1
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
SUGAR CANE GROWERS COOPERATIVE OF CASE NOS. 92-3038
FLORIDA, a Florida agricultural 92-3039
cooperative marketing association; ROTH 92-3040
FARMS, INC.; and WEDGWORTH FARMS, INC.,
and
FLORIDA SUGAR CANE LEAGUE, INC.; and
UNITED STATES SUGAR CORPORATION,
and
FLORIDA FRUIT AND VEGETABLE ASSOCIATION,
LEWIS POPE FARMS, W. E. SCHLECHTER &
SONS, INC., and HUNDLEY FARMS, INC.,
Petitioners,
vs.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
an Agency of the State of Florida,
Respondent,
and
THE UNITED STATES OF AMERICA,
MICCOSUKEE TRIBE OF INDIANS, THE
FLORIDA DEPARTMENT OF ENVIRONMENTAL
PROTECTION, THE FLORIDA WILDLIFE
FEDERATION, THE FLORIDA AUDUBON SOCIETY
AND THE SIERRA CLUB,
Respondent-Intervenors.
______________________________________________/
DEPOSITION OF: WILLIAM MICHAEL LANDING, Ph.D.
TAKEN: March 28, 1994
Accurate Stenotype Reporters, Inc.
DEPOSITION OF: WILLIAM MICHAEL LANDING, Ph.D.
TAKEN AT THE INSTANCE OF: The United States of America
DATE: Monday, March 28, 1994
TIME: Commenced at 9:00 a.m.
Concluded at 5:30 p.m.
LOCATION: 315 Calhoun Street
Tallahassee, Florida
REPORTED BY: ANITA M. PEKEROL, CCR, RPR,
CP, CM. Notary Public in
and for the State of
Florida at Large.
APPEARANCES:
REPRESENTING THE UNITED STATES OF AMERICA:
JON M. LIPSHULTZ, ESQUIRE
U. S. Department of Justice
Environment and Natural Resources Division
Environmental Defense Section
10th and Pennsylvania Avenues Northwest
Post Office Box 23986
Room 7328
Washington, D.C. 20530
REPRESENTING SUGAR CANE GROWERS COOPERATIVE OF
FLORIDA, a Florida agricultural cooperative
marketing association; ROTH FARMS, INC.; and
WEDGEWORTH FARMS, INC.:
GARY V. PERKO, ESQUIRE
Hopping, Boyd, Green & Sams
123 South Calhoun Street
Post Office Box 6526
Tallahassee, Florida 32314
Accurate Stenotype Reporters, Inc.
APPEARANCES: (Continued)
REPRESENTING DEPARTMENT OF ENVIRONMENTAL
PROTECTION:
DONNA M. LaPLANTE, ESQUIRE
Department of Environmental Protection
Twin Towers Office Building, MS35
2600 Blair Stone Road
Tallahassee, Florida 32399-2400
ALSO PRESENT:
Thomas D. Atkeson, Ph.D.
Ronald D. Jones, Ph.D.
I_N_D_E_X _ _ _ _ _
WITNESS PAGE _______ ____
WILLIAM_MICHAEL_LANDING,_M.S. _______ _______ ________ ____
Direct Examination by Mr. Lipshultz 5
CERTIFICATE_OF_REPORTER 167 ___________ __ ________
E_X_H_I_B_I_T_S _ _ _ _ _ _ _ _
ON_BEHALF_OF_THE_UNITED_STATES_OF_AMERICA: __ ______ __ ___ ______ ______ __ _______
NUMBER DESCRIPTION PAGE ______ ___________ ____
1 Curriculum vitae of William Michael
Landing, M.S. 5
2 Three letters 65
3 Composite 74
4 Composite 79
5 Composite 128
6 Graph 136
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1 P_R_O_C_E_E_D_I_N_G_S _ _ _ _ _ _ _ _ _ _ _
2 - - -
3 The following deposition of WILLIAM MICHAEL
4 LANDING. Ph.D., was taken on oral examination, pursuant
5 to notice, for purposes of discovery, for use as
6 evidence, and for such other uses and purposes as may be
7 permitted by the applicable and governing rules.
8 Reading and signing is not waived.
9 - - -
10 Thereupon,
11 WILLIAM MICHAEL LANDING, Ph.D.
12 was called as a witness, having been first duly sworn,
13 was examined and testified as follows:
14 DIRECT EXAMINATION
15 BY MR. LIPSHULTZ:
16 Q Would you please state your name and
17 address, for the record.
18 A William Michael Landing. My home address
19 is 304 Timberlane Road, Tallahassee, Florida, 32312.
20 Q Dr. Landing, my name is Jack Lipshultz. I
21 know we were introduced briefly on the phone the other
22 day. I'm an attorney with the Department of Justice,
23 representing the United States in this matter.
24 In the course of your deposition today, if
25 I ask you any questions which are hard to understand,
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1 please ask me for clarifications. If you want to take a
2 break at any time, feel free to ask me to do that.
3 MR. LIPSHULTZ: I would like to ask the
4 reporter to mark as Exhibit 1 a document handed
5 to me this morning.
6 (United States of America Exhibit 1 marked
7 for identification.)
