1

1 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUGAR CANE GROWERS COOPERATIVE OF

3 FLORIDA, INC., ROTH FARMS, INC.,

AND WEDGWORTH FARMS, INC.,

and

FLORIDA SUGAR CANE LEAGUE, INC.,

6 and UNITED STATES SUGAR

CORPORATION,

and

FLORIDA FRUIT AND VEGETABLE

9 ASSOCIATION, LEWIS POPE FARMS,

W. E. SCHLECHTER & SONS, INC., and

10 HUNDLEY FARMS, INC.,

11 Petitioners,

12 vs. CASE NOS. 92-3038

92-3039

13 SOUTH FLORIDA WATER MANAGEMENT 92-3040

DISTRICT,

Respondent,

and

MICCOSUKEE TRIBE OF INDIANS OF

17 FLORIDA, the UNITED STATES OF

AMERICA, FLORIDA DEPARTMENT OF

18 ENVIRONMENTAL PROTECTION,

FLORIDA WILDLIFE FEDERATION,

19 FLORIDA AUDUBON SOCIETY, and

SIERRA CLUB,

Intervenors.

21 _____________________________/

22 DEPOSITION_OF_DR._TAMAR_BARKAY

__________ __ ___ _____ ______

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 Deposition of DR. TAMAR BARKAY taken by the

2 attorney for Petitioners at 224 East Government Street,

3 Pensacola, Florida, on April 4, 1994, commencing at 1:00

4 p.m., before Lacy Leitch, Registered Professional Reporter

5 and Notary Public.

APPEARANCES

___________

FOR THE PETITIONERS: GARY P. SAMS, ESQUIRE

8 Hopping, Boyd, Green & Sams

Post Office Box 6526

9 Tallahassee, Florida 32314

10 FOR THE RESPONDENTS: JOHN LIPSHULZ, ESQUIRE

U.S. Department of Justice

11 Post Office Box 663

Washington, D.C. 20044-0663

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 INDEX_OF_WITNESSES

_____ __ _________

3 DR. TAMAR BARKAY PAGE

____

4 Direct Examination by Mr. Sams 6

5 CERTIFICATE OF REPORTER 122

6 SIGNATURE OF WITNESS 124

8 INDEX_OF_EXHIBITS

_____ __ ________

10 PLAINTIFF'S PAGE

___________ ____

12 1 Curriculum Vitae 7

13 2 Note to Mr. Lipshulz 10

14 3 Re-Notice of Taking of Deposition 11

15 4 Memorandum, Subject: Region IV 18

16 5 Handwritten notes dated May 21, 1991 26

17 6 Document on United States Department

18 of the Interior letterhead 30

19 7 Document dated June 11, 1991

20 from Robert E. Menzer to Scott McMoran 31

21 8 General Description of Project 32

22 9 Document entitled "An Investigation

23 on the Contribution of Naturally

24 Occurring Mercury to the Mercury

25 Contamination in the Florida Everglades" 35

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 PLAINTIFF'S PAGE

___________ ____

3 10 Handwritten Notes 43

4 11 Handwritten notes dated 1/24/92 44

5 12 Letter dated 2/18/93 to Dr. Mike Soukup 47

6 13 Document entitled Methylation and

7 Demethylation Processes in Soil

8 Sediments from the Florida Everglades 51

9 14 Document entitled Methylation and

10 Demethylation in Soil Sediments

11 from the Florida Everglades 58

12 15 Letter dated January 30, 1993

13 to Dr. Jerry Stober 61

14 16 Letter dated July 27, 1993

15 to Bob Johnson 65

16 17 Handwritten notes dated 8/17/93 67

17 18 Raw Data from August 31, 1993 Sampling 73

18 19 Handwritten notes dated 10/6/93 82

19 20 Document dated 10/21/93 83

20 21 Letter dated November 2, 1993 to

21 Dr. Curt Richardson from Tamar Barkay 84

22 22 Graphs 88

23 23 Notes dated November 20-21 89

24 24 Handwritten notes dated 12/1/93 93

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 PLAINTIFF'S PAGE

___________ ____

2 25 Document dated 12/8/93,

3 Titled Calibration 93

4 26 Document entitled Calibration, dated

5 12/9/93 94

6 27 Document dated 1/25/94 entitled

7 Results:Calculations 95

8 28 Document entitled Levels

9 Encountered During Processing 98

10 29 Letter dated November 23, 1993

11 to Curtis Pollman from Tamar Barkay 99

12 30 Document, Page Nos. 263 - 265 101

13 31 Mercury Analysis of Soil in August 101

14 32 Document entitled Methylation

15 of Hg(II) 102

16 33 Document entitled Cases Deleted

17 Due to Missing Data 102

18 34 Document entitled Adjusted

19 Squared Multiple R 103

20 35, 36 No Exhibits marked

21 37 Document entitled Regression 103

22 38 Document, Regression Analysis 104

23 39 Document entitled Microcosm

24 Simulating Mercury Cycling 104

25 In a Contaminated Pond

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 WHEREUPON,

2 DR._TAMAR_BARKAY

___ _____ ______

3 was called as a witness and after having been first duly

4 sworn, was deposed and testified as follows:

5 DIRECT EXAMINATION

6 BY MR. SAMS:

7 Q State your name for the record, please.

8 A Tamar Barkay.

9 Q Are you employed by the Environmental

10 Protection Agency?

11 A Yes.

12 Q What is your business address, please?

13 A 1 Sabine Island Drive, Gulf Breeze, 32561.

14 Q Dr. Barkay, my name is Gary Sams. I

15 represent the Sugar Cane Growers Cooperative of Florida

16 and two individual farm corporations. I am taking your

17 deposition in this case for the purpose of making as

18 complete a record of our discussion as I can. I will try,

19 therefore, to ask clear questions, but if they are not

20 clear, especially to you as a scientist, please indicate

21 so that I have the opportunity to correct my questions or

22 make them clearer; that way the record will reflect a true

23 conversation.

24 A Okay.

25 Q Dr. Barkay, I would like to show you, first,

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 a document that I'll ask the reporter to mark Exhibit No.

2 1, and ask if that's a current copy of your CV?

3 A Yes, I think it is. It is pretty much, yes.

4 (Curriculum Vitae was marked by the

5 reporter as Plaintiff's Exhibit No. 1,

6 hereto attached.)

7 Q (By Mr. Sams) Could you give me a brief

8 description of the nature of your responsibilities for EPA?

9 A I am with the microbic ecology and

10 biotechnology branch. It is the environmental research

11 laboratory here in Gulf Breeze. It is part of the office of

12 research and development in the EPA.

13 I am a staff scientist there. My title is

14 research microbiologist, and I am in charge of performing my

15 own research, which comes to answer the needs of the agency.

16 Q How long have you been employed at Gulf Breeze?

17 A Since December of 1984.

18 Q Have you been employed in the same capacity

19 since 1984?

20 A Yes.

21 Q Same job responsibilities?

22 A Yes.

23 Q I notice that you received your Ph.D. in

24 microbiology at the end of 1980; is that correct?

25 A Yes.

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 Q What positions did you hold between that time

2 and the end of 1984 when you went to work for EPA?

3 A I spent a little over a year and a half at the

4 Weizmann Institute in Israel, the biochemistry department,

5 as a postdoctoral fellow. And then I spent a little over

6 two years as a postdoctoral fellow at the University of

7 California, at Irvine.

8 Q Besides the work that you have done in

9 connection with the Everglades during the last three or four

10 years, have you done other work with the examination of

11 mercury cycling in the environment?

12 A I have done some work in a contaminated site in

13 Oak Ridge, Tennessee.

14 Q What was the nature of your work in regard to

15 the Oak Ridge site?

16 A The work in Oak Ridge is a project that evolved

17 over a long period of time. It started with looking at very

18 basic responses of the microbic community in the site, to

19 mercury, and then it evolved into a more applied project

20 where we looked at actually the possibility of using

21 microbial activities for remediation of the site.

