201
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
VOLUME II
18 Deposition of Thomas Fontaine
19 Taken before April Y. Segui, Court Reporter
and Notary Public in and for the State of Florida at
20 large, pursuant to notice of taking deposition filed
by the Petitioners in the above cause.
21
22
Tuesday February 22, 1994
23 319 Clematis Street, 5th Floor
West Palm Beach, Florida 33401
24 9:20 a.m. - 4:55 p.m.
202
1 APPEARANCES:
2 On behalf of the Petitioners Florida Sugar
Cane League, Inc., United State Sugar Corp.,
3 and New South Hope, Inc.:
Earl, Blank, Kavanaugh & Stotts, P.A.
4 One Biscayne Tower, Suite 3636
Two South Biscayne Boulevard
5 Miami, Florida 33131
By: JONATHAN L. GAINES, ESQUIRE
6
On behalf of the Petitioners Sugar Cane Growers
7 Cooperative, Roth Farms, Inc., and Wedgeworth
Farms, Inc.:
8 Hopping, Boyd, Green & Sams
123 South Calhoun Street
9 Tallahassee, Florida 32314
By: GARY V. PERKO, ESQUIRE
10
On behalf of the Respondent SFWMD:
11 Popham, Haik, Schnobrich & Kaufman, Ltd.
100 S.E. Second Street
12 Miami, Florida 33131
By: DANIEL J. McGRATH, ESQUIRE
13
On behalf of the Intervenor United States of America:
14 Department of Justice
155 South Miami Avenue, Suite 627
15 Miami, Florida 33130-1693
By: THOMAS A.W. FITZGERALD, ESQUIRE
16
17
- - -
203
1 - - -
2 I N D E X
3 - - -
4
5 WITNESS: DIRECT CROSS REDIRECT RECROSS
6 Thomas Fontaine
7
BY MR. PERKO 205
8 BY MR. GAINES 281
204
1 - - -
2 E X H I B I T S
3 - - -
4 NUMBER PAGE
5
6 EXB. 13 9-1-93 Draft Work Plan 205
7 EXB. 14 2-4-94 Burns & McDonnell report 260
8 EXB. 15 6-17-91 fax cover sheet to Walker 355
9 and load calculations
205
1 CONTINUED DIRECT (Thomas Fontaine)
2 MR. PERKO: Ready to go back on the record.
3 Will you mark this, please.
4 (The document was marked Exb. No. 13.)
5 BY MR. PERKO:
6 Q. Good morning, Dr. Fontaine. We'll be
7 continuing the deposition this morning. Same rules
8 apply. If you don't understand my question, please
9 tell me and I'll try to rephrase it. If you need to
10 take a break, let me know and we'll do so.
11 A. Okay.
12 Q. If you could, direct your attention to
13 what's been marked as Exhibit Number 13 to this
14 deposition and tell me if you recognize that
15 document, sir.
16 A. Yes. This is a work plan that is -- that
17 addresses field monitoring for the purpose of
18 defining the no imbalance water quality standard.
19 Q. Does this work relate to the transect
20 sampling that you said is currently being conducted
21 in WCA-2A yesterday?
22 A. Yes, it does.
23 Q. Did you have any input into the preparation
24 of this document?
25 A. You can see that my name is the last one on
206
1 the list there and so I know it was -- I was not the
2 main author, but I certainly went over most of it.
3 Q. Was it prepared under your direction?
4 A. Sure. Yes.
5 Q. Okay. I note that it's stamped Draft. Is
6 there a final version of the document in circulation
7 yet or has it been prepared?
8 A. This is definitely a draft. I would have
9 to check to see if there's anything more recent. I
10 don't think there is, but I would have to check.
11 MR. PERKO: Counsel, if I could request
12 that Dr. Fontaine look at his files, if there's
13 a final version, if he could produce it for us.
14 MR. McGRATH: Okay.
15 BY MR. PERKO:
16 Q. Dr. Fontaine, what is the purpose of the
17 field monitoring outlined in this draft work plan?
18 A. Well, the idea is to get at the number, the
19 nutrient threshold number that no imbalance occurs at
20 through field sampling.
21 Q. Okay. If you could direct your attention
22 to Page 2, very bottom paragraph.
23 A. Uh huh.
24 Q. First sentence of that paragraph states
25 that, "SFWMD and the DEP agree that available data
207
1 indicate that the total phosphorus concentration
2 ultimately necessary to fully achieve and maintain
3 compliance with the applicable water quality
4 standards are well below 50 ppb, (cited Nearhoof
5 1992.)"
6 Is it your understanding or do you agree
7 that available data indicate that the total
8 phosphorus concentration ultimately necessary to
9 achieve and maintain water quality standards is well
10 below 50 ppb?
11 A. My opinion, based on what I have been able
12 to see so far, is that the number is below 50 parts
13 per billion.
14 Q. And what is that opinion based on?
15 A. If you look at the transect, the Urban
16 transect along -- well in Conservation Area 2A and
17 then look at the vegetation from impacted to, shall
18 we say, minimal impact, it seems that 50 parts per
19 billion number does not fall in the minimally
20 impacted area. It seems to fall in an area where
21 vegetation would not be considered natural.
22 Q. Okay. When you say minimally impacted
23 area, what are you referring to?
24 A. I'm referring to the end basically of
25 transect down at -- I believe they call it the 217
208
1 station.
2 Q. What do you consider to be the natural
3 vegetation of WCA-2A?
4 A. Well, the Everglades historically have been
5 a sawgrass community with periphyton mats and also
6 tree islands in certain places, but that's --
7 Q. Are you familiar with what has been
8 referred to as the cattail monoculture immediately
9 south of the S-10 structures?
10 A. Yes.
11 Q. What was the natural vegetation in that
12 area?
13 A. I honestly can't tell you that.
14 MR. FITZGERALD: I'm sorry. I've got to
15 object. That's such a vague question. Are we
16 talking over the 5,000 year history of the
17 Everglades or talking since the construction of
18 the structure? Can you give the witness a time
19 frame?
20 BY MR. PERKO:
21 Q. Dr. Fontaine, when you referenced natural
22 vegetation previously in one of your answers, what
23 did you mean by natural vegetation?
24 A. There have been numerous reports,
25 historical observations, whatever, that say sawgrass
209
1 and periphyton marshes are the natural vegetation.
2 I'm trying to recall the dates of how far back these
3 reports go, but, you know, thinking back to the
4 1900s, basically. I believe that -- and you will
5 have to check with other people on this -- but there
6 has been a progression of cattail in the conservation
7 area, growth outward in terms of area for some time,
8 say the last, you know, 30 years, but don't hold me
9 to the 30 years. I'm just saying that as an example.
10 And it was not evidently there at some point to the
11 extent that it is now.
12 Q. When you say other people who do you mean?
13 A. Well, I would refer you to Ken Rutchey's
14 work and I believe that work was with a person named
15 Jensen.
16 Q. Dr. Fontaine, beginning on Page 5 of
17 Exhibit 13 and then again beginning on Page 8, the
18 work plan describes Phases I, 2 and 3 --
19 A. Uh huh.
20 Q. -- of this study. Could you briefly
21 describe for me what those phases entail?
22 A. Okay. Well, Phase I is in Conservation
23 Area 2A and that's where we will be doing basically
24 exploratory surveys, working the details out of
25 sampling procedures and things like that.
210
1 Phase 2 will continue in Conservation Area
2 2A, based on the preliminary screening in Phase I
3 sampling and it would represent an enhanced --
4 enhanced work in 2A.
5 Then Phase 3 will be basically an expansion
6 of the transect in phase -- in 2 into other areas
7 such as Conservation Area 3.
8 Q. Why did you determine it to be useful to
9 expand this study into other areas?
10 A. Uh huh. We feel that there is a need to
11 determine if the numerical standard for imbalance
12 changes geographically.
13 Q. Do you have indication at this point that
14 the numerical standard would change geographically?
15 A. I don't have data that would either support
16 or negate the position that it would change
17 geographically, but it seems to be the right thing to
18 do.
19 Q. Why does it seem to be the right thing to
20 do?
21 A. Well, I think the argument here is kind of
22 circular now, because there could be geographical
23 differences in numeric standards. You may find that
24 communities respond differently as you change in
25 latitude.
211
1 Q. I'm trying to understand why you think the
2 communities may respond differently.
3 A. Well, because, as you change latitude,
4 things change. You know, if you fly over certain
5 areas of conservation areas, you'll see that there
6 are somewhat differing vegetation types and it seems
7 that in order to set standards with communities that
8 may be slightly different, that you would go and
9 perform your experiments in those different
10 communities.
11 Q. Are there differences other than in
12 vegetation types that may make it necessary to define
13 a different number for different geographic areas?
14 A. Well, I think a lot of that is what these
15 studies are proposing to do. There are clearly
16 differences in latitude, okay? But in terms of the,
17 you know, soil conditions and the hydrologic
18 conditions, some of that is yet to be defined and
19 will be as a function of this study.
20 Q. Do you anticipate that this study will
21 result in a single number, if you will, for a
22 particular community?
23 MR. McGRATH: Object to the extent that
24 you're asking the witness to speculate on the
25 results of the study that's not complete yet.
212
1 THE WITNESS: I would have to agree with
2 counsel. I don't know until the data come in.
3 BY MR. PERKO:
4 Q. Dr. Fontaine, if you direct your attention
5 to Page 8 of Exhibit 14 under Section 4.2.
6 MR. FITZGERALD: I'm sorry. Exhibit 13 or
7 14?
8 MR. PERKO: 13, I guess.
9 MR. FITZGERALD: I heard 14. I just wanted
10 to make sure.
11 BY MR. PERKO:
12 Q. Section 4.2 is entitled, Numerical water
13 quality criterion for "no imbalance" phosphorus
14 concentration. Under that Subheading the document
15 states, "We propose the following administrative
16 definition of an area-specific, no observable
17 ecological imbalance for the Everglades."
18 A. Uh huh.
19 Q. The reference to "we" I assume means the
20 authors of this paper, is that correct?
21 A. It certainly could be taken that way. This
22 has been looked at, you know, throughout the
23 District, so I -- you know, I guess the "we" could be
24 the authors, but it may go farther than that because
25 there was review of this document.
213
1 Q. Okay. And who is the administrative
2 definition being proposed to?
3 A. Well, DEP is responsible for the -- I would --
4 I hope I get the role right, the implementation, the
5 enforcement of these kinds of things. So what we
6 simply did was propose something. It's, of course,
7 up to them to decide what they want to do with our
8 proposal.
9 Q. Okay. Has DEP, to your knowledge, provided
10 any feedback during the proposal?
