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 studies.
21       Q.    What would be the reason for studying the
22   effect of managed hydroperiod on mercury species,
23   chemistry/biochemistry transport and fate?
24       A.    Complex interaction between the depth and
25   duration of depth or stage of the system, the

                                                 89

 1   chemistry of the system and the biology of the system
 2   and, since we don't know a priority, which factors
 3   are having the most significant influence on mercury
 4   speciation transport, transformation,
 5   bioaccumulation, so on, we thought it was appropriate
 6   to study or to, in a systematic way, vary the
 7   hydrologic parameters; depth, flow rate, so that we
 8   could discern or ascertain a relationship if one
 9   existed and, then if one existed, try to subdivide
10   that into its component elements what was -- what's
11   the right word -- by what means hydroperiod was
12   affecting or manifesting its effect in the
13   biogeochemistry of the mercury.  It may be something
14   straightforward.  It may be something more subtle;
15   primary versus a secondary or tertiary cause.
16       Q.    Is it fair to say that at this point we
17   don't know scientifically how the nutrient removal
18   project will affect mercury speciation transport and
19   fate?
20       A.    To within a degree of scientific certitude,
21   I would say, yes, it's fair to say that we don't
22   know.
23       Q.    What was the reference to "frequent
24   sawgrass fires"?  What effect would they have on
25   mercury speciation transport and fate?

                                                 90

 1       A.    I guess the thing there was that the
 2   mercury that had been taken up in the plants could be
 3   liberated and accumulated either directly as ash that
 4   falls into the water or into the dry areas and then
 5   that which is released back up into the air, that
 6   floats up, could come down somewhere else and recycle
 7   mercury; taking it from a form in which it was not
 8   bioavailable for methylation to a form which it was
 9   bioavailable for methylation.
10       Q.    Do you know whether any studies of that
11   phenomenon are planned?
12       A.    There were some studies regarding sugar
13   cane burning by Bill Patrick that indicated that it
14   was a fairly -- that the quantities released were
15   fairly small.  At the time I don't know if he also
16   looked at the ash accumulation at the base of the
17   plants or in the soil.  But, based on his preliminary
18   work, it was felt that that was sort of a secondary
19   issue or secondary concern.  But I'm unaware of any
20   studies planned to discern that, although, again, I
21   have been out of the loop with the EPA and they may
22   well be planning such.
23       Q.    Referring to the last paragraph on the page
24   I see a reference to Gulf Breeze Laboratory of the
25   EPA.  What is the work to which that reference was

                                                 91

 1   addressed?
 2       A.    It was my understanding of the work of
 3   Tamar Barkay, who is a Research Scientist at that
 4   facility and it was based on secondhand information.
 5   I had no direct involvement in the planning or
 6   working with her on any of the work so that's the
 7   extent of my knowledge and understanding of her work.
 8       Q.    Was that work a study of methylation and
 9   demethylation processes in the Everglades?
10       A.    I've never seen a detailed write up of the
11   study design or the study outcome, the preliminary
12   results.  It was my understanding that some sort of
13   microcosm set up was involved and some nutrient
14   addition had been made and they were looking at -- I
15   don't know if they were looking at net methylation or
16   both methylation demethylation rates.  I'm not sure
17   what her study design was.
18       Q.    But you've never seen the results of that
19   work?
20       A.    I've heard them described and it's very
21   hard for me to understand what was done.  My
22   understanding is she's continuing the work.  I was
23   going to say it may well have been they were
24   preliminary scoping kind of studies and they were
25   never intended to produce final results, so it may

                                                 92

 1   have been short of a shake down cruise (sic) for her
 2   apparatus.
 3       Q.    It says here that "Studies being conducted
 4   by researchers at the Gulf Breeze Environmental
 5   Research Laboratory of the U.S. Environmental
 6   Protection Agency's Office of Research and
 7   Development are intended to answer many of the
 8   critical questions regarding the biologically
 9   mediated fate of mercury species in the Everglades
10   hydrosoil regime."
11             That's really not a description of a study
12   development, is it?
13       A.    Really doesn't speak to the issue of where
14   they are in their study cycle.  But it was my
15   understanding that her work had not terminated and
16   that it was going to continue and that it was
17   intended to elucidate some of the important cofactors
18   that govern methylation, demethylation, reduction of
19   mercury species in Everglades hydrosoils in a
20   microcosm environment that's intended to simulate
21   that.
22       Q.    From whom did you obtain the understanding
23   that this work was intended to answer many critical
24   questions?
25       A.    Probably Jerry Stober.