22 Q How long did your work last in connection with

23 the Oak Ridge site?

24 A I can't remember exactly when we started.

25 Q Approximately the number of years?

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 A 1987, possibly, and it's still going on. And I

2 have a long-time collaboration there.

3 Q Have you conducted other examinations of

4 cycling of mercury in the environment?

5 A No. That's pretty much it.

6 Q How would you describe your field of expertise?

7 A I think I am a microbiologist who really is

8 working in the interface between the organismal level and

9 the environmental level. That is -- I can't say I'm an

10 expert -- but aware, and use what we know about the

11 molecular biology, the genetics, the biochemistry of

12 microbial transformations of mercury. And I am asking

13 questions which are pertinent to the fate of mercury in the

14 environment, and how these microbic processes are involved

15 in the actual cycling of -- geochemical cycling of mercury.

16 Q Have you published any papers regarding the

17 interface between organisms and the environmental levels, as

18 it pertains to mercury in the Everglades?

19 A No.

20 Q Have you published on that subject, in relation

21 to your Oak Ridge work?

22 A Yes.

23 Q And are all those publications listed on your

24 CV?

25 A Yes, I believe so. I haven't looked at it in a

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 while.

2 (Note to Mr. Lipshulz was marked by

3 the reporter as Plaintiff's Exhibit

4 No. 2, hereto attached.)

5 Q (By Mr. Sams) I would like to show you a

6 document that I'll ask the court reporter to mark as Exhibit

7 No. 2, and ask you if you recognize that document?

8 A Yes, I believe that's a note I wrote to Mr.

9 Lipshulz.

10 Q In writing that note, what did you regard as

11 the project in South Florida?

12 A Basically, everything that I have done, and

13 records that I collected that I, myself, wrote, or my staff

14 did, with regard to the work in South Florida.

15 Q Regarding mercury in the Everglades?

16 A Yes, exclusively. I'm not involved with

17 anything else.

18 Q Have you ever been involved with any other work

19 regarding mercury in South Florida?

20 A No.

21 Q Have you ever been involved with any other work

22 regarding the Everglades?

23 A No.

24 Q I would like next to show you a copy of

25 actually the renotice of the taking of your deposition

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 today. I'll ask the reporter to mark that as Exhibit No. 3.

2 (Re-Notice of Taking Deposition was

3 marked by the reporter as Plaintiff's

4 Exhibit No. 3, hereto attached.)

5 Q (By Mr. Sams) Did you receive a copy of this

6 notice?

7 A I don't remember. I don't recall seeing it.

8 Q I would like, if I may, to ask you to examine

9 it starting on the fifth page. Actually, the list with

10 which I'm concerned begins on Page 4.

11 A Okay; 4.

12 Q Do you remember seeing this list?

13 A Documents to be produced?

14 Q Yes.

15 A No.

16 Q I think then I will go through and ask you just

17 a little bit about these various items. The first item, of

18 course, you have produced, and we have already marked that

19 as an exhibit.

20 If you could turn to the second item, please,

21 and examine that description. Have you produced all the

22 documents in your files which are described in that item?

23 A It says, "relating to parameters affecting the

24 release of mercury from soils of the Florida Everglades." I

25 don't recall having any of those. I mean it would be

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 easiest for me to say yes to you but --

2 Q I understand, but I appreciate the more

3 complete answer. Thanks.

4 Item 3, do you have any documents of that

5 description?

6 A Yes. And I believe the answer is yes; I gave

7 you all I had.

8 MR. SAMS: Let me ask your counsel for the

9 U.S., have you provided a privilege list, or are any

10 withheld on grounds of privilege?

11 MR. LIPSHULZ: No. Actually, I don't know if

12 all this needs to be on the record.

13 (Off the record discussion.)

14 MR. LIPSHULZ: We had just been discussing some

15 of the procedural aspects of the document production.

16 We have not withheld any documents, as privileged,

17 and it is misunderstanding that while Dr. Barkay has

18 not seen this document, perhaps, I think that she

19 went over the categories of documents with someone

20 from my office.

21 Q (By Mr. Sams) With that understanding, and

22 using this primarily to jog your memory, do you have

23 documents fitting the description of No. 4?

24 A Let me look at the language I need to --

25 Q Unfortunately, this is the language of lawyers

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 writing these.

2 A The answer is yes. I don't see the difference

3 between three and four that much.

4 Q Item 5, it may again be essentially the same

5 question.

6 A Yes.

7 Q Is it, in your mind?

8 A Yes.

9 Q And you have produced the documents that you

10 have?

11 A Yes.

12 Q Item 6?

13 A Yes.

14 Q Item 7?

15 A May I ask you a question? I assume that this

16 analysis, reports and data, that relates to my work. I have

17 reports that other people have written, that I didn't submit

18 to you. They are open to the public.

19 Q This is particularly with regard to Item 7?

20 A Yes. You see, like other people -- Dr.

21 Delfino, in Gainesville, have done work. I have his

22 reports. I didn't send them to you. I didn't think that

23 that is what you needed.

24 Q If you could identify for me, by memory at

25 least, the other items that you remember as fitting within

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 this category, but that were not provided.

2 A You know, basically I have had a lot of

3 documents that's part of my work to read, that helps me to

4 design my own work, which it gives me the information that I

5 need, which is written by other people -- that was written

6 by other people. Dr. Delfino's report is one of them. I

7 have a report from the Duke Wetland Center about the work

8 there. I have several enormous reports from the Water

9 Management District. It provides me with the background

10 information needed to do my work.

11 Q Have you maintained notes on those copies?

12 A Well, I usually am writing in the book, as I

13 read it, those things that are pertinent to me.

14 MR. SAMS: Why don't we go off the record a

15 second.

16 (Discussion off the record.)

17 MR. SAMS: Counsel for the United States has

18 indicated that in the category we have just been

19 discussing, that is, general works of the witness

20 that she has relied on, including those where she has

21 made specific annotations, that the U.S. is willing

22 to provide copies. The petitioners, at this point,

23 would simply state that there may be a need to have a

24 further deposition upon examination of those, but

25 that is by no means a foregone conclusion. It would

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 be necessary to see the notes to judge whether any

2 further questions are necessary.

3 MR. LIPSHULZ: So the record is clear, what

4 documents, specifically, are we talking about?

5 MR. SAMS: Apparently, there are a number of

6 documents specifically referencing the Everglades,

7 that the witness has maintained copies of, and I

8 guess it is those documents that we would like to get

9 copies. Obviously, if they are not copies on which

10 she has made notes and which are known to counsel for

11 the U.S. as being ones that we otherwise have, I

12 would be willing to accept that representation from

13 you, in lieu of obtaining a copy of the document. We

14 are not interested in copying everything that might

15 be in the witness's library.

16 MR. LIPSHULZ: We'll look into it.

17 Q (By Mr. Sams) Item No. 8, were there any

18 documents in your possession?

19 A I don't think so.

20 Q Item No. 9; maps, graphics and other

21 references.

22 A I don't think that I provided anything. As far

23 as I remember, I did not provide any maps.

24 Q Are there maps in your possession which reflect

25 where data were sampled?

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 A Yes.

2 Q I think that is probably very critical to our

3 needs.

4 A It would be easier than the documents.

5 Q Can you indicate about how many maps, or what

6 volume you think we are talking about, Dr. Barkay?

7 A A map, I think one page, the map of the

8 sampling sites.

9 Q Would that be only one page related to only one

10 sampling incident?

11 A Yes.

12 Q Or are there any multiple sampling incidents?

13 A There were multiple sampling incidents, but I

14 think that the greater body of the information comes from

15 one place.

16 Q One map?

17 A Yes.

18 Q I guess what we would request there is if there

19 are additional maps reflecting additional information, we

20 would like those. I won't ask you for all of Item No. 10,

21 although was the one article that you provided us intended

22 to be responsive to that?