11 A. They did review this document. I don't
12 recall if they specifically commented on that
13 section.
14 Q. Do you know who at DEP reviewed the
15 document?
16 A. Frank Nearhoof is the only one that I can
17 think of.
18 Q. Okay. How was the proposed administrative
19 definition developed?
20 A. Through basically discussions among staff.
21 Q. Did you receive any input from the Office
22 of General Counsel?
23 A. I didn't, no.
24 Q. Do you know if anyone else did?
25 A. I don't know.
214
1 Q. Do you know if anyone received input from
2 the Executive Offices of the District?
3 A. I don't know that either.
4 Q. The proposed administrative definition
5 states that, "In the segment of the transect where no
6 statistically significant difference can be detected
7 between the impacted transect sites and unimpacted
8 reference sites using the most sensitive,
9 biologically relevant, reliable measures taken over
10 the appropriate spatial and temporal scales, the 95th
11 percentile lower bound concentration of the log
12 transformed total phosphorus concentration in the
13 water column in that segment, (both reference site
14 and "impacted" sites) becomes the threshold
15 phosphorus concentration for biological imbalance."
16 Is it your understanding that a biological
17 imbalance occurs whenever there's a statistically
18 significant difference depicted between an unimpacted
19 and impacted site using the most sensitive
20 biologically relevant and reliable measures?
21 A. Let me make sure I heard the question
22 right. Is it my understanding that a biological
23 imbalance occurs only when there's a statistical
24 difference?
25 Q. Or when there is a statistical difference.
215
1 A. Well, I think biological imbalances can
2 occur, but you may not be able to prove that they're
3 occurring. You know, if you don't, for instance,
4 have the right measurement of some, you know, what
5 you think is biological imbalance and biological
6 imbalance may be occurring; you may not have
7 identified the right measurement, that's one of the
8 purposes of doing the study is to examine a number of
9 measures of biological imbalance.
10 Q. Okay. Have you determined the most
11 sensitively -- most sensitive biologically relevant
12 reliable measures that would be used in this proposed
13 implementation of this proposed study?
14 A. I'm going to thumb through this because I
15 believe we discussed a number of possible indicators
16 of biological imbalance and then narrowed the list
17 down to ones that we thought were the most easily
18 worked with and most relevant and I'm looking for
19 that. I do see in Table 1 towards the back that
20 there's a whole list of things, but I don't see the
21 list here, at least yet, of where it was narrowed
22 down. Part of what needs to be understood in this
23 discussion is that the DEP people have a great say in
24 what they consider to be the best indicators of
25 biological imbalance and that's certainly their call.
216
1 What we did -- I think it's on Page 4. We said based
2 upon the evaluation and collective knowledge, etc.,
3 etc. of all the stuff in Table 1 that I just referred
4 to --
5 Q. Uh huh.
6 A. -- we came up with a proposed list of what
7 we thought what might be the most sensitive measures
8 for defining ecological imbalance.
9 Q. And that's reflected in Table 2 on Page 4?
10 A. Table 2 on Page 4, yes.
11 Q. Just so I understand your -- make sure I
12 understand your testimony, that your current thinking
13 on the most sensitive biologically relevant reliable
14 measures would be reflected in Table 2?
15 A. That's our current thinking.
16 MR. GAINES: Can I ask the doctor to point
17 out where Table 1 is is in this document?
18 MR. PERKO: Yes.
19 THE WITNESS: Table 1 is in the back of the
20 document. Let me take a look at it to see if
21 it's under the appendices. Actually, it's just
22 Table 1 in the back. I don't know why it's in
23 the back. But anyway it's in the back of the
24 document.
25 MR. GAINES: Thank you.
217
1 Sorry to interrupt.
2 THE WITNESS: That's fine.
3 BY MR. PERKO:
4 Q. I note that outgoing phosphatase activity
5 is not included in Table 2.
6 A. Uh huh.
7 Q. Is there a reason why you did not include
8 outgoing phosphatase activity in that table?
9 A. Well, first let me see if it was included
10 in Table 1. Yeah. I can see it there in Table 1.
11 We went through a process to get to Table 2 and those
12 are listed as A through G. I won't read them all,
13 but A through G on Page 4. And it was the thinking
14 of the staff in my division who have, you know, say
15 far greater hands on, you know, capability with these
16 kind of biological indicators, that the list in Table
17 2 would be the best to use. That's our thinking at
18 this time. It is not to say that the outflowing
19 phosphatase activity cannot indicate imbalance. It's
20 just that we feel that what we listed in Table 2 was
21 probably the best that we could manage, so I think
22 that's why we listed it. If you just look through
23 Table 1 at phosphatase activity, its utility, its
24 biological relevance is high; diagnostic power we
25 call medium high; sensitivity is high; signal to
218
1 noise ratio is medium; response time of effect is
2 within hours; time for method to resolve changes is
3 in days; predictive time scale is S-S and I don't
4 have a definition for you right now, so let me take a
5 look and see if that's defined anywhere. So I
6 wouldn't rule it out, you know. It's just that given
7 what we can do, in our thinking at the time, that we
8 would go with what's in Table 2.
9 Q. You mentioned individuals on your staff
10 that have experience in working with these various
11 indicators.
12 A. Right.
13 Q. Who would those include?
14 A. In terms of the indicators in Table 2?
15 Q. Yes.
16 A. The people that have been listed as authors
17 here above my name are -- would be the ones that
18 would have the most experience. Now, let me tell you
19 that also if we're going to look at macrophyte
20 species composition changes, then clearly that
21 requires some kind of aerial photography or could
22 require aerial photography and you would, you know,
23 look to somebody like Ken Rutchey for that kind of
24 information.
25 Q. Referring you back to the definition in
219
1 Section 4.2 on Page 8 I believe you stated that there
2 may be instances wherein a biological imbalance
3 occurs but you couldn't prove it, is that correct?
4 A. You can't prove what you don't measure.
5 That's my point there. If you haven't measured it,
6 it doesn't mean it didn't happen.
7 Q. Okay. Does a statistically significant
8 difference prove an imbalance?
9 A. What it says is that there are differences
10 between this aspect of the community in this place
11 and the same aspect of the community in another
12 place.
13 Q. Okay. Does such a difference mean that an
14 imbalance has occurred in the impacted site?
15 A. If what is in the, quote, impacted site is
16 not natural, what the natural Everglades were at some
17 point, then it would indicate that a change had
18 occurred.
19 Q. Do I understand your prior testimony to
20 mean that you don't have a specific date in mind in
21 determining what is natural?
22 A. Well, at one point Florida was under water.
23 I mean, you know, I -- I'm not really even sure how
24 to answer that question. I mean there are, you
25 know -- there's some documentation of what was
220
1 natural. There's those maps I referred to in the
2 South Florida Study yesterday that indicated what
3 occurred at various times back to, I believe, the
4 early 1900s. That is a history record. There are, I
5 believe, cores that were taken that have examined the
6 peat content of Everglades peat and that there's been
7 some determination as to what made that peat, what it
8 is and there -- I'm just reaching here because I
9 can't exactly remember the reference, but I will try
10 to come up with a name here for you in just a second.
11 The peats were supposed to have been developed as a
12 function of sawgrass communities. There is -- yes,
13 here it is. There is a person named Arthur Cohen, I
14 believe, University of South Carolina, who has
15 published extensively on the peat composition, the
16 plants that, you know, went into making up that peat
17 and I can't recite, you know, his findings for you.
18 Q. Do you recall if he authored a paper or
19 papers with Spackman?
20 A. With who?
21 Q. Spackman.
22 A. Spackman is not a name I'm familiar with.
23 Q. The proposed administrative definition, as
24 I read it, uses a comparison of impacted versus
25 unimpacted sites, is that correct? Or would use
221
1 comparisons?
2 A. Would use, yes.
3 Q. Is it assumed that the unimpacted site
4 contains natural vegetation?
5 A. Well, again, it goes back to this
6 discussion about what's natural vegetation. I think
7 that the thinking at the time was that unimpacted
8 site reflects on what is considered to be certainly
9 more natural than the impacted site. These
10 unimpacted sites have, you know, periphyton mats and
11 sawgrass communities which are typically considered
12 historical Everglades communities.
13 Q. The proposed administrative definition
14 refers to the 95th percentile lower bound
15 concentration of the log transformed total phosphorus
16 concentration in the water column in that segment of
17 the transect where no statistically significant
18 difference can be detected.
19 A. Uh huh.
20 Q. Is there an aerial component of that
21 segment?
22 A. An aerial component? I'm not sure I
23 understand.
24 Q. How do you define segment? Is it any point
25 along the transect or is there --
222
1 A. Oh, I understand. I understand. Well,
2 there will be sampling locations along the transect
3 and, you know, I can't tell you exactly what the area
4 of the sampling will be. For instance, it's typical
5 to have a meter square or two meter square quadrat in
6 which you sample so, obviously, there are some area
7 being considered.
8 Q. But that has not been decided at this
9 point?
10 A. I don't recall that they have gotten that
11 specific yet. That's -- as I said earlier, this is a
12 draft proposed approach and I think that they are
13 trying to work out what would make scientific sense.
14 Now, from the DEP approach, you know, they would be
15 putting out these hester dendy's which are obviously
16 at a point, but then, they are, you know, circular
17 and so there is some area associated with them. The
18 same thing goes to the periphytometers that they
19 would be working with, so even though it's, you know,
20 at a point, there's still some area.
21 Q. There's another reference in here to using
22 most sensitive biologically relevant reliable
23 measures taken over the appropriate spatial and
24 temporal scales.
25 A. Uh huh.
223
1 Q. What is meant by spatial scales?
2 A. Well, let's imagine in the idealized world,
3 that we have a gradient that goes from totally
4 impacted to no impact at all --
5 Q. Uh huh.
6 A. -- and if you were to sample along that
7 line you would -- I'm sorry. If you were to sample
8 at the beginning of that transect and at the end of
9 the transect, then you would have -- you wouldn't
10 have as much insight as to where you started to see
11 changes from what is considered impacted to
12 nonimpacted. So, again, in the idealized
13 hypothetical world, let's presume that half way down
14 that transect we start seeing a change from what's
15 considered impacted to what's considered nonimpacted.
16 That can give you a sense of the number, this
17 numerical standard at which imbalance begins to
18 occur. I'm not saying that's how you would identify,
19 but that gives you the sense that this is the place
20 where maybe things are starting to change. So the
21 spatial scale aspect is you would want to, you know,
22 take a number of points down that gradient in order
23 to get the best idea of when things actually shifted
24 to imbalanced and just to -- and just say to do one
25 at the top and one at bottom would not be sufficient
224
1 to do that. That's one aspect of the spatial. There
2 also is the aspect of the geographic allocation in
3 the spatial extent. Is what you do in Conservation
4 Area 1 applicable to 2, applicable to 3, applicable
5 to the Park?