8 BY MR. LIPSHULTZ:
9 Q Dr. Landing, is this a current curriculum
10 vitae for yourself?
11 A This looks like it was last updated
12 sometime in 1992. The only thing that would have
13 changed is the publication list.
14 Q Do you have a more up-to-date publication
15 list?
16 A I don't have it with me, I'm sorry.
17 Q Do you maintain such a list at your office
18 somewhere?
19 A My CV gets edited about once a year, when
20 we do our annual faculty evaluation. And that is
21 occurring this week, so I haven't done it yet. There
22 should be one from last year, which would be slightly
23 more current than this.
24 Q Would there be one available in the next
25 week or two with the more complete publication list?
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1 A Yes. I'll have another one at the end of
2 the week, which is up-to-date, up until the present.
3 MR. LIPSHULTZ: If that would be acceptable
4 with your counsel, I would like to get a copy of
5 the up-to-date list when that is available.
6 MR. PERKO: No problem.
7 BY MR. LIPSHULTZ:
8 Q With that exception, everything else, to
9 the best of your knowledge, is up-to-date on this copy
10 of your CV?
11 A Yes.
12 Q Your current position is associate
13 professor at Florida State University?
14 A Yes, correct.
15 Q And, generally speaking, what areas do you
16 specialize in at Florida State University?
17 A Low level trace element cycling in the
18 environment.
19 Q Is that specific to mercury or to other
20 materials, as well?
21 A Trace elements in general.
22 Q I notice that you are in the department of
23 oceanography. Do you specialize in analysis of element
24 cycling in water related environments, as opposed to
25 land?
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1 A Yes. Although, we have done work on sea
2 and on land. We have done work in lakes, rivers,
3 estuarine environments.
4 Q Do you teach courses in these topics?
5 A Yes.
6 Q Do you carry out research in these areas,
7 also?
8 A Yes.
9 Q Do you, also, maintain a consulting
10 company?
11 A I have, over the last several years, done a
12 small amount of consulting work, yes.
13 Q When did you begin doing that work?
14 A Excuse me for pausing.
15 Q I don't mean to rush you.
16 A I am trying to think back. I began doing
17 consulting work related to this episode on the order of
18 a year and a half ago. Either late '92 or early '93.
19 Q When you say this episode, you mean the
20 Everglades matter?
21 A Yes, the current incident or episode.
22 Prior to that, I have received payment, if you will, for
23 professional services, reviewing, speaking on an
24 intermittent basis.
25 Q I guess I'm not so much interested in
Accurate Stenotype Reporters, Inc.
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1 speaking, and lectures and things of that nature, but I
2 am interested, just in general terms, in any consulting
3 work that you have done. If you can just tell me, just
4 generally speaking, how long you have been doing
5 consulting work and when you started doing that.
6 A I began doing what I would consider
7 environmental analytical consulting work starting in,
8 again, either late '92 or early '93. I believe that is
9 correct. Again, I'm not sure of the dates, but that is
10 approximately when.
11 Q And that consulting work consists of what?
12 Generally speaking, what kind of tasks do you perform,
13 or services?
14 A Sampling and analytical services.
15 Q Do you consider that work to be done
16 outside of your work that you do as an assistant
17 associate professor at the Florida State University?
18 A Very much so.
19 Q Is there a separate entity, corporation or
20 company that you have set up to do that work pursuant
21 to?
22 A I have not incorporated. I have not
23 established a corporation of any kind. However, the
24 work is done on my own time, and consistent with the
25 guidelines established by the university for outside
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1 consulting work.
2 Q What guidelines does the university have
3 for outside consulting work that apply to you?
4 A I couldn't quote the exact guidelines, but,
5 roughly, they expect you to spend less than a few
6 percent of your time out of a normal 40-hour week doing
7 such outside work. They allow you a few hours per week
8 or a percent of your time to do something like that.
9 If you use any facilities or equipment at
10 the university, you are expected to reimburse the
11 university for the value of the use of that material.
12 Q And I guess you would, also, need to
13 reimburse the university for any materials, laboratory
14 materials and things of that nature?
15 A Absolutely.
16 Q Can graduate students participate in your
17 consulting work?
18 A As individuals, yes. Not in their role as
19 a graduate student at the university. They would do it,
20 again, as an independent subcontractor to me.
21 Q And you would pay them for that work?
22 A Yes, absolutely.
23 Let me go back and point out that I think I
24 began doing outside consulting probably earlier than
25 late '92. It was perhaps early '92. And I would have
Accurate Stenotype Reporters, Inc.
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1 to look at my files to know exactly when I started.
2 Q Now, from going through your files, I think
3 it would probably be controversial to say that one of
4 your consulting projects has been as a consultant to the
5 Sugar Growers Cooperative for matters related to this
6 litigation; is that correct?
7 A At the time that I began the work, I was a
8 subcontractor for KBN Engineering and Applied Sciences,
9 in Gainesville. And I did not know who they were
10 contracting with.
11 Q I am simply trying to get a picture of what
12 you do. But that is one part of your consulting work
13 that you have done since 1992?
14 A That's correct.
15 Q Can you briefly describe what your other
16 consulting projects have been since early '92, when you
17 started doing consulting work?