23 A Yes. It's truly the only one that I have.

24 It's the -- the analysis of the environmental samples is not

25 a major part of my work; hasn't been until recently.

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 MR. SAMS: Let's go off the record a second.

2 (Discussion off the record.)

3 MR. SAMS: Let the record reflect that Counsel

4 have discussed the provision of documents, and that

5 counsel for the U.S. has agreed to provide them by

6 expedited delivery as soon as possible, with a target

7 of, say, the middle of next week, and not to stand on

8 the close of discovery as any impediment to providing

9 those documents.

10 MR. LIPSHULZ: I believe that's accurate.

11 Q (By Mr. Sams) Dr. Barkay, during a period

12 beginning in 1991 did you perform work regarding the

13 methylation and demethylation of mercury in Everglades

14 soils?

15 A Yes.

16 Q Could you describe, in general, the nature of

17 that work?

18 A What we do is that we measure the potential of

19 the microorganisms in the soil to methylate inorganic

20 mercury and to degrade methylmercury.

21 Q I am going to show you a series of documents

22 that I will ask you to identify, and indicate for me, if you

23 will, how they relate, if they do, to that work.

24 A Okay.

25 MR. SAMS: The first one I'll ask the reporter

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 to mark as Exhibit No. 4.

2 (Memorandum, Subject: Region IV, was

3 marked by the reporter as Plaintiff's

4 Exhibit No. 4, hereto attached.)

5 Q (By Mr. Sams) Does this document relate to

6 that work? It is actually a series of document.

7 A Yes.

8 MR. LIPSHULZ: You might want to flip through

9 to see what else is in there.

10 A Yes. The question was if I recognize it?

11 Q (By Mr. Sams) Yes, and do these documents

12 relate to that work?

13 A Yes.

14 Q Was this a proposal for authorization to

15 perform the work, that you have described?

16 A This was a proposal to do the work, yes.

17 Q Was that work funded in accordance with the

18 request?

19 A Let me check. It was funded at a lower rate

20 than the request.

21 Q What was the amount for which it was funded?

22 A As far as I remember, it was 50K.

23 Q I see in the last line of the cover sheet,

24 $50,000. Was that the funding?

25 A Yes; as far as I know. I am not usually part

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 of the financing of these things.

2 Q Turning to the third page in, is that an

3 accurate description of both the problem and the approach to

4 the problem that was undertaken?

5 MR. LIPSHULZ: Are you talking about the

6 Objectives and Description of Problem sections?

7 MR. SAMS: Right; followed by Approach,

8 Experimental Design and so on.

9 A I would say that it's a broader description

10 than what was actually done.

11 Q (By Mr. Sams) Which portion of work was not

12 actually done?

13 A I need to look at it. The part that was done

14 is the methylation and the demethylation work. It was done

15 only in soil samples, so far. We have not gotten to work

16 with water samples, and we have not done any volatilization

17 studies in South Florida.

18 Q I take it from the nature of your answer that

19 that is still true; that work only was done with soil

20 samples?

21 A That's right.

22 Q Not water or volatilization?

23 A That's right.

24 Q Has the work on methylation and demethylation

25 that was described in the document we just looked at,

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 Exhibit No. 4, has that work been completed?

2 A I need to read to see exactly what was

3 proposed.

4 MR. LIPSHULZ: Take all the time you want to to

5 read the document. It's perfectly okay.

6 A Okay. Could you follow with me in the

7 document?

8 Q (By Mr. Sams) Certainly.

9 A For Experimental Design, the mercury analysis,

10 we have analyzed mercury and speciated it in soil -- in some

11 soil samples. We have done total mercury analysis in water.

12 And the methods that were used are listed here pretty much.

13 We have done specific rates of mercury

14 methylation and methylmercury demethylation in several soil

15 samples; not in water samples.

16 As I mentioned, we have not done any mercury

17 volatilization rates. We have not gotten to it. Yes.

18 That's all.

19 Q You say you have measured total mercury in

20 water?

21 A Yes, we have.

22 Q What was the purpose of that part of the work?

23 A Just to get some background information about

24 the systems that we are working with. That's it.

25 Q Are the data from that work included in

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 documents you have furnished us?

2 A As far as I remember, I made a copy of it.

3 It's in a very -- it has not been included in any formal

4 presentation. It's a handwritten note, but I believe I made

5 a copy of it.

6 Q Have you formed any preliminary conclusions

7 about the systems that you're working with, based on the

8 total mercury in water that you have measured?

9 A I don't have the numbers in front of me, but as

10 far as I remember, they weren't any higher than what we

11 usually find in fresh water, which is a part per trillion

12 range.

13 Q When you say "what you usually find in fresh

14 waters," what is the range of data with which you are

15 familiar and on which you base that observation?

16 A I am familiar with what other people find in

17 other sites where such studies are performed; in the seepage

18 lake up in the north in Sweden; in some water reservoirs;

19 pretty much the background concentration of mercury in

20 natural waters. It's at about, I would say, anywhere below

21 picogram per liter to a few picogram per liter, which is a

22 part per trillion range.

23 Q From where did you obtain the mercury samples

24 in water, that you analyzed?

25 A We collected those samples at the Water

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 Conservation Area 2A where we do our soil work. We

2 collected the water at some of the same sites where we took

3 soils.

4 Q Did those sites include canal locations?

5 A No.

6 Q Marsh locations?

7 A Marsh.

8 Q Were they all marsh sites?

9 A Yes. That's within Water Conservation Area 2A.

10 Q Is that the only location -- that is, Water

11 Conservation Area 2A marsh sites -- from which you obtained

12 water samples and analyzed them for mercury?

13 A Yes.

14 Q I show you next a set of handwritten notes, and

15 ask you if you can identify those, Dr. Barkay?

16 A It's probably notes that I have taken -- I

17 recognize my handwriting -- during some meeting.

18 Q Is the date on these notes May 21, 1991?

19 A Yes.

20 Q Would that have been on or about the time that

21 you proposed to commence the methylation and demethylation

22 work in the Everglades?

23 A There is no way in the world that I could give

24 you a correct answer on that, because the way things work, I

25 have had the idea for a long time, and I have tried to

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 obtain funding in different places, and I don't recall when,

2 exactly, things started falling into place.

3 Q Do you recall when you initially obtained the

4 samples that you analyzed for methylation and demethylation?

5 A I know that the first set of samples I got was

6 done in July of 1991.

7 Q Do you recall who was present at the meeting or

8 conversation of which you took these notes?

9 A I know John Huckabee must have been there. I

10 have been to so many meetings regarding this, there is no

11 way for me to remember who was there.

12 Q Who was -- is it John or Joan Huckabee?

13 A John Huckabee from EPRI. I just see that I

14 took some notes that he -- he attended a lot of these

15 meetings.

16 Q Were these first set of comments attributable

17 to him?

18 A It must have been.

19 Q What was your purpose in meeting with EPRI on

20 this --

21 A I don't remember what meeting it was. I

22 really -- I can't say what it was. It's possible, you

23 know -- at first, when I looked at it, I saw it's notes that

24 I took during the meeting, but it's very possible that these

25 are notes that I took at my desk when I talked with John on

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 the phone.

2 Q Do you know who made the observation "too much

3 stress on atmospheric deposition"?

4 A Without considering other possible sources, I

5 don't know who made it. It could be either John made it, or

6 it could be my thoughts to what John said.

7 Q In other words, your paraphrasing of what he

8 said?

9 A Many times when I discuss things with people it

10 evokes a response in me, and I don't -- I can't say whether

11 that's what he said, or he said something that made me think

12 of this conclusion either one.

13 Q Did you discuss with Mr. Huckabee your proposed

14 methylation and demethylation studies?

15 A Probably. I don't recall specifically

16 discussing it with him, but I am sure I discussed this

17 project with him or other people at EPRI.

18 Q What was the purpose, if you know, of EPRI's

19 involvement?

20 A I don't even recall that there was any

21 involvement.

