1
1 Division of Administrative Hearings
2 Department of Administration, State of Florida
3 SUGAR CANE GROWERS COOPERATIVE )
of FLORIDA; ROTH FARMS, INC.; and, )
4 WEDGEWORTH FARMS, INC., )
Petitioners, )
5 V ) DOAH
SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3038
6 DISTRICT, an agency of the State )
of Florida; et al., )
7 Respondents. )
FLORIDA SUGAR CANE LEAGUE, INC.; )
8 UNITED STATES SUGAR CORPORATION; )
and NEW HOPE SOUTH, INC., )
9 Petitioners, )
V ) DOAH
10 SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3039
DISTRICT, an agency of the State )
11 of Florida; et al., )
Respondents. )
12 FLORIDA FRUIT and VEGETABLE )
ASSOCIATION; LEWIS POPE FARMS; )
13 W.E. SCHLECHTER & SONS, INC., )
and HUNDLEY FARMS, INC., )
14 Petitioners, )
V ) DOAH
15 SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3040
DISTRICT, an agency of the State )
16 of Florida; et al., )
Respondents. )
17
18 Deposition of Larry Fink
19
Taken before April Y. Segui, Court Reporter
20 and Notary Public in and for the State of Florida at
large, pursuant to notice of taking deposition filed
21 by the Petitioners in the above cause.
22
Monday March 21, 1994
23 319 Clematis Street, 5th Floor
West Palm Beach, Florida 33401
24 9:17 a.m. - 12:15 p.m.
2
1 APPEARANCES:
2
On behalf of the Petitioners Sugar Cane Growers
3 Cooperative, Roth Farms, Inc., and Wedgeworth
Farms, Inc.:
4 Hopping, Boyd, Green & Sams
123 South Calhoun Street
5 Tallahassee, Florida 32314
By: GARY SAMS, ESQUIRE
6
On behalf of the Respondent SFWMD:
7 South Florida Water Management District
Legal Office
8 3301 Gun Club Road
West Palm Beach, Florida 33406
9 By: RUTH CLEMENTS, ESQUIRE
10 On behalf of the Intervenor United States of America:
Department of Justice
11 155 South Miami Avenue, Suite 627
Miami, Florida 33130-1693
12 By: LISA HOGAN, ESQUIRE
13
- - -
3
1 - - -
2 I N D E X
3 - - -
4
5 WITNESS: DIRECT CROSS REDIRECT RECROSS
6 Larry Fink
7
BY MR. SAMS 6
8
4
1 - - -
2 E X H I B I T S
3 - - -
4 NUMBER PAGE
5 EXB. 1 One page resume of witness 7
6 EXB. 2 Five page resume of witness 17
7 EXB. 3 Re-notice of taking deposition of witness 35
8 EXB. 4 Public records request 39
9 EXB. 5 Draft work plan 9-1-93 40
10 EXB. 6 12-12-91 Memo from Tom Fontaine to 86
11 Ron Bearzotti
12 EXB. 7 12-23-91 Memo from Ron Bearzotti to 100
13 Everglades Restoration Distribution List
14 EXB. 8 4-23-92 Proposed responses to Completeness 103
15 Review - Application A
16 EXB. 9 8-24-92 Memo from witness to Tony Federico; 108
17 Subject: TAllahassee trip justification
18 EXB. 10 8-2-93 DER fax cover sheet with attachment 114
19 from Tom Atkeson to Jerry Stober
20 EXB. 11 Fax memo faxed on 7-26-93 from Paul Warner 119
21 to Eric Livingston
22 EXB. 12 Annual funding requirements chart 124
23 EXB. 13 Project C-1 paper 129
24 EXB. 14 9-9-92 Memo from witness to Tony Federico 137
25 Subject: Tallahassee Trip Report
5
1 - - -
2 E X H I B I T S
3 - - -
4 NUMBER PAGE
5 EXB. 15 12-8-92 Draft Interagency scope of 140
6 study of mercury contamination in the Everglades
7 Ecosystem
8 EXB. 16 1-14-92 Memo from Jim Grimshaw to witness 146
9 EXB. 17 2-3-94 Research Implementation Plan 149
10 EXB. 18 Appendix V Draft 152
11 EXB. 19 3-4-94 Draft Mercury Studies Program 155
12 EXB. 20 KBN study proposal 159
13 EXB. 21 Peer review by Hebert Windom 160
14 EXB. 22 11-12-93 letter from C. Gilmour to Laur Tilly 162
15 EXB. 23 11-14-93 letter from Carl Watras to Laur Tilly 163
16 EXB. 24 10-93 final report by Carl Watras 165
17 EXB. 25 SFWMD cover sheet to Watras from witness with 170
18 attachments
19 EXB. 26 12-23-93 tracking information 172
20 EXB. 27 1-93 Draft work plan by Watras 174
21 EXB. 28 Mercury Week document January 3-7, 1194 175
22 EXB. 29 2-27-94 Memo from Watras to witness 177
23 EXB. 30 2-25-94 Memo from witness to Matt Padgett 178
24 EXB. 31 2-19-94 Memo from Watras to witness 180
25 EXB. 32 12-20-93 DEP letter to Curt Pollman 185
6
1 P R O C E E D I N G S
2 - - -
3 Thereupon,
4 Larry Fink,
5 being by the undersigned Notary Public first duly
6 sworn, was examined and testified as follows:
7 THE WITNESS: I do.
8 DIRECT (Larry Fink)
9 BY MR. SAMS:
10 Q. State your name, please, for the record.
11 A. Larry Edward Fink.
12 Q. By whom are you employed?
13 A. South Florida Water Management District.
14 Q. And what is your business address?
15 A. 3301 Gun Club Road, West Palm Beach,
16 Florida.
17 Q. Mr. Fink, my name is Gary Sams. I'm an
18 attorney representing the Sugar Cane Growers
19 Cooperative, Wedgeworth Farms and Roth Farms.
20 I'm going to ask you a series of questions
21 that will involve some technical detail at times and
22 if you find that I haven't asked a question that's
23 clear enough for you to respond, please say so,
24 because we want the record to reflect as accurately
25 as possible both my question and your answer.
7
1 In addition, I would mention to you that
2 it's sometimes helpful to envision the words you're
3 choosing since they'll be in print and if you're
4 drawing a word picture, so to speak, you might use
5 proper names and that sort of thing rather than up
6 here, down there, over there. I don't know that that
7 will be necessary, but it does occasionally help in
8 the final analysis.
9 Let me show you a document that I'll ask
10 the reporter to mark as Exhibit 1 and ask you if this
11 is your current resume.
12 A. Distinguishing between a resume and
13 curriculum vitae, yes, this is my resume. I think I
14 did submit a longer version to you.
15 Q. Yes, you did. We'll come to that in just a
16 moment.
17 (The document was marked Exb. No. 1.)
18 BY MR. SAMS:
19 Q. What is your present position at the South
20 Florida Water Management District?
21 A. My present position. I'm a Supervising
22 Professional, Environmental Scientist with the
23 Research Appraisal Division, Department of Research.
24 Q. Is that a different responsibility than the
25 one that is listed here under 1991 to present?
8
1 A. Yes.
2 Q. When did your position change?
3 A. That's always a good question. I believe
4 it changed something on the order of January 17, 1994
5 was the official date. I'm recollecting from memory
6 now, so it could be the middle of the weekend for all
7 I know, but somewhere around there.
8 Q. At the time it changed -- I should say just
9 prior to the time it changed were your primary
10 responsibilities with respect to mercury research?
11 A. I wouldn't consider it a primary
12 responsibility. It was one of my responsibilities.
13 Secondary responsibility.
14 Q. Could you describe for me what your range
15 of responsibilities was just before the change?
16 A. Primarily coordinating with other agencies
17 involved in the planning and implementation of
18 mercury research in South Florida. I think I also
19 prepared a grant proposal to USEPA seeking moneys to
20 study the mercury problem in our Everglades Nutrient
21 Removal Project, the ENR Project. I think I was also
22 asked to review and evaluate documents being
23 generated by these other agencies or by experts
24 regarding the mercury issue. It was somewhat of a
25 set of ad hoc responsibilities because the District
9
1 does not have a toxic substances program per say and
2 deferred to USEPA and Florida Department of
3 Environmental Protection on taking the lead in the
4 mercury issue.
5 Q. Did you have other responsibilities prior
6 to your position change that did not involve mercury?
7 A. Yes.
8 Q. What were those?
9 A. Supervision in administration, intra-agency
10 coordination on regulatory issues, responding to what
11 we would lovingly refer to as regulatory brush fires,
12 things in that vein. Due to my regulatory
13 experience, I think there was a tendency to use me
14 sort of as a troubleshooter in those regulatory
15 research interface issues.
16 Q. Did that use include any aspects of the
17 nutrient enrichment problem in the Everglades?
18 A. Yes.
19 Q. Did you deal with other agencies on the
20 subject of developing a threshold for determining
21 nutrient imbalance in the Everglades?
22 A. Yes.
23 Q. How long -- let me back up.
24 Did you have other responsibilities of a
25 non-mercury sort that you have not described so far?
10
1 A. As you move back in time, my jobs change,
2 so depending on what time horizon we're talking
3 about, I had different responsibilities.
4 Q. Those were your responsibilities --
5 A. Just prior --
6 Q. -- just prior to the change?
7 A. -- and -- well --
8 Q. How long had you had that list of
9 responsibilities?
10 A. Oh, six months. Prior to that I assumed
11 some of those responsibilities unofficially or
12 informally.
13 Q. During the period, more than six months
14 back before mid January of '94, say the year before
15 that or roughly mid '92 to mid '93, how would you
16 describe your responsibilities?
17 A. I was primarily involved as the Acting
18 Project Manager of the Everglades Nutrient Removal
19 Project which included supervision, planning,
20 budgeting. I also sought grant funds for certain
21 aspects of the research in the ENR Project under
22 Section 319 Clean Water Act.
23 Q. And for how long did you perform that
24 responsibility?
25 A. Let's see. We were reorganized in January
11
1 of '92 and the individual who was the primary
2 scientist on the ENR Project was under my supervision
3 and probably -- so there was an informal period of
4 maybe three to six months in which I was doing that
5 job, but it was not formally acknowledged from
6 January of '92 to January of '93 or June of '92 to
7 June of '93 it was more of a formal recognition of
8 that responsibility.
9 Q. Working backwards again, I believe you
10 joined the District in 1991, is that correct?
11 A. November of '91, yes.
12 Q. What were your initial responsibilities
13 with the District?
14 A. I was supervising a unit in the now defunct
15 Water Quality Division. Primary responsibilities
16 were water quality monitoring and modeling and in
17 that period included all of the South Florida region,
18 rivers, lakes, streams, the Everglades. Subsequently
19 was reorganized and split out on geographic lines. I
20 was assigned the Everglades unit which had the same
21 modeling and monitoring responsibilities but along
22 geographic lines and then we were reorganized again
23 and the department split and there was the entire
24 Everglades Division. I went with the Everglades
25 Division.
12
1 Q. And that was at --
2 A. January of '92, I guess. It's a very rapid
3 turnover of events.