6 Q. Okay.
7 A. So those are the two components of spatial
8 extent.
9 Q. What about temporal scales? What is meant
10 by that?
11 A. Temporal simply denotes time.
12 Q. Sorry. Didn't mean to interrupt.
13 A. Well, time scales such as: Do you see
14 differences at all times of the year? Do you see
15 differences only during the wet season? Do you see
16 differences only during the dry season? So that
17 speaks to the temporal scale.
18 Q. Okay. So it's basically a seasonal
19 component or would it also include a diel component?
20 A. It could include a diel component, yes.
21 Q. In the second paragraph of the proposed
22 administrative definition it states, "In those
23 circumstances where the sediment is the limiting
24 medium for the limiting nutrient, the threshold
25 phosphorus concentration in the sediment will be
225
1 translated into an equivalent concentration in the
2 water column using agreed upon methods."
3 Under what circumstances would the sediment
4 be the limiting medium for the limiting nutrient?
5 A. Okay. Let me try to somewhat rephrase your
6 question. Not that I'm trying to change your intent,
7 okay?
8 There are water quality criteria.
9 Everybody knows about those. Recently there has been
10 recognition of the need for sediment quality
11 criteria. The EPA has done this sort of thing and I
12 believe that they either have come out with or are
13 about to come out with sediment quality criteria for
14 whatever circumstances. That's the intent of what
15 we're saying here. You know, if we believe that the
16 sediments are of a quality that lead to imbalance, is
17 there a way to measure something in the water that
18 reflects what's going on in the sediments? In other
19 words, is it an easier way in a sampling sense to go
20 out and sample water and analyze it than it is to go
21 out and do sediments which require just a little bit
22 more work?
23 Q. Okay. Was this sentence drafted with
24 specific indicators in mind?
25 A. No. It's pretty open, I would say,
226
1 although -- well, let me take that back. It does say
2 the threshold phosphorus concentration in the
3 sediment will be translated, so I think the intent
4 here -- and I must say, you know -- well, the intent
5 here is that if you have growth of, say, Typha, the
6 question that's being begged is: Where is it getting
7 its phosphorus from? And I think that's the intent.
8 You know -- I wasn't -- I can't remember, you know,
9 working with the people on the intent here, so I'm
10 just kind of trying to speculate, although perhaps I
11 shouldn't.
12 Q. I don't want you to speculate, Doctor, but
13 I'm just trying to understand what's meant in the
14 sentence.
15 A. Let me give you a more concrete example.
16 You know, this is drawing on toxic substances. The
17 EPA is trying to put together a sediment quality
18 criteria for toxic substances in sediments and it's
19 known that given a certain situation that you know so
20 much level of mercury or PCPs or whatever toxic
21 substance you have will be harmful to the benthic
22 vertebrate population, so that's an example of where
23 some of this thinking can go because imbalance is not
24 only indicated in plants, it could also be in the
25 animal populations.
227
1 Q. Okay. But, for example, as part of this
2 study, you may attempt to develop a threshold
3 sediments concentration that causes a shift from one
4 macrophyte community to another?
5 A. That's possible.
6 Q. Okay. Does the District currently have the
7 ability to translate threshold sediment
8 concentrations into equivalent water column
9 concentrations?
10 A. To translate?
11 Q. As contemplated in the second sentence.
12 A. Well, I don't think the work has been done
13 yet. I mean I don't want to gloss over what was done
14 and discussed yesterday about relating water column
15 concentrations to sediment deposition rates. That
16 was done yesterday in our previous discussions about
17 settling rates. And, clearly, if you will, the word
18 translation may apply there. You talked about
19 translating. I would say maybe, you know, I would
20 maybe choose a different word, but --
21 Q. Well I chose the word, "translate" because
22 it appears in the second sentence of the proposed
23 definition.
24 A. Uh huh.
25 Q. That's what I'm referring to.
228
1 A. Okay. So, anyway -- okay. You know, then,
2 I would say that there is a relationship that we
3 developed, as you know, with those regression
4 equations that we talked about yesterday between
5 what's in the water and what's been deposited in the
6 sediment which is an accumulation rate. What I think
7 is envisioned here is not necessarily related to the
8 accumulation rate. It may be just a quantity. But,
9 again, I need to preface all of this, in that this is
10 a draft. This is an approach. This is not
11 necessarily the final approach. These are the best
12 thoughts that we have at the time that this was
13 written.
14 Q. Is there a component of the study that will
15 help -- will provide information relevant to the
16 translation of threshold sediment concentrations to
17 equivalent water column concentrations?
18 A. Well, I think we have to see what the data
19 tell us. I mean if we go along and measure sediment
20 nutrient content and water nutrient content as
21 proposed, we would certainly look for those
22 relationships, but the study has not been done.
23 Q. I was just asking if you think that
24 information will be gleaned from this study that will
25 be relevant to that translation. What I understood
229
1 you to say is the water quality sampling, P sediments
2 sampling may be used for that purpose.
3 A. It's hard to speculate on what is going to
4 be gleaned when we haven't done it yet.
5 Q. You mentioned yesterday that as part of the
6 transect work that's currently ongoing, DEP has been
7 installing biological samplers at various times.
8 Hester dendy's, for example. What individuals at DEP
9 are involved in that sampling program?
10 A. Okay. Give me a minute to think. Frank
11 Nearhoof is the contact point, but the actual people
12 at DEP that are doing the periphytometer and hester
13 dendy work are not Frank. I can picture the faces,
14 but I cannot remember those names for you.
15 Q. Okay. You also mentioned that you first --
16 I think your phrase was ended up with data last
17 month, is that correct, as a result of that transect
18 work?
19 A. I'd have to go back and read the record to
20 see what I said, but it was recent. Recently, you
21 know, within the last month.
22 Q. What data, to your knowledge, has been --
23 has resulted from the transect work that's being
24 conducted today?
25 A. Uh huh. There has been some water quality
230
1 data in the water column. I believe there have been
2 some periphyton samples taken. I don't know if they
3 have been analyzed yet. I believe that there has
4 been some work on light penetration through
5 vegetative canopies and some work on metabolism of
6 periphyton and at the moment that's what I recall.
7 Q. Okay. Have you reviewed the water quality
8 data?
9 A. No, I haven't had a chance to look at it.
10 Q. Do you know who would be the custodian of
11 that data at the District?
12 A. Well, that would be in our water quality
13 data base, which is under the Water Chemistry
14 Division.
15 Q. Leslie Wedderburn's division?
16 A. Well, Leslie Wedderburn is the department
17 director. Maxine Cheeseman is the director of that
18 division. That data may or may not be in the data
19 base yet because there's a series of checks that have
20 to be done before it's actually permanently entered.
21 Q. Is it your understanding that the data
22 that's resulted from the transect work so far is from
23 one sampling event or more than one sampling event?
24 A. They have been out --
25 Q. I'm just asking -- speaking about the water
231
1 quality data at this point.
2 A. Just the water quality?
3 Q. Yeah.
4 A. My understanding is they have just done
5 water quality data one time. Things may have
6 happened this week, that, you know, I'm not aware of.
7 But right now I just know of one.
8 Q. You mentioned that some work has been done
9 to determine light penetration through vegetation
10 canopies.
11 A. Yes.
12 Q. How is that work being conducted?
13 A. Can you define what you mean by how?
14 Q. Is it along several stations along the
15 transect?
16 A. That's my understanding, that that is along
17 several stations.
18 Q. Who's responsible for that work?
19 A. That work is being conducted by Jim
20 Grimshaw.
21 Q. You also mentioned some testing of the
22 metabolism of periphyton.
23 A. Uh huh.
24 Q. What do you mean by that?
25 A. The production and consumption of oxygen.
232
1 Q. By the periphyton themselves?
2 A. By the periphyton community, which may
3 include associated bacteria and --
4 Q. How is that sampled, do you know?
5 A. How is it sampled? What I know is that the
6 periphyton is in some manner, which I can't describe,
7 placed in a BOD bottle and incubated under various
8 conditions in the field.
9 Q. Who's in charge of that work?
10 A. That would be Paul McCormick.
11 Q. Who's in charge of the water quality
12 sampling?
13 A. Water quality sampling itself, I believe
14 that that is -- samples are being collected by Pete
15 Rawlik.
16 Q. Is the sampling that's been collected to
17 date part of Phase I as outlined in Exhibit 13?
18 A. Yes.
19 Q. Okay. So Phase I has commenced?
20 A. Yes.
21 Q. When do you anticipate that Phase 2 --
22 well, let me refer you to the back of Exhibit 13. I
23 believe there's a calendar.
24 A. Uh huh.
25 Q. And I assume that this calendar, that --
233
1 the year isn't provided, but I assume that July on
2 the first page of the calendar, which appears just
3 after Table 3, page after Table 3 --
4 A. Uh huh.
5 Q. -- July refers to July 1993, is that
6 correct?
7 A. That's correct.
8 Q. Okay.
9 A. So your question was when does Phase 2
10 start?
11 Q. Yes.
12 A. I think we can figure that out by looking
13 at this. That would seem to be starting about
14 October of '94.
15 Q. Okay. To your knowledge is the District
16 still on the schedule reflected in Exhibit 13 or has
17 it been adjusted?
18 A. This is for phase --
19 Q. Well, for the entire thing.
20 A. For the entire thing, I'm going to have to
21 look through all of these here. I think there's some
22 delays on Phase I A, analyze historical 2A data. I
23 would think that we're behind when you get down to
24 item B in Phase I, analyzing data and writing draft
25 report. That would be T8 and T9. Those indicate
234
1 February and March of '94 and I just don't think
2 we're at that point. There have been some delays in
3 purchasing equipment that have been somewhat
4 extensive, so I think that that's probably three or
5 four months behind. Then any delay I've referred to
6 now would push back other studies as well.
7 Q. Have any draft reports been prepared in
8 connection with Phase I A or B to date?
9 A. Okay.
10 Q. I note that T5 under Phase I A refers to a
11 draft report December of 1993.
12 A. Yes.
13 Q. Has that report been --
14 A. Let me tell you what has happened. In
15 analyzing historical 2A data there is a publication
16 by Urban and two other authors on the Urban transect
17 in Conservation Area 2A that has been -- if I called
18 it a report I meant a manuscript -- that has been
19 accepted for publication, I believe, in the journal
20 called Aquatic Botany. I don't know if that's out
21 yet.