22 Q How did it happen that -- how did it come about

23 that you were discussing that work with them?

24 A I work with EPRI. EPRI does a lot of mercury

25 work. EPRI funded my Oak Ridge studies. I have very

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 routine interaction with EPRI people. Actually -- this

2 is -- it's really not John that I interact with that much.

3 Q What is the reference to either hydrology input

4 or, perhaps, absence of hydrology input? I can't tell

5 whether hydrology input falls under absence of or stands

6 alone as a topic.

7 A I don't remember what it relates to.

8 Q Do you remember what the phrase, conflict of

9 interest, related to?

10 A No, no. I think that these were taken during a

11 meeting that we had here with him in the lab in Gulf Breeze,

12 where John Huckabee and Don Procella came to visit us.

13 Q Dr. Porcella is also of EPRI?

14 A Yes. I remember -- I think that it could be.

15 Q Do you remember a discussion concerning

16 conflict of interest?

17 A No, I don't remember any details of what was

18 discussed or what my comments, here, related to. I'm sorry.

19 Q What kind of interest did EPRI express in the

20 methylation/demethylation project?

21 A They really didn't have any specific interest.

22 At that time the work in Florida was just getting organized

23 and they explored the possibility of -- they were looking

24 into how to carry out their work in South Florida. So

25 that's why they came here, to see if they could do it

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 through our lab. That, I think, was the purpose of the

2 visit.

3 Q Were you concerned about your lab having a

4 conflict of interest?

5 A I don't -- I don't remember what it was. If it

6 will come to me, I'll tell you, but I don't remember what it

7 was. Possibly -- I mean anything I say would be just a pure

8 guess.

9 Q Perhaps I could ask you, if you can, to recall

10 what led to the next note after conflict of interest?

11 A I think what the issue was, that they were

12 looking for a person to lead the effort in South Florida.

13 Based on experience in their big project in Wisconsin, they

14 had the experience that it is a good thing to have one

15 person who is the head of the project, and they were looking

16 for a person, and our lab couldn't come up with that person.

17 If you ask me now why it is that our lab never got to be

18 involved in the study in a big way, that's probably the

19 reason.

20 Q I don't think we have marked this as an

21 exhibit, have we?

22 (Handwritten notes dated May 21, 1991

23 were marked by the reporter as

24 Plaintiff's Exhibit No. 5, hereto

25 attached.)

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 A I think, to be truthful, the conflict of

2 interest may have something to do with the fact that EPRI is

3 private industry and we are EPA. That could have been it.

4 I don't remember that as specifically to this comment, but

5 it's a general problem which we have to deal with in all our

6 work.

7 Q I notice below the line that appears on that

8 page, identification of ENP project. What is that a

9 reference to?

10 A That's Everglades National Park.

11 Q Was EPRI offering, potentially, to fund work

12 concerning the Everglades National Park work?

13 A No, they weren't offering. All they said was

14 they thought they would have money to support the work in

15 South Florida.

16 Q On the second page of the notes, I notice the

17 last phrase says, "wetlands mercury, Everglades, a site to

18 look at it." Do you recall what that --

19 A I don't recall anything, but I think it may be

20 it's a note that I wrote to myself based on the discussions

21 that was going on, that the Everglades could be a good site

22 to study this problem. That's all.

23 Q Are these notes all from the same time period,

24 or are they from a series of times?

25 A I believe that these notes are all from the

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 meeting in -- maybe what's on the last page, at the bottom,

2 is something that I wrote for myself, following that

3 meeting.

4 Q Has EPRI funded any of your lab's work in

5 connection with mercury in the Everglades area?

6 A No.

7 Q Has any other private organization funded any

8 portion of your lab's work in connection with such work?

9 A No. I want also to say I don't know -- on the

10 last page, here, there is something that is my handwriting,

11 but does not -- it's not -- it's probably a copying error.

12 It's those numbers on the left.

13 Q They don't relate to the text.

14 A Yes. I believe probably the documents got

15 copied together.

16 Q Thank you for pointing that out. In the last

17 section of the final page of the notes, I see -- I will

18 point to my copy, if I may -- some notes that are difficult

19 to read. Can you read the notes that appear on the third

20 and fourth lines below the solid line separating the page?

21 A "What was shown in the Everglades regarding

22 phosphorus;" is that what you mean?

23 Q Yes.

24 A Water is provided from the management areas,

25 include rainfall and agricultural runoff, and there is a P

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 there to indicate that agricultural runoff may contain

2 phosphorus.

3 Q What is the last -- the reference in the last

4 two lines of the page?

5 A Ron's sampling sites.

6 Q Yes.

7 A "Is the high total phosphate site anaerobic.

8 We want to study anaerobic soils."

9 Q What is the content and meaning of that note?

10 A It's my mind working. It's a question that I

11 posed to myself regarding the samples that we got from Ron,

12 or at that time that we were planning to get from Ron.

13 Q Ron Jones?

14 A From Ron Jones.

15 Q Florida International?

16 A Yes, FIU. I just made a note to myself that I

17 should ask Ron about it.

18 Q Did you ultimately ask that question and

19 determine the answer?

20 A Yes. I determined the answer. I don't

21 remember if I asked him. As soon as I saw the sample I knew

22 the answer.

23 Q And what was that?

24 A It was anaerobic.

25 Q Let me ask you to examine another document,

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 which I'll ask the reporter to mark as Exhibit No. 6.

2 (Document on United States Department

3 of the Interior letterhead was marked

4 by the reporter as Plaintiff's Exhibit

5 No. 6, hereto attached.)

6 Q (By Mr. Sams) Do you recognize those

7 documents?

8 A Yes.

9 Q Is the work described in the scope of work

10 attached to the form, essentially the same work that was

11 already discussed when we talked about the prior exhibits?

12 A Yes.

13 Q Did this relate to getting Department of the

14 Interior Park Service approval for that work?

15 A No. I believe that was something else.

16 Q What was the purpose of this document?

17 A It was transferring the money to the

18 department, to the park.

19 Q What money was being transferred to the park?

20 A The $50,000 that we got from Region IV.

21 Q And it was being transferred to the park?

22 A Yes.

23 Q For what purpose?

24 A To pay for the work.

25 MR. SAMS: Mark as the next exhibit.

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 (Document dated June 11, 1991 from

2 Robert E. Menzer to Scott McMoran, was

3 marked by the reporter as Plaintiff's

4 Exhibit No. 7, hereto attached.)

5 Q (By Mr. Sams) I will show you another document

6 which is marked as Exhibit No. 7, and ask you if that

7 relates to the same work?

8 A Yes.

9 Q What was the purpose of this set of documents?

10 A This is the setting up the agreement with the

11 Park Service. It was done through a mechanism called the

12 Interagency Agreement. The Interagency Agreement --

13 basically, I think that the previous exhibit was the actual

14 transfer of the money, where this was the administrative

15 arrangement.

16 Q Within that document there is a memo dated May

17 17, 1991.

18 A Yes.

19 Q From C. R. Cripe.

20 A Yes.

21 Q Is that someone who works at EPA Gulf Breeze?

22 A Yes.

23 Q I note in the second paragraph there is a brief

24 mention of the nature of the project, and then the second

25 sentence says, "a particular emphasis is placed on the

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 possible relationships between environmental alterations and

2 a net production of methylmercury."

3 A Yes.

4 Q Do you know what environmental alterations

5 meant in the context of the proposed work?

6 A I think what it probably meant was to -- see,

7 the underlying principle of our work is that the nutrient

8 enrichment, the eutrophication process has affected

9 production of methylmercury, and I believe that is what he

10 probably meant.

11 Q Do you know whether any other environmental

12 alteration was examined by the proposed work?

13 A No. I know that that was the only thing that

14 was examined.

15 Q Was any consideration given to involving other

16 environmental alterations such as, hydro period?