4 Q. I see that prior to that time you had
5 agency responsibilities in the areas of human health
6 and ecological risk assessment. What did that work
7 consist of?
8 A. Are you speaking of my period of employment
9 with Science Applications International Corporation
10 or all the previous experience?
11 Q. I'm looking really at the 1988 to 1991 time
12 frame and it appears there may have been similar work
13 during the 1984-1987 time frame.
14 A. Uh huh.
15 Q. What was the nature of your work regarding
16 risk assessment?
17 A. I assisted various regulatory agencies like
18 U.S. Environmental Protection Agency in evaluating
19 the hazards associated with toxic substances and
20 pesticides for purposes of criteria development,
21 effluent limitation, rule promulgation primarily
22 under the auspices of the Federal Insecticides,
23 Fungicides, Rodenticides Act, Clean Water Act and
24 Hazardous and Solid Waste Act and, in addition, I
25 assisted through various contract mechanisms,
13
1 Department of Energy in characterizing risks
2 associated with the Lower East Fork Poplar Creek site
3 at the Oak Ridge Reservation and Department of the --
4 I guess it was Department of Defense U.S. Navy site
5 in -- on the west coast and I also reviewed other
6 people's risk assessment documentation for the
7 Department of Energy, other contractor's work in a
8 review and comment rule.
9 Q. Are you describing now the period from 1988
10 to 1991?
11 A. Yes, sir.
12 Q. Did that work involve mercury as a toxic
13 substance?
14 A. Yes, it did. At the Oak Ridge Reservation,
15 something on the order of 200,000 kilograms of
16 mercury was released into the environment from 1942
17 to the present, although it's been greatly reduced
18 and our job was to characterize the distribution and
19 transport, exposure and risks associated with mercury
20 both to human health and wildlife in and around the
21 Oak Ridge Reservation.
22 Q. Did you perform in a scientific role in
23 that effort?
24 A. Scientific role in a project management
25 role.
14
1 Q. By whom were you directly employed during
2 that period?
3 A. Science Applications International
4 Corporation.
5 Q. That was a contractor to the government
6 agencies?
7 A. Yes.
8 Q. Did your work in regard to the Oak Ridge
9 problem result in a final report?
10 A. I left SAIC prior to the production of the --
11 I guess it was a draft final report of the remedial
12 investigation, the RI phase of the super fund
13 assessment.
14 Q. Do you know whether the work resulted in a
15 final report?
16 A. I think -- I think SAIC's responsibilities
17 were terminated with respect to that job. DOE was
18 not satisfied with the work and I was out of it,
19 probably four or five or six months prior to leaving
20 the company, just prior to coming to work for South
21 Florida Water Management District.
22 Q. Do you know why did DOE was not satisfied
23 with the work?
24 MS. CLEMENTS: Objection. Speculation.
25 THE WITNESS: Couldn't even say.
15
1 BY MR. SAMS:
2 Q. Were you employed by EPA during the 1984 to
3 1987 time frame?
4 A. Yes.
5 Q. Did your work during that period involve
6 risk assessment as well?
7 A. Some, yes.
8 Q. Did it involve mercury contamination?
9 A. No.
10 Q. Did any of your work prior to that time
11 involve mercury contamination?
12 A. When I was working for the State of
13 Michigan we were involved in I guess post-litigation
14 settlement related work with a couple of chemical
15 companies along the Trenton channel of the Detroit
16 River and historically they had released large
17 quantities of mercury into the Detroit River
18 environment, so there was still concern about
19 mercury, but it was no longer an active issue and I
20 did no work on mercury in that context.
21 Q. Going back for a moment to your work as a
22 contractor on the Oak Ridge problem did that work
23 involve the fate of mercury released to wetlands?
24 A. Primary focus was on the flowing stream
25 environment but there was some flood plain wetlands.
16
1 (Discussion held off the record.)
2 MR. SAMS: Could you read back the
3 response?
4 (Thereupon, a portion of the record
5 A. Was read by the reporter.)
6 THE WITNESS: Flood plain wetlands.
7 BY MR. SAMS:
8 Q. When you refer to flood plain wetlands, are
9 you talking about wetlands within the flood plain of
10 the stream?
11 A. Yes.
12 Q. How would you describe your area of
13 expertise at present?
14 A. Fate and transport of toxic substances in
15 aquatic environments with a focus on sediment water
16 exchange processes and bioaccumulation in aquatic
17 food chain and associated terrestrial food chains.
18 Also I guess associated exposure assessment and risk
19 assessment as is practiced by EPA and other agencies.
20 But that's a fairly broad statement of an
21 area of expertise and, obviously, one needs to focus
22 on substances within that broad realm. My primary
23 focus has been persistent hydrophobic organic
24 compounds, PCBs, dioxins, things like that.
25 Q. Is methylmercury in the environment such a
17
1 compound?
2 A. It was not a substance that I focused on in
3 prior work and experience. The mechanism of uptake
4 is primarily through an association with proteins
5 rather than an affinity for fat and I had an affinity
6 for compounds with an affinity for fat.
7 Q. Let me show you a longer resume which I'll
8 ask the court reporter to mark as Exhibit Number 2.
9 A. Okay.
10 Q. And ask you if that's the longer CV that
11 you referred to?
12 A. Yeah. This is the one we submitted with
13 the subpoena.
14 (The document was marked Exb. No. 2.)
15 BY MR. SAMS:
16 Q. I see that this Exhibit Number 2 is a draft
17 of December 17, 1993 and actually below your name it
18 says November 1993. Does this likewise omit your
19 current area of responsibilities?
20 A. Yes. It refers to the previous, just the
21 previous position.
22 Q. What is your current area of
23 responsibilities?
24 A. I thought we went over that. I am a
25 Supervising Professional, Environmental Scientist
18
1 with the Research Appraisal Division, Department of
2 Research and my primary responsibilities are to
3 provide research support to the regulation and
4 planning departments and, since the job is just
5 coming into existence and sort of evolving, it's hard
6 to fully characterize all of my responsibilities.
7 Right now I'm budgeting for next year, for example.
8 Q. Are you still in the Everglades portion of
9 the District?
10 A. No.
11 Q. So this role is within the District
12 generally?
13 A. Yes. More generally, although the focus is
14 on the regulation and planning departments. In
15 theory the unit I'm heading up would provide support
16 to any District department that requested our
17 assistance and merited priority attention.
18 Q. So it could support the Everglades effort,
19 is that correct?
20 A. It would be very rare. Generally, the
21 Everglades effort is considered a technical effort.
22 The focus of our unit is to provide research, support
23 to the other departments rather than within our
24 department. The Everglades Division is relatively
25 self-sufficient.
19
1 Q. Who has succeeded to your responsibilities,
2 if anyone has, in the Everglades Division?
3 A. The position and I moved together. There
4 was no successor.
5 Q. Who at the District currently has the
6 responsibility for the items that you mentioned
7 regarding mercury in South Florida, coordination with
8 other agencies, grant proposals and review and
9 evaluation of documents of other agencies?
10 A. It's in a transition period right now, but
11 the intent is to pass those responsibilities off to
12 Dr. James -- I guess it's Herbert J. Grimshaw as an
13 interim and then they're going to try to hire
14 somebody full time to take on those responsibilities.
15 I assume next fiscal year.
16 Q. Do you know why you were moved from that
17 position?
18 A. I was told that because I had an extensive
19 regulatory experience that I was the logical person
20 to take over the responsibilities of this new unit
21 because it involved research support to the
22 regulation and planning departments.
23 Q. Was that a promotion?
24 A. It was a lateral.
25 Q. Do you know which aspects of the mercury
20
1 responsibilities that you named for me Dr. Grimshaw
2 is currently working on?
3 A. All of them to various degrees.
4 Q. Other than the mid January change is
5 Exhibit Number 2 an accurate statement of your prior
6 responsibilities and experience?
7 A. Yes.
8 Q. Looking at your summary of experience
9 there's a phrase that states as one of your former
10 responsibilities, "planning and coordinating elements
11 of the multi-agency effort to define the causes,
12 effects and solutions to the existing mercury problem
13 in the Everglades and the potential problem in the
14 proposed Stormwater Treatment Areas."
15 What are you referring to when you describe
16 the, "potential problem in the proposed Stormwater
17 Treatment Areas"?
18 A. The Department of Environmental Protection
19 had concluded during the process of discussions
20 relating to the application for a permit under the
21 Marjory Stoneman Douglas Everglades Protection Act
22 for both the Everglades Nutrient Removal Project and
23 for the proposed Stormwater Treatment Areas that
24 there was some risk of the systems creating a mercury
25 problem based on an analogy to the experience that
21
1 the Canadians have had with the creation of
2 hydroelectric reservoirs in Ontario and some data
3 from other countries that indicated that wetlands may --
4 there may be a preferential association of higher
5 background mercury levels with aquatic organisms in
6 these wetlands than elsewhere. And peat wetlands
7 have been identified as the subset of all of those
8 wetlands that may be more likely to produce a
9 methylmercury problem and, because there was a
10 documented mercury problem in the Everglades, it was
11 their position that we had an obligation to evaluate
12 the potential for the systems to create a mercury
13 problem or exacerbate the existing mercury problem
14 and so that's where the phrase came from.
15 Q. Is the effect about which DEP expressed
16 concern sometimes called the reservoir effect?
17 A. I'm not familiar with that particular term,
18 but I suppose that somebody could encapsulate it in a
19 phrase like that.
20 Q. What in specific did you do in response to
21 the concern expressed by DEP?
22 A. Let's see. What in specific? I -- well,
23 we discussed the issue. I asked DEP whether they had
24 any data or evidence from other South Florida or
25 Florida wetland systems, peat wetlands or otherwise
22
1 that might support their concerns. They indicated
2 that they did not.
3 I pointed out that analogy with
4 hydroelectric systems or the hydroelectric
5 impoundments in a boreal temperate ecosystem. In
6 some cases subarctic conditions, was not really
7 analogous to the conditions down in Florida.
8 I pointed out that the areas involved in
9 the ENR Project and the STAs were minuscule in
10 proportion either to the Everglades Agricultural Area
11 that was cyclically inundated above the projects in
12 the proposed STAs and when I say above, I mean upflow
13 and I pointed out the projects, both the ENR Project
14 and the contemplated STAs, were both minuscule an
15 area compared with the conservation areas.
16 And they rejected those arguments and said
17 your application and your permit must address these
18 issues. The application addressed it in that
19 context. I can't remember the rule requirements, but
20 there's a requirement to characterize potential
21 public health or environmental impacts of the
22 proposed project and we identified mercury as a
23 potential problem and indicated that we would address
24 it in the context of the permit.