22 Q. Okay.
23 A. What I have seen are galley proofs and I
24 assume, since it's in galley form, that it has been
25 accepted. You wouldn't see them otherwise. And
235
1 there also is work by Koch and Reddy on the sediments
2 in 2A which has already been published and the
3 reference for that is one of the soil science
4 journals, but I'm not sure which one, so those types
5 of reports are already out. That's not to say that
6 there could be further work done with the existing
7 historical data.
8 Q. Does T5 under Phase I A refer to a new
9 report, a new draft report that's contemplated?
10 A. In my thinking, it's possible that there
11 could be another draft report which looks at the data
12 provided by Urban and relates it to vegetation
13 changes along that transect and perhaps says
14 something to the effect of here is where imbalance
15 occurs or here's where no imbalance occurs, but I
16 don't know of any report that's in draft right now
17 that discusses that.
18 Q. You mentioned a publication by Urban or
19 manuscript by Urban and two others. Are the other
20 authors Nicholas Aumen and Steve Davis?
21 A. Right. I think it was Urban, Davis and
22 Aumen.
23 Q. The title begins with the word,
24 "fluctuations"?
25 A. I don't recall that.
236
1 Q. Under Phase I Part B item T9 refers to
2 another draft report?
3 A. Uh huh.
4 Q. This would be under quantifying baseline
5 characteristics of WCA-2A?
6 A. Yes.
7 Q. And under the schedule that report would
8 come out February or March of this year?
9 A. Like I said, though, that --
10 Q. That has been delayed?
11 A. -- has been pushed back due to delays in
12 getting equipment.
13 Q. So do I understand you correctly to say
14 that that has not been prepared in draft form to
15 date?
16 A. I have not seen any draft report done on
17 this data collection number.
18 Q. Okay. Dr. Fontaine, on Page 8 under
19 Subheading 5.1, Phase I the second sentence refers to
20 non-parallel north/south transects as shown in Figure
21 5. Unfortunately, my copy and yours as well of this
22 document doesn't have a Figure 5, but I assume it's --
23 A. I would assume it's this one.
24 Q. The last page?
25 A. Yes. The map, right. You can barely make
237
1 out the transects.
2 Q. Are those same transects indicated on the
3 second to last page?
4 A. Those appear to be the same. The map sizes
5 are different, so I would assume that they scale
6 correctly, but they look proportionately to be the
7 same.
8 Q. Okay. I see -- on the second to last page
9 I see four transects, one labeled G1 through 5, one
10 labeled F1 through 5, another labeled E1 through 5
11 and U1 through 5.
12 A. Uh huh, yes.
13 Q. Are all four of those transects being
14 sampled as part of the current work under Phase I?
15 A. No.
16 Q. Okay. Which transects have been sampled to
17 date?
18 A. I believe we're still on the E transect.
19 Q. That's immediately south of the S-10C
20 structures?
21 A. Right.
22 Q. So did I understand you correctly to say
23 that you have not sampled along any of the other
24 transects as part of this Phase I?
25 A. Well, I didn't say that. It's just my
238
1 belief that we're on transect E.
2 Q. Okay.
3 A. And, you know, we may, in fact, have gone
4 over and looked at or taken some samples along the
5 other transects.
6 Q. Are you aware of a map or list indicating
7 the lat long coordinates of these or GPS coordinates
8 of these stations along the transects?
9 A. Am I aware of a map with this?
10 Q. Or a list.
11 A. Or a list. I personally have not seen a
12 map or a list indicating GPS or lat long coordinates.
13 Q. Do you know if one exists?
14 A. It's common practice to locate stations
15 using the best available technology which you believe
16 is GPS.
17 Q. So I take it, then -- well, do you know if
18 one exists?
19 A. I have not ever had one in my hand, okay?
20 Are we all working from the same document?
21 MR. PERKO: For the record, Mr. Gaines
22 brought his own copy of this document and it
23 appears to have a different map of the transect.
24 Perhaps we'll go through that.
25 Why don't we take a quick break?
239
1 MR. GAINES: Before we take a break let me
2 ask the witness or Dan. Do you have the Holey
3 Land draft memo we talked about yesterday?
4 MR. McGRATH: The District was closed
5 yesterday so there's no way.
6 MR. GAINES: Could you possibly call over
7 there and have it faxed so we could use it
8 during this deposition? I would request that
9 because I would like to make it an exhibit and
10 question on it later.
11 MR. McGRATH: I will make a call over there
12 and get that or have them fax it.
13 (Thereupon, a recess was taken.)
14 MR. PERKO: Back on the record.
15 BY MR. PERKO:
16 Q. Dr. Fontaine, if I could direct your
17 attention back to Page 8 of Exhibit 13, the proposed
18 administrative definition. Did you review any
19 documents when developing this definition?
20 A. The italicized work there?
21 Q. Yes.
22 A. Did I review any documents?
23 MR. McGRATH: Let me just object to the
24 form or at least as far as some vagueness
25 because you've asked some questions in the past
240
1 using the pronoun or stating "you" as in
2 Mr. Fontaine specifically and I don't think
3 we've established exactly what Mr. Fontaine's
4 role was or if "you" as in the general sense,
5 you being the people who authored the paper.
6 BY MR. PERKO:
7 Q. I'm speaking of you personally,
8 Dr. Fontaine. Did you review any documents as part
9 of developing the proposed definition that appears on
10 Page 8 of Exhibit 13?
11 A. No.
12 Q. Do you know if any of the other coauthors
13 of this report reviewed documents in developing the
14 proposed definition on Page 8?
15 A. I'm not aware of anybody looking at other
16 documents.
17 Q. So you're not aware if they reviewed any
18 DEP guidance materials or something like that?
19 A. Well, it's possible, but I'm not aware of
20 it.
21 Q. Who actually drafted the proposed
22 definition?
23 A. I believe the person that drafted this
24 definition was Larry Fink.
25 Q. Did you have any input into the definition?
241
1 Did you suggest any language?
2 A. I don't recall having any input to it.
3 It's possible that I may have said, you know, this
4 wording is better than this wording, but I don't
5 think I had any significant input to it.
6 Q. Dr. Fontaine, when is it or when do you
7 anticipate that this study outlined in Exhibit 13
8 will result in a numeric interpretation of the
9 narrative phosphorus or narrative nutrient criteria?
10 A. I'm going to give you a range of dates
11 because of the realities --
12 Q. That's fine.
13 A. -- of equipment ordering and things like
14 that. I would anticipate that we'll have some
15 information for Conservation Area 2A only within a
16 two to four year period from today.
17 Q. Okay. What about Water Conservation Area
18 3?
19 A. Well, the way that we were setting these
20 studies up, one staggered after the other, so that
21 would be somewhere after the two to four year period
22 for Conservation Area 2A unless, you know, budgetary
23 resources were made available to conduct all of these
24 at the same time.
25 Q. Is the same true for Water Conservation
242
1 Area 1 and Everglades National Park?
2 A. Right.
3 Q. Do you anticipate that the studies in Water
4 Conservation Area 1, Water Conservation Area 3 and
5 Everglades National Park would be conducted at the
6 same time or is that dependent upon resources
7 available?
8 A. Well, it's really a resource question. The
9 way we laid it out, our work in 2 would -- our work
10 in 3 would then follow 2 and it's not clear what the
11 timing would be in the Park or in the Refuge, were
12 they to do this type of study. I would imagine that,
13 you know, if they decided to do this kind of study,
14 they would do it on their own budget and own time
15 line, so --
16 Q. They meaning the federal government?
17 A. Yes.
18 Q. Are you aware of any studies currently
19 underway or proposed by the federal government to
20 develop a nutrient threshold for WCA-1?
21 A. For WCA-1? The only thing that I recall is
22 that during some of the TOC meetings there was
23 discussion of some work to be conducted in Area 1,
24 but I haven't seen a plan to do that.
25 Q. What about Everglades National Park?
243
1 A. There is a -- what is labeled as a
2 pre-proposal to do work on the threshold
3 determinations and I'm trying to remember if they're
4 actually setting up the sites in the Park or
5 elsewhere, but I think it is in the Park, so, you
6 know, I've seen a pre-proposal.
7 Q. And who developed that pre-proposal?
8 A. The main author was Ron Jones.
9 Q. Did you review that proposal?
10 A. Yes, I did.
11 Q. Did you provide any comments on the
12 proposal?
13 A. Yes, I did.
14 Q. Did you provide written comments?
15 A. Seems like I did. Let me think about this
16 a second. Actually, in the form of a memo, no, I
17 didn't, that I can recall. What I did do was prepare
18 a briefing, which is not a memo, so to speak, that
19 spoke to the entire issue of threshold determination.
20 Q. Was the briefing in written form?
21 A. Yes.
22 Q. Did it include specific comments regarding
23 Dr. Jones' proposal?
24 A. Yes, it did.
25 Q. Do you recall the substance of those
244
1 comments?
2 A. Well, there's a lot of ground to cover.
3 The general substance of the comments was that the
4 District's approach to determining threshold
5 concentrations, the direction that we chose is
6 different from the direction that Dr. Jones proposed.
7 Q. How was it different?
8 A. Dr. Jones proposed dosing experiments in
9 channels that would be located in the natural
10 environment.
11 Q. Did you provide any comments regarding the
12 usefulness of the channels proposed -- dosing
13 channels proposed by Dr. Jones?
14 A. In the briefing I had a number of diagrams
15 with hopefully some good explanatory power that
16 suggested that information could come from a variety
17 of studies and the approaches of the District as
18 planned, in our mind, in our opinions, provided, if
19 you will, a better bang for the buck. We thought
20 that -- there is a scale from, say, microcosm
21 experiments up to large field transect studies and
22 that there are studies that can fall anywhere in
23 between the small microcosm studies all the way up to
24 a field grading study and there is a range of realism
25 and replication power that goes with studies along
245
1 that gradient of microcosms to the field studies and
2 we have chosen not to do the dosing channels
3 Dr. Jones has proposed.
4 Q. Why did you choose not to do the dosing
5 channels that Dr. Jones proposed?
6 A. Well, there's a number of reasons, one of
7 which, as I already stated, I think we get a better
8 bang for the buck and we feel that the field studies
9 conducted are in the natural environment and that,
10 obviously, gives a large amount of realism to your
11 results. On the other end of the spectrum, which is
12 where we're focusing our work with what I'll call
13 microcosm and that can be interpreted by many people
14 in different ways, but basically we're talking about
15 enclosures of the natural system in an area that may
16 be, you know, a meter or so in diameter or say one
17 meter by one meter quadrat. The details are worked
18 out, but at that level we can perform dosing
19 experiments but we also have a better ability to
20 replicate our experiments which we feel gives a
21 better statistical power.
