the dredge and fill permitting
4 process at the federal level. It is administered primarily
5 by the Corps of Engineers, with some oversight and
6 coordination with other federal agencies such as the
7 Environmental Protection Agency, U.S. Fish and Wildlife
8 Service, the National Marine Fisheries. The State of
9 Florida is interested in assuming those federal permitting
10 responsibilities and basically trying to develop a one-stop
11 permitting process for wetlands permitting projects, dredge
12 and fill projects.
13 Q Is that statewide?
14 A Yes, it is.
15 Q Do you focus on any particular area of the state
16 more than others?
17 A Geographically?
18 Q Geographically.
19 A No.
20 Q I want to go back just real quick to 7/88 to
21 10/90, to that position where you were division director of
22 Water Management, and I just wanted to ask you one
23 question.
24 Again, you listed a litany of responsibilities.
25 Was more of your work at that time taken up by surface
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1 water improvement and management than the other areas, or
2 were your responsibilities fairly well distributed among
3 each of the areas you have listed here?
4 A Actually, neither, I would say. The majority of
5 my time was spent on wetland resource management projects,
6 dredging and filling projects.
7 Q In any particular area of the state?
8 A No.
9 Q Statewide?
10 A Statewide.
11 MR. HYDE: Are you finished with that?
12 MR. HETRICK: Yes, I am finished.
13 MR. HYDE: Would it okay be to take a five-minute
14 break?
15 MR. HETRICK: Yes. Let's take a five-minute
16 break.
17 (Brief recess.)
18 BY MR. HETRICK:
19 Q Mr. Armstrong, have you published any papers?
20 A Well, the majority of the publications that I was
21 involved with were Department reports that I referred to
22 earlier. I was involved for a short time in a water
23 quality study, this was in 1972 or '73, and I honestly
24 cannot tell you the name of it, but it was a general
25 assessment of water quality in the lower St. Johns basin,
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1 which is the Jacksonville area.
2 Q Let me ask you it this way. Are there any
3 particular reports throughout your tenure with the
4 Department that you have had your name on that you can
5 identify, that you recall, that you can identify?
6 A Yes.
7 Q Can you name those reports?
8 A No.
9 Q How many were there?
10 A I don't know.
11 Q Hundreds?
12 A At least tens. The majority of the publications
13 were in my 11 years or so with the Water Quality Analysis
14 Section. Those were the technical studies that I referred
15 to and the development of procedures that we used in that
16 section, but there were many documents that I am sure had
17 my name on them, reports and studies that were done by the
18 agency throughout the years. I could not name them.
19 Q Were you involved in rulemaking?
20 A Yes, I was.
21 Q What rules?
22 A Again, many of the Department's rules dealing with
23 the development, with water quality standards, the
24 Department's permitting rules, the Department's dredge and
25 fill rules, SWIM; many of them, with the exception of air
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1 and hazardous waste, although I actually had some
2 involvement peripherally in those as well, especially as
3 the director of the Division of Environmental Permitting.
4 We had responsibility for all of the Department's
5 permitting and enforcement programs within our division, so
6 in that sense, I was involved in a general way in all of
7 the Department's rules.
8 Q You were involved in, I take it, policy
9 determinations on the applications of all of the
10 Department's rules?
11 A Yes.
12 Q Throughout the course of your tenure?
13 A Yes; the majority of it, of course, obviously,
14 primarily in the later years in higher level positions.
15 Q Did you make specific policy determinations with
16 regard to OFWs, Outstanding Florida Waters?
17 A Yes.
18 Q The interpretation of the grandfathering of OFWs?
19 A Yes.
20 Q Interpretations relating to antidegradation
21 policies of the Department?
22 A Yes.
23 Q Moderating provisions such as mixing zones,
24 variances and site-specific alternative criteria?
25 A Yes.
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1 Q You made policy determinations with regard to
2 narrative nutrient rule?
