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 Accurate Stenotype Reporters, Inc. 4 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, Accurate Stenotype Reporters, Inc. 5 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? Accurate Stenotype Reporters, Inc. 6 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? Accurate Stenotype Reporters, Inc. 7 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. 8 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 Accurate Stenotype Reporters, Inc. 9 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. 10 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. 11 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. 12 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. 13 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. 14 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? Accurate Stenotype Reporters, Inc. 15 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 Accurate Stenotype Reporters, Inc. 16 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 Accurate Stenotype Reporters, Inc. 17 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. Accurate Stenotype Reporters, Inc. 18 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 Accurate Stenotype Reporters, Inc. 19 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 Accurate Stenotype Reporters, Inc. 20 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 Accurate Stenotype Reporters, Inc. 21 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. Accurate Stenotype Reporters, Inc. 22 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. Accurate Stenotype Reporters, Inc. 23 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? Accurate Stenotype Reporters, Inc. 24 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? Accurate Stenotype Reporters, Inc. 25 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 Accurate Stenotype Reporters, Inc. 26 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? Accurate Stenotype Reporters, Inc. 27 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 Accurate Stenotype Reporters, Inc. 28 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? Accurate Stenotype Reporters, Inc. 29 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. Accurate Stenotype Reporters, Inc. 30 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 Accurate Stenotype Reporters, Inc. 31 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 Accurate Stenotype Reporters, Inc. 32 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 Accurate Stenotype Reporters, Inc. 33 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 Accurate Stenotype Reporters, Inc. 34 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 Accurate Stenotype Reporters, Inc. 35 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. Accurate Stenotype Reporters, Inc. 36 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. Accurate Stenotype Reporters, Inc. 37 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 Accurate Stenotype Reporters, Inc. 38 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, Accurate Stenotype Reporters, Inc. 39 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 Accurate Stenotype Reporters, Inc. 40 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 Accurate Stenotype Reporters, Inc. 41 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. Accurate Stenotype Reporters, Inc. 42 1 Q I know that part of this most recent 1994 2 sampling event involved fish sampling. Was that 3 something that you had any involvement in? 4 A None whatsoever. We were present in the 5 same areas on the same days, in some cases, but I was 6 not involved at all in the fish sampling. 7 Q So, the fact that there is a fish sampling 8 report in your file is simply because you received it? 9 A They sent me a copy of it. I have not 10 looked at it. 11 Q Okay. 12 MR. PERKO: Are you doing okay? 13 THE WITNESS: I'm fine. 14 MR. LIPSHULTZ: If you want to take a 15 break, let me know. 16 BY MR. LIPSHULTZ: 17 Q Do you have an understanding of the 18 opinions to which you are expected to testify at trial 19 in this matter? 20 A It is my intention to discuss only the 21 issues which I think are stated in some of these 22 documents. That has to do, basically, with the sampling 23 and analytical work which I performed, and the 24 reliability and accuracy of those data. That's the only 25 thing that I have been paid as a consultant to do, and Accurate Stenotype Reporters, Inc. 43 1 that's the only thing that I intend to discuss. 2 Q Is the distinction that you are drawing -- 3 and this may sound overly-simplistic, but I want to make 4 sure that I'm clear on this -- you intend only to 5 testify what you did in these various sampling events, 6 and perhaps explain the presentation of the data so that 7 they can be understood. But you are not going to 8 testify as to scientific conclusions, or hypotheses, or 9 things of that nature that can be drawn from these 10 sampling events? 