DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

SUGAR CANE GROWERS COOPERATIVE OF )

FLORIDA, a Florida Agricultural )

Cooperative Marketing Association, ) CASE NOS. 92-3038

ROTH FARMS, INC., and ) 92-3039

WEDGWORTH FARMS, INC., ) 92-3040

)

and )

)

FLORIDA SUGAR CANE LEAGUE, INC.; )

UNITED STATES SUGAR CORPORATION; )

)

and )______________________

)

FLORIDA FRUIT AND VEGETABLE ) DEPOSITION

ASSOCIATION, LEWIS POPE FARMS, )

W.E. SCHLECHTER & SONS, INC., ) OF

and HUNDLEY FARMS, INC., )

)DR. ELIZABETH A. HENRY

Petitioners, )______________________

)

vs. )

)

SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, an Agency of the State )

of Florida, )

)

Respondent, )

)

and )

)

MICCOSUKEE TRIBE OF INDIANS OF )

FLORIDA, the UNITED STATES OF )

AMERICA, and FLORIDA DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, The )

FLORIDA WILDLIFE FEDERATION, The )

FLORIDA AUDUBON SOCIETY, and The )

SIERRA CLUB, )

Intervenors. )

___________________________________)

AT DURHAM, NORTH CAROLINA

MARCH 31, 1994

REPORTED BY:

CAROLYN Y. HALL & ASSOCIATES

DR. HENRY VOLUME II PAGE 2

APPEARANCES:

SUGARCANE GROWERS COOPERATIVE

OF FLORIDA, ROTH FARMS, INC.

AND WEDGWORTH FARMS, INC.

MR. GARY P. SAMS

HOPPING, BOYD, GREEN & SAMS

123 SOUTH CALHOUN STREET

TALLAHASSEE, FLORIDA 32314

TELEPHONE: (904) 222-7500

FOR RESPONDENT-INTERVENOR:

MS. LISA B. HOGAN

ASSISTANT U.S. ATTORNEY

SOUTHERN DISTRICT OF FLORIDA

99 NORTHEAST 4TH STREET

THIRD FLOOR

MIAMI, FLORIDA 33132

TELEPHONE: (305) 536-5266

ALSO PRESENT:

DR. GARY BIGHAM

DR. RONALD JONES

DR. HENRY VOLUME II PAGE 3

T A B L E O F C O N T E N T S

E X A M I N A T I O N I N D E X

DEPONENT - DR. ELIZABETH A. HENRY - 3/31/94

EXAMINATION: PAGES

BY MS. HOGAN 4-13

--------------------------------------------------

E X H I B I T S I N D E X

NUMBER DESCRIPTION MARKED

DF #21 REDACTED EXCERPTS FROM

DR. HENRY'S NOTEBOOK 6

10 PAGES

DF #22 MARCH 17TH DRAFT REPORT ENTITLED

"THE INFLUENCE OF PHOSPHORUS ON

MERCURY CYCLING AND BIOACCUMULATION

IN THE EVERGLADES" 12

34 PAGES

--------------------------------------------------

SIGNATURE PAGE FOR DEPONENT 14

CERTIFICATION OF COURT REPORTER 15

DR. HENRY VOLUME II PAGE 4

STIPULATIONS

ON MOTION OF COUNSEL FOR THE SOUTH FLORIDA

MANAGEMENT DISTRICT, THE DEPOSITION OF DR. ELIZABETH A.

HENRY MAY BE TAKEN BEGINNING AT OR AROUND 2:35 P.M. ON

MARCH 31, 1994, AT THE HILTON HOTEL, 3800 HILLSBOROUGH

ROAD, THE WALKER SUITE, DURHAM, NORTH CAROLINA, BEFORE

ANN S. YOUNG, A NOTARY PUBLIC.

THE SIGNATURE OF THE WITNESS TO THE TRANSCRIPT

OF HER TESTIMONY IS HEREBY REQUIRED.

- - - - - - - - - - -

WHEREUPON,

ELIZABETH A. HENRY, Ph.D.,

HAVING FIRST BEEN DULY SWORN,

WAS EXAMINED AND TESTIFIED

AS FOLLOWS:

EXAMINATION BY MS. HOGAN:

MS. HOGAN: TUESDAY, I ASKED YOU TO GO

THROUGH YOUR SUBPOENA -- WELL, EXCUSE ME. I ASKED

YOU TO GO THROUGH YOUR NOTICE OF DEPOSITION DUCES

TECUM AND TO MAKE SURE THAT YOU HAD PRODUCED ALL

DOCUMENTS THAT WERE RESPONSIVE THERETO. AND YOU

REPRESENTED THAT YOU HAD EXCEPT FOR SOME DOCUMENTS

THAT YOU FELT MIGHT CONTAIN ATTORNEY WORK PRODUCT.