25 In the context of the permit we attempted
23
1 to negotiate out all references to mercury research
2 and DEP refused and the bottom line was they wanted
3 to see mercury research hard wired, if you will, into
4 the permit and, despite my representations of the
5 District's oppositions to same, they were -- it was a
6 nonnegotiable demand and so we developed a monitoring
7 and research program language that addressed that
8 issue in conjunction with DEP, although primarily I
9 guess it was their language. We had some minor
10 impact on the wording.
11 We are now in the process of preparing a
12 plan to implement that element of the ENR Project
13 permit which requires, I guess, that we submit
14 something by March 31st of this year.
15 Q. Are you still involved in that effort to
16 develop the research plan?
17 A. I turned over a hard copy, which I did
18 submit to you, to Jim Grimshaw, Herbert J. Grimshaw a
19 couple weeks ago and I have no further
20 responsibilities in that regard. I suppose on
21 occasion I'm going to be consulted as to what I meant
22 by some of the things that were said, but I probably
23 won't be developing anything de novo from here on
24 out.
25 Q. I believe I understood you to say that the
24
1 proposed Stormwater Treatment Areas were minuscule
2 relative to both the Everglades Agricultural Area and
3 the Water Conservation Areas, is that correct?
4 A. Yeah. In surface area, yes.
5 Q. What was the purpose of the analogy you
6 were making to the Water Conservation Areas or the
7 comparison or contrast, I really should say?
8 A. I guess the -- there's an assumption of a
9 relationship between the area of contact between the
10 water and the underlying sediments and the production
11 and accumulation of methylmercury. So that was the
12 analogy in terms of the mass of material being
13 produced, methylmercury being produced by methylating
14 bacteria in an environment that on a per unit area
15 basis there's more area in the EAA and the
16 conservation areas, so all things -- other things
17 being equal, it should have a proportionately smaller
18 impact on the total mass of methylmercury being
19 produced. The differences in the chemistry of the
20 three systems had to be taken into account. Since we
21 didn't know how the chemistry affected methylation in
22 a highly fertilized environment like the Everglades
23 Agricultural Area where retention time is relatively
24 short in terms of water retention with a cyclic
25 inundation and drying and oxidation going on versus
25
1 the, you know, continuously inundated fluctuating
2 water levels in the ENR Project and the STAs versus
3 the virtually continually inundated and much less
4 fluctuating levels in the conservation areas and the
5 changes in chemistry that would occur as one moved
6 down through the system, but on an areal basis, if
7 it's just a question of how much mercury is here and
8 how many bacteria can get at mercury and how much
9 methylmercury can be produced, then my expectation
10 was that the STAs and the ENR Project, in terms of
11 mass, would be contributing a fairly small mass of
12 methylmercury to the overall system.
13 Q. What reasons did DEP give you for insisting
14 that the matter be studied anyway?
15 A. I think it was more of a risk benefit
16 calculation on their part. They couldn't risk that
17 ENR Project or STAs could produce methylmercury in
18 concentrations or quantities of concern and that,
19 even though there was no hard evidence to suggest
20 that that would be the case, they had an obligation
21 as an agency mandated to protect environmental and
22 public health that the risk, in their minds, exceeded
23 some threshold that required their attention as an
24 agency.
25 Q. Did they identify that threshold?
26
1 A. Not in any quantitative sense. They just
2 made it abundantly clear that it had been crossed. I
3 think they also felt the Governor's Task Force
4 Report, which drew attention to the potential for
5 wetlands creation or the flooding of former farm
6 lands to produce or increase the methylmercury
7 problem, that that was analogous to this situation.
8 They felt almost an administrative obligation to
9 follow up on that directive from the Governor's Task
10 Force.
11 Q. Who was the primary spokesperson for DEP on
12 this issue?
13 A. Initially it was Tom Swihart and then when
14 the DEP hired a full time mercury research
15 coordinator, I guess he's not a research -- mercury
16 coordinator, Dr. Thomas Atkeson, A-t-k-e-s-o-n, he
17 became the primary spokesman. In terms of
18 negotiating permit conditions regarding mercury he
19 took the lead and there were others involved that
20 were involved in the permitting process, people like
21 Richard Harvey and Frank Nearhoof.
22 Q. Are any of the publications which are
23 listed on your CV related to mercury?
24 A. None of the publications deals specifically
25 with mercury, although some of the methodologies and
27
1 models that are discussed could be applied to
2 mercury. Looks like a couple of the presentations
3 deal directly with mercury. Those were never
4 published, so --
5 Q. Have you had any interface with
6 representatives of EPA regarding the mercury issue in
7 the Everglades?
8 A. Yes.
9 Q. Did your dealings with them include the
10 conditions of the draft NPDES permit EPA is preparing
11 in response to an application by the District?
12 A. Yes.
13 Q. With whom did you have that interface?
14 A. I'll try to remember as many names as I
15 can. Mike McGee, Kevin Smith, Tammy Moore, Philip
16 Mancusi-Ungaru. I think it's M-a-n-c-u-s-i -
17 U-n-g-a-r-u. Some other people at the table whose
18 name I can't remember and then --
19 Q. Jerry Stober?
20 A. He wasn't involved in the permitting
21 process.
22 Q. Dan Scheidt?
23 A. Yes, I did have interactions with him in
24 terms of planning the EPA South Florida mercury
25 issue.
28
1 Q. Del Hicks?
2 A. Never dealt directly with Del either
3 personally or via telephone. It was primarily Jerry
4 Stober and John Montanari and Dan Scheidt and a
5 couple of guys from Research Triangle Park, their Air
6 Quality Monitoring Division, whose names escape me.
7 Q. Do you know whether Mr. McGee considers the
8 potential effect of Stormwater Treatment Areas on the
9 mercury problem to be a subject requiring further
10 examination?
11 MS. CLEMENTS: Objection. Speculation.
12 THE WITNESS: I don't know whether
13 Mr. McGee has that opinion. I know that the
14 permit they drafted requires us to monitor --
15 monitor mercury.
16 BY MR. SAMS:
17 Q. Is it your understanding that EPA as an
18 agency considers that a concern?
19 A. It is certainly my impression, I guess in
20 the same way I characterized DEP's concern; no hard
21 data, but the risk that it could be rises to the test
22 of a need to study and characterize the potential for
23 that to be a problem.
24 Q. Have you discussed with anyone any
25 potential for the reduction of phosphorus levels to
29
1 increase mercury accumulation in fish in the
2 Everglades?
3 A. Yes.
4 Q. With whom have you discussed that question?
5 A. It came up in a discussion with Dr. Tom
6 Atkeson, DEP mercury coordinator.
7 Q. When was that discussion?
8 A. Couple weeks ago.
9 Q. Who was involved in that discussion?
10 A. I think this is a good time to take a
11 break. Is that possible?
12 MR. SAMS: Sure.
13 (Thereupon, a recess was taken.)
14 (Thereupon, Lisa Hogan entered.)
15 BY MR. SAMS:
16 Q. I think I had asked you who else was
17 present at that conversation.
18 A. Okay. The conversation regarding?
19 Q. With Dr. Atkeson regarding the question of
20 whether decreasing phosphorus levels might ultimately
21 result in increased mercury in fish?
22 A. Who else was present? Well, there's -- all
23 of these meetings are kind of running together, so
24 let me think. I've got to figure out where these
25 conversations occurred or where these discussions
30
1 occurred and who might have been present.
2 One set of discussions occurred in the
3 context of a meeting with representatives of the
4 District, Dr. Atkeson and representatives of the U.S.
5 Geological Survey, sort of a scoping meeting and
6 another conversation occurred -- informal
7 conversation occurred as we were walking between
8 buildings on the way to lunch or something and it
9 seems like there was a third person present. I think
10 it was Dr. Grimshaw.
11 Do you want me to identify as many of the
12 people that I can remember at that meeting or --
13 Q. Well, let's first identify approximately
14 when and where that meeting occurred.
15 A. The meeting with U.S.G.S. was sort of a
16 scoping meeting to determine if there were
17 opportunities for mercury research of mutual benefit
18 to both agencies and let me think. When did that
19 occur? Third week in January maybe.
20 Q. Who raised the question at that meeting of
21 whether decreased phosphorus levels might ultimately
22 result in higher fish levels of mercury?
23 A. I don't think it was discussed in that
24 context per say. We were talking about the complex
25 physical, chemical and biological processes that
31
1 could affect methylation, demethylation, reduction --
2 I'm going use a term -- if you want -- sequestration,
3 bioavailability. And in that context the question
4 arose what relationship phosphorus had to this whole
5 process. It's a complex relationship and I don't
6 know that anybody knows the answer per say.
7 Q. Do you recall who raised that question?
8 A. It came up in the flow of the discussion.
9 I don't remember who raised it. It was just one of
10 the logical factors that you have to deal with in
11 trying to understand the dynamics of mercury in that
12 system.
13 Q. Was any evidence cited to indicate that
14 phosphorus reductions might ultimately result in
15 increased mercury levels in fish?
16 A. Well, there's a body of literature that
17 suggests that the more eutrophic a lake ecosystem the
18 lower concentrations of methylmercury in the fish and
19 one of the theories that explains that observation is
20 that the sheer biomass of algae soaks up the
21 methylmercury in a form that's not directly available
22 to the fish and so the bioavailable component in the
23 water column is lower and the fish pick up less
24 methylmercury. Whether there is a countervailing
25 force of phosphorous stimulating methylation or
32
1 stimulating -- or a concurrent force of phosphorus
2 stimulating demethylation is kind of swamped out in
3 this huge change in biomass and I question the
4 analogy of lakes to wetlands pointing out that there
5 was a lot of biomass in wetlands per unit area or
6 volume of water in the wetland.
7 If that relationship held then the
8 Everglades should be relatively clean and so my
9 feeling was that it was more complex than that, that
10 that was an oversimplification and I think, you know,
11 the discussions included the discussion of research
12 that would help us tease out the factors and the
13 relative contributions to methylation, demethylation,
14 sequestration, bioavailability.
15 Q. Were any data gathered from the Everglades
16 area discussed in connection with the question we've
17 been focusing on here?
18 A. I believe in one conversation or the other
19 the data collected by KBN Engineering for your
20 interests came up and in conjunction with the USEPA
21 data that had been collected prior to that and the
22 attempt at a synthesis or interpretation of the data
23 and I guess the hypothesis that was characterized was
24 that the mercury levels were -- total mercury levels
25 were highest in and around the EAA, but that the
33
1 total or that the methylmercury concentrations were
2 higher in the conservation areas downstream and that
3 one hypothesis to explain this gradient, if you will,
4 was that there was a relationship between phosphorus
5 and methylmercury so that when phosphorous was high
6 methylmercury was low and when phosphorus was low
7 methylmercury was high and then, in that context, we
8 pointed out the complexities of trying to interpret
9 and apply the very spatial relationship and concluded
10 that that was a relatively naive interpretation of
11 the data and very risky to draw conclusions from
12 those kinds of relationships and, of course, warrants
13 additional research.