18 THE WITNESS: Is that okay?
19 MR. PERKO: You can respond.
20 THE WITNESS: I have performed sampling and
21 analysis of mercury in natural gas.
22 BY MR. LIPSHULTZ:
23 Q Mercury and natural gas?
24 A In natural gas.
25 Q Who was that work for?
Accurate Stenotype Reporters, Inc.
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1 A Florida Power & Light.
2 Q And is that project completed now, or is
3 that something that you are working on?
4 A No, I'm not working on that at this time.
5 Q What other projects have you been involved
6 with that you would consider your consulting work?
7 A I don't recall any others.
8 Q So, sitting here today, the two consulting
9 activities that stand out in your mind, or the only ones
10 that you can recall, would be this project for Florida
11 Power & Light and your work as a subcontractor to KBN
12 connected with this litigation?
13 A To the best of my recollection, yes.
14 Q With regard to your work on the Florida
15 atmospheric mercury deposition study, and I hope I get
16 this right, the mercury atmospheric study, would that
17 work have been conducted in your capacity as associate
18 professor at Florida State University?
19 A Exclusively in that capacity.
20 Q Have you ever testified as an expert
21 witness?
22 A No.
23 Q Have you ever been deposed?
24 A No.
25 Q When were you first contacted about any
Accurate Stenotype Reporters, Inc.
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1 matter pertaining to this litigation?
2 A I received a notice of deposition taking.
3 I believe it was dated March 1st. I believe I received
4 it a few days after that.
5 Q Okay.
6 A I don't have the copy in front of me, but I
7 believe that's my understanding.
8 Q I think that's correct. That is when you
9 were first notified about this deposition.
10 I guess my question was intended to be a
11 little bit broader than that, which is when did somebody
12 first contact you about performing the services which
13 you have performed for KBN as a subcontractor, which led
14 up to our request to depose you?
15 A Okay. That would, again, be in discussion
16 with Curt Pollman, at KBN Engineering, either in late
17 '92 or early '93. He asked for my assistance in
18 collecting some samples and doing some mercury analysis.
19 And at that time, I was aware that there was a conflict
20 regarding mercury.
21 Q What do you mean there was a conflict?
22 A At that time, I did not understand who the
23 parties were that were involved. All I knew is that
24 there was -- I was led to believe, or at least I
25 understood from discussing it with Curt Pollman, that
Accurate Stenotype Reporters, Inc.
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1 there was -- it wasn't a lawsuit at that time. There
2 was a hearing going on. I don't know the details. Just
3 that the Federal Government and one or more of the
4 agricultural interests in the sugar cane area were
5 involved.
6 Q And how that pertained to mercury was
7 something explained to you with regard to the mercury
8 issue in this case?
9 A When we did the initial work, all I knew
10 was that samples were going to be collected out of some
11 of the agricultural areas by Dr. Ron Jones. And the
12 agricultural interests were unrevealed to me. I didn't
13 know who they were and I didn't ask who they were,
14 because I was dealing with KBN. However, I knew that
15 they would like to have some of what I would consider
16 parallel sampling conducted at the same time as Dr.
17 Jones was collecting his samples.
18 Q Now, this information which you just
19 related, just to be clear on this, is this information
20 that was told to you by Curt Pollman in the initial
21 conversation that you were previously or earlier
22 testifying to?
23 A That is how I recall it, yes.
24 Q Mr. Pollman, from KBN, called you or made
25 the request to you about whether you would be able to do
Accurate Stenotype Reporters, Inc.
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1 some parallel sampling in the Everglades agricultural
2 area in conjunction with sampling that was being planned
3 by Dr. Ron Jones? Is that the gist of it?
4 A That's, roughly, correct.
5 Q In general terms, what came next as far as
6 your involvement?
7 A There was a period of planning for the
8 sampling expedition, where we discussed -- again, I'm
9 just recalling from memory -- the number of samples that
10 would be taken. Whether they would be filtered or
11 unfiltered. And the need to acquire some sampling
12 bottles, which we would have to charge for. And just
13 the logistics of how the sampling expedition, if you
14 call it that, would take place.
15 Q In this planning process, who were you
16 doing the planning with?
17 A Curt Pollman. Also, I don't recall when I
18 was first introduced, but we did work with John Good,
19 also, of KBN Engineering.
20 Q Is there anyone else at KBN that you worked
21 with?
22 A I don't believe so.
23 Q Is there anyone else from your side of the
24 fence that you were working with on the planning
25 process?
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1 A I used one of my graduate student
2 assistants. I asked if she would be interested in
3 performing analytical work as a subcontractor to me in
4 this consulting work.
5 Q And this individual agreed to do that?
6 A Yes.
7 Q What is her name?
8 A Her name is Jane Louise Guentzel, spelled
9 G-U-E-N-T-Z-E-L.
10 Q With regard to the planning process that
11 you mentioned as major areas, number of samples, the
12 question of filtered versus unfiltered samples
13 acquisition of appropriate bottles, and just general
14 logistics, is that a fairly comprehensive list of major
15 issues to think about in the planning stage?
16 A Also, which chemical species would be
17 measured. Yes, which species we would attempt to
18 measure.