3 A Yes.
4 Q The Department's nuisance species standard?
5 A Yes.
6 Q Biological integrity?
7 A Yes.
8 Q And dissolved oxygen?
9 A Yes.
10 Q Any others?
11 A I am sure there were.
12 Q Any others related specifically to water quality
13 that you can recall?
14 A Well, not specifically, but I would say in a
15 general sense that I was involved in policy discussions
16 over probably all of the Department's water quality
17 standards at some point in time, all of the standards that
18 existed during, obviously during my tenure with the
19 Department.
20 Q The present company that you work for now, do you
21 do any work on the Everglades?
22 A Do I?
23 Q In your capacity with that company.
24 A Other than this?
25 Q Other than --
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1 A This proceeding that we are in?
2 Q That we are in.
3 A I was involved for a short time in the assessment
4 of some of the discharges in what are referred to as the
5 298 drainage districts. Those discharges primarily were to
6 Lake Okeechobee. That was, as I said, for just a short
7 period of time, and I am no longer involved in that
8 situation. Those were related in a sense to the general
9 geographical area of the Everglades, in a sense that if
10 those discharges did not go to Lake Okeechobee, they have
11 to go somewhere, and they would probably go to the south,
12 toward the Everglades, but as I said, that was a relatively
13 short period of time. I am not involved in that issue any
14 longer.
15 Q What did your limited involvement consist of?
16 A I was asked to review water quality data
17 concerning those discharges and subsequently be available
18 to testify in a permit proceeding the districts, the 298
19 districts were seeking permits to continue discharging to
20 Lake Okeechobee. I got involved and for a number of
21 reasons, primarily related to my scheduling and workload, I
22 had to bow out of that process and could not agree to
23 continue to put time in it. So it was a relatively short
24 period of time and I did not continue with it.
25 Q When was that period of time?
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1 A It was, I would say, within the last year, maybe
2 seven or eight months ago.
3 Q Did you make any water quality determinations with
4 regard to any discharges related to that 298, related to
5 the 298 --
6 A I began to review the data. I actually went on
7 site once and looked at the pump structures and the
8 relationship of the 298 districts and so forth and had
9 begun to review data that was being collected and had been
10 collected, primarily, data in Lake Okeechobee, but I can't
11 say that I carried that through to the point of reaching
12 conclusions that I would had I written up reports, and
13 certainly I did not testify in the situation. I got
14 involved in the process, and I just really could not afford
15 to devote the time that I saw that it was going to take.
16 Q What kind of data did you review?
17 A It was data on solids conductivity. It included
18 nutrient data, general water quality data that had been
19 collected, and flow data for those discharges.
20 Q How long were you involved in that?
21 A Probably off and on over about a three-month
22 period.
23 Q You said you reached no conclusions, really, is
24 that correct?
25 A Essentially, right.
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1 Q Did you make any preliminary assessments with
2 regard to either nutrients or flow data?
3 A No, I can't say that I really did.
4 Q Why did you bow out?
5 A Primarily because of workload. The projects that
6 we had underway in our company were demanding, and there
7 were other consultants involved in that process that I felt
8 could probably assume the responsibilities that I was being
9 considered for, and I just really -- I saw that as probably
10 being a project that was going to demand more of my time
11 than I felt I would be willing to devote to it.
12 Q I want to go through just for a moment --
13 MR. HETRICK: Again, I am not going to offer this
14 as an exhibit, but it is his designation.
15 MR. HYDE: All right.
16 BY MR. HETRICK:
17 Q I want to focus for a minute, Mr. Armstrong, on
18 the Sugar Cane League designation, which is -- I am not
19 going to offer as an exhibit, but --
20 MR. HETRICK: Let's go off the record for a
21 minute.
22 (Discussion off the record.)
23 BY MR. HETRICK:
24 Q Mr. Armstrong, who have you been retained by in
25 this case?
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1 A By the Sugar Cane League.
