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