17 A Not in our project, no.

18 Q I would like to show you a document which I'll

19 ask the reporter to mark as Exhibit No. 8, and ask if you

20 can recognize that document, please. I realize that it's a

21 bad copy, but actually, we received it that way.

22 (General Description of Project was

23 marked by the reporter as Plaintiff's

24 Exhibit No. 8, hereto attached.)

25 A Yes. That's, again, just a general description

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 of the project.

2 Q I notice in the third paragraph, the middle

3 sentence says, "preliminary assays showed a greater

4 potential --"

5 A Just a second.

6 Q Third paragraph.

7 A Okay.

8 Q Middle sentence says, "Preliminary assays

9 showed a greater potential for methylation and eutrophic

10 anaerobic, as compared to aerobic sediments from the

11 Everglades."

12 A Yes.

13 Q What are the preliminary assays being referred

14 to there?

15 A They refer to three samples that were sent to

16 me in July of 1991 by Ron Jones, and the samples -- there

17 were three samples. One was from a highly eutrophied soil.

18 One was from an intermediate -- that is, it was a sample

19 from an area that was going through the eutrophication

20 process. And the third was a controlled soil from

21 unimpacted area.

22 Q Who identified those three soils so as to

23 characterize them that way?

24 A Ron did.

25 Q Did he provide you with data showing the basis

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 on which he characterized those soils?

2 A No.

3 Q Do you know if he had tested those soils?

4 A I don't know.

5 Q Do you know the locations from which those

6 soils were obtained?

7 A No. I could guess, based on the way he labeled

8 them.

9 Q How were they labeled?

10 A I don't remember how they were labeled, but

11 from the ways that they labeled them, by looking at the map

12 of the hydrological system down there, I figure that they

13 came from area that is just on the northern boundary of the

14 park. The marking corresponded to some designation of

15 structures. There was, I believe, a sample that was marked

16 S12, but I have no confirmation that that is, indeed, from

17 where they came from.

18 Q How did you identify from preliminary assays,

19 the greater potential for methylation?

20 A I remember that -- I think the numbers must be

21 there somewhere, but when we provided the samples with

22 inorganic mercury, the samples that were eutrophied produced

23 much more methylmercury than others.

24 Q Were those samples taken from marsh locations,

25 if you know?

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 A I don't have any idea.

2 Q Do you know whether they were taken from within

3 canals or --

4 A They were highly organic.

5 Q What does that suggest to you?

6 A It could have been bottom of the canal. It

7 could be wetland. I'm not familiar with that area. I

8 don't --

9 Q Do you know what depth he took them from?

10 A I have no idea.

11 Q I will show you the next document, which I'll

12 ask the reporter to mark as Exhibit No. 9.

13 (Document entitled "An Investigation

14 on the Contribution of Naturally

15 Occurring Mercury to the Mercury

16 Contamination in the Florida

17 Everglades" was marked by the reporter

18 as Plaintiff's Exhibit No. 9, hereto

19 attached.)

20 Q (By Mr. Sams) And I will ask you whether those

21 numbers that are on the third page relate to these samples?

22 A Yes.

23 Q Is this report the only written report that you

24 issued on those three soil samples?

25 A No.

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 Q Are those three soil samples the basis for the

2 numbers on the third page?

3 A Yes.

4 Q Are any other samples involved in arriving at

5 those numbers?

6 A No.

7 Q I notice on the third page in the paragraph

8 below the table, which starts "most strikingly," that it

9 says a methylation/demethylation ratio could not be

10 determined for the pristine sample. Was it your conclusion

11 that there was not methylation occurring in the pristine

12 sample?

13 A I'm not sure what is written here, but I take

14 it to mean that it was below the level that we could detect.

15 Q What was the level of detection for the

16 sampling techniques you were using?

17 A I don't remember. I mean it's something that

18 can be figured out but --

19 Q What preliminary conclusions did you reach

20 based on this work?

21 A That there could be something in our hypothesis

22 regarding stimulation of the formation of methylmercury in

23 eutrophied soils.

24 Q I take it that was a preliminary conclusion

25 supporting the continued work with the hypothesis?

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 A That's right. Three samples is just --

2 Q Are three samples incapable of forming a final

3 conclusion?

4 A No. I mean I'm even embarrassed to say it was

5 enough to form preliminary suggestions.

6 Q Did you arrive at any other preliminary

7 conclusions based --

8 A Based on these three samples?

9 Q Yes.

10 A I don't think so.

11 Q Did you form any impression of whether

12 methylation or demethylation was dominant in nutrient

13 enriched soils, based on this work?

14 A Well, obviously if you look at the number, you

15 can see that the eutrophication has also enriched the

16 breakdown, increased the breakdown of methylmercury. I

17 think that both are just a result of a more active microbial

18 community. I think one of the things that we -- I don't

19 know if we wrote it down, here, but one of the ideas that

20 came out from looking at these three samples, that possibly

21 the increasing methylmercury formation was a transitory

22 event; that is, as a sample is eutrophied there is an

23 increase in methylation, but later on, as the process of

24 eutrophication continues, the degrading organisms take over

25 and break down more methylmercury. That's a scientific

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 point. I don't know if it's of interest to you.

2 Q How would you define transience for me, in the

3 sense that you just articulated?

4 A As an ecosystem going through the process of

5 eutrophication, there would be a period of time when we have

6 an increase in methylation, and there will also be an

7 increase in demethylation, but the increase in methylation

8 is more pronounced. And as time goes on, the demethylators

9 will keep on increasing, and the methylators don't increase

10 that much anymore. So the net result is that there is less

11 methylmercury in the environment.

12 If you think about methylmercury, the amount of

13 methylmercury that we find in a sample is always the result

14 of its formation and of its degradation, and that's what

15 comes into play here.

16 Q Might it, with sufficient research, be possible

17 to define a time dimension or a phosphorus concentration

18 dimension of that transience, so that one could gauge the

19 extent over a broad environment?

20 A Yes. If we look at the reservoir studies,

21 which is basically where eutrophication was connected to

22 methylmercury formation, in those reservoirs, after

23 approximately 30 years, people start seeing declining

24 methylmercury. The idea is that as the amount of oxidizable

25 organic matter is being depleted, the effect on microbial

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 activities is being alleviated or reduced.

2 Q What microbes are primary in this function?

3 A We don't really know that -- we really don't

4 know. I would say that in environments with high salt

5 concentrations, it is definitely done by organisms which

6 reduce sulfate. There is some evidence that this is also

7 the case in fresh water environment. There is absolutely no

8 idea what organisms are involved, specifically in South

9 Florida.

10 Q When you referred to the work concerning

11 northern reservoirs that you are familiar with, were you

12 suggesting that we know that 30 years would be the period

13 in, say, the Everglades, over which demethylation might

14 outweigh methylation?

15 A No, not at all. There is no way of knowing

16 that.

17 Q Is the manner and the extent to which

18 methylation might outweigh demethylation, or vice versa,

19 something that's capable of being studied in the short term

20 within the Everglades?

21 MR. LIPSHULZ: Object to form. I don't know

22 what you mean by short term.

23 Q (By Mr. Sams) Of a few years or even a shorter

24 period than that.

25 A Do you mean in terms for how long this --

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 Q I'm really asking in regard to the nutrient

2 enrichment problem that has been identified. Is it possible

3 to study that problem with whatever are the known parameters

4 of it, and attempt to assess whether methylation is

5 outweighing demethylation, or vice versa, as a result of

6 that enrichment?

7 MR. LIPSHULZ: Are you talking about in South

8 Florida, as a whole?

9 Q (By Mr. Sams) In the Everglades.

10 A You're not specifically asking me if we can do

11 short-term experiments to find out for how long this is

12 going to affect the system.

13 Q No. I'm really asking do we know at present

14 whether --

15 A Those studies can be done within a much shorter

16 period of time, a few years time, I think; two or three

17 years. I'm afraid to say -- like with research, you never

18 get things done as fast as you say you would, but I would

19 say that clear answers can be obtained in a framework of a

20 few years, easily.