TOWARDS THE END OF YOUR DEPOSITION, YOU INDICATED

THAT IT MIGHT BE POSSIBLE TO GO THROUGH SOME OF

DR. HENRY VOLUME II PAGE 5

THOSE DOCUMENTS AND REDACT THAT PORTION WHICH IS

ATTRIBUTABLE TO YOUR ATTORNEYS. ON -- WHAT IS IT

-- MARCH THE 30TH---

MR. SAMS: YESTERDAY.

MS. HOGAN: ---YESTERDAY, YOUR COUNSEL

NOTIFIED ME THAT YOU HAD, IN FACT, REDACTED THAT

PORTION -- THOSE -- THE PORTIONS OF YOUR DRAFT

THAT CONTAINED ATTORNEY/CLIENT NOTES, BUT YOU ALSO

HAVE LOCATED SOME ADDITIONAL DOCUMENTS. AND, SO,

I'D LIKE TO ASK YOU IF YOU COULD IDENTIFY THE

DOCUMENTS THAT YOU PROVIDED TO ME YESTERDAY.

EXAMINATION BY MS. HOGAN:

Q. HERE'S THE FIRST DOCUMENT; CAN YOU TELL ME

WHAT THAT IS?

A. YEAH. THESE ARE REDACTED EXCERPTS FROM MY

NOTEBOOK.

MS. HOGAN: OKAY. WE'LL MARK THAT AS THE

NEXT EXHIBIT TO HER DEPOSITION, AND I DON'T

REMEMBER WHAT THE LAST---

COURT REPORTER: I THINK IT WAS FOURTEEN.

WITNESS: IT WAS HIGHER THAN THAT.

(THEREUPON, THERE WAS AN

OFF-THE-RECORD DISCUSSION

WHICH WAS NOT REPORTED

BY THE COURT REPORTER.)

DR. HENRY VOLUME II PAGE 6

MR. SAMS: WHY DON'T WE JUST -- WHY DON'T WE

JUST STIPULATE THAT THE REPORTER WILL NUMBER THEM

SEQUENTIALLY ON THE CONTINUATION OF THE

DEPOSITION.

MS. HOGAN: ALL RIGHT. LET'S DO THAT.

(THEREUPON, THE DOCUMENT REFERRED

TO BELOW WAS MARKED AS DEPOSITION

EXHIBIT NO. 21 - ELIZABETH HENRY

DEPOSITION - FOR IDENTIFICATION.)

Q. (BY MS. HOGAN) DR. HENRY, IN THE MIDDLE OF

THE FIRST PAGE OF THIS FIRST EXHIBIT, THERE IS A STAR

SYMBOL WITH AN ARROW AND IN PARENTHESES THE WORDS HAVE

BEEN WRITTEN, "(WE DON'T HAVE TO KNOW MECHANISMS!)"

WHAT WAS MEANT BY THAT?

A. THAT'S A NOTE TO MYSELF. I TEND TO BE -- IN

MY TRAINING AS A SCIENTIST, I TEND TO BE -- I TEND TO

WANT TO KNOW EXACTLY WHAT IS GOING ON AND WHAT THE

MECHANISMS ARE THAT GO BETWEEN CAUSE AND EFFECT. AND A

LOT OF TIMES I HAVE TO CAUTION MYSELF THAT THOSE

MECHANISMS AREN'T ALWAYS KNOWN OR KNOWABLE, BUT YOU CAN

STILL IDENTIFY A CAUSE AND EFFECT. AND, SO, THAT'S

KIND OF A PERSONAL NOTE TO MYSELF TO REMEMBER THAT.

Q. OKAY. WAS IT A RESULT OF SOMEONE TELLING YOU

THAT YOU THAT YOU DON'T HAVE TO EXPLORE THE MECHANISMS

OR YOU DO NOT HAVE TO IDENTIFY THE MECHANISMS?

DR. HENRY VOLUME II PAGE 7

A. NO, I DON'T THINK IT WAS. I THINK I MIGHT

HAVE -- THIS PAGE WAS A DISCUSSION WITH GARY BIGHAM.