19 Q What were your relative roles? Let's start
20 out with you and Jane Guentzel. I take it that from
21 that end of the picture you were making decisions, not
22 your assistant, Ms. Guentzel; is that correct?
23 A That's correct.
24 Q As between you, Curt Pollman and John Good,
25 can you give me a general sense of the roles that each
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1 of you played in making decisions about the five areas
2 of planning that you mentioned?
3 A Roughly, John Good was responsible for the
4 field logistics; meaning where we would stay, who was
5 going to rent the car, where would we meet and that sort
6 of thing in the field.
7 As far as the site selection for where
8 samples were going to be taken, that was actually
9 dictated by Dr. Jones, and we simply followed their lead
10 in collecting those samples or determining the sites.
11 So, that occurred in the field on a site-by-site basis.
12 And then discussions with Curt Pollman
13 mainly involved what parameters we would analyze.
14 Q With regard to the parameters to be
15 analyzed, was that a decision made by Mr. Pollman and
16 told to you, or was it the result of sort of a two-way
17 discussion between you and Mr. Pollman?
18 A He, initially, suggested which parameters
19 that they would like to have analyzed, and I responded,
20 yes, we could do those, or, no, we couldn't do those.
21 Q So, your input into the equation was
22 limited to what was possible or impossible to do; is
23 that correct?
24 A Yes.
25 Q What were you told that the purpose of the
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1 sampling was to be?
2 A To collect parallel samples with the
3 sampling being conducted by Dr. Jones.
4 Q Were there any particular goals set out for
5 the analysis of the samples that you collected?
6 A The goals, from my perspective, were to
7 collect uncontaminated samples which could then be
8 analyzed correctly for the species that we were
9 contracted to measure.
10 Q Do you know why certain species were
11 selected and not others, for example?
12 A I don't know if Dr. Pollman and I discussed
13 it, specifically. And I can't recall at this time what
14 we would have discussed, specifically, or what is simply
15 my own interpretation of why or why not sampling would
16 have been conducted in certain areas for certain
17 parameters.
18 Q Whether or not you can sort out who decided
19 what at this point, sitting here today, do you have a
20 recollection of what the approach was and why it was
21 selected?
22 A When I went into the field the first time
23 for this sampling episode, I believed that the goal was
24 to understand what forms and what amounts of mercury
25 were present in the surface waters in those areas.
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1 Q What areas were you sampling in?
2 A The first sampling expedition, I believe,
3 was exclusively on private farms, mainly sugar cane
4 areas, if not completely sugar cane areas, but I don't
5 know that.
6 Q Do you know who owned the farms that you
7 sampled at?
8 A It is in our records. I don't know the
9 individuals.
10 Q Was that something significant to you at
11 the time?
12 A No.
13 Q Did you sample any areas other than private
14 farms?
15 A I don't know. I would have to look at our
16 records.
17 Q Did you do a conflicts check when you were
18 asked to perform these services?
19 MR. PERKO: I object to the form.
20 BY MR. LIPSHULTZ:
21 Q Are you familiar with the term "conflicts
22 check"?
23 A No.
24 Q For your consulting work, do you have a
25 procedure that you follow for determining, when an
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1 assignment is requested of you, whether it would
2 conflict with work that you are doing for other clients?
3 A At that time, I was doing no work for other
4 clients, and I believed that there was no conflict
5 between the consulting work and my university related
6 work. I don't believe that there is a formal procedure
7 at the university for determining conflicts of interest
8 like that. And so, no, I didn't do anything. I didn't
9 do such a check.
10 Q At that time, was it your belief that a
11 conflict could not arise between consulting work into
12 any other work being done pursuant to your university
13 position?
14 A It was then, and it is my intention now, to
15 keep the consulting work and university work as separate
16 as possible. At the time that we undertook this
17 sampling, my university work was not related to mercury
18 measurements in surface waters in Florida. They were
19 not related.
20 Q They were not related in what sense?
21 A In other words, the university projects
22 which I administer did not involve surface water
23 sampling for mercury at all.
24 Q In the university's rules regarding outside
25 consulting work for professors, are there any
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1 requirements that speak to the issue of potential
2 conflicts between consulting work being done on a
3 private basis and work being done pursuant to the
4 university appointment?
5 MR. PERKO: I object to the form to the
6 extent. It requires a legal conclusion.
7 You can answer it.
8 BY MR. LIPSHULTZ:
9 Q You can answer it.
10 A I believe that I have in my files a several
11 page statement from the university regarding outside
12 consulting work. I have read through it at least once
13 in the past, and it is my belief that the consulting
14 work that I was performing did not violate those
15 guidelines in any way.
16 Q Do those guidelines speak in any way to the
17 clients involved or the principals involved?
18 A I couldn't be specific. I would have to
19 get that document.
20 Q When did you first become aware that KBN's
21 client was the Sugar Cane Growers Cooperative?
22 A I may have known sometime before we went
23 into the field. But as to the actual individual
24 companies involved that KBN was a contractor for, I
25 didn't know the specific companies involved until we
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1 actually arrived in the field. I know that there are a
2 number of sugar producing entities in that region, and I
3 didn't know until we arrived in the field exactly which
4 one was sponsoring our sampling expedition.
5 Q Did you attach any significance to that
6 information at the time?