14 Q. When you were discussing your views
15 concerning the potential for this hypothesis to be
16 true or untrue in regard to the Everglades, I think
17 you mentioned because it's a wetland and wetlands
18 have relatively --
19 A. High biomass to surface ratios.
20 Q. Is the Everglades a high biomass wetland
21 compared to others?
22 A. Well, it's certainly not -- how do I want
23 to phrase this? There are portions that are
24 eutrophic in the contention of the Everglades,
25 because it's so hyperobligotrophic as a natural
34
1 system, but small additions of phosphorus can
2 stimulate a disproportionate amount of production.
3 There are large portions of it that are obligotrophic
4 or hyperobligotrophic, have low production per say,
5 but the production rate and standing volume to
6 surface area or standing biomass to volume ratio are
7 different.
8 The blue green algae, for example, grow
9 very slowly in the Everglades but there's a lot of it
10 per unit volume or surface area of water, so it could
11 offer a fair amount of soil to surface ratio for
12 methylmercury or mercury, which could affect the
13 dynamics and bioavailability of mercury. Knowing
14 where those break points are may be very site
15 specific because the chemistry of mercury is very
16 sensitive to pH and hardness and sulfite
17 concentrations and the like; dissolved organic
18 carbon.
19 Q. In general terms what do you regard as the
20 existing mercury problem in the Everglades?
21 A. Well, the documented problem is a total
22 mercury contamination of fish and organisms that eat
23 fish and in organisms that eat other aquatic
24 organisms like raccoons and some bird species.
25 Florida panthers eat raccoons and raccoons eat
35
1 crayfish so Florida panthers are also being exposed.
2 There is some indication they're experiencing toxic
3 effects from consuming a large quantity of raccoons
4 in their diet; primarily the panthers that live in
5 and around the Shark River Slough and the Everglades
6 National Park.
7 Q. Is there a human health risk problem of
8 mercury in the Everglades?
9 MS. CLEMENTS: Objection. Speculation.
10 THE WITNESS: I can only answer in the
11 sense that the Florida Department of Health and
12 Rehabilitative Services has determined that the
13 residue levels in fish -- in several fish
14 species rise to the test of a public health
15 concern and they have issued a public health
16 advisory, but I'm not an expert in that area. I
17 don't declare public health emergencies.
18 BY MR. SAMS:
19 Q. I'd like to show you a re-notice of taking
20 your deposition that contains a list of items that we
21 asked you to provide and I'd ask the court reporter
22 to mark this as Exhibit 3.
23 (The document was marked Exb. No. 3.)
24 BY MR. SAMS:
25 Q. Starting with page 5 --
36
1 A. Okay.
2 Q. -- item 1 is your resume?
3 MS. CLEMENTS: You're -- I believe you're
4 on the old notice.
5 MR. SAMS: That's true.
6 MS. CLEMENTS: 5 is the instructions. Let
7 me just turn -- now we're on it.
8 BY MR. SAMS:
9 Q. I think the first item is your resume.
10 A. Correct.
11 Q. And we've already discussed that.
12 The second item, have you produced all the
13 documents that fall into that category which may be
14 in your control?
15 A. Yes.
16 Q. The third item, have you produced all of
17 those documents which may be in your control?
18 A. Yes.
19 Q. The fourth item?
20 A. Yes.
21 Q. Fifth?
22 A. Yes.
23 Q. The sixth item relating to the SWIM Plan
24 documents?
25 A. I was not involved in the preparation of
37
1 the SWIM Plan, so, yes.
2 Q. Item 7?
3 A. Yes.
4 Q. Item 8 relating to administrative
5 definition of ecological imbalance?
6 A. I relied upon the fact that the documents
7 that I looked at, some of them were already submitted
8 to you and the others that I believed you did not
9 have, I submitted. I may even have submitted things
10 that I thought you had in order to be -- err on the
11 side of conservatism.
12 Q. The ninth item regarding the Miccosukee
13 Tribe?
14 A. I was not involved in that. Yes.
15 Q. The tenth item concerning studies of
16 Dr. Jones or Dr. Barkay?
17 A. I was not involved in either of those, so
18 yes.
19 Q. The eleventh item, same answer?
20 A. Yeah.
21 Q. Item 12 regarding U.S.G.S. studies?
22 A. Yes.
23 Q. Item 13, have you been involved with the
24 remap study?
25 A. I have met with EPA and DEP officials to
38
1 discuss drafts of the remap study.
2 Q. Did you provide us all your documents in
3 regard to that?
4 A. Yes.
5 Q. Including meeting notes?
6 A. Yes.
7 Q. Item 14, interagency study of mercury?
8 A. I lose the distinction between 13 and 14,
9 but I provided all of the drafts and notes of
10 anything related to the USEPA sponsored interagency
11 study of mercury.
12 Q. Item 15, which is really a catchall?
13 A. Yes.
14 Q. Item 16 concerning BMPs and mercury?
15 A. Yes.
16 Q. And item 17, maps, etc. necessary to locate
17 the sites of the data?
18 A. Most of the documents that refer to data
19 have maps in them, so I didn't provide any additional
20 maps. I always carry my South Florida Florida map.
21 Q. I'd like to show you a public records
22 request from our firm of the District and ask you if
23 you helped to respond to that request dated January
24 25, 1994.
25 A. Yes.
39
1 MR. SAMS: I'd like to have this request
2 marked as Exhibit Number 4, please.
3 (The document was marked Exb. No. 4.)
4 THE WITNESS: I responded to the first of
5 the two elements regarding mercury sampling.
6 BY MR. SAMS:
7 Q. To the best of your knowledge were all of
8 the documents responsive to that first request
9 provided to us?
10 A. The documents in my control that were
11 responsive were turned over to our Office of Counsel.
12 There were other documents that were collected from
13 other sources. I can only speak for myself. The
14 answer is yes.
15 (Discussion held off the record.)
16 BY MR. SAMS:
17 Q. I'd like to show you a document dated
18 September 1, 1993 which, among others, appears to
19 bear your name. Are you familiar with that document?
20 A. Yes.
21 Q. Did you help to prepare that document?
22 A. Yes.
23 MR. SAMS: I'd like to have the document
24 the witness is examining marked as Exhibit
25 Number 5.
40
1 (The document was marked Exb. No. 5.)
2 BY MR. SAMS:
3 Q. Is this the latest version of this document
4 which exists?
5 A. To the best of my knowledge.
6 Q. What role did you play in authoring the
7 document?
8 A. I had the lead role in preparing the
9 document initially and established its structure and
10 the content and thrust and approach and also prepared
11 the tables and the initial drafts of the tables and
12 the appendices that are appended thereto.
13 Q. What were the areas of contribution made by
14 the other authors if you can describe them to me by
15 author?
16 A. Okay. Dr. Sklar took the second or third
17 version of the draft and refined its organization and
18 wording, added a section on statistical analysis or I
19 should say expanded the section on statistical
20 analysis.
21 I already characterized what I was involved
22 with.
23 Dr. Grimshaw coauthored the original draft
24 with myself and Mr. Peter Rawlik, R-a-w-l-i-k -- I
25 think it's misspelled on this document.
41
1 Mr. Rawlik, in particular, contributed to
2 the development of table number -- where the heck is
3 it -- Table Number 1 and the list of parameters of
4 interest in Table Number 3.
5 Dr. Grimshaw contributed to those two
6 tables plus Table 4.
7 Marie Pietrucha, who's not cited, assisted
8 us in the preparation of the spatial maps of
9 phosphorus distribution and the overlays of some of
10 the data and the figures that are appended.
11 We borrowed two figures from Dr. Fontaine's
12 Everglades Plan, Everglades Research Plan
13 interpreting or defining a threshold concentration
14 and then Dr. Grimshaw and Mr. Rawlik participated
15 extensively in developing the proposed sampling
16 locations and resource needs.
17 And then Dr. McCormick participated
18 primarily in the preparation of Table 1 and the
19 selection of the -- well, in the development of
20 methods for identifying imbalance, Section 3, Table
21 2.
22 Q. What was the ultimate use made of this
23 document?
24 A. Well, I think the intent was to submit it
25 to the TOC for its review and comment so that we
42
1 could initiate the -- a study that was of mutual --
2 mutually agreed to and a mutual benefit with the
3 intent of developing preliminary data which could
4 then be used to refine the study design and focus in
5 on the key studies and key locations and key
6 measurements for deriving a threshold concentration
7 of phosphorus above which biological imbalance would
8 be manifest and below which biological imbalance
9 would be absent.
10 Q. Was this document, in fact, submitted to
11 the TOC?
12 A. I am of the belief that occurred, but I
13 have no direct knowledge of that occurring. I saw no
14 transmittal memo.
15 Q. Are you aware of any comments regarding it
16 from the TOC?
17 A. No.
18 Q. Who at the District approved this document,
19 if you know?
20 MS. CLEMENTS: Object to the form.
21 THE WITNESS: Approved it in what way?
22 BY MR. SAMS:
23 Q. In an executive sense, did this document go
24 to the Board?
25 A. No.
43
1 Q. Did it go to the Executive Director?
2 A. No. Not to my knowledge.
3 Q. If it had been sent to the TOC do you know
4 who would have had the responsibility of forwarding
5 it for the District?
6 A. Dr. -- I guess it's Mr. Anthony Federico,
7 the Research Department Director, who also represents
8 the agency on the TOC probably would have been the
9 one to convey that document to the TOC. I think that
10 was standard procedure in the District.
11 Q. Is it your understanding that the purpose
12 of this document was to come up with a single number
13 that would constitute a threshold of imbalance in the
14 Everglades?
15 A. The purpose of this document was to outline
16 a series of scoping studies which would help us focus
17 in on the appropriate locations, the number of
18 replications and the appropriate methods and
19 procedures to follow to implement a research plan
20 leading to a set of data which interpreted as a
21 weight of evidence could lead to translation of the
22 narrative no imbalance standard into a numerical
23 value.
24 Criteria generally are single values,
25 although there are instances where the criterion is a
44
1 function of something like hardness, water hardness
2 or pH or water depth, so I qualify my answer in that
3 fashion.
4 Q. Have the four reference sites minimally
5 impacted by anthropogenic nutrient additions that are
6 referred to in the first paragraph been identified?
7 A. I don't know. I don't know if all four
8 have been identified.
9 Q. Do you know whether any of them have been
10 identified?
11 A. Going back in time now, through a lot of
12 other memories and processes here to recollect, I
13 think the concept at the time was to pick unimpacted
14 or relatively unimpacted sites along a gradient that
15 passed through different hydroperiods so that we
16 could patrol for or factor out the period of
17 hydroperiod as opposed to nutrient addition in
18 assessing the impact -- nutrient impacts on the
19 system leading to the translation of the narrative no
20 imbalance standard to a numerical value.