11 A Regarding environmental interpretation? 12 Q Yes. 13 A No, I'm not intending to provide any 14 environmental interpretation of either my data or anyone 15 else's. At this time, I haven't been paid to do that as 16 a consultant. And my agreement to withdraw from the 17 issue, because of the concerns over conflict of 18 interest, put me in a position where I probably won't do 19 that. 20 Q Do you know who is going to interpret the 21 data in an environmental context? 22 A On the part of the entities that I have 23 been working for, I think Bob Presley has been called to 24 look at these data. I am not sure if anyone else has 25 been called. I assume Curt Pollman has provided some Accurate Stenotype Reporters, Inc. 44 1 interpretation of the data up to this point. However, 2 I, also, believe he is withdrawing from further 3 interpretation. 4 Q The data that we are referring to, just so 5 I'm clear on this, would be from the initial EAA 6 sampling, the sampling related to the microfiltration 7 experiment and the 1994 sampling events? Is that the 8 universe of what we're talking about? 9 A That's the only work that I have done in 10 this regard. 11 Q What discussions have you had with Bob 12 Presley? 13 A On this issue? 14 Q Yes. 15 A I spoke with him, I believe, only once. 16 And the gist of our conversation was that he was coming 17 here this week, and he would have some time, and would 18 like to come by and visit at my laboratory. 19 Q Okay. 20 A We didn't discuss the reasons that he's 21 being called here, and I didn't discuss any of my data 22 with him. 23 Q Has he, in fact, come by your laboratory? 24 A Not yet. He's due to arrive on Tuesday. 25 Q Before we plunge into some of these Accurate Stenotype Reporters, Inc. 45 1 documents, since this has come up, I thought it would be 2 useful, in just a general way at least, to understand 3 the situation about the Florida atmospheric mercury 4 deposition study and the mercury atmospheric deposition 5 study. 6 Just to set the stage, and I'm not trying 7 to surprise you by these questions, it is my belief that 8 there is some relevance in some of the things that you 9 have done in those studies, some relevance to this work 10 that we have been talking about today and that we will 11 be talking about further today. And I am just trying to 12 here, right now, sketch out the outlines of what you 13 have been doing on those studies, so that we can more 14 sensibly evaluate some of that. 15 First of all, can you just describe, in 16 general terms, what your work has involved in the FAMS 17 study and MADS study? Is that the correct acronyms; 18 FAMS and MADS? 19 A Right. The MADS study was a one-year 20 project to evaluate the sampling and analytical methods 21 to look at mercury species in the atmosphere. We were 22 looking at mercury in rainfall, aerosol or dust mercury 23 and gaseous mercury. 24 We established a sampling site at a place 25 called Lake Barco, about 20 miles northeast of Accurate Stenotype Reporters, Inc. 46 1 Gainesville, and collected samples through the end of 2 December of 1992. 3 We have prepared a report to DEP describing 4 the outcome of this testing of sampling and analytical 5 methods, and describing a protocol for continuing that 6 sort of work, or a set of protocols. 7 Q What this was, was three different types of 8 sampling at one location? 9 A Correct. 10 Q Over a one-year period, approximately? 11 A Actually, I believe it was -- I don't know 12 when it started. I believe it was a one-year study. 13 Q Who worked on the MADS study from your 14 office? 15 A At Florida State University, myself, Jane 16 Guentzel, Jintu Wang -- 17 Q Can you spell that? 18 A J-I-N-T-U, W-A-N-G. 19 Jerome Perry, Jerome with a J. And perhaps 20 one or two other graduate students peripherally, as well 21 as a number of undergraduate assistants. 22 Q All of these individuals, other than 23 yourself, are graduate students? 24 A Or undergraduate assistants. 25 Q What, in general terms, is involved in the Accurate Stenotype Reporters, Inc. 47 1 FAMS study? 2 A The FAMS study, I would view it as an 3 application of the methods that we developed during the 4 MADS study. We established five sites in Florida where 5 we have applied these techniques to measuring mercury in 6 the atmosphere. 