7 MR. PERKO: I object to the form.
8 THE WITNESS: No.
9 BY MR. LIPSHULTZ:
10 Q Did there ever come a time in which it
11 became significant to you who KBN's client was on this
12 project?
13 MR. PERKO: I object to the form. What do
14 you mean by significant, Counsel? In what
15 respect?
16 BY MR. LIPSHULTZ:
17 Q You can answer it.
18 A I will have to ask you to repeat the
19 question.
20 MR. LIPSHULTZ: Can you read back the
21 question, please?
22 (Requested portion read.)
23 THE WITNESS: With respect to the sampling
24 and analytical work which we were contracted to
25 do, no.
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1 BY MR. LIPSHULTZ:
2 Q With respect to anything else?
3 A I am not sure what you mean.
4 Q I guess what I'm getting at is, as you
5 know, ultimately there became a question of perceived or
6 actual conflicts of interest with regard to work in
7 which you were involved on behalf of the university and
8 work which you were involved in your consulting
9 practice. I am trying to get at the evolution of your
10 thinking on that topic.
11 A I see. I believe that that perceived
12 conflict of interest does not represent a conflict of
13 interest. I believe that my involvement in sampling and
14 analysis as a consultant in this work does not represent
15 a conflict with any of the work that I do at the
16 university. I believe that now and I believed it then.
17 We have now been asked, and I have agreed
18 to withdraw from any future consulting work regarding
19 this particular litigation, simply as a favor to the
20 funding agencies who believe that there may be a
21 conflict in interest and who provide funding for my
22 university related work.
23 Q Who are those agencies?
24 A The Florida Department of Environmental
25 Protection and the Electric Power Research Institute.
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1 And potentially, again, I have not been contacted, but I
2 believe that the Florida -- I don't know the full
3 name -- Electric Power Coordinating Group, also, doesn't
4 like us.
5 Q Now, of those entities that you just
6 mentioned, which ones have expressed concerns about a
7 potential, or perceived, or actual conflict of interest?
8 A None of them have expressed that directly
9 to me. But I think they all are concerned about an
10 appearance of conflict of interest. There has been no
11 suggestion, I believe, from any of those agencies that a
12 conflict of interest has occurred. I believe they're
13 concerned about the appearance of that.
14 Q And in what manner have you been made aware
15 of the concerns of these entities?
16 A Through KBN. Through Curt Pollman, at KBN
17 Engineering.
18 Q Curt Pollman has told you that each of
19 these entities has expressed this concern?
20 A I don't have that in writing. I believe in
21 phone conversations with Curt, that those are the three
22 groups that are concerned about this. There may be
23 more. I may be incorrect regarding the involvement of
24 what is known as FCG, whether they object or not.
25 Q What is FCG?
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1 A I think it is called the Florida Electric
2 Power Coordinating Group, abbreviated as FCG. And I
3 think they're concerned about an appearance of a
4 conflict of interest.
5 Q We got started down this sort of side road,
6 which, incidentally, I may return to it at a more
7 appropriate point later on. But for present purposes,
8 we got started down that road, and we were in the midst
9 of going over, generally, your involvement with the EAA
10 sampling, and I think we left off in the planning
11 process.
12 If you could, I would ask that you just
13 give me a very general overview of what the actual field
14 work involved.
15 A The field work involved collecting surface
16 water samples from various canals at a number of sites.
17 I would have to look at my records to know the number of
18 stations. It was on the order of 10 or so, I believe.
19 What other information would you like?
20 Q What kinds of samples did you take at each
21 site?
22 A We collected grab samples, unfiltered
23 samples and filtered samples.
24 Q Can you briefly explain the difference
25 between those three types of samples?
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1 A We collect a grab sample by immersing a
2 bottle into the surface water. Removing the cap,
3 allowing the bottle to fill and then capping the bottle,
4 again, before withdrawing it from the water body.
5 An unfiltered sample is collected using a
6 pumping system that is described in our comprehensive QA
7 plan.
8 The filtered sample is collected using that
9 same pumping system, but attaching a filter prior to the
10 water entering the sampling bottle.
11 Q Were each of these three types of samples
12 collected at each of the 10 or so locations?
13 A I would have to look at the records. There
14 are occasions when it was not possible for us to either
15 collect a grab sample or a pump sample from each canal
16 that was being sampled. Again, it is in the records as
17 to exactly which type of sample is collected at which
18 site.
19 Q What is the scientific basis for taking
20 these three different types of samples?
21 A Filtered samples are collected to look at
22 the dissolved components present in the system.
23 Unfiltered samples represent the dissolved, plus
24 whatever is associated with the suspended particulate
25 material in the water body. And a grab sample is taken
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1 to confirm whether the unfiltered sample was collected
2 properly.
3 Q Do you have an opinion on which of these
4 three types of samples, if any, is preferable for
5 purposes of analyzing surface water samples for mercury?
6 A Well, you can analyze mercury species in
7 all three types of samples. The value or the usefulness
8 of each particular type of sample depends on the
9 question that needs to be addressed.
10 Filtered samples are useful for looking at
11 dissolved species which are transported with the water
12 which do not settle out by gravitational settling, and
13 which are most likely to be involved in biogeochemical
14 cycling.