                                                 93

 1       Q.    What is the usefulness of information on
 2   methylation and demethylation in the context of the
 3   mercury contamination question in the Everglades?
 4       A.    Well, it's a question of relative rates.
 5   If methylation is rapid and demethylation is slow,
 6   you're going to build up methylmercury.  If de -- if
 7   methylation is fast and demethylation is faster,
 8   you're not going to accumulate as much.  If
 9   methylation is slow and if demethylation is fast,
10   you're going to accumulate very little.  It's the
11   methylmercury that tends to bioaccumulate up the food
12   chain, so understanding the relative rates of those
13   two is important.
14       Q.    Are you aware that the preliminary rates
15   tended to show a greater rate of demethylation than
16   methylation of mercury in the Everglades?
17       A.    I don't know what studies you're referring
18   to.
19       Q.    The Barkay work.
20       A.    My recollection was that it was phosphorus
21   concentration dependent and, depending on where you
22   were in the phosphorus concentration regime,
23   methylation exceeded demethylation or demethylation
24   exceeded methylation, but I don't know that the
25   microbiological studies that needed to be done to

                                                 94

 1   fully answer that question have been done.
 2             Personally, I'd like to see radio labeled
 3   methylmercury species being introduced; radio labeled
 4   ash being introduced; radio isotopic mercury being
 5   introduced and see if we can track down to the
 6   biochemical level what's going on.  But that was her
 7   broad interpretation based on the results of the
 8   preliminary work.
 9       Q.    If I could return or turn your attention to
10   the first paragraph on the top of the next page.
11       A.    The one that starts, "The above
12   deficiencies in our understanding --"?
13       Q.    Right.  I'd like in particular to draw your
14   attention to the last sentence of that paragraph,
15   which reads, "Whether the potential increased
16   methylmercury production in the STAs is more than
17   offset by potential reduction in methylmercury
18   biosynthesis in the Everglades cannot be measured in
19   situ before the fact of the construction of the STAs
20   on the scale of the whole ecosystem."
21             In a nutshell does that mean that to
22   understand the mercury methylation effects of the
23   STAs we must construct them on their ultimate scale
24   first?
25       A.    I don't know that it needs to be on the

                                                 95

 1   ultimate scale of STAs, but something bigger than a --
 2   you know, a five or ten gallon jug in somebody's lab.
 3       Q.    Would the Nutrient Removal Project be a
 4   candidate for that kind of effort?
 5       A.    That's been my thinking, yes.
 6       Q.    Might it be possible even to do such an
 7   effort as that in a small portion of the Nutrient
 8   Removal Project?
 9       A.    Such studies were contemplated for the test
10   cells which are half acre mimics of the larger
11   system.
12       Q.    Are they still contemplated?
13       A.    Until I hear otherwise, but the delays in
14   the test cells have postponed the work.
15       Q.    What has caused the delays in the test
16   cells, if you know?
17       A.    Well, they were behind schedule in
18   construction and it appears that the hydrology of the
19   test cells is not what they were anticipated to be.
20   They seem to communicate with surrounding water much
21   more rapidly than was anticipated through some
22   seepage mechanism and we're looking at various
23   options for addressing the problem; either
24   stabilizing the water levels outside the test cells
25   so that rate of communication is a constant or

                                                 96

 1   increasing the amount of the rate at which water runs
 2   through the test cells to offset the effect of the
 3   seepage phenomenon or to seal the test cells or some
 4   combination of all three in ascending order of costs
 5   and we're just in the preliminary range of those
 6   studies.  Our contract precluded us -- the contract
 7   with the contractor that constructed it precluded us
 8   from starting any such studies until they were done
 9   and that occurred somewhere in late August, early
10   September, something along those lines.
11       Q.    What contract is that?
12       A.    That was the construction contract for the
13   test cells.
14       Q.    Referring to the third paragraph on the
15   same page what work is being done to study the
16   transport of mercury in the environment within the
17   Everglades?
18       A.    By the District?
19       Q.    Yes.  First.
20       A.    None that I'm aware of.
21       Q.    Is there any work being done by any other
22   agency that you're aware of to study that phenomenon?
23       A.    Well, EPA was down here last fall,
24   September, I believe, collecting samples in the canal
25   system and, to the extent that water was moving at