WE WERE JUST STARTING TO WORK OUT HOW WE WERE GOING

APPROACH IT, AND IT PROBABLY CAME UP IN OUR

CONVERSATION.

Q. OKAY. IN THE MIDDLE OF THE SECOND PAGE, YOU

HAVE A LINE THAT BEGINS, "RICH DeJULIO - TOXICOLOGIST

AT DUKE FALLS TOGETHER UNTIL TOTAL Hg [mercury] IN

SEDIMENT" AND THEN YOU HAVE A DASH "DOESN'T MAKE SENSE"

AND THEN YOU HAVE AN ARROW TO THE BOTTOM. I'M ASSUMING

THAT SYMBOL IS MERCURY WITH A CIRCLE AROUND IT?

A. NO. IT'S A "ME."

Q. NO? "ME"? OKAY. "WATER QUALITY OR pH"; WHAT

IS THE---

A. THAT'S A DELTA -- CHANGE.

Q. ---"TO MAKE Hg [mercury] DROP OUT." WHAT

DIDN'T MAKE SENSE? WHAT WERE YOU REFERRING TO?

A. THIS IS A CONVERSATION WITH RICH DiGUILIO AND

WE WERE DISCUSSING THE EPA CANAL DATA. WHAT SEEMED A

LITTLE ODD TO US WAS THAT THE MERCURY CONCENTRATIONS IN

SEDIMENT WERE HIGHEST AT THIS -- WHAT -- KIND OF THE

SOUTH END OF THE SURVEY. AND WE WERE TALKING ABOUT

WHAT OTHER -- CONTINUED BELOW IS WHAT OTHER INFORMATION

WE'D KNOW TO BE ABLE TO EXPLAIN THAT. AND THEN THE

ARROW DOWN TO MY COMMENTS WAS MAYBE THERE'S A CHANGE IN

DR. HENRY VOLUME II PAGE 8

WATER QUALITY OR pH THAT WOULD MAKE MERCURY DROP OUT.

Q. OKAY.

A. THESE ARE ALL JUST IDEAS FLOATING AROUND AT

THE TIME.

Q. AT THE BOTTOM OF THAT PAGE, YOU HAVE STARS

NEXT TO SENTENCES. ONE SENTENCE SAYS, "NEED TO KNOW

MORE ABOUT METHYLATION"; THE SECOND SENTENCES SAYS,

"HOW IT INTERACTS WITH THE [sic] FOOD WEB." WHY DID

YOU NEED TO KNOW MORE ABOUT METHYLATION?

A. WELL, THOSE ARE THE TWO PROCESSES THAT I'VE

IDENTIFIED ALL ALONG AS PART OF WHAT DETERMINES MERCURY

CONCENTRATIONS IN FISH. AND IN THIS CASE THAT WE'RE

LOOKING AT IN THE EVERGLADES, THERE'S VERY LITTLE KNOWN

ABOUT METHYLATION RATES AND SO I THINK THERE'S A GREAT

NEED TO KNOW MORE ABOUT METHYLATION RATES, WHICH IS WHY

THAT'S STARS. AND THEN THE NEXT IS "HOW IT INTERACTS

WITH THE [sic] FOOD WEB" AND, AGAIN, THAT'S ANOTHER

UNKNOWN PORTION OF HOW MERCURY ENDS UP IN FISH IN TERMS

OF THE EVERGLADES.

Q. I NOTICED THAT PORTIONS OF THIS DOCUMENT HAVE

BEEN REDACTED AND THEY'VE BEEN REDACTED TO WHAT,

EXCLUDE ALL COMMENTS THAT YOU HAD WITH COUNSEL?

A. THEY'RE NOTES ON TELEPHONE CONVERSATIONS WITH

COUNSEL.

Q. OKAY. HOW DID YOU DETERMINE WHICH NOTES WITH

DR. HENRY VOLUME II PAGE 9

COUNSEL TO KEEP IN AND WHICH NOTES WITH COUNSEL TO KEEP

OUT?

A. I BELIEVE I'VE TAKEN OUT ALL NOTES FROM

COUNSEL.

Q. EVEN FOR THE DOCUMENTS THAT YOU PRODUCED THE

DAY OF YOUR DEPOSITION, THOSE NOTES DON'T CONTAIN ANY

COMMENTS FROM COUNSEL?

A. RIGHT. I GUESS YOU GOT THE ORIGINAL REDACTED

VERSION THERE.