15 Things associated with particles settle out
16 quickly when flow velocities decrease. They can be
17 often elevated, because of a variety of processes.
18 They're incorporated into biogeochemical cycles in
19 different ways, because they are particles.
20 And, of course, the grab sample is, again,
21 a different way of taking an unfiltered sample.
22 Q Do you have an opinion on whether there is
23 any difference in accuracy or any other scientifically
24 relevant aspect between taking a grab sample and an
25 unfiltered pumping sample?
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1 A Yes, there are a number of parameters. I'm
2 sorry, repeat that. Between a grab sample and an
3 unfiltered pumping sample?
4 Q If I misunderstood what you just said,
5 correct me. It was my understanding that you said an
6 unfiltered pumping sample is an alternative way of
7 taking a grab sample.
8 A Yes. Anytime you take a sample that is
9 unfiltered, whether it is a grab sample or a pump
10 sample, variability in the suspended matter
11 concentrations in the vicinity where the sample is being
12 collected can reflect, in large differences, the values
13 that you find when you analyze the sample.
14 Higher suspended loads would lead to higher
15 levels of many parameters. It is difficult, when taking
16 unfiltered samples, to avoid variability in the
17 suspended load. So, that it is an imperfect -- well, I
18 don't know how to say it. You expect to see more
19 variability in data which is unfiltered, which is taken
20 from unfiltered samples.
21 Q Would it matter whether they were
22 unfiltered pump samples or grab samples?
23 A If they were taken from the same position
24 or water body under as close -- how do you say it --
25 simultaneously as possible, there should not be much
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1 difference between a grab sample and an unfiltered pump
2 sample.
3 Q With regard to the EAA sampling, in general
4 terms, do you recall reaching any particular conclusions
5 about what this sampling showed?
6 A We have not been asked, nor have I
7 provided, during this sampling work to do any
8 environmental interpretation of the data.
9 My primary goal has been to address the
10 accuracy and reliability of the data. I have not
11 provided any environmental interpretation of these data.
12 Q With regard to the accuracy and reliability
13 of the data, did you find the data that you derived to
14 be accurate and reliable?
15 A I believe they were.
16 Q Did you find a significant difference
17 between the filtered and unfiltered samples?
18 A I don't have the data in front of me.
19 There is at least one sample that I recall that was an
20 unfiltered grab sample which was substantially higher
21 than any of the filtered or unfiltered samples that we
22 collected using the pumping system.
23 Q And you would consider that, I take it, as
24 somehow consistent with the fact that grab samples can
25 be variable?
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1 A Again, if I could look at the records, I
2 could be more specific. I recall a number of times
3 during that sampling when we collected grab samples
4 under what I would consider to be less than ideal
5 conditions; where we collected a sample either after Dr.
6 Jones had been in the area, wading in the area, or where
7 the water was so shallow that it was impossible to
8 collect the grab sample appropriately.
9 Q With regard to this one grab sample that
10 you were just testifying to, do you recall what it was
11 that caused this result?
12 A Very high suspended matter load. In other
13 words, there were a lot of particles in the sample.
14 Q Would you consider that contamination?
15 A If you are trying to look at chemical
16 species in water, as opposed to looking at chemical
17 species in sediments, no, it is not really
18 contamination. It just contains a lot of resuspended
19 sediment. Therefore, what you are seeing is the
20 chemical that was associated with the sediment.
21 Q I think you earlier stated, and correct me
22 if I am mischaracterizing it, that one of your purposes
23 was to do parallel sampling for the data being collected
24 by Dr. Ron Jones?
25 A Yes.
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1 Q Have you ever had an opportunity to compare
2 the data that you collected with the data that Dr. Jones
3 collected?
4 A No.
5 Q Did you ever reach any conclusions about
6 Dr. Jones' work in the EAA?
7 A Only with respect to the sampling and
8 sample storage protocols that he was using in the field.
9 Q And those conclusions would be for this
10 event, this EAA sampling event?
11 A That's the only time that I observed Dr.
12 Jones sampling in the field.
13 Q And can you recall what your conclusions
14 were in that regard?
15 A Again, they're listed in my data report.
16 There were a number of issues that I made a note of
17 regarding sample collection and storage procedures which
18 I believed could cause inaccuracies in mercury analysis,
19 and perhaps in the speciation or chemical speciation of
20 other parameters.
21 Q I know the document that you are referring
22 to, so as not to waste too much time here. I have it in
23 this stack here, and we can talk about it, specifically,
24 later.
25 But just for this introductory purpose, is
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1 there anything that stands out to you among the things
2 that you noted that you thought were of particular
3 concern? I'm not trying to force you to give me an
4 answer. If you would rather look at the document, we
5 will do that later. That's no problem.
6 A I had several concerns. One was with
7 respect to the purpose of the sampling. When we do
8 environmental sampling, either in my role as a
9 university professor or in my role as a consultant, we
10 believe that it is important to try to collect what we
11 view to be a representative sample.
12 In other words, something that reflects
13 what you might find if you went back the next day or the
14 week after. Something that would be a reproducible
15 measurement, or a reproducible sample, I should say.