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 1   that time, I guess they were looking at transport.
 2   Whether they have done anything else since then, or
 3   whether that was just a scoping study for more -- for
 4   a larger effort, I'm not sure.  I think a systematic
 5   effort over the entire ecosystem on a grid scale is
 6   being contemplated.  And, in addition, I think we've
 7   arranged to collect samples using clean techniques
 8   for ultratrace mercury analysis at several of our
 9   structures and deliver them to Ron Jones at FIU for
10   analysis for USEPA.
11       Q.    Is that a biweekly effort if you know?
12       A.    I have been trying to get a straight answer
13   for a long time to that question.  It's weekly at
14   some structures, biweekly at all the structures.  The
15   ones where it's weekly, it's not weekly if it's not
16   flowing, then it's biweekly and so it is at least
17   biweekly.
18       Q.    The last sentence of the third paragraph
19   refers to "source fingerprinting studies."
20             What did you have in mind there?
21       A.    I guess the concept is that particles from
22   different environments contain a different mix of
23   elements and it's expected that the ratios of various
24   elements are unique, like a fingerprint is unique, so
25   if mercury is attached to those particles and doesn't

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 1   come off, and sails down through our canal system,
 2   for example, and we can trace it back to ash
 3   associated with cane burning, for example, that's one
 4   fingerprint of a source.
 5             The particles coming from the municipal
 6   incinerators may have a different mix of elements
 7   associated with them.  Confounding factor there is
 8   that the mercury may become disassociated with
 9   particles and reassociated at a later time, so that
10   the signal is not -- you're not measuring what you
11   would like to be measuring.  So any study that
12   attempted to do that would first have to confirm that
13   the mercury that was associated with those particles
14   was not mobile, so it would be a -- there would be a
15   prestudy to determine that and then a series of
16   studies that looked at elemental ratios of particles
17   at various locations leading up to the various
18   sources.
19             It's possible to take a sediment sample or
20   water sample out in the middle of the Everglades and
21   then use a statistical technique that I referred to
22   earlier, factor analysis; ask the equations to tell
23   you how much of the -- or what fraction of the
24   particles that you've collected at that site are
25   coming from a particular source and basically

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 1   decomposing the sum of all the fingerprints into
 2   their individual source fingerprints and, ideally if
 3   it was unambiguous, it would tell you, you know, 30
 4   percent is coming from cane burning and 15 percent is
 5   coming from Lake Okeechobee and 60 percent or 40
 6   percent is coming from municipal incinerators and the
 7   rest is coming from background sources.  I don't know
 8   if that adds up to a hundred percent, but you get my
 9   drift.  So that -- that's the approach in concept.
10       Q.    Is any such work under way that you know
11   of?
12       A.    Well, I think, you know, EPA's collected
13   samples in the -- or directly or under contract or
14   under some agency agreement has collected soil
15   samples in the EAA and in canals and is going to
16   collect them in the conservation areas.  I think they
17   have also done some studies on the municipal
18   incinerators.  I don't know that they have done
19   studies on the coal fired power plants, but I think
20   they also did some in the area.
21       Q.    So some preliminary effort may have been
22   accomplished?
23       A.    Right.  Plus, you know, there's a
24   state-wide Florida Atmospheric Mercury Study going on
25   sponsored by DEP and Electric Power Research

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 1   Institute, Florida Power & Light and so on, which has
 2   six or seven stations planned or constructed around
 3   South Florida and they will be collecting high volume
 4   air filters samples for several elements in addition
 5   to mercury.
 6             One of the keys to this approach is that
 7   you got to look at individual particle size
 8   categories in order for it to work.  You can't lump
 9   all the particles together.  So it's a combination of
10   splitting them out into size categories and then
11   analyzing the individual categories and that allows
12   you to construct or reconstruct these fingerprints
13   from the various sources and attribute various
14   percentages to the total, depending on where you are
15   in the system.  To the best of my knowledge, that
16   type of analysis has not yet been done.
17       Q.    Okay.  I'd like next to show you a document
18   that I'll have the reporter mark as Exhibit Number 7.
19             (The document was marked Exb. No. 7.)
20   BY MR. SAMS:
21       Q.    Do you recognize that document?
22       A.    This was written from Ronald Bearzotti to
23   Distribution List.  Am I on the Distribution List?
24   I'm on the Distribution L