21 Q. Are you referring to the gradients which
22 appear following the page that you were looking at?
23 A. I --
24 Q. There's a page in here -- let me just
25 identify it --
45
1 A. Right.
2 Q. -- with the legend Water Quality Collection
3 Sites.
4 A. Right.
5 Q. And it appears to have gradients E, F and G --
6 A. Right.
7 Q. -- on it.
8 Are those the gradients to which you're
9 referring?
10 A. My recollection on the original
11 distribution is somewhat different and this was an
12 attempt to accommodate both the desire for a
13 minimally impacted or unimpacted site and at various
14 hydroperiod -- under various hydroperiod conditions
15 at the same time being located at the end of
16 transects along which a phosphorus gradient existed
17 so that each reference site would represent the
18 lowest value and the end point of that gradient.
19 Q. Would the end point be the numbers shown on
20 the same page, U1 through U5?
21 A. Yes. The ones that were specifically at
22 the end of the gradients, U1 is at the end of the E
23 gradient. U3 is at the end of the F gradient and
24 then U5 is at the end of the G gradient.
25 Q. If you recall, from what data were those
46
1 identified as minimally impacted or unimpacted sites?
2 A. I relied upon the judgment and
3 understanding of Jim Grimshaw as to the
4 concentrations of nutrients at those sites being --
5 representing unimpacted or minimally impacted sites
6 and I made no independent assessment of those data.
7 Q. I take it this area is Water Conservation
8 Area 2A, is that correct?
9 A. Yes, sir.
10 Q. Why was it chosen for this purpose?
11 A. I think because there was the greatest
12 amount of historical data along the nutrient
13 gradients in that area and there was some desire to
14 have some continuity with the earlier study and
15 because the phosphorus gradient was steepest, or the
16 change in concentrations were greatest in this
17 system, access to Area 1 was limited and the
18 concentration gradients were much more complicated
19 because of the Rim Canal phenomenon and Area 3 has
20 the least steep grading because it was the farthest
21 down the system. The Park was a possibility and I
22 think there was a transect that Ron Jones had
23 developed that ran from Area 3A into the Park that
24 was also considered, but the logistics of moving
25 around 3 and the Park were considered -- well,
47
1 created disproportional problems to any benefits that
2 might accrue. Because the concentration gradient was
3 low there, it would not be easy to discriminate an
4 effect of phosphorous concentrations along that
5 gradient.
6 Q. Do the gradients in WCA-2A involve data
7 taken in any canals?
8 A. Canals being District canals along the rim
9 or perimeter of the system?
10 Q. Or any canals. Would any of these sampling
11 locations fall in a canal to your knowledge?
12 A. To my knowledge, no.
13 Q. What is the purpose of the initial data
14 gathering effort in WCA-2A? Is it to serve as a
15 pilot for further studies in other areas?
16 A. Primarily, as a pilot for further study in
17 Area 2A.
18 Q. Is it proposed in this document that the
19 numerical interpretation of the no imbalance water
20 quality standard be developed ultimately from the
21 Area 2A study?
22 A. I think the concept was to expand the
23 effort first in 2A to a full blown multi-area study
24 and then either a year out of phase with that or
25 simultaneously to implement it at other points.
48
1 One of the concerns was that since we
2 didn't really know how many -- well, what the minimum
3 number of transects and replications would be
4 required to discriminate the threshold
5 concentrations, we weren't really sure what the cost
6 would be and until we could fairly and accurately
7 state what the cost would be, we were not confident
8 that we should propose an expanded study that covered
9 thousands of square miles without some better
10 justification where we were headed with the effort.
11 But I think there's recognition that the derivation
12 of a threshold value is probably water body specific
13 and that ultimately additional studies would be
14 needed in Area 1 and Area 3A although 2A and 3A are
15 more similar than Area 1 and 2 and 3A are.
16 Q. When you say that there's recognition that
17 the derivation of a threshold study is probably water
18 body specific, why is it water body specific?
19 A. My understanding -- and it's based on
20 discussions with Dr. Grimshaw -- is that the -- Area
21 1 is isolated from the underlying geology by some
22 layer and that as a result it is more acidic, the
23 waters overlying or overlying this hard layer in Area
24 1 are more acidic, more peat bog like than the rest
25 of the system, particularly Areas 2A and 3A, because
49
1 they do communicate with the underlying geology, the
2 limestone rock and that has a buffering effect on the
3 pH. To the extent that those differences play a role
4 in the expression of the relationship between
5 phosphorus concentration and manifestations of
6 imbalance, those differences have to be taken into
7 account. I'm not an expert on the geology of the
8 system or the hydrology or the hydrogeology
9 underlying Dr. Grimshaw's representations.
10 Q. Are there hydrologic factors that might
11 make derivation of the water threshold study water
12 body specific?
13 A. I guess it depends on which factors or
14 which processes you're tracking. Some are more
15 sensitive to hydrology than others. I think we list
16 the criteria that we're looking for in the indicators
17 or tests.
18 There was a focus on systems that responded
19 fairly rapidly to water column concentrations that
20 were reliable indicators of a change in the eutrophic
21 status and it was recognized that, for example, the
22 periphyton mats respond to hydrologic effects by
23 rising or falling of the water column as it rises or
24 falls. But some of the periphyton mats stay attached
25 to the sediment substrate, peat substrate and don't
50
1 rise and fall with the water column and they may be
2 relatively insensitive to hydrologic effects down to
3 very low water levels. And if you wanted to pick an
4 indicator species that factored out hydrologic
5 effects, that might be the species to track and part
6 of this pilot study effort is to identify such
7 organisms and such conditions for further analysis
8 and expansion into a larger full scale study.
9 Q. I see at the bottom of the first page a
10 sentence that says, "Results from the pilot study
11 will be normalized where possible to correct for
12 confounding factors such as differences in depth,
13 temperature and rainfall."
14 How were they intended to be normalized?
15 A. I don't know.
16 Q. Do you know who would have added that
17 concept to the paper?
18 A. I believe Dr. Fontaine was involved
19 directly.
20 Q. Has this document, to your knowledge, been
21 superseded by any later document addressing the same
22 general subject?
23 A. Not per say. There's a later version of
24 the, for lack of a better term, the Threshold Study
25 Research Plan of which I think this is just a
51
1 component that's been appended to the more recent
2 version, but I don't know that there's been changes
3 in this document since it was drafted.
4 Q. In the Threshold Study Research Plan are
5 there changes from the thrust or approach of this
6 document?
7 A. Not to my knowledge, but I wasn't involved
8 in redrafting that document. The senior author
9 Dr. Fred H. Sklar was involved in that effort.
10 Q. Is any of the work envisioned by this
11 document currently underway?
12 A. Yes.
13 Q. Which part of the work is underway?
14 A. There's some scoping studies going on
15 involving measurements of primary production using
16 light and dark bottles.
17 Q. Who's doing that work?
18 A. Dr. Grimshaw with the assistance of
19 Mr. Rawlik and Dr. Paul McCormick.
20 Q. What is the general nature of that work?
21 A. They're collecting water samples at the
22 minimally impacted site at the 217 gauge and at an
23 impacted site. The details I'm not exactly sure of,
24 but I think it's close to the point of entry, maybe
25 at S-10C and comparing production levels of those two
52
1 waters using a standard reference periphyton
2 collected in or around the 217 gauge exposed in, you
3 know, a light bottle and in a bottle that's been
4 darkened so that you can compare production to
5 respiration to get a net net production rate. I
6 think they're also looking at the effect of shading
7 by various canopy species like Typha, cattail versus
8 sawgrass to see what the effect of canopy closure is
9 on production.
10 Q. Production of what?
11 A. Periphyton biomass.
12 Q. What is the purpose of looking at the
13 effect of shading?
14 A. There's a concern that the -- as the
15 density of the macrophyte species, whether it's
16 sawgrass or cattail, increases that there's a
17 physical shading of the underlying periphyton and
18 that that is a manifestation of biological imbalance.
19 And it may be that's it's offsetting some of what
20 would normally be associated with the stimulation of
21 periphyton growth. In other words, if phosphorus is
22 the limiting nutrient -- we have good reason to
23 believe that's the case -- then periphyton of some
24 species should grow in a stimulated condition when
25 the phosphorus is increased. But, if at the same
53
1 time you are decreasing the amount of light arriving
2 at the surface of the water, you may reduce the full
3 potential of the periphyton to grow under those
4 conditions. So it's both an impact and it's a way of
5 correcting observations of the periphyton biomass
6 density that's occurring in those systems.
7 Q. Is the study occurring with samples taken
8 from just two points to the best of your knowledge?
9 A. Right now, that's my understanding, but I
10 have not been following it in detail, since
11 Mr. Rawlik and Dr. Grimshaw were reassigned to
12 another supervisor, so their work falls under other's
13 purview.
14 Q. Can you identify on the map of the
15 transects, that we were looking at earlier,
16 approximately where the 217 gauge is?
17 A. No.
18 Q. Is it within Water Conservation Area 2A?
19 A. Yes. It probably falls along the line that
20 passes through from U1 to U5, but I don't see it
21 designated anywhere and I'm not familiar enough with
22 the system to pick it out.
23 Q. At the bottom of Page 2 it states beginning
24 the second paragraph under introduction, "South
25 Florida Water Management District and the DEP agree
54
1 that available data indicate that the total
2 phosphorous concentration ultimately necessary to
3 fully achieve and maintain compliance with applicable
4 water quality standards are well below 50 ppb."
5 Do you see that sentence?
6 A. Let me read it again. I wasn't tracking
7 it. Okay.
8 Q. Where has South Florida Water Management
9 District agreed to that statement?
10 A. In our permit application -- interim permit
11 application to the DEP, the District cited work by
12 Grimshaw et al., which is a reanalysis of data
13 collected by Swift in the early 1980s, that indicated
14 that the -- that impacts that reflected biological
15 imbalance were occurring below 50 parts per billion
16 and so it was our independent conclusion that -- I
17 should say that there were data independent of
18 Nearhoof 1992 which supported the conclusion of DEP
19 that the threshold was below 50 parts per billion.
20 Q. Where would that concentration need to
21 apply in order to fully achieve and maintain
22 compliance with applicable water quality standards?
23 Would it be at discharge points from the EAA?
24 MS. CLEMENTS: Objection. Speculation.
25 It's not his area of expertise.
55
1 BY MR. SAMS:
2 Q. You can go ahead and answer to the best of
3 your ability.
4 A. Okay. Repeat the question.
5 Q. The statement indicates "-- that the total
6 phosphorus concentration ultimately necessary to
7 fully achieve and maintain compliance with the
8 applicable water quality standards is well below 50
9 ppb."
10 And what I'm asking is where, if you know,
11 would be the point at which a phosphorus
12 concentration less than 50 ppb would have to be met
13 in order to comply with applicable water quality
14 standards?