16 It was clear to me during this sampling
17 period that Dr. Jones was collecting samples from
18 regions which I would not view to be representative of
19 the region in general. However, I will qualify that, in
20 that I didn't know what his purpose was. And so from
21 his perspective, these samples may have been completely
22 representative.
23 It was my understanding that I was expected
24 to collect samples in parallel with Dr. Jones. But,
25 also, to collect samples which would be representative
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1 of the canal waters in these various areas. And I
2 attempted to do that.
3 I, also, had concerns about the sampling
4 bottles that Dr. Jones was using. It is, I believe,
5 published in the literature on environmental mercury
6 work that properly prepared Teflon and glass bottles are
7 believed to be appropriate for mercury speciation or
8 mercury sampling and for mercury speciation work, and
9 that polyethylene containers are subject to
10 contamination.
11 It was my observation that Dr. Jones was
12 using either polyethylene or perhaps polypropylene
13 sampling containers. We could go down the list, or I
14 could try and remember as many of them as I can.
15 Q No. I'm not trying to harass you by doing
16 this. I am just trying to get a sense of if there are
17 any particular big things that stand out to you. And
18 I'm not meaning to lock you in, if that is exhaustive of
19 your whole list. I know you have a whole document in
20 there.
21 A The things that I was most concerned about
22 were the representativeness of the samples, I think, and
23 the manner in which Dr. Jones' samples were being
24 collected and stored.
25 Q With regard to representativeness, do you
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1 know how many sites Dr. Jones sampled? Do you recall?
2 A Again, I would have to look in my records.
3 We were there for, I believe, two days of sampling in
4 parallel with Dr. Jones, and we collected samples from
5 every region where he collected samples. I believe he
6 was, also, in the field the day before we arrived.
7 Q Just so I understand, is it your testimony
8 that you did parallel sampling at every site that Dr.
9 Jones took samples from?
10 A I believe that is true. Again, I would
11 have to consult my notes, but I think that is correct.
12 On the days that we were both present in the field, yes.
13 Q Do you know how Dr. Jones selected the
14 sites that he sampled? You may have already said that.
15 A No.
16 Q With regard to your concern about
17 polyethylene bottles, is it true that there are accepted
18 procedures for using polyethylene containers for mercury
19 sampling?
20 A Without looking, I would guess that the EPA
21 approved method for sampling an analysis of mercury in
22 waters may suggest the use of polyethylene containers.
23 That is common for many of the trace metal species that
24 are listed under EPA methods. I can't be specific about
25 mercury, because we don't use the analytical method
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1 which is recommended by the EPA.
2 Q Are you aware of any journal articles or
3 technical literature discussing the use of polyethylene
4 bottles?
5 A Yes. And we have provided copies of those.
6 Q Do you know what the gist is of that
7 literature?
8 A The gist is that properly prepared Teflon
9 and glass bottles are superior to polyethylene bottles
10 for storage of water samples for mercury analysis.
11 Q Do you know what those articles say about
12 the use of polyethylene containers as long as -- that is
13 a poorly worded question. Let me rephrase it.
14 Do you know whether those articles, also,
15 suggest ways in which polyethylene containers can be
16 used; specifically, with regards to the amount of
17 storage time in a way that will not be harmful to the
18 samples that are collected?
19 A There is, I believe, one article that does
20 discuss the storage time aspect of that. And I believe,
21 again, without looking at the article, without referring
22 to the article, I wouldn't conclude what the article
23 says.
24 Q With regard to your concerns about Dr.
25 Jones' use of polyethylene bottles, do you have any
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1 factual knowledge of his techniques, other than your
2 belief that he used polyethylene bottles to take the
3 initial samples?
4 A About his analytical methods, you mean?
5 Q Do you know anything about what he did with
6 regard to washing the bottles beforehand, or storing
7 them afterwards, or anything other than the fact of what
8 he used in the field?
9 A Well, we noted that the sample bottles were
10 not individually bagged before use. That they were
11 individually bagged after use. And that they were then
12 stored in an ice chest, which did not appear to contain
13 ice.
14 Bottles that we prewash for mercury
15 sampling are individually bagged in a clean lab
16 environment, to prevent atmospheric dust from
17 contaminating the outer surface of the bottle. Because
18 we're concerned that that dust could ultimately
19 contaminate the sample which is put into the bottle.
20 The bottles are then, after use, returned to those bags
21 and put into a container, an ice chest containing ice,
22 in an attempt to preserve the mercury speciation which
23 might be present in the sample.
24 So, that's how we do it. It didn't appear
25 that Dr. Jones was doing it that way.
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1 Q I have a couple of questions. The main one
2 is simply -- and this is not a trick question, I am just
3 trying to get at the basis for your knowledge of this
4 topic -- is it accurate to say that your knowledge of
5 what Dr. Jones was doing with his bottles or what his
6 techniques were is based completely on what you observed
7 in the field?
8 A That's correct.
9 Q With regard to prevailing standards in the
10 field in which you work, where would you look for
11 authoritative direction on how to collect samples, what
12 might contaminate them and things of that nature?
13 A I would look in the literature, the
14 scientific literature, published by individuals with a
15 history of accurate sampling and analysis for mercury.
16 And I would rely on the advice of individuals with that
17 sort of expertise.
18 Q Are there any particular individuals whose
19 names stand out to you?