22 Q. Okay. Let me back up just so I understand
23 your testimony.
24 You said that the field studies conducted
25 in the natural environment give a large amount of
246
1 realism --
2 A. Yes.
3 Q. -- correct?
4 A. Yes.
5 Q. When you're talking about field studies,
6 you mean a transect study?
7 A. Talking exactly about what is in this
8 document 13.
9 Q. Okay. Now, the microcosms studies, would
10 those be conducted in the laboratory?
11 A. Well, what I was referring to a minute ago
12 was actually microcosms in the field.
13 Q. In the field, okay.
14 A. But we do have planned some greenhouse
15 studies and that's kind of like a laboratory.
16 Q. Did your briefing that you mentioned
17 provide any comments on the studies being conducted
18 by the Duke Wetland Center?
19 A. It didn't comment on any reports that the
20 Duke Wetland Center has conducted or produced. It
21 merely said something to the effect of it would be
22 interesting to find out what the results are, given
23 that they are conducting a channel study in a natural
24 environment.
25 Q. Are you familiar with the experimental
247
1 design of the Duke Wetland Center studies?
2 A. Vaguely. You know, I know they're out
3 there in the field and there's, you know, annual
4 reports that go into that in detail, but I couldn't
5 recite the exact treatments and replications that
6 they are running.
7 Q. Do you have enough knowledge to base an
8 opinion regarding the usefulness of the studies?
9 A. I would rather reserve comments on that one
10 until I see the final report which I understand was
11 due out in October or -- no. I'm sorry. There's a
12 year left on that contract. I have not seen the
13 October '93 report, but I would like to see the final
14 results before commenting on it.
15 Q. Who did you provide this briefing paper to?
16 A. This briefing went to Nat Reed who is a
17 Governing Board member.
18 Q. Did you retain a copy for the files?
19 A. Yes.
20 Q. Do you still have a copy of them?
21 A. Yes.
22 Q. Could you provide us a copy?
23 A. Yes, I can do that.
24 MR. PERKO: Counsel, I would request a copy
25 of that briefing paper.
248
1 BY MR. PERKO:
2 Q. Dr. Fontaine, are you familiar with the
3 formula in what I'll refer to as the EAA Rule or
4 Chapter 40E-63 Florida Administrative Rule for
5 determining compliance with the 25 percent reduction
6 requirement anticipated for the Best Management
7 Practices?
8 A. Yes.
9 Q. I believe you stated yesterday that
10 Dr. Shih actually authored that compliance formula,
11 is that correct?
12 A. That's correct.
13 Q. Are you aware of any plans by the District
14 to modify that compliance formula?
15 A. Well, I don't think I can speak for the
16 District. I don't know of any plans to modify it.
17 Q. Okay. Have you heard any discussions
18 regarding the need to modify the compliance formula?
19 A. No.
20 Q. Are you aware of any investigation of the
21 sensitivity of the compliance formula to values of
22 the independent variables?
23 A. Say that again. The sensitivity of --
24 Q. Sensitivity of the formula to values of the
25 independent variables.
249
1 MR. FITZGERALD: By formula are you still
2 referring to the compliance formula?
3 MR. PERKO: Yes.
4 THE WITNESS: During the formation of that
5 equation, during the rule making there were
6 error bars associated with that which speak to
7 the uncertainty of the regression and then --
8 well, let me try to answer your question. I
9 don't know of anybody who has been plugging in
10 values of rainfall and looking at the output of
11 that equation recently. During rule making I
12 know there were a number of people working with
13 this formula and others looking at the response,
14 the sensitivity of the model --
15 MR. PERKO: Okay.
16 THE WITNESS: -- to variation in the
17 independent variables.
18 BY MR. PERKO:
19 Q. What are the independent variables?
20 A. Well, the equation basically predicts
21 phosphorus runoff from the EAA. As a function of
22 rainfall, the way it -- the rainfall is expressed is
23 in three parts. One is the actual rainfall over the
24 EAA and I believe that's by Thiessen,
25 T-h-i-e-s-s-e-n, a weighting program for rainfall.
250
1 Okay. So there's three components. One is the
2 amount of rainfall and I believe that was expressed
3 in inches and then there was an indication of the
4 variance in the rainfall and the skewness and if I
5 could get that document in front of me --
6 Q. I believe it was --
7 A. -- to be sure to check what I just said.
8 MR. McGRATH: 12.
9 MR. FITZGERALD: Do you have those copies
10 of the exhibits?
11 THE WITNESS: Shall I continue?
12 BY MR. PERKO:
13 Q. Whenever you're ready.
14 A. Okay. So it's -- the three variables are
15 rainfall in inches, then the natural logarithm of the
16 coefficients of variation calculated from 12 monthly
17 rainfall totals and then the final independent
18 variable is the skewness coefficients calculated from
19 12 monthly rainfall totals.
20 Q. So, as I understand it your testimony --
21 correct me if I'm wrong -- I'm not trying to put
22 words in your mouth --
23 A. Go ahead.
24 Q. -- but you're not aware of any analyses
25 since the rule making development of the sensitivity
251
1 formula to these three independent variables?
2 A. Using this equation?
3 Q. Right.
4 A. Not developing some other equation?
5 Q. Right.
6 A. Okay. I don't remember the timing, but I
7 remember there was a person named McClave who looked
8 at this formula, but I believe that was during the
9 rule making period, so since rule making, I don't
10 have any personal knowledge of anybody, including
11 myself, playing with this formula.
12 Q. Okay. You asked me whether I was referring
13 to some other equation. Are you aware of any
14 development of some other equation?
15 A. That's why I was referring to McClave --
16 Q. Okay.
17 A. -- because I think McClave proposed
18 alternate equations or was thinking about them, but
19 maybe didn't produce them. I can't remember.
20 Q. Are you aware of any analyses since the
21 rule making development of the sensitivity of the
22 compliance formula to the water year definition?
23 A. Sensitivity to the water year definition.
24 Help me understand exactly what you mean, because
25 water year definition is in October to September.
252
1 Q. Right.
2 A. So --
3 Q. To determine how sensitive the model is if
4 the definition of the water year -- if you were to
5 use a different water year definition.
6 A. In other words, this one goes from was it
7 May 1st to April 30th, I believe. I may be off a
8 month. May 1st to April 30th, correct. During the
9 rule making process there was a look at different
10 ways of looking at the annual period, but since the
11 rule making process, I don't believe that there has
12 been anything.
13 Q. Okay. Are you aware of any attempt since
14 the rule making development to develop a compliance
15 formula using a different -- or a different
16 compliance formula, period.
17 A. No.
18 Q. Has the District been applying the
19 compliance formula to determine whether the EAA is in
20 compliance with the 25 percent reduction requirement
21 already?
22 A. Well, compliance does not actually start --
23 Q. I understand.
24 A. -- for some time into the future, but the
25 District puts out quarterly reports that indicates
253
1 whether the EAA has been or would have been in
2 compliance if compliance was being judged and it's
3 done that for the past approximately one year.
4 Q. Who's in charge of doing those analyses?
5 A. Those analyses are run in the Water
6 Chemistry Division. The person who actually does the
7 calculation I'm not sure.
8 Q. Is the Water Chemistry Division Maxine
9 Cheeseman?
10 A. Yes. I'm sorry. It's Water Quality
11 Division.
12 Q. Do you recall the results of the analyses
13 to determine whether the EAA was in compliance if a
14 compliance was required?
15 A. I recall that they put out some graphs and
16 at one point it looked like the EAA was meeting the
17 target or was below the target for -- on a monthly
18 basis now. I -- I do not remember what it was on the
19 date that compliance would have been judged, okay,
20 but on a monthly basis it looked like it was running
21 at a reduction that was below the target more
22 recently. However, they seem to have, I recall from
23 the last graph I saw, been above the target, but
24 again I don't know where -- which month those were
25 falling on.
254
1 Q. Okay. When you say below the target, you
2 mean a reduction of more than 25 percent, is that
3 correct?
4 A. Correct.
5 Q. Okay. Are you aware of any analyses
6 conducted by the District to determine the cause of
7 this apparent shift from being below the 25 percent
8 requirement to above?
9 A. I'm not aware of anybody conducting any
10 analysis to figure out the causation.
11 Q. Do you know if the District calculates
12 subasin loads for the EAA?
13 A. Give me the definition of subasin.
14 Q. For example, S-5, S-6, S-7, S-8.
15 A. Yes, they do calculate those.
16 Q. Okay. Do you know --
17 A. They do or they can.
18 Q. They can. Okay.
19 Is there a program that they use to do
20 that?
21 A. If you recall the program that we talked
22 about --
23 Q. EAA TPLD Program?
24 A. -- assuming that I'm remembering this is
25 the correct program that's being used, in order to
255
1 get the total EAA outflow that's used in the rule,
2 they would have to calculate what comes off each of
3 the major structures, so it's got to be part of that
4 program.
5 Q. Okay. So it's your understanding that the
6 subasin loads are used to calculate the total EAA
7 load?
8 A. Yes.
9 Q. And that's still how the District
10 calculates total EAA loads to your knowledge?
11 A. To my knowledge.
12 Q. Who at the District would be most
13 knowledgeable about how loads are calculated?
14 A. For these particular structures?
15 Q. Yes.
16 A. That would be George Shih.
17 Q. Dr. Fontaine, do you currently have an
18 opinion as to whether the STA acreage proposed in the
19 current SWIM Plan will achieve an outflow phosphorus
20 concentration of 50 ppb on a long term average basis?
21 A. Well, all the modeling work that went into
22 the design of the STAs was developed with the target
23 of 50 parts per billion in mind so, you know, based
24 on that work, I would say that on a long term average
25 we will be hitting 50 ppb.
256
1 Q. How long term of an average?
2 A. I haven't run any calculations to help me
3 even answer that question.
4 Q. Could you run calculations to answer that
5 question?
6 A. Given the advancement that's taken place in
7 the models to design the STAs, I would recommend that
8 somebody else run those calculations.
9 Q. But calculations could be developed to
10 answer that?
11 A. I think calculations could be developed to
12 give us an insight into that. The assumptions behind
13 those calculations would have to be laid out very
14 clearly such as all bets may be off if a hurricane
15 hits.
16 Q. Okay. Do any other assumptions -- critical
17 assumptions come to mind?
18 A. Well, there's always unforeseen things. I
19 mean there's -- which, you know, I don't have a
20 crystal ball so I can't look into it. One of the
21 levees could break. You know, who knows? But, you
22 know, given the state of the system as it is now, and
23 given what, you know, obviously a multi-party
24 agreement would have to be reached on what represents
25 future inputs into the STAs and future variability of
257
1 those inputs, it would seem possible to run that
2 calculation.