2 Q Does that also include the U.S. Sugar Co-op and
3 New Hope South, Inc.?
4 A It is my understanding that it does.
5 MR. HYDE: Do you mean United States Sugar
6 Corporation, not Co-op?
7 MR. HETRICK: Excuse me, that is correct.
8 BY MR. HETRICK:
9 Q Have you been retained at all by any other entity
10 such as the Sugar Cane Growers Cooperative or the -- let me
11 rephrase that -- such as the Sugar Cane Growers Cooperative
12 of Florida or Roth Farms, Inc., or Wedgworth Farms, Inc.?
13 A No.
14 Q Have you been retained by the Hopping Boyd law
15 firm in any respect?
16 A No.
17 MR. HYDE: Keith, I have been looking through the
18 Cooperative's -- is this under some supplemental thing,
19 or where have they listed Randy?
20 MR. HETRICK: Let's go off the record for a
21 moment.
22 (Discussion off the record.)
23 MR. HETRICK: Let's go back on the record.
24 BY MR. HETRICK:
25 Q Mr. Armstrong, do you -- have you had any
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1 conversations with the Hopping Boyd law firm or the Sugar
2 Cane Growers Cooperative of Florida, Inc., or Roth Farms,
3 Inc., and Wedgworth Farms, Inc., in connection at all with
4 this proceeding that we are involved with right now, that
5 you are here being deposed about today?
6 A Yes.
7 Q You have had conversations with them?
8 A Yes.
9 Q Do you anticipate testifying on any of those
10 entities' behalf at this trial?
11 A I have not been approached about doing so, and I
12 don't anticipate that at this point.
13 MR. HYDE: I think your previous question was a
14 little broad. "Conversations," maybe you can be a
15 little more specific.
16 BY MR. HETRICK:
17 Q In connection with the Everglades lawsuit that we
18 are here on.
19 A Well, the extent of my conversations have
20 primarily been in this room with Mr. Green, but not
21 specifically to my ability or willingness to testify for
22 them, I have not been approached about doing that. Mr.
23 Green has said, for example, when am I going to get to
24 depose you, but no one has approached me about testifying
25 for them on their behalf.
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1 Q I have here in front of me, which I am not going
2 to offer as an exhibit at this point, but it is a
3 Petitioner's Witness List by the Sugar Cane Growers
4 Cooperative of Florida, Roth Farms, Inc., and Wedgworth
5 Farms, Inc., and it is dated on the next to the last page
6 as submitted the 17th day of August, 1992, signed by
7 William H. Green and Gary Perko, and you have a copy of
8 that document in front of you as well, do you not?
9 A I believe I do. I was looking for dates.
10 Q It is the next to the last page.
11 MR. HYDE: Keith, just for purposes of clarifying
12 the record, it appears that this stapled-together
13 document here you are referring to is actually several
14 documents.
15 THE WITNESS: That was the point of my confusion.
16 MR. HYDE: One is Petitioner's Witness List, which
17 has a service date of September 16, 1992, and then
18 there is a Supplemental Expert Witness Designation
19 which has a service date of -- appears to be September,
20 I think it is, 16, 1992, and attached to both of them
21 are resumes. Excuse me, just to the latter are
22 resumes.
23 BY MR. HETRICK:
24 Q With that in mind -- the August 17th, 1992, date
25 that I mentioned, let's strike that. Let's go back to the
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1 document that you have in front of you identified as
2 Petitioner's Witness List, and it is dated -- it is -- the
3 number of pages in that are -- it is an 18-page document,
4 and it is entitled, Petitioner's Witness List by Sugar Cane
5 Growers Cooperative of Florida, Roth Farms, Inc., and
6 Wedgworth Farms, Inc., and it is signed by William H. Green
7 on the 26th day of October, 1992.