21 Q Are you familiar with the concept of storm

22 water treatment areas?

23 A Very superficially.

24 Q Do you understand the concept of having

25 artificial marsh-like areas created in formerly farmed

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 lands?

2 A Yes.

3 Q And through that, storm water would be passed

4 prior to exiting the Everglades agricultural area. Are you

5 familiar with that concept, in general?

6 A Yes, very little; but I know what you are

7 talking about.

8 Q It may be sufficient for purposes of my next

9 question.

10 A I read the things that the Water Management

11 District puts out a few weeks ago about it.

12 Q Would the same length of time, say, two or

13 three years, be necessary to study whether the methylation

14 or the demethylation of mercury would be more likely to

15 occur in those areas?

16 MR. LIPSHULZ: I object to the form.

17 Q (By Mr. Sams) You can go ahead and answer.

18 The areas I'm referring to are the storm water treatment

19 areas.

20 A That depends on how long the eutrophication

21 process takes, and I don't know how long that takes.

22 Q Would the degree of flooding be a factor to

23 consider there, also?

24 A You mean the amount of water going through the

25 system.

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 Q Yes; and more particularly, however, the

2 maintained water level within those systems.

3 A I would say the water level, I am not sure in

4 terms of depth. That, I'm not sure. What's going to be

5 important, though, is how fast, for how long the water is

6 retained in the system.

7 Q Why will that be important?

8 A It's simply a matter of dilution.

9 Q Dilution of what?

10 A We think -- we have quite a bit of evidence

11 that most of the methylation activity is in the water

12 sediment interface. So if the water stays longer over a

13 given surface of sediment, there is more -- there is a

14 higher concentration of mercury that has the time to invade

15 the sediment into the water.

16 I would like to say here, it's very important,

17 that these things have been studied elsewhere, and we don't

18 know -- in the South Florida systems there may be some

19 special conditions which may modify these rules. But what

20 we know from aquatic systems, in general, is that

21 methylation occur in the water sediment interface, or very,

22 very proximal to it. So you see -- do you understand what I

23 am saying?

24 Q Yes. I'm with you so far. I am just thinking

25 of my next question. To help me understand that, how would

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 you contrast that with similar soils where the water level

2 is allowed to rise and to fall periodically, and in general,

3 not to exist above the soil surface -- that is, the water

4 level not above the soil surface for long periods of time?

5 A You mean there are periods of dryness?

6 Q Yes.

7 A I think that here, we may have an added effect

8 of washing.

9 Q Is there the same effect of methylation at the

10 water/soil interface, regardless of whether the water level

11 is higher or the soil surface is above the water level?

12 A I believe that with the temperature that we

13 have in South Florida, exposure to soil is probably not very

14 active in anything. You see, if you have the water going

15 down below the surface it means that it's -- that the

16 surface of the soil is left to dry. With the temperature in

17 South Florida there's probably very little microbial

18 activity there at all, but it needs to be looked at because

19 we have organisms called thermophiles, and they may be

20 active.

21 Q What is --

22 A They are microorganisms that are specifically

23 adjusted to living in high temperatures. It needs to be

24 looked at.

25 (Handwritten notes were marked by the

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 reporter as Plaintiff's Exhibit No.

2 10, hereto attached.)

3 Q (By Mr. Sams) Let me show you the next

4 Exhibit, No. 10, and ask you if you recognize those notes?

5 A Yes.

6 Q I notice near the bottom, reference to

7 quantitation and speciation of mercury, parentheses, I

8 suppose, R. Jones. Do you recall what that reference is to?

9 A I believe that we were talking about the

10 different analyses that were needed to do our work, and the

11 mercury analysis is important. And what it means is that we

12 were relying on Ron Jones to do these assays.

13 Q Did he have the capability, the laboratory

14 capability to analyze mercury in January of 1992?

15 A I don't know, but I know that he was working on

16 it.

17 Q Working on mercury or working on developing the

18 laboratory?

19 A That he was developing the laboratory.

20 Q At that point in time, early 1992, was it your

21 understanding that he would have that responsibility?

22 A Yes.

23 MR. SAMS: Mark at Exhibit No. 11.

24 (Handwritten notes dated 1/24/92 was

25 marked by the reporter as Plaintiff's

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 Exhibit No. 11, hereto attached.)

2 Q (By Mr. Sams) I show you next Exhibit No. 11,

3 and ask if you could refer to this portion of the page. I

4 assume this was a meeting at Everglades National Park, was

5 it?

6 A Yes; that's right.

7 Q What did that meeting involve?

8 A It involved the people that are listed at the

9 top, and we were doing it to get the work coordinated and

10 started.

11 Q In the reference to Ron facilities, what does

12 it mean, PS analytical?

13 A It means that it's a certain instrumentation to

14 analyze mercury, and I believe that as we were discussing

15 it, he was telling us that is what he was setting up in his

16 lab.

17 Q What is the reference to "question" following

18 that notation, if you can recall?

19 A I don't specifically recall what that was at

20 that time. I know I remember being concerned that the

21 specific instrument wasn't going to be -- to have the

22 sensitivity needed for the analysis that was needed.

23 Q Do you know whether that's the instrument that

24 he ultimately obtained?

25 A I don't know.

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 Q What instrument was it that was the topic of

2 the discussion?

3 A It's a spectral photometric device. We have

4 since purchased it ourselves, so we use it now. You asked

5 me how it works?

6 Q Has it been satisfactory to do the type of

7 work?

8 A It is satisfactory for soil. It does not have

9 the sensitivity to do water; not in our hands. It may be

10 that he was able to get better performance.

11 Q What was the reference to "clean lab" just

12 below that reference?

13 A I think that he was preparing a clean lab, and

14 you must know what that means.

15 Q Do you know anyone else in the United States

16 who has been able to get the necessary level of performance

17 from the machine in question, or the equipment in question?

18 A I don't know, but analytical chemistry is my

19 very weak part. So I know Ron is a whiz with instruments,

20 and it's likely that he could improve on what the company

21 provides.

22 Q Was the meeting at the Everglades National Park

23 prior to actual sampling in the field?

24 A This was at the time when I got the people to

25 work on this project here, and that was after the

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 preliminary work which we discussed, was done, and it was in

2 preparation for sampling.

3 Q I show you the next document which the reporter

4 will mark Exhibit No. 12, and ask if you can identify that

5 document, please?

6 (Letter dated 2/18/93 to Dr. Mike

7 Soukup was marked by the reporter as

8 Plaintiff's Exhibit No. 12, hereto

9 attached.)

10 A Yes, I wrote it.

11 Q (By Mr. Sams) You wrote this document?

12 A Yes.

13 Q Was this following the field work?

14 A Yes; some field work. I would say that was

15 following the work that was done with Ron Jones.

16 Q You mean the three samples?

17 A The three samples, and there were a few more

18 samples that came later on. You will see on the table,

19 there were two sets of samples which we received in the

20 summer of -- one set of samples which we received in the

21 summer of '92.

22 Q Did you split those samples for purposes of

23 this analysis?

24 A What do you mean by split?

25 Q I see on the table the notations Summer 1992,

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 beside S12D and S12C.

2 A Yes.

3 Q And then again --

4 A If you look at incubation temperature, you will

5 see that the same samples from the summer of '92 were

6 incubated at two different temperatures.

7 Q Did you do the same work on these samples that

8 you had done on the ones from the summer of 1991?

9 A Yes.

10 Q Was that the same basic dosing experiment?

11 A Yes.

12 Q And --

13 A By the way, you asked me about limit of

14 detection. Those numbers which are marked here are less

15 than those of the limit of detection.

16 Q Thank you. Were these results consistent with

17 your first set of results from the summer of 1991?

18 A Somewhat.

19 Q To what extent did they differ?

20 A I think you can see that the limit of detection

21 was much higher. We didn't get the same sensitivity. But

22 nevertheless, the sample S12D, I'm not sure if it's -- S12D

23 is a highly enriched one. We got some methylation activity,

24 whereas, the other samples did not. I mean we couldn't

25 detect any methylmercury formation.