3 Q. You mentioned that you would suggest that
4 the people responsible for the advancements -- and I
5 don't want to put words in your mouth -- you would
6 propose that they run the calculations. Who are
7 those people?
8 A. Well, for the District there is a firm
9 called Burns & McDonnell who has the responsibility
10 for the STA design models and on the federal
11 government side Bill Walker would be the likely
12 candidate.
13 Q. What about Bob Kadlec?
14 A. Well, it's really the call of the feds.
15 I'm telling you who I think would run them based on
16 previous work that I have seen.
17 Q. Why is it the call of the feds?
18 A. Well, Bill Walker is their consultant and
19 so is Bob Kadlec.
20 Q. But it's the District SWIM Plan.
21 A. I'm just saying -- I gave you the
22 representative from the District and I'm just saying
23 that always with any of these kinds of calculations,
24 many people including your consultants will be
25 running these calculations and I am sure that the
258
1 federal government will be more than interested to
2 run their own to compare it with anything that we
3 would come up with.
4 Q. Do you base your opinion that the STAs
5 proposed in the SWIM Plan will achieve a long term
6 average outflow concentration of 50 ppb on anything
7 other than the analyses in Appendix F, the analyses
8 performed by Burns & McDonnell and the refinements by
9 Bill Walker?
10 A. Those are the major sources of, you know,
11 my opinion, given all the assumptions that I've gone
12 along with those sources, such as using the
13 historical period of record as an input.
14 Q. Do you have any reservations about using
15 the historical period of record as an input?
16 A. No.
17 Q. Have you reviewed the STA design models
18 developed by Burns & McDonnell?
19 A. A long time ago I reviewed -- they have
20 been through several versions and it's not been my
21 main focus to review those, however, given, you know,
22 the timing over them, I'm sure I could become
23 familiar with what they have done. They have not
24 made, in my estimation, lots of changes.
25 Q. Is it your understanding that Burns &
259
1 McDonnell is relying upon the refinements made by
2 Dr. Walker for determining the affected areas of the
3 STAs?
4 A. In the latest Burns & McDonnell report,
5 which is dated February 4, 1994, I believe what you
6 just said is actually almost a word for word
7 statement in their report that they rely on the
8 recent updates by -- I don't know if they name Bill
9 Walker, but they reference some source.
10 Q. Have you reviewed the February 4th Burns &
11 McDonnell document that you just referenced?
12 A. I have skimmed it. I have not done an
13 in-depth review of it.
14 Q. Do you recall the purpose of that
15 memorandum?
16 A. Memorandum or are you talking about the
17 Burns & McDonnell --
18 Q. Burns & McDonnell, we'll call it report.
19 A. Well, like I said, one of those reports was
20 for determining sizes of STAs.
21 Q. Okay. The February 4th report?
22 A. Well, there's more than one February 4th
23 report.
24 Q. Okay.
25 A. There's one that has to do with sizing of
260
1 STAs, which is what you were referring to.
2 Q. What do the others refer to?
3 A. One of the others had to do with
4 calculation of phosphorus loads leaving the EAA.
5 Q. It's your understanding that that's also
6 dated February 4th?
7 A. Yes.
8 Q. Are there any other Burns & McDonnell
9 reports dated February 4th?
10 A. There is one other and it has to do with --
11 I believe it has to do with the affects of BMPs on
12 water balance. That one I'm not really sure about
13 and that one I did not read.
14 Q. Any others? Any other Burns & McDonnell
15 reports dated February 4th?
16 A. Those are the only ones I'm familiar with.
17 MR. PERKO: I apologize, but I don't have
18 an extra copy.
19 (The document was marked Exb. No. 14.)
20 (Discussion held off the record.)
21 MR. PERKO: Back on the record.
22 BY MR. PERKO:
23 Q. Dr. Fontaine, if I could direct your
24 attention to what's been marked as Exhibit Number 14.
25 Is this the -- is Exhibit Number 14 the Burns &
261
1 McDonnell report on Recommended Effective Treatment
2 Areas for the STAs dated February 4th that you
3 previously alluded to?
4 A. Yes.
5 Q. And I believe you previously testified that
6 you have skimmed through this report.
7 A. Skimmed through it, yes.
8 Q. What is your understanding of the purpose
9 of this report?
10 A. I think the title says it all. This is
11 their recommended areas, effective areas of the
12 Stormwater Treatment Areas.
13 Q. Why -- I'm sorry.
14 A. They did some things in addition. In the
15 report index they did some sensitivity analyses as
16 well.
17 Q. Why was it necessary for Burns & McDonnell
18 to recommend effective treatment areas for the STAs?
19 A. Well, Burns & McDonnell is a consulting
20 company that is under contract to the District,
21 specifically the Construction Management Department,
22 so let me make it clear that this is a consultant to
23 the District, but is not a consultant to me or to my
24 division. Why did they do this? Well, they're an
25 engineering firm and not only can they make these
262
1 kinds of calculations, but they can also do the
2 engineering behind the construction. You know, in a
3 way I feel like, you know, these are some questions
4 that should really be directed to other people --
5 Q. Okay.
6 A. -- because I wasn't in the Selection
7 Committee, for instance, to select Burns & McDonnell.
8 Q. I'm trying to understand what prompted the
9 development of this report. Do you have an
10 understanding as to what prompted this report?
11 A. Honestly, if you're looking for motive, you
12 should talk to the people who did the contracting.
13 Q. On Page 4 dash -- IV-8 bates page 1231000
14 the report states --
15 A. Hold on a second.
16 MR. GAINES: Wait a minute.
17 THE WITNESS: IV-8?
18 BY MR. PERKO:
19 Q. Yeah.
20 A. Okay. Now go from there.
21 Q. Second paragraph states, "Given the above,
22 computation of required effective areas for the STAs
23 is made for each of three basic options as further
24 defined below."
25 A. Uh huh.
263
1 Q. "Option 1. Under this option, all lake
2 releases are assumed to bypass the STAs for the
3 purpose of determining required effective areas.
4 "Option 2. Under this option, historic
5 regulatory lake releases are considered in
6 computation of the effective area of each STA."
7 A. Okay.
8 Q. "Option 3. Under this option, it is
9 assumed that lake releases in any given year are
10 increased to a quantity adequate to offset the
11 reduction in volumetric discharges to the EPA
12 resulting from implementation of the SWIM Plan and
13 are considered (in addition to historic lake
14 releases) in computation of the required effective
15 area of each STA."
16 A. Okay.
17 Q. My understanding is Option 1 as described
18 on Page IV-8 of this report is of the most analogous
19 to the assumptions underlying Appendix F. Is that
20 correct?
21 A. Yes.
22 Q. So, for purposes of Appendix F, you assume
23 all lake releases bypass the STAs?
24 A. Well, what we called it back then, I
25 believe, was water supply --
264
1 Q. Okay.
2 A. -- bypass or through flow, which I'm not
3 sure is the same thing as all lake releases. That's
4 why I bring that -- it may be a minor point but I
5 bring that to your attention.
6 Q. What is the status of the analyses in
7 Appendix F? Are they being relied upon currently by
8 the District?
9 A. I have a lot of trouble answering that
10 question and I'll try to explain why. Clearly there
11 have been additional analyses, refinements since that
12 time. It would seem that if you pay for a document
13 such as this one to do further refinements -- if you
14 pay for something like this, you're looking for
15 perhaps an improved way of doing what you had
16 proposed initially. I would imagine it's analogous
17 to paying for a prototype of an airplane and then
18 getting the real airplane later or something like
19 that.
20 Q. Were you asked by your superiors to review
21 this document, Exhibit 14?
22 A. No, I don't believe I was. I will
23 anticipate your next question or now you go ahead and
24 ask it.
25 MR. GAINES: Before you do that, I hate to
265
1 interrupt. I keep doing this. I didn't catch
2 his answer while she was handing me that.
3 Could you read back his answer to the
4 previous question?
5 (Thereupon, a portion of the record
6 was read by the reporter.)
7 MR. GAINES: Thank you.
8 BY MR. PERKO:
9 Q. In your opinion, Dr. Fontaine, do the
10 analyses reflected in Exhibit 14 constitute an
11 improved -- an improvement upon Appendix F?
12 A. Well, first, let me reiterate that I
13 skimmed this document, so I haven't read it in great
14 depth, but I have no reason to doubt at this time
15 that this is an improvement or a natural evolution of
16 these analyses.
17 Q. Okay. If I could direct your attention to
18 page -- bear with me here -- IV-28.
19 A. Okay.
20 Q. The first paragraph states that, "The total
21 effective treatment area required under Option 2 --"
22 which we described previously, "-- is 26,759 acres;
23 the total effective treatment area required under
24 Option 3 is 29,788 acres, an increase of 11.32
25 percent. That increased area of 3,029 acres, would
266
1 over the ten year period analyzed, result in a
2 reduction of 56,814 kilograms as compared to Option 2
3 with untreated supplemental lake releases.
4 "The resultant incremental or marginal TP
5 load reduction associated with Option 3 is 1.88
6 kilograms of acres per year, indicative of a
7 relatively inefficient use of lands. That
8 inefficiency, coupled with the high degree of
9 uncertainty as to the required supplemental lake
10 release volumes and timing for hydroperiod
11 restoration in the EPA, renders Option 3
12 unattractive."
13 Continuing on to page IV-29 the second
14 paragraph states that, "Given the present uncertainty
15 in the volume and timing of supplemental lake
16 releases actually required for hydroperiod
17 restoration in the EPA; the inefficient use of lands
18 acquired for STAs in the treatment of supplemental
19 lake releases; and the potential availability of
20 existing facilities for the treatment of those
21 releases, it is recommended this adoption of Option 3
22 not be further considered, and that the calculation
23 of effective areas for the STAs be based on the
24 Option 2 analyses discussed herein."
25 Do you know whether Burns & McDonnell's
267
1 recommendation has been adopted by the District?
2 A. Is this a final report? I mean -- but I'm
3 not sure a final report indicates acceptance of the
4 recommendation, so I don't know if -- I have not
5 heard of any formal adoption of this recommendation.
6 Q. Okay. What is your understanding of the
7 acreage that the District -- the recommended acreage
8 of STAs that the District will present at the final
9 hearing in this matter?
10 A. If it is the defense of the SWIM Plan as it
11 exists now, then there is no other option than to
12 present what's in the SWIM Plan as it is now. I
13 don't understand, you know, the legal end of
14 administrative hearings, so you'll have to bear with
15 me. If the District can, you know, offer up an
16 alternative at that point, they may wish to do so.