8 MR. HYDE: It looks like it is signed by Gary
9 Perko.
10 MR. HETRICK: It is signed by Gary Perko with
11 William L. Green's name on it.
12 BY MR. HETRICK:
13 Q On page 6 of that document, would you turn to
14 that, Mr. Armstrong? Would you look at the very last
15 paragraph 3 on page 67 of that document. It says,
16 "Department of Environmental Regulation officials and
17 employees, past to present," and there is a list of
18 employees. Do you see your name included there?
19 A Yes, I do.
20 Q Is it correct for me to say at this point that
21 they -- I will say for the record they have listed you, and
22 you have no intentions at this time of testifying on their
23 behalf?
24 A No, I do not. I have not been approached about
25 doing so.
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1 Q And you have no employment ties or any kind of
2 compensation ties to any of the entities, being the Sugar
3 Cane Growers Co-op of Florida, Inc., Roth Farms, Inc.,
4 Wedgworth Farms, Inc., or the Hopping Boyd law firm?
5 A I do not.
6 Q I will state for the record that should that be
7 the case, if you are hired in the future, we will reserve
8 our right to redepose you in connection with issues that
9 they may raise that are not raised in this deposition.
10 MR. HYDE: I just will state for the record that I
11 am obviously in no position and do not want to defend
12 or challenge or to waive any of the, whatever arguments
13 the Sugar Cane Growers Cooperative might have, but I
14 think that the way you just stated it is an appropriate
15 resolution of the issue.
16 MR. HETRICK: You stated --
17 MR. BARTELL: That sounds fine to me. I agree
18 with that.
19 BY MR. HETRICK:
20 Q Mr. Armstrong, I may have asked this, I don't
21 recall. Were you hired in this matter by the Florida Sugar
22 Cane League, Inc., or the United States Sugar Corp. or New
23 Hope South, Inc., or the Peeples, Earl & Blank law firm or
24 any or all of the above? Just who in particular were you
25 hired by?
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1 A I was actually approached by the Peeples, Earl &
2 Blank law firm and agreed to work for that firm in this
3 matter.
4 Q When was that?
5 A It has been about three months ago, I think.
6 MR. HYDE: It was more than three months ago.
7 THE WITNESS: Time flies. Maybe it was.
8 MR. HYDE: I think it was last summer.
9 BY MR. HETRICK:
10 Q I have a document here, again which is a pleading
11 I am not going to attach as an exhibit, but it is entitled,
12 Disclosure of Expert and Fact Witnesses of Petitioners
13 Florida Sugar Cane League, Inc., United States Sugar Corp.
14 and New Hope South, Inc., and it is a 57-page document,
15 apparently dated October 26, 1992.
16 MR. HETRICK: Do you agree with that? Are you
17 okay with that?
18 MR. HYDE: Sure.
19 BY MR. HETRICK:
20 Q Are you aware of whether you are designated --
21 what are you designated as in this case, an expert or fact
22 witness?
23 A Expert witness.
24 Q If you could turn to page 17 of that document?
25 Actually, page 18 -- well, page 18 is where your name
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1 appears, 17 is where your name appears and carries over to
2 page 18.
3 It says, Subject Matter of Expected Testimony:
4 Department of Environmental Regulation policies and
5 procedures.
6 Are there any particular areas or policies --
7 first of all, have you seen this designation before?
8 A Yes, I believe I have.
9 Q When did you first see this designation?
10 A I don't remember the specific month, but I assumed
11 it was in preparation of this document I discussed with Mr.
12 Hyde and others of the Peeples, Earl & Blank law firm the
13 description of my testimony that would go into this
14 document that was being submitted.
15 Q Was it within the past six months, or was it
16 before that?
17 A It was probably about six months ago. I am a
18 little fuzzy on the dates.
19 Q Did you help in drafting these statements?
20 A Yes, I did.
21 Q Did you comment on any of the contents of these
22 statements after they were developed?
23 A Yes.
24 Q Have you discussed this area of designation at all
25 since you first reviewed it?
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1 A Yes.