15 A. Absent a mixing zone or variance or some
16 special circumstance that I'm unaware of, it would
17 have to be met at the point -- any point at any time
18 in the water body.
19 Q. And that would mean any water body in the
20 Water Conservation Areas?
21 A. Any water body for which Class III water
22 quality standards applied -- to which such standards
23 apply.
24 Q. Did this study include data from which
25 mixing zones could ultimately be derived? That is,
56
1 does it contemplate the data from which mixing zones --
2 A. No.
3 Q. -- variances?
4 A. No.
5 Q. Any other moderating provision of the state
6 water quality rules?
7 A. I guess, back to the first page, last
8 paragraph, last sentence, it's possible that the
9 threshold value will be a function of one or more
10 confounding factors such as depth, temperature,
11 rainfall. But how that's to be done, whether or how
12 that's to be done, I don't know. Those are all
13 characteristics sort of internal to the system as
14 opposed to external. I guess we have some control
15 over depth, but not temperature and rainfall.
16 Q. Would you agree that areas within the Water
17 Conservation Areas and Everglades National Park
18 differ in the -- their dominant vegetative types?
19 A. It's not my area of expertise, but that's
20 my understanding.
21 Q. Is your understanding also that they differ
22 in their hydrologic characteristics?
23 A. Yes.
24 Q. Do you know if it's intended to identify an
25 unimpacted area of each vegetation type?
57
1 A. That was one of the thoughts that went into
2 the selection of locations along that gradient.
3 Q. Were the selection of stations along the
4 gradient intended to achieve that end?
5 A. As I said before, it was a balancing of a
6 lot of different factors. Being at the end of a well
7 defined phosphorus gradient from a fairly well
8 defined input source was one; trying to cross the
9 hydrologic gradients so that we could factor out the
10 contribution of hydrology and/or hydroperiod, if that
11 were possible and also to try to pass through as wide
12 a variety of vegetative types as possible.
13 Q. Might one potential outcome of the study be
14 different threshold numbers for different vegetation
15 and hydrology types?
16 A. It's possible.
17 Q. Will the study --
18 A. I guess I want to qualify that by saying
19 that the choice of vegetation would have to be -- if,
20 in fact, vegetation were a factor, then it would have
21 to be a vegetative type that would normally be
22 encountered in background conditions, not those that
23 are encountered under eutrophic or unnatural nutrient
24 conditions. In other words, we don't want to use the
25 fact that because of vegetative type is there is a
58
1 justification if it's not there under normal
2 conditions.
3 Q. What do you mean by "background" in the
4 sense that you just used it?
5 A. Site. That is in terms of what we would
6 normally -- well, whatever measures they would use to
7 determine the effects of nutrients would show no
8 effect or minimal effect associated with, say,
9 rainfall concentrations, some, quote, background
10 source.
11 Q. So background is with respect to nutrient
12 additions specifically?
13 A. I think that was the general intent in
14 developing the nutrient gradient study. There may be
15 such a thing as a hydrologic background site. I
16 wouldn't know how to define it.
17 Q. Was defining such sites an element of this
18 study?
19 A. Defining background sites?
20 Q. Hydrologic background sites.
21 A. No. To my knowledge, there's no such
22 thing, but the concept was to pass through a gradient --
23 hydrologic gradient of different depths which would
24 reflect different hydroperiods so that you could
25 discriminate through some statistical analysis the
59
1 contribution that the nutrients were making to the
2 observed biological changes vis a vis hydrology or
3 depth or both and there was never a discussion of the
4 hydrologic background site.
5 Q. Is it your understanding that the study in
6 this form was intended to enable those
7 discriminations to be made so as to factor out
8 hydrology and depth?
9 A. That was the intent.
10 Q. How would that be done, if you can help me
11 to understand it, recognizing I don't have a
12 scientific background?
13 A. Well, this isn't my area of strength
14 either. At the end of the study you would have a
15 body of data and you would perform a statistical
16 analysis that discriminated the contribution of
17 hydrology. Well, basically, you would ask the system
18 of equations to tell you what the relative
19 contributions of the specific factors that you were
20 tracking were in terms of the strength of the
21 correlation with the observed effect in the
22 imbalance, so if you're looking at every datum where
23 you were measuring -- a production value, for
24 example, would also have a depth, a temperature and a
25 phosphorus concentration or a nitrogen concentration,
60
1 hardness, all sorts of other things. And you could
2 throw them into a pot and basically ask the
3 statistical equation to tell you how much of the --
4 of each factor was contributing to the observed
5 imbalance at a particular location. And the hope
6 would be that it would give you strong correlations.
7 That is an R squared value greater than .75, .85, 1
8 being a perfect correlation. Whenever you observe X
9 you always observe Y or the magnitude of X and Y are
10 perfectly correlated so you can predict Y from the
11 value of X and a 0 correlation means there's no
12 relationship. So R squared value .75, .85, are
13 considered reasonably good; greater than .85, .90,
14 .95 being very, very good and it's through methods
15 like -- I guess they're called discriminate analysis,
16 principal components analysis, factor analysis,
17 you're able to factor out and represent the relative
18 contributions of each of these factors to the
19 observed effect. The strength of that relationship
20 is reflected in a correlation coefficient between the
21 cofactor of interest and the observed effect of the
22 biological imbalance. How it's done, that's not my
23 area of expertise.
24 Q. Is it your understanding that the entire
25 study was ultimately to be used through statistical
61
1 correlations?
2 A. Well, whenever you look along the gradient
3 and you've got other confounding factors, you
4 probably would have to use some sort of a statistical
5 method to discriminate the strength of that
6 correlation, whether it's nutrient along the gradient
7 or, you know, whether you're passing through a
8 hydrologic gradient. But initially we were going to
9 collect samples along the gradient and do control
10 tests in the laboratory environment was my
11 understanding, so we're not relying solely on that
12 pathway of evidence, so to speak, but it was going to
13 be based on a weight of evidence using the gradient
14 studies, dosing studies, the laboratory microcosm
15 studies and greenhouse flow-way studies.
16 The concern was if we put all our eggs in
17 one basket, some disturbing factor could come through
18 or the strength of the correlations may not be strong
19 enough to offset the natural variability in the
20 system.
21 Hurricane Andrew could stir up something
22 like a dosing study to the point where you'd have to
23 basically reset the clock and start over and we
24 understood we were under a time constraint in terms
25 of generating a meaningful datum or a meaningful
62
1 numerical criterion in as short a time frame as could
2 be justified. So we were basically going to proceed
3 along several fronts and parallel simultaneously.
4 Q. Is it your understanding that the Threshold
5 Study Research Plan, that I think you say Dr. Sklar
6 has drafted, still includes those components?
7 A. I have not read the latest version. The
8 version -- the last version I looked at included an
9 appended document prepared by Lane and Wetzel and
10 Reckhow and somebody else whose name escapes me who
11 were the TOC technical subcommittee and recommended
12 that those four approaches be pursued simultaneously.
13 As far as I know, we're still operating under that
14 framework.
15 Q. You say four approaches?
16 A. Yeah. The gradient approach, the microcosm
17 approach, the dosing approach and the greenhouse
18 flow-way approach. It may turn out in our scoping
19 study we find some other ways to do it, but those are
20 the four that I was aware of.
21 Q. What are the time constraints that the
22 District is under in completing this study?
23 A. My recollection was that the Settlement
24 Agreement had certain time frames in which we were
25 required to translate the narrative standard into a
63
1 numerical standard and demonstrate compliance with
2 that standard. I don't know -- I don't recall in
3 detail whether the Douglas Act also included such a
4 constraint.
5 Q. If I could turn you to or ask you to turn
6 to Page 8 of the document.
7 A. Okay.
8 Q. Did you draft the definition that appears
9 in italics near the top of the page?
10 A. I drafted an earlier version of it. It
11 survived and is mostly intact.
12 Q. Are you familiar with this definition or
13 this proposed definition?
14 A. Yes.
15 Q. Is this the latest version of this
16 definition, to your knowledge, that the District has
17 developed?
18 A. To my knowledge.
19 Q. Do you know whether it's been approved by
20 the Board?
21 A. It was proposed for discussion purposes to
22 stimulate and focus discussion by the TOC, which
23 included members -- which included the Department of
24 Environmental Protection and in no way represented a
25 formal administrative position over the District.
64
1 But I think it encapsulated the essence of the kind
2 of decision making processes that were required, in
3 my mind, to get to a number from a narrative
4 standard, taking into account the fact that the water
5 column and sediment were linked, that the number
6 would look different in the water column versus the
7 sediment, so it discriminated between a number in the
8 water column and the equivalent number in the
9 sediment.
10 Q. Taking that last point first, were you
11 referring to the second paragraph of the definition?
12 A. Right.
13 Q. Have the methods for translating the
14 phosphorus concentration in the sediment into an
15 equivalent concentration in the water column been
16 developed?
17 A. No.
18 Q. Whose agreement where it says, "-- using
19 agreed upon methods" is envisioned there?
20 A. It's my understanding that the Florida DEP
21 directly or through the ERC has the -- has to agree
22 to any methods this would use to translate the
23 narrative into the no imbalance. I should say the
24 narrative no imbalance standards.
25 The criteria for the water sediment and the
65
1 area of sediment criteria development is sort of a
2 state of the art area now. USEPA is encouraging
3 states to develop such criteria, but it has not
4 really formalized a process. The criteria documents
5 published primarily deal with hydrophobic
6 polychlorinated organics that behave in these
7 systems. As far as I know, there's been no attempt
8 to develop a sediment criterion for nutrients,
9 although the methods and procedures that they
10 proposed were translating narrative criterions.
11 Numerical criteria could be applied to sediments, so
12 that rather than proposing a method which would
13 immediately then come under scrutiny; where did this
14 come from, etc., etc. we chose the phrase, "using
15 agreed upon methods," which would embody that
16 discussion.
17 Q. Do you know whether the TOC has reviewed
18 and commented on this two paragraph proposed
19 definition?
20 A. I have no recollection of anything that's
21 been going on at the TOC meetings for the last -- no
22 direct recollection for the last year, year and a
23 half. I have heard nothing represented to me that
24 indicates that this document has been reviewed and
25 commented on, let alone that specific paragraph.
66
1 Q. What is meant in the first paragraph by the
2 phrase, "using the most sensitive, biologically
3 relevant, reliable measures taken over the
4 appropriate spatial and temporal scales"? What is
5 the reference to "most sensitive"?
6 A. You want an organism or a measure that is
7 more a combination, I guess, of an organism, the
8 transducer of the effect in a set of conditions that
9 produce the most sensitive response. That is, the
10 biggest change for the least change in phosphorus
11 concentration.