17 I'm really not familiar with administrative hearings
18 to really comment on what could happen.
19 Q. I'm not asking you to speculate, Doctor.
20 I'm just asking for your understanding.
21 Referring back to page IV-28, the last
22 paragraph, "The resultant incremental or marginal TP
23 load reduction associated with Option 3 is 1.88
24 kilograms per year, indicative of a relatively
25 inefficient use of lands."
268
1 Can you explain to me what that statement
2 means, Dr. Fontaine?
3 A. I have not done this analysis. I've not
4 even read this page, to tell you the truth.
5 Q. Okay. Let me refer you to page IV- --
6 A. Which roman numeral?
7 Q. IV-4.
8 A. IV-4, okay.
9 Q. Specifically Table IV-1 on that page and
10 the following paragraph states that, "From the above
11 it is seen that the flow-weighted concentration of
12 total phosphorus and lake releases at the points of
13 discharge to the EPA is estimated to be 0.094 grams
14 per meters cubed, 87.7 percent greater than the
15 discharge concentration desired for EAA runoff."
16 If you could, just take a minute to review
17 that.
18 A. Okay.
19 Q. Do you have any reason to question the
20 figures in Table IV-1 or the conclusions stated in
21 that paragraph?
22 A. Well, let me first address the conclusions
23 stated in that paragraph. I would assume that
24 they're referring -- that 87.7 percent greater than
25 figure is a comparison of 0.094 with .050. If that's
269
1 the case and if they have done their math correct,
2 then I can't argue with the math.
3 Q. Okay. Do you have -- sorry. Didn't mean
4 to interrupt.
5 A. That's okay.
6 Now you want me to look at the table,
7 correct? And what do you want me to do with this?
8 Q. Well, let me ask you this. Do you have any
9 reason to question the accuracy of the estimated
10 flow-weighted concentration of total phosphorus and
11 lake releases of 0.094 grams per meters cubed?
12 A. Well, you know, this is kind of a normal
13 caveat. I have not done the calculation. I have not
14 seen how they do the calculation. My recollection is
15 that the lake itself runs around 100 grams per meter
16 cubed. I'm sorry. Strike that. .100 grams per
17 meter cubed on average and that's very, very close to
18 the .094 grams per meter cubed.
19 Q. That would translate to a 100 ppb?
20 A. 100 ppb, right.
21 Q. I believe you previously testified that,
22 Dr. Fontaine, that your analyses in Appendix F
23 assumed that the STAs treat only 80 percent of the
24 historic annual average flows, is that correct?
25 A. That was a confusing discussion, I must
270
1 say, that we had about that and I believe that that
2 is what I ended up saying, yes.
3 Q. Okay. If the STAs were to treat additional
4 lake releases of the volume necessary to make up that
5 20 percent and those lake releases were of a
6 concentration of 100 ppb, would that affect your
7 opinion that the STAs, as currently proposed in the
8 SWIM Plan, will achieve an outflow concentration of
9 50 ppb on a long term average basis?
10 A. My answer to that is that the calculation
11 would have to be run and then I'll tell you if it
12 affects my opinion.
13 Q. What calculation would have to be run,
14 Doctor?
15 A. We would have to take one of these models,
16 I would say preferably the more up to date models and
17 make that assumption in the model that it received
18 this 20 percent makeup water, as you have said, with
19 that concentration and run it through the model and
20 see, you know, what acreage is required to either
21 achieve 50 ppb or I think, as you've said, see if
22 what's existing -- what is said to be needed at this
23 point in time can still achieve 50 ppb.
24 Q. Okay. In your opinion what model -- what
25 model would you use to run that calculation?
271
1 A. Well, I would use the best model available
2 and I have no reason to doubt that the model that is
3 discussed in this document is the latest version,
4 although, as I've said, I've just skimmed this
5 document and I haven't examined that model in great
6 detail.
7 Q. Are you referring to the 10.2 meters per
8 year settling rate?
9 A. I'm referring to what is specified in this
10 report and they do, if I recall, use 10.2.
11 Q. Okay. As I understand your prior
12 testimony, however, Doctor, as you sit here today,
13 you are not prepared to testify regarding the 10.2
14 meters per year settling rate, is that correct?
15 A. I did not do the calculation of the 10.2
16 meters per year settling rate, however, it is
17 possible, given adequate preparation time, to present
18 that at the administrative hearing.
19 Q. You would need adequate preparation time in
20 order to do that?
21 A. As I said yesterday, I read over the Walker
22 reports, but in order to present it in a clear,
23 concise fashion, I would need some time.
24 Q. Okay.
25 MR. PERKO: Why don't we break for lunch?
272
1 I think I'm finished at this point, but I'd like
2 to review my notes and I may have a couple of
3 questions when we get back.
4 MR. GAINES: All right. Just for
5 everyone's planning purposes, I think it's
6 likely that we're going into tomorrow. I don't
7 think there's any big surprise.
8 (Discussion held off the record.)
9 (Thereupon, a lunch recess was taken.)
10 MR. PERKO: Back on the record.
11 BY MR. PERKO:
12 Q. Dr. Fontaine, I just have a couple of
13 follow up questions.
14 In our discussion about Appendix F
15 yesterday I believe you testified to your knowledge
16 Dr. Walker originally calculated the 8 meters squared
17 per year settling rate, is that correct?
18 A. I believe that he was the first person that
19 I know of that came up with the settling rate
20 calculation.
21 Q. That resulted in the 8 meters per year
22 settling rate?
23 A. Yes.
24 Q. Did Dr. Walker use the same regression
25 analyses that you described in Appendix F?
273
1 A. Let's be careful here because we need to
2 talk about which regression analyses. I would rather
3 refer to the regressions in my May 21st memo.
4 Q. Okay.
5 A. I could tell you what exhibit that is if I
6 had it here in front of me.
7 MR. McGRATH: Exhibit Number 4.
8 THE WITNESS: Because when we're talking
9 about the original thing that Bill Walker did, I
10 believe that those -- yeah. This is Exhibit 4,
11 equations 1, 2 and 3.
12 BY MR. PERKO:
13 Q. Uh huh.
14 A. I believe those are the ones that Bill
15 used. I mean you would have to ask Bill, obviously.
16 Q. Okay. It's your understanding that he used
17 the same regression equations?
18 A. What I recall is that he used the equations
19 from Urban and from Koch and Reddy.
20 Q. Okay. Did you actually calculate an 8
21 meters per year settling rate?
22 A. I used the two regressions that I just
23 mentioned, the Urban and the Koch and Reddy and did
24 the same type of division of one number by the other.
25 Q. Okay. And --
274
1 A. When I say I, I'm talking about, you know,
2 I had somebody do it --
3 Q. Brad Jones?
4 A. -- for me.
5 Yeah.
6 Q. But did you, through Brad Jones, actually
7 calculate a settling rate of 8 meters per year?
8 A. Oh. Well, I calculated the numbers that
9 fell out of the analysis between the beginning point
10 in the transect and the end point in the transect
11 and, you know, when you look at those, there are a
12 range of numbers and I'm trying to recall. The
13 average was something like -- now what I say here was
14 that the range was from 4.5 to 22 and the average was
15 9, values between 2.7, 3.7 miles range between 6 and
16 7.5.
17 MR. GAINES: Where are you reading from?
18 THE WITNESS: I'm sorry. Page 2 of Exhibit
19 4.
20 And then the next paragraph I'm talking
21 about -- let's see, starting with complete
22 paragraphs, 1, 2, 3, that was the third
23 paragraph that I read from. Then the next
24 paragraph down from that is another calculation,
25 which has slightly different numbers.
275
1 BY MR. PERKO:
2 Q. Okay. So sometime after you performed
3 those calculations through Brad Jones it was decided
4 upon that the 8 meters per year was appropriate for
5 sizing the STAs, is that correct?
6 A. There was that calculation that led me to
7 believe that 8 meters per year was a reasonable
8 number, since it fell in a range of numbers. It was
9 a reasonable number to use for the scoping
10 calculations of the STA size.
11 Q. Who was ultimately involved in the decision
12 to use the 8 meters per year settling rate for
13 purposes of sizing the STAs proposed in the SWIM
14 Plan?
15 A. Let me hear what you said again. Who was
16 ultimately what?
17 Q. Who was involved in the decision to propose
18 8 meters per year as the settling rate?
19 A. Who was involved in the decision to propose
20 it? Well, it seems as if you had on the one side
21 Bill Walker proposing 8 and then you had on the
22 District side our group talking about a range where 8
23 seemed to fall somewhere in the middle.
24 Q. Okay. Did you -- I mean your group --
25 well, let me ask you this. Who do you include in
276
1 your group?
2 A. Well, at that time there was, of course,
3 Brad doing the calculations, but Brad did not, you
4 know, really do anything other than just the
5 calculations. He did not provide scientific insights
6 and things like that. This was a long time ago. I'm
7 trying to recall who was in the group. Tony Federico
8 was in discussions about this. I just can't place
9 any other faces.
10 Q. Was it ultimately Mr. Federico's call to
11 propose the 8 meters per year to the Governing Board?
12 A. Well, I think you're asking me to speak for
13 Tony and --
14 Q. I'm asking for your understanding of who
15 made the decision.
16 A. Well, you know, we presented the results
17 for 8, 6 and 10 meters per year in the SWIM Plan.
18 That was at the request of Tony Federico, but it was
19 also consistent with my feelings from the, if you
20 will, the back door method that showed a range of
21 values between 6 and 10. It was consistent with my
22 feelings that we should make the calculation with a
23 range of numbers.
24 Q. As I understand your testimony -- I just
25 want to make sure I understand it -- that for the
277
1 regression approach used in Appendix F you took the
2 Koch and Reddy regressions and the Urban regression
3 and had Brad Jones do the math. Did you actually
4 develop the Stella model used to back out the range
5 of settling rates?
6 A. Yeah. I programmed it.
7 Q. Assuming the STAs are constructed in
8 acreage set forth in the SWIM Plan, approximately
9 35,000 acres, and that the settling rate is 8 meters
10 per year, if the STAs were to treat lake releases
11 necessary to makeup the reduction of flows associated
12 with BMP implementation at the 100 ppb concentration
13 level that we discussed earlier, would the STAs
14 achieve long term average outflow concentration of 50
15 ppb?
16 A. I don't mean to be argumentative, but I
17 think we already answered this question previously
18 this morning. I think I said I'd have to run the
19 calculation and then I'd be able to tell you.