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 Q What do the columns mean that say percent

2 methylated and percent demethylated?

3 A That's a percent of the substrate that we added

4 to the sample.

5 Q Are the critical factors the rate of

6 methylation and the rate of demethylation?

7 A Not in the way that these experiments are done.

8 Q What are the critical factors here?

9 A The critical factor is in the comparison

10 between different samples.

11 Q And?

12 A That is, if you had M to D higher in the

13 samples, it had more phosphorus than in the sample that had

14 less phosphorus. That's what tells you something.

15 Q What does that tell you?

16 A That tells you that there is a potential for --

17 that the potential for accumulation of methylmercury is

18 higher in the sample that contains more phosphorus.

19 Q Is that possible to make that comparison with

20 any of the 1992 sampling?

21 A You mean 1992 and 1991?

22 Q Well, I meant 1992 versus 1991. It appears to

23 me that you have methylation to demethylation ratio for each

24 in 1991, but it appears that that is not the case for 1992.

25 A Because two of the samples, the methylation

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 activity was below the level of detection. The only thing

2 you can say for the date of 1992 was that the most

3 eutrophied sample methylated enough to seed the others were

4 below limit of detection. It is not a very strong argument

5 if you consider that the difference between that sample that

6 have active, which is S12D, was only about seven times

7 higher than the limit of detection. So it is weak.

8 Q You say "not a strong argument." Would it need

9 to be, say, an order of magnitude greater to call it strong?

10 A Yes. Look at the data for '91. See, we are

11 talking about a difference here of a factor of thousand,

12 between 0.008 to 9.

13 Q Show me where I should look.

14 A If you look here, see; if you compare these

15 two.

16 Q So you are comparing the third line, the

17 control, or what Dr. Jones said was the unaffected

18 environment, or the unenriched environment.

19 A I compare my limit of detection. Where I

20 don't -- where we don't see activity, we don't call this

21 zero. We say that it is less than our limit of detection,

22 so that's what I compare it to.

23 Q Did anything occur during the experiment with

24 the 1992 soil samples to cause you to alter your preliminary

25 conclusions that you had reached from the 1991 samples?

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 A No.

2 MR. SAMS: I will show you next a document

3 which I'll ask the court reporter to mark as Exhibit

4 No. 13.

5 (Document entitled Methylation and

6 Demethylation Processes in Soil

7 Sediments from the Florida Everglades,

8 was marked by the reporter as

9 Plaintiff's Exhibit No. 13, hereto

10 attached.)

11 Q (By Mr. Sams) It appears to be a paper

12 entitled Methylation and Demethylation Processes In Soil

13 Sediments from the Florida Everglades by Kavanaugh and

14 Barkay. Do you recognize this document?

15 A Yes.

16 Q When was this document written? Was it written

17 following the 1991 or the 1992 samples, or at some other

18 point?

19 A It was written following the 1992 samples.

20 Actually, I believe that this is -- this is just a more

21 extended version of Exhibit No. 12, so this is dated

22 February of '93. This must have come out about the same

23 time.

24 Q On Page 7 in the table, I see a reference to an

25 estuarine sediment sample.

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 A Yes.

2 Q What is that reference?

3 A This was a control sample that we included

4 because activities of the samples from the Everglades was so

5 low, so we wanted to include a sample that we knew had high

6 activity so we could just be confident that our assays were

7 working.

8 Q So this was an attempt to test your method; not

9 to --

10 A That's right.

11 Q Not to take a soil that was analogous to the

12 Everglades?

13 A That's right. It's what you call a positive

14 control.

15 Q Did you determine through the use of the

16 positive control that the assays were working?

17 A Yes.

18 Q If I can refer you to Table 5 -- first, Table 4

19 and then Table 5. What is being illustrated by those

20 tables?

21 MR. LIPSHULZ: Are you talking about Table 4 in

22 this case, or both 4 and 5?

23 Q (By Mr. Sams) I was referring to both 4 and 5.

24 They appear to differ in temperature, the 20 degrees and 30

25 degrees centigrade that I think you made a distinction about

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 earlier.

2 A Yes. So your question is what they mean?

3 Q Yes.

4 A I'm not sure. See, with biological activities,

5 you normally expect an increase in activity with

6 temperature, which is -- with pure enzyme systems you double

7 the rate with every 10 degrees of increase in temperature.

8 I think that this was an attempt to see the effect of

9 temperature on the methylation activity. You can see that

10 we, indeed, got an increase in activity with an increase of

11 10 degrees in temperature. It wasn't exactly a factor of

12 two, but there was an increase.

13 You can't expect a mixed system like this to

14 behave like a pure enzyme. That is not the way it's going

15 to happen.

16 Q But in general, the increase in temperature did

17 produce roughly the kind of effect that you would have

18 predicted?

19 A Yes. With the S12D, which is the most

20 contaminated sample, we got a little over doubling the rate,

21 if you can call it rate. And the same for all samples.

22 S12C, it was a little more than doubled, and the control

23 sample increased by a factor of three.

24 Q I would like to refer you to Page 11, the

25 second paragraph, or the paragraph at the bottom of the

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 page. The fourth sentence reads, "The demethylation rate

2 was almost twice as high in sediment samples containing a

3 high concentration of phosphorus (impacted site 12D)

4 compared to either sediments with an intermediate

5 concentration (S12C) or control samples."

6 Does that -- what does that mean, to use my

7 layman's form of question?

8 A Well, it means that -- I mentioned that before,

9 that what happens when you have eutrophication, you have an

10 enrichment in organisms that degrade organic matter. That's

11 the meaning of eutrophication. And apparently, when you

12 enrich with those organisms, you also enrich for the ability

13 to demethylate mercury. The same is true for methylation,

14 or so it seems to be, or maybe.

15 Q At the top of the next page is a statement,

16 "From the results obtained so far, using the above

17 experimental method, demethylation rates in sediment are

18 higher than methylation rates. This should result in no net

19 methylmercury accumulation."

20 What is the basis for that statement?

21 A It's wrong.

22 Q It is wrong?

23 A I believe that Mrs. Kavanaugh -- Dr. Kavanaugh,

24 who was working on this project, put this sentence in. It

25 does not -- I'm responsible for this document, because my

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 name is on it. However, those assays that we do, do not

2 tell you anything about what happens in the soil in terms of

3 the rates. The rates that we observed here are irrelevant

4 to the rates of these processes as they occur in the soil;

5 therefore, this conclusion is wrong.

6 Q That's because this was a dosing experiment

7 rather than an in situ?

8 A Rather than tracer amount.

9 Q Tracer amount?

10 A See, we flooded the system with our substrates.

11 That's why I keep referring to the potential rates. These

12 are not real rates.

13 Q Could you look at the conclusions which begin

14 on that page, and tell me whether you are in agreement with

15 each one of them. I believe there are five enumerated. If

16 you would just take them conclusion by conclusion.

17 A Okay. The first one actually says what I just

18 tried to explain. You see it says, amount of added mercury,

19 and that is true. Let me see the number before I say it is

20 true. Okay. If we look at Table 3, amount methylated for

21 sampling No. 1, I assume it's S12D. I don't know that.

22 Yes. That's D. So in 10 milliliter we had 7.1 nanogram of

23 methylmercury form and 20 degrees -- I'm sorry -- we had 24

24 in 20 milliliter, so that's slightly higher demethylated.

25 Q In which instance?

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 A We look on Table 3, Samples 1, 2, 3, S12D

2 samples, the most eutrophied samples, three replicates of

3 these samples, the mean was 7.1, but this was for 10

4 milliliter of sample. And I compare it with Table No. 4,

5 which is demethylation at 20 degrees. For S12D, we have

6 24.33 in 20 milliliters. So if I multiply 7 by 2, I get 14,

7 yes. So that statement is true for S12D. I don't see

8 numbers here -- okay.