12 Q. Why is that important?
13 A. Because whenever you're making measures --
14 measurements in the environment there's natural
15 variability in the data and you don't want the
16 response to be overwhelmed by the noise in the
17 system, by the natural variability and the lower the
18 concentration that you go to, the smaller the
19 response is going to be. And we wanted to be able to
20 discriminate an effect at low concentrations where
21 below 50, above three or five parts per billion,
22 where we thought the effect would be observed without
23 losing the signal, the desirable response of the
24 organism, the one we wanted to see versus a lot of
25 the biological noise associated with variables like
67
1 sunlight, temperature, rainfall, wind, so on.
2 Q. Is the biggest change for the least change
3 in phosphorus contemplated then as an indicator of
4 imbalance? Is that what you're looking for as
5 indicators?
6 A. We're looking for a response of an organism
7 that would be either native to that system or
8 analogous to an organism native to that system which
9 would respond naturally to changes in phosphorus at
10 very low concentrations. We know that the system
11 evolved under very low concentrations, that the
12 organisms have adapted to very low phosphorus
13 concentrations, so we assume that there were
14 organisms out there that would show a fairly large
15 change over a fairly small phosphorus concentration
16 range. That's their nature. They're phosphorus
17 sponges because it has been historically unavailable
18 or minimally available and those organisms that could
19 compete successfully for the available phosphorus
20 survived to the advantages over those that required a
21 lot more phosphorous or were slow to respond to the
22 phosphorous concentrations in the water column that
23 did emerge.
24 Q. Does this definition contemplate that those
25 changes would in and of themselves be a biological
68
1 imbalance?
2 A. The magnitude of the change that would
3 manifest biological imbalance, it would have to be
4 left to an interpretation of a wetlands ecologist.
5 We would present the data. There would be a spectrum
6 of changes and then there would be a region where
7 there was no detectible change between one phosphorus
8 concentration and the next lower concentration and
9 somebody would have to decide how much of an effect
10 had biological significance. I think we include
11 biological significance -- "biologically relevant" is
12 the term we used. It has to be read as a whole
13 rather than individual adjectives.
14 Q. Was the attempt to identify a biological
15 relevant change also a part of this --
16 A. Yes.
17 Q. -- effort?
18 A. Yes.
19 Q. And how was that identified?
20 A. It's not really an area of my expertise. I
21 think there's a discussion earlier in the document
22 about developing, you know, a working hypothesis of
23 imbalance and developing methods for identifying
24 imbalance in Section 3 and then there's a table of
25 potential indicators and their characteristics which
69
1 would be reviewed in the context of those criteria to
2 identify five or six or seven or eight bioassays in
3 organisms that would be appropriate to implement this
4 definition and I believe they selected on Page 4
5 Table 2 one, two, three, four, five, six, seven
6 measures or indicators of ecological imbalance that
7 would be manifest along a phosphorus concentration
8 gradient which would meet those criteria of
9 sensitivity and relevance and reliability.
10 Again, part of the reason we're doing this
11 study is to figure out how well we could identify the
12 candidates. May turn out that we only use two or
13 three of the seven as a result of interpretation of
14 the results of the scoping study.
15 Q. Are you familiar with the DEP Nutrient
16 Rule?
17 A. Only in so far as I've read it and I think
18 I've heard a couple of DEP staff describe how they
19 implement it, but I have not been involved in its
20 implementation.
21 Q. Are you aware that its language refers to
22 an imbalance in the natural populations of aquatic
23 flora and fauna?
24 A. Yes.
25 Q. On Page 4, continuing with Table 2 for the
70
1 moment, which of these indicators would you consider,
2 or for purposes of this scoping paper, were
3 considered aquatic flora and fauna, if any?
4 A. I'm not a biologist by training, but my
5 understanding is that periphyton and macrophytes are
6 aquatic flora and I guess bacteria are also flora, so
7 aerobic bacterial activity would be flora. I see no
8 references to fauna.
9 Q. Does the work, whose scope is described in
10 this paper, include the identification of natural
11 populations of aquatic flora and fauna?
12 A. Would you repeat the question?
13 Q. Yes.
14 Does the scope of work in this paper
15 contemplate the identification of what are natural
16 populations of aquatic flora and fauna?
17 A. I think the concept was to use the
18 reference or background sites kind of -- and
19 organisms associated with them as defining native,
20 natural flora and fauna and moving up the gradient to
21 assess changes in those community species relative
22 abundances, densities, quote, health to evaluate the
23 effect of nutrients on them. Of course, passing
24 along the other gradient of the stage gradient which
25 would reflect hydrologic or hydroperiod gradient;
71
1 also trying to assess what we observed as changes in
2 the communities, but, again, there was no concept of
3 a background hydrologic site per say.
4 Q. Does that mean that in assessing the
5 natural background sites there was no specific
6 attention to be given to the historical, that is
7 already realized, effects of hydroperiod change?
8 MS. CLEMENTS: Objection. Speculation.
9 THE WITNESS: The system was what it was.
10 If we could identify where the phosphorus
11 concentrations were minimal and where we saw
12 what are believed to be normal mixes and types
13 of species and apparently normal abundances,
14 densities, and, you know, the degree to which
15 that reflected the entire cumulative history of
16 hydroperiod changes in that system, there was no
17 way to deal with that. That's what we had to
18 work with.
19 No, I guess we didn't contemplate that
20 directly.
21 BY MR. SAMS:
22 Q. Would the same be said for fire as it might
23 have been historically affected by hydroperiod
24 change?
25 A. Same answer.
72
1 Q. Do you know whether a formal determination
2 has been made by the District that it is impossible
3 to examine the extent to which anthropogenic changes
4 in hydroperiod may have influenced the, quote,
5 unimpacted areas?
6 A. Personally, I don't know that that
7 determination has been made. I don't recollect any
8 such determination.
9 You know, it may be possible to build a
10 model which included the effect of hydrologic changes
11 on plant growth, nutrient distributions and so on and
12 then run it backwards in time, but you still have to
13 reproduce the water balance in the system as a
14 function of time. There's a fair amount of
15 uncertainty in that. And, you know, the model itself
16 would have uncertainties, so it would be an exercise
17 in compounded speculation and I don't know where you
18 would end up at the end of that process.
19 We think we feel more comfortable and
20 confident in moving forward and collecting data of
21 the appropriate spatial and temporal densities
22 forward in time, I should say, rather than backward
23 in time.
24 Q. This is a good dialogue because that brings
25 me to my next question.
73
1 How are the appropriate spatial and
2 temporal scales identified for purposes of this
3 study?
4 A. We tried to pick organisms which were
5 integrating phosphorus changes and/or hydroperiod
6 changes over a fairly small physical scale such that
7 distances along the concentration gradient would not
8 be confounded by overlapping responses.
9 We also tried to pick organisms and
10 measures that occurred over fairly short time frame
11 in the water column so we could track the response of
12 changes in phosphorus concentrations in the water
13 column.
14 And then we also chose organisms, rooted
15 macrophytes that responded to the longer term changes
16 of sediment, primarily sediment concentrations and
17 phosphorus, recognizing that there was a link between
18 the water column and sediment by virtue of the
19 dynamics of periphyton and their ability to collect
20 fixed phosphorus and then settle that into the
21 sediments and contribute to the peak that was
22 accumulating around the macrophytes.
23 It is probably an interesting ecology
24 that's developed between the macrophytes and the
25 periphyton in terms of which species associate with
74
1 which. Whether it's a true symbiosis or just sort of
2 a facultative, opportunistic association, it's not
3 clear, but that was the link that we saw between
4 water column and sediment. Particulate matter in the
5 system is primarily a biological origin and not
6 primarily of, you know, erosion of geological
7 materials.
8 Could I take another break?
9 Q. Sure.
10 (Thereupon, a recess was taken.)
11 (Thereupon, a portion of the record
12 was read by the reporter.)
13 BY MR. SAMS:
14 Q. Are the appropriate spatial scales
15 reflected somehow in the distribution geographically
16 of the points on the proposed transects?
17 A. The scoping study was intended to collect
18 data on the rate of change of various variables as a
19 function of space to determine what the appropriate
20 distance between sampling stations would be in the
21 full blown study. This was an attempt to layout in
22 rough terms where we thought we would be. The actual
23 location would be refined through some early scoping
24 studies, but for budgeting purposes we thought that
25 would be about the right number of stations. The
75
1 exact locations would be determined through this
2 pre-scoping or early scoping study.
3 Q. How would the early scoping study help to
4 develop the appropriate temporal scales for this
5 work?
6 A. Again, the concept would be to collect data
7 very frequently at various locations and look at the
8 responses of the system to see what things are
9 varying on a very rapid time scale and what things
10 are varying on a much slower time scale and adjust
11 the monitoring frequency to appropriate scale for
12 that parameter.
13 Q. Over what length of time was the pilot or
14 initial scoping work to be done?
15 A. Memory phase. I think one of the tables --
16 Q. Feel free to refer to the tables.
17 A. -- lays out our time frame. Table 4,
18 Timelines for Implementation of the Monitoring Plan.
19 Scoping Study was going to begin in earnest in looks
20 like in September of '93 and then continue through
21 April of this year, '94 and then the first cycle of
22 pilot studies would begin in October of last year and
23 continue through May of '95 it looks like, so
24 basically, six to nine months, I guess, for the early
25 scoping studies and then almost two years of pilot
76
1 studies.
2 At some point in that two year period if we
3 became sufficiently confident that we understood the
4 spatial and temporal scales and the appropriate
5 indicators and their responses, we would identify the
6 threshold study locations and initiate the
7 appropriate monitoring cycle which would probably go
8 on another two or three years. I don't remember
9 exactly what we scoped out, but I think in broad
10 concept that's reasonably accurate.
11 Q. Have the first six to nine months
12 preliminary work been under way since September of
13 last year?
14 A. Some elements have.
15 Q. Were those the elements of the sampling of
16 the two points we discussed earlier?
17 A. Right.
18 Q. Were there any others that have been under
19 way?
20 A. Well, it's a related effort to begin to
21 initiate the routine monitoring of water chemistry
22 along the -- and some biology along a couple of the
23 gradients, maybe all three. I'm not involved with
24 this right now and I have not been keeping up with
25 it, but I know they're going out routinely and
77
1 collecting samples from Area 2A along, I believe,
2 several gradients, maybe three. Transects. I guess
3 they're calling them transects.
4 Q. Who is collecting those data?
5 A. The data are being collected under the
6 direction of the Water Resources Evaluation
7 Department, the Water Quality Monitoring Division.
8 Maxine Cheeseman is the director of the Water Quality
9 Monitoring Division.
10 Q. Do you know if those results have been
11 analyzed?
12 A. I have not been tracking the status of the
13 samples. I just see people coming and going and
14 asking where they have been and they said they have
15 been to 2A collecting the transects samples.
16 (Discussion held off the record.)
17 BY MR. SAMS:
18 Q. Is there any other sampling effort
19 currently ongoing as part of this work?
20 A. Not to my knowledge.
21 Q. Do you know whether there's any sampling
22 for mercury along these transects?