2 Q With whom?
3 A I have discussed it with Mr. Hyde in developing
4 the extent of my proposed testimony, and I later received a
5 call from an individual I believe in the Peeples, Earl &
6 Blank Miami office, the name escapes me, but to review the
7 description that was drafted that ultimately went into this
8 document.
9 Q Do you recall when that might have been?
10 A Not specifically.
11 Q Do you agree that you have knowledge on all of
12 these areas that are listed for you?
13 A I believe I do.
14 Q Do you anticipate testifying on all of these areas
15 which you are listed for on page 18?
16 A I believe so.
17 Q Have you discussed your anticipated testimony with
18 anyone outside of the legal counsel that you are being
19 represented by?
20 MR. HYDE: I am not sure I understand that
21 question. Could you be more specific?
22 MR. HETRICK: I would like to know if he has
23 discussed or prepared any thoughts or helped prepare
24 himself for his anticipated testimony with any other
25 experts in the case or received any consultation from
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1 anyone, outside the scope, obviously I don't want to
2 breach any attorney-client privilege here. That is
3 kind of the gist of my question.
4 BY MR. HETRICK:
5 Q Do you understand it?
6 A Yes, I do now. The answer is no. I discussed it
7 primarily with counsel at Peeples, Earl and Blank.
8 Q Subject -- we are going to get into this more and
9 more as we go throughout the day, but it says, "Subject
10 Matter of Expected Testimony: The Department of
11 Environmental Regulation policies and procedures. Other
12 areas of testimony may be added as the issues in the case
13 develop."
14 Are you familiar with the issues in the case in
15 general?
16 A In general, I am.
17 Q Have you completed formulating your opinions to
18 this date based on the -- your general understanding of the
19 issues in this case?
20 A Well, I am not sure I can say I have completed
21 forming my opinions. I have formed opinions based on the
22 information that I have received and reviewed. I assume I
23 will be asked to continue to be involved in the development
24 of the case and other issues may come up that I will be
25 asked to review, but at this stage, I have reached some
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1 conclusions.
2 MR. HYDE: I think just for purposes of the
3 record, Mr. Armstrong is trying to say that he is ready
4 to do his deposition today. As the deposition and
5 discovery process unfolds, there may be yet additional
6 matters that are brought to his attention, just as that
7 might be the case for any witness.
8 MR. HETRICK: Sure.
9 MR. HYDE: And certainly if the substance of his
10 opinions change or if he develops new opinions, the
11 Respondents, including the Department and the U.S.,
12 will be notified of that fact and will be given an
13 opportunity to recall Mr. Armstrong for a subsequent
14 deposition, but he is ready to go today on what we
15 anticipate his testimony to be.
16 MR. HETRICK: Okay.
17 MR. HYDE: Is that a fair statement?
18 THE WITNESS: That is fine. You did a good job.
19 BY MR. HETRICK:
20 Q Are you going to -- this is a rather broad
21 description here, and as I said, we will get into it more
22 and more, but the subject matter of expected testimony, DER
23 policies and procedures, are there any particular policies
24 and procedures that you will be focusing on in this case?
25 A In a general sense I expect to be focusing on the
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1 development and implementation of the Department's water
2 quality standards and permitting rules, and policies
3 related to both of those. That would include, for example,
4 what are generally referred to as the mitigating provisions
5 of the Department's permitting rules, the water body
6 classification system, including the Department's
7 Outstanding Florida Water Program.
8 Q With regard to the Outstanding Florida Water
9 Program, will you be interpreting the grandfather provision
10 of 17-4.242?
11 A I believe I will.
12 Q We have kind of gone through this before, but as
13 far as your anticipated testimony, will you also be
14 interpreting antidegradation rules?
15 A Perhaps, although I am not sure that would be a
16 major part of my testimony.
17 Q You mentioned permitting. Can you narrow that for
18 me a bit? Permitting is a fairly broad area. Dredge and
19 fill permitting, in what context?