20 Because there are two factors involved here. One is
21 the volume of water and the other is the amount of
22 phosphorus that goes in. I'm not sure what the
23 analysis would tell.
24 Q. Your previous answer -- I believe you said
25 in your previous answer you said that you would use
278
1 the most current models.
2 A. Okay. That's the same thing as having to
3 rerun the analysis.
4 Q. But I'm asking you to assume that the
5 settling rate is 8 meter per year.
6 A. Okay. All right.
7 Q. And you know the volume. It's the 20
8 percent and you know the concentration.
9 A. Uh huh.
10 Q. Can you say whether the acreage in the SWIM
11 Plan would achieve a long term average outflow
12 concentration of 50 ppb?
13 A. I still maintain that I would want to go
14 back and rerun the calculation. I just don't feel
15 comfortable answering that. The answer may be one
16 way or the other, but --
17 Q. What is the calculation that you would run?
18 Can you describe that equation for me?
19 A. Well, it would -- you know, whatever
20 version of this model for sizing the STAs you would
21 use, you would simply put in the additional water
22 into that model with the additional phosphorus and
23 that model would transport the phosphorus through the
24 system, so to speak. Some would fall out through the
25 accumulation process and some would go out the end.
279
1 Q. That's where I'm getting confused. I
2 thought the models -- the refined models were used to
3 develop refined settling rates. Is that not the
4 case?
5 A. Ahh. I don't know how you say this.
6 MR. FITZGERALD: A with a lot of H's
7 generally.
8 THE WITNESS: Okay. I can see where I
9 think some of the confusion is here. The work
10 that Walker did, which I told you that I had
11 read some time ago, used a modeling approach for
12 Conservation Area 2A to determine a settling
13 rate. In this case, due to various refinements,
14 he goes into in great detail. He ended up with
15 10.2. Then this Burns & McDonnell work, which
16 is -- which uses a model for defining Stormwater
17 Treatment Areas --
18 BY MR. PERKO:
19 Q. You are referring to Exhibit 14?
20 A. Exhibit 14, right.
21 Q. Okay.
22 A. They elected to use the 10.2 number from
23 Walker's calculations that were done with a model in
24 Conservation Area 2A.
25 Q. Okay.
280
1 A. Now, the physical coding and structure of
2 this model in Exhibit 14, like I said, I've skimmed
3 this. I haven't looked into it. If it's -- I think
4 it's different from what we originally had --
5 Q. Okay.
6 A. -- than in the SWIM Plan. I know it's gone
7 through a process of looking at different
8 coefficients for settling. There was a half order
9 coefficient at one time. I'm not sure where they are
10 now in their evolution of this model.
11 Q. Okay. So, as I understand your testimony,
12 the means by which the settling rate is used to
13 calculate the effective area of STAs has changed from
14 what you used in Appendix F?
15 A. Yes.
16 Q. Okay.
17 A. Yes. That's my understanding, having seen
18 this process evolve, but like I said, this particular
19 document, I have skimmed. I have not gone into
20 details of what their model, how their model handles
21 things and I'd have to have the time to review that
22 to say that it is absolutely different or the same or
23 close to, whatever.
24 Q. Okay.
25 MR. PERKO: I have nothing further at this
281
1 time. However, I would like to reiterate the
2 reservations that I made yesterday, that if
3 Dr. Fontaine undertakes the amount of
4 preparation necessary to gain -- formulate final
5 opinions regarding the refinements that
6 Dr. Walker and Burns & McDonnell have performed
7 on STA sizing, or if he undertakes the
8 preparation necessary to develop testimony
9 regarding phosphorus budgets that are not
10 necessary or that are beyond the scope of
11 Appendix F, I reserve the right to continue this
12 deposition or to move to strike that testimony.
13 CROSS (Thomas Fontaine)
14 MR. GAINES: Do you warrant a break?
15 MR. McGRATH: No. It's not necessary.
16 THE WITNESS: We can keep going here.
17 BY MR. GAINES:
18 Q. My name is Jonathan Gaines. Just for the
19 record I represent the Florida Sugar Cane League and
20 United States Sugar in this matter and I also have a
21 few questions for you.
22 MR. FITZGERALD: You should make clear,
23 Mr. Gaines, you represent part of the Sugar Cane
24 League, that as a result of the Settlement
25 Agreement, one of the major players in the Sugar
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1 Cane League is specifically not involved and
2 contributing to this matter, unless my
3 understanding is incorrect.
4 MR. GAINES: My understanding is I
5 represent the Florida Sugar Cane League. I
6 think maybe in the original suit I represented
7 part of the United States Sugar, but, no one is
8 able to make that clear. I'll stick with --
9 MR. FITZGERALD: We represent the
10 monolithic United States. No doubt about it.
11 It's the law.
12 BY MR. GAINES:
13 Q. If Mr. Fitzgerald doesn't have any other
14 input on who I represent, let me ask you a couple of
15 questions.
16 A. I have a couple of questions about who you
17 represent.
18 Q. I'm happy to talk to you about that after
19 the deposition.
20 A. I'm just kidding.
21 Q. Let me see if I can educate myself a little
22 bit here on some of these Appendix F issues we've
23 been talking about.
24 The Stella model which you represent --
25 which you programmed, developed for use in Appendix
283
1 F, was that model used to determine a settling rate?
2 A. Appendix F has two parts to it. One is the
3 actual acreage that would be recommended for getting
4 effluent down to 50 parts per billion. The other
5 part of it is how the settling rate was determined
6 and there's that one section that we keep referring
7 to as backing out.
8 Q. Okay. The backing out part -- I don't mean
9 to interrupt you --
10 A. Yeah.
11 Q. -- the backing out part, that's the
12 computer modeling?
13 A. Correct.
14 Q. That's the Stella model?
15 A. That is the Stella model.
16 Q. Why do you call it a Stella model?
17 A. Stella is actually the language, is
18 actually the computer language.
19 Q. Is it S-t-e-l-l-a?
20 A. That's correct.
21 Q. And the Stella model was used as a check
22 against the regression analysis that was done?
23 A. That was the idea. It's always good to
24 check things from two different ways.
25 Q. The regression analysis was based upon
284
1 actual measurements or monitoring in the field from
2 the work of Koch and Reddy on one hand and Nancy
3 Urban on the other, is that correct?
4 A. The regression analyses were based on
5 those. The model also used real data, just so that
6 you don't think it's the model that dealt with made
7 up numbers.
8 Q. All right. The point I'm trying to get to
9 is did the modeling that was done for that, you did
10 for Appendix F, did that generate a settling rate
11 that was then used to calculate acreage or was a
12 settling rate generated from outside the model and
13 plugged in as one of the variables?
14 A. Okay. Let's back up. There were two ways
15 that I felt were reasonable ways of looking at the --
16 determining the settling rate. One was the
17 regression base way which we discussed. You take the
18 Koch and Reddy regression results, divide them by the
19 Urban regression results. That's one way. That got
20 you a series of numbers. The other way was to take
21 this modeling approach that I've called backing out,
22 and given certain inputs and given the Koch and Reddy
23 settling -- I'm sorry -- accumulation rate in the
24 sediments, you could adjust the settling rate in the
25 model. That would be your only unknown, so to speak,
285
1 in these equations. That would be your unknown. You
2 would adjust until you matched what was accumulated
3 in the sediments.
4 Q. All right. So you -- in operating or
5 running the Stella model, the variable that you would
6 adjust would be the settling rate variable?
7 A. For this particular use --
8 Q. Okay.
9 A. -- right.
10 Q. When you say this particular use, you're
11 talking about how it was used in Appendix F, correct,
12 or was it used in more than one way in Appendix F?
13 A. It was used in more than one way.
14 Q. Okay.
15 A. It was used, you know, once -- once a
16 settling rate or a range of settling rates was
17 decided upon --
18 Q. Uh huh.
19 A. -- then there were models, you know, that
20 were designed to come up with acreage for STAs, but
21 the way to get to that range of settling rates to use
22 was through the regression approach and through this
23 modeling approach which used Conservation Area 2A
24 data. It was merely a second way of looking at how
25 to define settling rates.
286
1 Q. Okay. At the -- so did you -- in using the
2 Stella model, did you plug in settling rates that
3 ranged between 6 and 10 when you ran the model?
4 A. For the purposes of defining STA acreage
5 required to get to 50 parts per billion, yes, I ran
6 the Stella model with numbers between 6 and 10, I
7 believe. Let me just check the document real quick.
8 Q. All right.
9 A. Yeah. There's a Table 7 on Page F-12 which
10 speaks to three settling rates and please note the
11 footnote on that table, that for whatever reasons,
12 the revisions to the SWIM Plan stopped at some point
13 and this does not include revisions that were based
14 on some revised base acreage and phosphorus loads.
15 Q. Do you know what those revisions were, what
16 the impact would have been on this table or the other
17 information?
18 A. The revisions were taken into account in
19 Table 5 and that table was based on an 8 meter per
20 year term, but I never had time to run any more.
21 Things seemed to have been working rather quickly at
22 that point and I just did not have time to update
23 Table 6 or 7.
24 Q. Okay. I am still not exactly clear on how
25 the Stella model was used.
287
1 A. Uh huh.
2 Q. Was -- did some information that you
3 obtained through running the Stella model allow you
4 to choose 8 as a settling rate?
5 A. It allowed me to see that there was a range
6 of numbers that -- a range of settling rate values
7 that would result in -- if chosen, that would result
8 in observed or measured accumulation rates in the
9 sediments.
10 Q. And did I understand you correctly to state
11 that in running that model what -- the correlation
12 that you were looking for was a correlation with the
13 observed accumulation rates from the Koch and Reddy
14 work to have the model generate something that
15 approximated that and that would allow you to focus
16 in on the settling rate?
17 A. Yeah. I believe that's right. Let me
18 throw one thing out here. When I say the Koch and
19 Reddy work, the Koch and Reddy work is now published.
20 At the time of this analysis, however, it was not
21 published and I can't tell you whether or not the
22 final regression that they have in their published
23 paper was the one -- the same as the one that we were
24 working with at the time.
25 Q. So can you point out -- do you have
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1 Appendix F in front of you?
2 A. Uh huh.
3 Q. Can you point out to me in here where it
4 describes how the model generated a settling rate or
5 where that is depicted in here?
6 A. Page F-8 about the middle paragraph. It
7 says, "another approach --"
8 Q. All right.
9 A. And that basically describes what was done.
10 Q. And, you know, I hope I'm not repeating
11 myself, but the modeling work generated a range
12 between 6 and 10 or did it focus you in on 8?
13 A. Well, I felt that it gave me a range of 6
14 to 10.
15 Q. At the time that you were doing th