23 A. It had been proposed at one point that we
24 collect samples appropriate for mercury and
25 ultratrace mercury analysis at some locations. I do
78
1 not know that that has been implemented. My belief
2 is that it has not.
3 Q. Who proposed that work?
4 A. Nathaniel Reed, Governing Board member.
5 Q. Do you know when it was proposed?
6 A. It was a meeting to discuss the proposed
7 dosing study that Professor Ron Jones had proposed.
8 I don't recollect when that occurred. Maybe it
9 was -- I think it was in late December, maybe the
10 third week in December.
11 Q. Who would know whether that work has been
12 done or is under way?
13 A. I would guess Dr. Tom Fontaine would know
14 or Dr. -- or I don't know if she's a doctor or not.
15 Maxine Cheeseman. My understanding is, my belief is
16 it has not been done, but it's possible.
17 Q. Could I refer you to Page 12? That happens
18 to be within Appendix B.
19 A. Okay. Background.
20 Q. Uh huh. I'm focusing primarily on the
21 second sentence of the first paragraph. It reads,
22 "As such, the presence of the phosphorus in excess of
23 the minimum required to meet the needs of native
24 Everglades autotrophs can alter the biological
25 structure or function of the Everglades marsh
79
1 ecosystem to the extent that uses are impaired or
2 biological imbalance is evident."
3 A. Uh huh.
4 Q. What is the difference there between
5 biological structure and function?
6 A. Biological structure could refer either to
7 physical structures like, you know, biomass; the
8 macrophytes stems and roots and things like that, the
9 locations of attachments of periphyton and so on. Or
10 it could refer to community structure, the trophic
11 structure of the system and the functions of, you
12 know, true nutrient capture and biomass production
13 and decomposition, storage and release of nutrients
14 at appropriate times. Structure and function are
15 often interrelated, but for completeness sake, I
16 thought it was appropriate to identify each singly.
17 Q. Is it possible to have a change in function
18 without an alteration of the biological structure?
19 A. It may be possible. I don't know that I
20 can think of an example. For example, the rate at
21 which turnover occurred may increase, but if the
22 corresponding rates of other processes increased in
23 proportion, the net effect may be that the structure
24 doesn't change, but that the throughput and the rate
25 of processing changes and that may have biological
80
1 significance or biological relevance.
2 Q. Does a change in biological structure
3 necessarily mean that there's also a change in
4 function?
5 A. Not necessarily.
6 Q. Is that because going from one type of
7 periphyton to another might not affect other elements
8 in the food web, for example?
9 A. It is possible that you could substitute
10 one species for another and perform the same
11 biological or ecological function. The system
12 wouldn't be the same, but functionally, the processes
13 would occur roughly at the same rates and produce
14 roughly the same throughputs or transformations.
15 You know, probably a biologist would argue
16 that, you know, each species has a unique way of
17 dealing with nutrients and other cofactors and it may
18 be technically there has to be a difference, but
19 depending on how crude your measure of function, you
20 may not discern such a difference.
21 Q. Is the discerning of any such difference
22 something that is contemplated by this scope of work?
23 A. The attempt was to pick measures and assays
24 that would discriminate changes in either structure
25 or function or both that were representative of a
81
1 shift from a balanced to an imbalanced system.
2 Q. Is it an assumption, then, of this scope of
3 work that a shift in either structure or function
4 represents a shift in the balance of the ecosystem?
5 A. Right. And there's probably a natural
6 range of shift and change and structure that occurs
7 through the normal cycle of events; changing depth
8 and wind and temperature and seasonality and so on.
9 We would be looking for an effect that was
10 disproportionate or unnatural within that context of
11 natural variations, structure and function.
12 Q. Does it boil down, then, to an assumption
13 that measurable change in structure or function is an
14 imbalance in the sense defined in this paper?
15 A. It has to be of a degree greater than one
16 would expect from normal variations, normal
17 fluctuations in the system.
18 Q. So it's -- any change outside normal system
19 variations would be an imbalance?
20 A. Any, I guess, scientifically significant --
21 statistically significant change outside that --
22 those contours or borders of normal variation. It's
23 possible we could see one data point that was outside
24 that range and not infer that biological imbalance
25 was observed. It's also possible that there are some
82
1 changes that will occur within that frame of
2 reference that would define as the normal contours or
3 boundaries of the system that, in fact, are being
4 caused by or would represent a manifestation of
5 biological imbalance, but it would be hidden by what
6 we would accept as normal variability.
7 Q. Is that the same type of imbalance that you
8 understand to be referenced in the next sentence,
9 that is, "-- biological imbalance in aquatic
10 ecosystems is prohibited by Florida water law"?
11 A. It would be up to DEP to interpret and
12 apply the results of our studies and make a
13 determination as to how much change outside the
14 normal bounds of variability are an imbalance. Our
15 goal here was to develop a fairly robust set of
16 studies and present as much relevant information to
17 them as possible. They would then take the data and
18 make a weight of evidence determination as to where
19 that cut off lay. So it was really our side -- our
20 purview and responsibility to do that.
21 Q. So it's your understanding that DEP
22 ultimately decides what is an undesirable level of
23 nutrients in so far as imbalance is concerned?
24 A. That's my understanding.
25 Q. Do you know whether DEP is the final
83
1 decision maker in that regard?
2 A. As opposed to who else or --
3 Q. I'm looking now at Page 13 near the top to
4 the reference of the Technical Oversight Committee --
5 A. Uh huh.
6 Q. -- and I assume that's a multi-agency
7 committee.
8 A. Yes.
9 Q. And I'm wondering, does DEP make that
10 determination in your understanding or is it this
11 Technical Oversight Committee?
12 A. My understanding is the DEP makes that
13 determination. They are the element of the executive
14 branch that implements and administers the statutes
15 of the State of Florida and the rules and regulations
16 promulgated pursuant thereto and the legal role of
17 the TOC is beyond my kin, but we have agreed to
18 submit research plans to them to review, comment on
19 and approve for application and we fulfilled our end
20 of the bargain. We submitted them for review and are
21 waiting for comments.
22 Q. There's a list of figures that follows
23 Table 4. It doesn't have a number on the page.
24 A. Okay. Yeah.
25 Q. And I notice that Figure 4 was originally
84
1 intended to include a "normalized vegetation index
2 map of WCA-2A superimposed with soil phosphorus
3 isopleths." Why was that figure deleted?
4 A. I think it's because it was a color figure
5 and when they tried to xerox it it washed out off the
6 detail and we had been discouraged from distributing
7 color figures because of the cost. And I don't know
8 that that added to the total use of the package. So
9 many people were requesting copies we couldn't
10 produce color copies. When we did photocopy in black
11 and white, this color, it was -- you couldn't tell
12 what the heck we were trying to convey. So rather
13 than redo it, they just took it out because this was
14 drafted under a short timetable to respond to a TOC
15 request and that's, I think, how it happened.
16 Q. How was the vegetation index map normalized
17 if you recall?
18 A. I had no involvement in the production of
19 the data or the map so I don't know.
20 Q. Who did prepare the map?
21 A. Marie Pietrucha prepared the map probably
22 from data collected by Ken Rutchey and I think -- I
23 would guess that we've turned over those maps under
24 the various production requests in the past. The
25 only thing new is trying to superimpose the
85
1 vegetation data and the soil and phosphorous
2 isopleths together.
3 Q. Who did that work?
4 A. That was Marie Pietrucha.
5 (Discussion held off the record.)
6 MR. SAMS: Those are my questions, I think,
7 on this document. We can break for lunch.
8 (Thereupon, a lunch recess was taken.)
9 BY MR. SAMS:
10 Q. Before I ask the court reporter to mark it,
11 let me show you another document and ask if you're
12 familiar with it. You may wish to turn to Comment 29
13 within that document. It's maybe eight or ten pages
14 into the document.
15 A. Comment 29. Yes, I recognize this. I
16 didn't realize I wrote it that early. It was
17 reproduced several times in several incarnations
18 thereafter.
19 Q. When you refer to your writing it, are you
20 referring specifically to Comment 29?
21 A. Yes.
22 Q. Did you write any other part of this
23 document?
24 A. Yes.
25 Q. What is that?
86
1 A. Pretty much the whole thing, I think. That
2 date doesn't seem right. Anyway, okay.
3 MR. SAMS: Ask the court reporter to mark
4 that as Exhibit Number 6.
5 (The document was marked Exb. No. 6.)
6 BY MR. SAMS:
7 Q. Was Comment Number 29 written in response
8 to a DER inquiry?
9 MS. HOGAN: Do you have another copy of
10 that?
11 MR. SAMS: Sorry.
12 THE WITNESS: Yeah. Apparently. It seems
13 out of sync somehow, but just -- my memory must
14 be incorrect regarding when this cycle of permit
15 application completeness review and response
16 occurred, but apparently the subject was input
17 for response to the Douglas Act permit
18 application completeness review, so apparently
19 that's what it was in response to.
20 BY MR. SAMS:
21 Q. And you do have a recollection of drafting
22 this document?
23 A. Yeah. Not in the time frame, but I have a
24 recollection of drafting it, yes.
25 Q. I'd like to refer you to the second page on
87
1 which Comment 29 continues and specifically to the
2 third paragraph.
3 Do you agree still with the statements that
4 were made there?
5 A. Are we counting the paragraphs the same
6 way, the one that starts with, "The physics,
7 chemistry and biology"?
8 Q. Yes, sir.
9 A. Do I still agree with the statements maid
10 there? Yes.
11 Q. With regard to the second sentence that
12 says, "Nor has the effect of wetting redox and pH
13 cycles associated with the managed hydroperiod and
14 frequent sawgrass fires in the Everglades system on
15 inorganic mercury species chemistry/biochemistry,
16 transport and fate been explored in a systematic
17 way."
18 Are such studies intended at this point to
19 your knowledge?
20 A. In the discussions preparatory to the
21 drafting of the EPA South Florida Mercury Initiative
22 Work Plan -- Study Plan, I think these studies or
23 areas of study were contemplated. I have not seen
24 the most recent version of the plan, so I don't know
25 what -- where they are in the process.
88
1 Q. Would that be the remap study that you're
2 referring to?
3 A. Apparently. I never referred to it as the
4 remap study, but other people seem to refer to
5 documents that I think of as the South Florida
6 Mercury Initiative Study Plan as a remap study Plan.
7 The distinction is lost on me, so --
8 Q. Does the District have any plans to study
9 the effects of managed hydroperiod on mercury species
10 chemistry, biochemistry, transport and fate?
11 A. We had intended to conduct such studies in
12 the test cells in the ENR Project.
13 Q. Was that done?
14 A. It has not been done.
15 Q. Why not, to the best of your knowledge?
16 A. The test cells are about a year behind
17 schedule in terms of shaking out the kinks and
18 working out the bugs and, until such time as we are
19 comfortable that has been done, we don't want to
20 initiate any