9 For S12C in the control, we had no methylation

10 at all. This is on only the 1992 samples, so that that is

11 true then.

12 Q What about the second conclusion?

13 (Recess)

14 THE WITNESS: I just want to say that this

15 document is a draft document which was later on

16 modified. I do not agree with a lot of what's in

17 there, in this document.

18 Q (By Mr. Sams) Do you disagree with the data

19 that's in the document?

20 A No, but some of the conclusions and the

21 statements, I don't agree. I think that as we discussed I

22 made it -- I made it clear. Where you asked me about

23 specific points, I made it clear where I agreed and where I

24 did not agree. I don't have any problem with those

25 statements.

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 Q Returning to the conclusions, I think we had

2 covered the first conclusion.

3 A Yes.

4 Q Do you agree with the second one?

5 A Let me read it carefully. I agree with the

6 first sentence. I disagree with the second.

7 Q Why do you disagree with the second sentence?

8 A Because we cannot conclude, based on this data,

9 that the phosphorus concentration in the sediment did not

10 affect methylation. First of all, we didn't have

11 measurement of the phosphorus concentration in the sediment.

12 And second of all, the fact that with these three samples,

13 the data -- there is no data to support it.

14 Q All right.

15 A First, because we didn't have numbers for

16 phosphorus concentration; second of all, we had one sample

17 that we think had more phosphorus based on information

18 provided by Ron Jones. And in this sample we saw

19 methylation, where in the other two, we didn't. So the data

20 certainly does not support the statement that phosphorus

21 does not affect methylation.

22 Q It seems to say phosphorus concentration in the

23 sediment does seem to affect --

24 A Okay.

25 Q Were you misreading it?

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 A I was misreading it. But even reading it

2 correctly, still, I don't --

3 Q You don't think it's sufficient to form a

4 conclusion?

5 A That's right. I'm sorry.

6 Q Conclusion No. 3.

7 A Yes, I agree with that, and I agree with 4.

8 Q Conclusion 5?

9 A Yes.

10 Q I will show you another version of this

11 document, on which there are handwritten comments, and I'll

12 ask the reporter to mark that as Exhibit Number 14.

13 (Document entitled Methylation and

14 Demethylation in Soil Sediments from

15 the Florida Everglades was marked by

16 the reporter as Plaintiff's Exhibit

17 No. 14, hereto attached.)

18 Q (By Mr. Sams) Are those your handwritten

19 notes?

20 A Yes.

21 Q Are these corrections which you made to the

22 previous document, which was Exhibit 13?

23 A I believe so, yes.

24 Q Are these changes which you found necessary for

25 the document to be accurate?

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 A These changes are those that I found necessary.

2 I'm not sure that after the changes the document is

3 accurate. I would have to read it to really answer that.

4 Q Was the document ever retyped taking into

5 account these changes?

6 A I have a very vague recollection of what

7 happened, but I seem to remember that we did; that it was

8 retyped. And as far as I remember, what happened was that

9 the document was prepared by Dr. Kavanaugh, the document

10 which is exhibit No. 13. I then went through it and

11 corrected it. I also have some recollection that we added

12 the data from '91, which is not included in either one of

13 these, and sent that out.

14 I believe that Dr. Kavanaugh, on her own, sent

15 the first version to Jerry Stober. But as far as I know,

16 the corrected version is what went out to other people.

17 Q Would you have a copy of the corrected version

18 among your papers?

19 A Apparently, if you didn't get it, I didn't have

20 it in my files. I may have it on a disk.

21 MR. SAMS: Could we ask you to try to produce

22 that corrected version or the disk? We'll accept it

23 in either form. I think the instructions on the

24 Notice to Produce probably so indicated. But in any

25 event, if there does exist a corrected version, I

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 would like to get it on the same timetable as the

2 other documents we discussed earlier.

3 MR. LIPSHULZ: Okay.

4 Q (By Mr. Sams) Dr. Barkay, on Page 11, near the

5 top, there is what appears to be an incomplete reference

6 following the sentence which reads, "Therefore, the toxic

7 effect of added mercury is difficult to determine." There

8 appears the marginal notation, "However, others, Gilmore and

9 Henry, 1991, have," and then it doesn't include the thought.

10 Do you recall what the thought was in case we have

11 difficulty locating the final version?

12 A Let me read this. What happened here, I

13 started correcting the document by hand and then I continued

14 on the computer. I'm guessing. It relates to the fact that

15 possibly, by adding as much mercury as we added, we

16 inhibited activity. And probably in that paper by Gilmore

17 and Henry, they used a much higher concentration of mercury

18 and they didn't see any inhibition. That might -- that's

19 the way my logic works.

20 Q You just don't have a specific recollection?

21 A That's right.

22 Q Did you make a proposal for further mercury

23 research in the Everglades during 1992?

24 A I am not sure. I think we tried to obtain

25 continuous support from Region IV.

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 Q Were you successful in obtaining that support?

2 A No.

3 Q What reason was given you for the failure of

4 Region IV to support?

5 A They just decided to support something else.

6 Q Let me show you a document that I would ask you

7 if you recognize, dated January 30, 1993 to Dr. Stober?

8 A Yes.

9 Q Were you one of the authors of that document?

10 A Yes.

11 MR. SAMS: I will ask the reporter to mark that

12 as Exhibit No. 15.

13 (Letter dated January 30, 1993 to Dr.

14 Jerry Stober, was marked by the

15 reporter as Plaintiff's Exhibit No.

16 15, hereto attached.)

17 Q (By Mr. Sams) Was this a set of comments

18 following a meeting in Tallahassee on the draft interagency

19 plan of study, of which Dr. Stober was one of the authors?

20 A This was, I believe, a response to a document

21 that we were asked to review; the document that was written

22 by Dr. Stober.

23 Q If I could refer you to the third paragraph.

24 A Yes.

25 Q What was the suggestion being made there? It

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 may be more than one suggestion.

2 A I think that this was just a comment that we

3 made to what we thought he should add to his proposal, I

4 believe.

5 Q Was it a suggestion that hydrological regimes

6 needed to be studied in addressing changes in the

7 Everglades?

8 A Yes.

9 Q That may affect the dynamics of mercury

10 species?

11 A Yes.

12 Q Why were you suggesting to include hydrological

13 regimes?

14 A Probably because we thought that it could

15 possibly have some effect on mercury accumulation. I don't

16 think that it had been brought up by other people many times

17 before.

18 Q Do you know whether ultimately the study that

19 grew out of Dr. Stober's effort proposes to include the

20 effects of hydrological regimes?

21 A I don't know.

22 Q On the second page of the letter, under the

23 paragraph referring to Section 7.4.2 and 7.5.2, I see

24 references to methylation by humic substances and by

25 photochemical transformations as ones you were suggesting.

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 A Yes.

2 Q What was the basis for those suggestions?

3 A The basis is there is documentation in the

4 literature that these processes form methylmercury from

5 inorganic mercury.

6 Q Did you have reason to suspect that those might

7 be effective processes in the Everglades?

8 A Do we have a reason?

9 Q Yes.

10 A I think that because of the high concentration

11 of organic matter and probably humic material, it's

12 something that ought to be looked at.

13 Q What about photochemical transformations?

14 A Are you asking me what I feel about it?

15 Q Yes. Would they be significant in the

16 Everglades?

17 A I don't know. It's something that has

18 really -- well --

19 Q Go ahead.

20 A It has been shown in a test tube type

21 situation. I don't know how much it really -- the

22 environmental effect, I don't know.

23 Q Have you done additional work in connection

24 with the Duke Wetland Center's study transects in WCA 2A?

25 A Yes.

LACY LEITCH & ASSOCIATES - REGISTERED PROFESSIONAL REPORTERS

1 Q How did that opportunity arise? Did you

2 request that opportunity?

3 A No. I initiated it.

4 Q By contacting the Duke Wetland Center?