20 A It is a fairly broad question, but let me try.
21 I expect to field questions on the Department's
22 permitting practices in the past, including the decision-
23 making process as to when a permit might be required, what
24 type of permit might be required, under what regulatory
25 program within the Department that permitting process might
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1 fall, and so forth.
2 Q Okay.
3 A Again, general permitting policies and practices
4 based on the Department's rules in the past and the
5 policies in the past.
6 Q Would you consider that kind of background type?
7 A In a sense I would, yes.
8 Q What about the narrative nutrient rule?
9 A The same, in a sense. I was involved somewhat in
10 the development of the Department's nutrient rule and
11 application of the rule throughout my tenure with the
12 Department.
13 Q How were you involved in the development of that
14 rule?
15 A In a sense, I think when the rule was first
16 developed I was on the user end. I was involved in the
17 wasteload allocation process, as I described earlier, and
18 was involved in discussions over quite some period of time
19 about the language that was being developed, the -- and the
20 application of that language in the Department permitting
21 and enforcement programs.
22 Q When did that occur?
23 A In general, I would say the mid- to late 1970s,
24 but it continued on through my -- through my years with the
25 Department.
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1 Q Do you expect to offer any testimony with regard
2 to interpretations of the nuisance species rule?
3 A Yes.
4 Q How about the dissolved oxygen criterion?
5 A Yes.
6 Q Any other specific rules of this nature that you
7 might be testifying to that jump to mind, recognizing that
8 you have stated that you are open to all kinds of areas of
9 water quality, but is there any other emphasis that comes
10 to mind in the context of this case?
11 A Well, there could be issues that -- about which I
12 will be asked dealing with site-specific alternative
13 criteria, variances, and other mitigating provisions that I
14 mentioned earlier.
15 Q Sure.
16 A Perhaps the Department's stormwater rule and
17 implementation of that program; but again, in a general
18 sense, I think those, the permitting policies and practices
19 as it relates to those factors or sections of the rules.
20 MR. HYDE: Just to be complete, that is also the
21 general subject matter of water quality-based effluent
22 limitations, too.
23 BY MR. HETRICK:
24 Q Let's generally talk about the Everglades.
25 Are you familiar with the Everglades in general as
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1 a body of water, with the Everglades Protection Area, in
2 specific?
3 A I am familiar with the general layout, if you
4 will, of the Everglades system, and I use that term in a
5 broad sense to describe basically the southern quarter of
6 the state.
7 Q Are you familiar with the water flow patterns in
8 the Everglades?
9 A In general I am, yes.
10 Q Have you actually spent much time in the
11 Everglades?
12 A I can describe it this way. In a relative sense,
13 I probably have spent more time in and on other water
14 bodies of the state throughout my period with the
15 Department than I did in the Everglades.
16 Q Have you ever done, in your professional or
17 technical capacity, any field work in the Everglades,
18 performed any site studies, conducted any --
19 MR. HYDE: Maybe one question at a time.
20 THE WITNESS: Let me see if I can describe it, and
21 if this doesn't answer your question, you can focus in
22 on maybe more specific -- specifically what you are
23 getting at.
24 I have been in the Everglades. I have had broad
25 tours of the Everglades, from the air and on the
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1 ground, nothing specific, just the general layout of
2 the Everglades. I have been on the ground looking at
3 specific issues dealing with the Everglades. Again,
4 when I was with the Department, I mentioned earlier we
5 looked at some of the municipal discharges along the
6 southern portion of the Lake Okeechobee and so forth.
7 I have not personally conducted field studies or
8 collected data or information such as that relating to
9 specific problems in the Everglades. I cannot recall
10 any efforts to address a specific problem where I went
11 in the field and collected information or took
12 measurements and so forth.
13 BY MR. HETRICK:
14 Q Have you ever reviewed any specific field studies
15 or data with regard to specific problems in the
16 Everglades?
17 A Yes.
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