20 A William Fitzgerald, Nicolas Bloom, Gary
21 Gill, Rob Mason. I would start with that list.
22 Q Mr. Bloom, I think I recognized from the
23 documents, is somebody that you have worked with on some
24 of these projects?
25 A That's correct.
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1 Q Is he somebody whose techniques you have
2 found to be appropriate and sound?
3 A He has an extensive published record on
4 sampling and, primarily, analytical methods. But, also,
5 some dealing with sampling and sample storage for
6 accurate measurements of mercury and mercury speciation.
7 Q I take it that you find his approach to
8 these issues, his techniques, to be an example of good
9 sampling techniques; is that correct, generally
10 speaking?
11 A In general, yes.
12 Q You issued a short report, I believe, at
13 the end of your activities in the EAA; is that correct?
14 A We're speaking about the sugar cane field
15 sampling?
16 Q This event that we have been talking about.
17 A Yes, correct.
18 Q Do you recall whether you prepared any
19 other reports, significant reports, to reflect the
20 analysis, other than that one report that you did at the
21 end of this event?
22 A I don't believe I have.
23 Q What was your next project in connection
24 with your work for KBN?
25 A I believe in August of 1993 we were asked
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1 to collect some samples from what we call the
2 microfiltration experiment.
3 Q What was the microfiltration experiment, as
4 you understood it?
5 A My understanding of it is very limited. I
6 believe that a device was being tested, which, by the
7 addition of sodium hydroxide to a water sample, would
8 cause precipitation and perhaps removal of -- at the
9 time, I believe they were trying to demonstrate removal
10 of phosphorus from surface waters. And that sampling
11 was conducted by Jane Guentzel, because I was out of
12 town and was unable to accompany her to the field.
13 Q Do you know where the sampling was,
14 approximately?
15 A No. It is in our report. I don't know. I
16 mean, it is some canal somewhere in that area.
17 Q And, in general terms, what did Ms.
18 Guentzel's actual tasks involve?
19 A Well, she was asked to collect, I believe,
20 canal samples from the area where they were pumping
21 water into the microfiltration unit. To collect samples
22 of what came out of the microfiltration unit. And,
23 also, to take samples of what they call -- I forget
24 it -- we would call it the retentate; what was being
25 held behind the microfiltration device. We, also,
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1 collected one event rain sample.
2 Q What was the purpose of the rain sample?
3 A I don't know.
4 Q Do you recall any particular conclusions
5 that you drew from the sampling and analysis done in
6 conjunction with the microfiltration experiment?
7 A Again, I was not asked and have not
8 provided any environmental interpretation of the data.
9 It does appear to me that the device
10 reduces the total mercury concentration in the water
11 that is being processed. And if I recall correctly, the
12 methylmercury content of the water was not significantly
13 affected. That is my own personal look at the data. I
14 have not provided that interpretation to anyone.
15 Q Again, there was a short report prepared at
16 the end of this?
17 A Yes.
18 Q After the microfiltration activities, what
19 was the next task that you performed in connection with
20 the work for KBN?
21 A In January of this year, 1994, we collected
22 samples from three areas; the Holey Land, Water
23 Conservation Area 2A and the holding ponds at the
24 Everglades nutrient removal project.
25 Q And, again, in general terms, what did your
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1 tasks involve?
2 A The site selection was, again, done,
3 primarily. I believe the map of site selections was
4 generated by Curt Pollman, to my understanding. I did
5 not provide any input into that. Field logistics were
6 handled by John Good. And we collected a number of
7 samples, I believe, from 16 sites, if I recall
8 correctly, it may be 18, from these three areas over a
9 three-day period.
10 Q Were you told what the purpose of this
11 activity was?
12 A I don't recall if I was told what the
13 purpose was, specifically. It is my belief that the
14 sampling was set up, roughly, to look at flow into these
15 areas. Mercury in water entering these areas, passing
16 through these areas and passing out of these areas.
17 Q In general terms, do you recall reaching
18 any conclusions from the work that you did?
19 A Again, my only role, as I viewed it, was to
20 provide analytical results. I spent some time looking
21 at the accuracy and reliability of these data, and my
22 report contains substantially more information dealing
23 with those issues.
24 Q We'll get into that later.
25 A Again, I haven't evaluated the
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1 environmental significance of the data at all.
2 Q Do you have a general impression of what
3 the data showed?
4 A Mercury concentrations are low in these
5 regions, in general. And there doesn't seem to be a lot
6 of suspended particulate mercury in the samples.
7 Q Anything else?
8 A If I think of it, I'll mention it.
9 Q I believe the final reports in that event
10 were recently prepared, sometime in March; is that
11 correct?
12 A February. My report to KBN was prepared in
13 February. KBN has subsequently produced an additional
14 report, which they bundled together with their fish
15 sampling report.
16 Q Have you seen that report?
17 A I have copies of them. I haven't looked at
18 the documents at all.
19 I looked at the report, KBN's report
20 dealing with my data, in an attempt to judge whether my
21 data had been correctly reproduced in that report. So,
22 I simply checked the tables and figures to make sure
23 that my data was in there correctly.
24 Q And was it?
25 A I believe so. I didn't detect any errors.
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