Q. I WAS GOING TO SAY, MAYBE I NEED TO GIVE THIS

BACK TO YOU.

A. YEAH. I THINK THAT MUST HAVE GOTTEN MIXED UP.

WITNESS: THAT HAS THE WHITE-OUT ON IT, GARY.

MR. SAMS: OKAY.

WITNESS: THERE ARE TWO PAGES THAT ACTUALLY

HAVE WHITE-OUT ON THEM. DO YOU WANT---

MS. HOGAN: UH-HUH (YES). THE OTHER ONES

LOOK LIKE YOU JUST PUT A SHEET ON TOP OF THEM.

Q. (BY MS. HOGAN) OKAY. I'M GOING TO HAND YOU

ANOTHER DOCUMENT AND ASK IF YOU CAN IDENTIFY IT FOR THE

RECORD.

MR. SAMS: WHILE SHE'S LOOKING AT THE

DOCUMENT, LET ME JUST MAKE A CLARIFYING POINT.

THERE WERE NO PORTIONS OF THE PREVIOUSLY PRODUCED

NOTES THAT HAD BEEN WHITED OUT OR COVERED OVER.

DR. HENRY VOLUME II PAGE 10

IN OTHER WORDS, THOSE WERE THE PAGES THAT DID NOT

REQUIRE REDACTION BECAUSE THEY DID NOT PRESENT THE

THOUGHTS OF COUNSEL. THESE PAGES WERE NOT

ORIGINALLY PRODUCED BECAUSE THEY DID. AND WE,

SUBSEQUENTLY, HAVE GONE THROUGH THEM, ESSENTIALLY,

LINE BY LINE, AND SHE HAD REDACTED THOSE THINGS

WHICH PRESENT THE THOUGHTS OF COUNSEL. I THINK

THAT MAY HELP CLARIFY THE RECORD. I DON'T WANT TO

LEAVE THE IMPLICATION THAT WE REDACTED THE EARLIER

DOCUMENTS. IN FACT, THERE WAS NOTHING THERE TO

REDACT.

WITNESS: I DIDN'T REALIZE YOU COULD -- I

TOOK OUT WHOLE PAGES WHEN I BROUGHT THE NOTES IN

BEFORE. I DIDN'T REALIZE I COULD TAKE LITTLE BITS

OUT.

MS. HOGAN: OKAY. I NOTICE THAT YOU WHITED

OUT ON A COUPLE OF PAGES IN THE DOCUMENTS THAT

YOU'VE JUST PRODUCED TODAY. DOES THAT MEAN

THAT THERE'S NOT GOING TO BE AN ORIGINAL SET THAT

A HEARING OFFICER OR SOMEONE COULD LOOK TO

TO EXAMINE WHETHER OR NOT THE DOCUMENTS

CONTAINED---

WITNESS: NO. I HAVE MY NOTEBOOK; IT'S NOT

BEEN WHITED OUT.

MS. HOGAN: OH, I SEE. THOSE ARE JUST COPIES

DR. HENRY VOLUME II PAGE 11

FROM YOUR NOTEBOOK.

WITNESS: THESE ARE COPIES THAT I, THEN,

WHITED OUT. YEAH.

MS. HOGAN: I GOT IT. I GOT IT. OKAY.

Q. (BY MS. HOGAN) CAN YOU IDENTIFY THAT DOCUMENT

FOR ME, PLEASE?

A. YEAH. THIS IS THE COPY OF THE MARCH 17TH

DRAFT OF OUR REPORT, WHICH I BROUGHT WITH ME TO THE

MARCH 18TH MEETING IN ATLANTA, AND IT HAS NOTES -- IT'S

A REDACTED VERSION, SO I'VE REMOVED COMMENTS FROM

COUNSEL. AND THE REMAINING COMMENTS ARE PRIMARILY

MINE; THEY MAY REFLECT SOME OF THE CONVERSATION

GOING ON MINUS CONVERSATION WITH COUNSEL AT THAT

MEETING.

MS. HOGAN: WE'LL MARK THAT AS THE NEXT

EXHIBIT TO YOUR DEPOSITION.

(THEREUPON, THE DOCUMENT REFERRED

TO BELOW WAS MARKED AS DEPOSITION

EXHIBIT NO. 22 - ELIZABETH HENRY

DEPOSITION - FOR IDENTIFICATION.)

Q. (BY MS. HOGAN) I'M GOING TO HAND YOU ANOTHER

DOCUMENT AND ASK IF YOU CAN IDENTIFY THAT FOR THE

RECORD.

A. THIS IS A COPY OF THE MARCH 22ND DRAFT THAT I

HAVE -- I'VE WRITTEN NOTES ON IT BASED ON TECHNICAL

DR. HENRY VOLUME II PAGE 12

REVIEW COMMENTS FROM TECHNICAL REVIEWERS AT PTI. WE

RESUBMITTED IT THIS MORNING BECAUSE THE ORIGINAL COPY

THAT WE HAD PRODUCED DIDN'T HAVE THE ORANGE

MARKINGS SHOWING UP. THEY DON'T REPRODUCE ON THE

COPIER.

Q. OKAY. THOSE ORANGE COMMENTS WERE MADE BY

WHOM?

A. BY ANNE MacDONALD.

Q. OKAY. THIS IS THE ONLY COPY -- WELL, IF

WE COPIED IT AGAIN, THE LETTERING STILL WOULDN'T SHOW

UP?

A. RIGHT. I WASN'T AWARE THAT IT WOULD NEED TO

BE COPIED WHEN I DID IT.

Q. ARE THESE NOTES THAT YOU TOOK FROM A PHONE

CONVERSATION?

A. YES.

Q. ALL RIGHT. BECAUSE THESE WON'T REPRODUCE, WE

WOULD JUST ASK THAT YOU KEEP THEM SO THAT THEY COULD

POSSIBLY BE USED AT TRIAL, THE ACTUAL ORIGINAL.

A. OKAY.

(THEREUPON, THERE WAS AN

OFF-THE-RECORD DISCUSSION

WHICH WAS NOT REPORTED

BY THE COURT REPORTER.)

MS. HOGAN: OKAY. I HAVE NO QUESTIONS FOR

DR. HENRY VOLUME II PAGE 13

YOU AT THIS TIME. THANK YOU.

WITNESS: OKAY. THANK YOU.

--------------------------------------------------

(THEREUPON, THE DEPOSITION

WAS CONCLUDED AT 2:48 P.M.)

--------------------------------------------------

DR. HENRY VOLUME II PAGE 14

STATE OF NEW YORK

COUNTY _________________

I, ELIZABETH A. HENRY, HAVE READ

THE FOREGOING TRANSCRIPT OF MY

DEPOSITION AND DO HEREBY CERTIFY

THAT THE PRECEDING 13 PAGES

CONSTITUTE A TRUE AND ACCURATE

TRANSCRIPTION OF MY TESTIMONY.

______________________________

ELIZABETH A. HENRY

SWORN TO AND SUBSCRIBED

BEFORE ME, A NOTARY PUBLIC,

THIS THE ____ DAY OF ________________,

1994.

_______________________________

NOTARY PUBLIC

MY COMMISSION EXPIRES:

_______________________________

DR. HENRY VOLUME II PAGE 15

NORTH CAROLINA

WAKE COUNTY

C E R T I F I C A T E

I, CAROL S. YOUNG, A NOTARY PUBLIC, DO HEREBY

CERTIFY THAT ELIZABETH A. HENRY WAS DULY SWORN BY ME

PRIOR TO THE TAKING OF THE FOREGOING DEPOSITION, AND

THAT SAID DEPOSITION WAS TAKEN BY ME, AND TRANSCRIBED

UNDER MY DIRECT SUPERVISION, AND THAT THE FOREGOING 13

PAGES CONSTITUTE A TRUE AND ACCURATE TRANSCRIPTION OF

THE TESTIMONY OF THE SAID WITNESS.

I DO FURTHER CERTIFY THAT THE PERSONS WERE PRESENT

AS STATED IN THE CAPTION.

I DO FURTHER CERTIFY THAT I AM NOT OF COUNSEL FOR,

OR IN THE EMPLOYMENT OF EITHER OF THE PARTIES TO THIS

ACTION, NOR AM I INTERESTED IN THE RESULTS OF THIS

ACTION.

IN WITNESS WHEREOF, I HAVE HEREUNTO SUBSCRIBED MY

NAME, THIS THE 27TH DAY OF APRIL, 1994.

_____________________________

CAROL S. YOUNG

CAROLYN Y. HALL & ASSOCIATES

2551 ALBEMARLE AVENUE

RALEIGH, NORTH CAROLINA 27610

MY COMMISSION EXPIRES

DECEMBER 26, 1995