7 Before I go on, let me just state on the 8 record that we have discussed this issue before, but I 9 firmly believe that the work that I have done as a 10 consultant and the work that I do as a university 11 professor are as separate as I can keep them. 12 And I believe that the work that I do as a 13 university professor may be protected by copyright or 14 intellectual property rights which I may have, and I 15 will try and assert those rights if I have them in the 16 discussion of these projects. But I'm willing to 17 continue to provide an outline of the projects for you. 18 Q I appreciate that. Not to get too far 19 distracted, have you had an occasion to consult with the 20 appropriate officials at the university with regard to 21 that matter? 22 A Yes, somewhat. The university attorneys, 23 when I first brought this matter to their attention 24 asked me if I had been issued a subpoena to produce 25 documents related to these university projects, and I Accurate Stenotype Reporters, Inc. 48 1 said, no. And they said, "Well, until you do, the 2 university is not involved." 3 So, I have consulted with the attorney in 4 the contracts and grants office regarding a clause of 5 confidentiality between the university and EPRI 6 regarding the FAMS work. And I have, also, discussed 7 the issue of intellectual property rights with the FSU's 8 attorney general counsel. 9 Q I don't mean to suggest that I want to know 10 the thought processes or the content of the discussion 11 that you had with your attorneys. But I am interested 12 in, procedurally, what your expectations are as far as 13 some decision being made within the university as it 14 applies to you, and your assertion of privilege and 15 things like that. 16 Do you have any time frame? Is there some 17 sort of decision that is imminent? 18 A At this point, the primary issue seems to 19 be or is likely to be the issue of confidentiality which 20 exists in the contract between FSU and KBN, which is a 21 subcontract to the prime contract between KBN and EPRI. 22 The language flows through to FSU. There 23 is a confidentiality statement in there regarding the 24 use and dissemination of the data to which EPRI claims a 25 first right or a right of review. Until that issue is Accurate Stenotype Reporters, Inc. 49 1 resolved, I don't believe the issue of intellectual 2 property will become the primary issue. And at this 3 point, it is simply a matter of discussion. 4 Q Is there somebody -- 5 A Let me add that at this point I have 6 received a notice of deposition, which requests 7 documents related to MADS and FAMS. I responded to that 8 request that I could not comply with that. This was in 9 early March. And at this point, that's the only 10 notification that I have received that these documents 11 have been requested. 12 Q Setting aside those issues for a moment 13 with regard to the procedural aspects of the subpoena, 14 there is really very little point in us discussing that. 15 Is there a particular individual at the 16 university counsel's office that we would contact to 17 discuss these issues? 18 A I have spoken with Bill Gladwin, in the 19 university attorney's office, as well as Rob Jourand. I 20 think his last name is J-O-U-R-A-N-D. And, again, at 21 this point, nothing official has taken place. 22 I have informed my chairman that I may be 23 asked to produce these documents. And there is a chain 24 of command that he's supposed to follow. He's supposed 25 to talk to the dean, and the dean is supposed to Accurate Stenotype Reporters, Inc. 50 1 formally request the university's attorney's 2 involvement. That has not occurred yet. 3 Q What you are saying is that in your mind 4 the appropriate bureaucratic events have not occurred 5 yet which would allow the university counsel's office to 6 officially be involved in this matter? 7 A That's correct. It is my understanding 8 that they won't get involved until I am formally, 9 basically, demanded to produce these documents. 10 Q And at this point, they don't consider the 11 Notice of Deposition, and the Subpoena Duces Tecum that 12 was attached to it, to be of sufficient somberness to 13 get that process -- 14 A The notice of deposition taking, I'm not 15 sure of. 16 Q I'm not asking you to play lawyer here. 17 A The subpoena which I received last Friday, 18 on Friday, March 25th, is incomplete and does not 19 specify which documents that I am expected to produce. 20 And until there is a specification on those documents, 21 they will not officially get involved. 22 MR. LIPSHULTZ: I guess we might as well 23 clarify the record. Just so the record is clear, 24 this, I think, is an accurate representation of 25 what Dr. Landing's position is up until now. Accurate Stenotype Reporters, Inc. 51 1 We, of course, have expressed a contrary 2 view. To the extent that these matters are 3 capable of resolution by a hearing officer, a 4 hearing is scheduled today, I believe, for 3 p.m. 5 Beyond that, in a larger sense, regardless 6 of what the hearing officer does or does not do, 7 until this matter is resolved one way or the 8 other, we reserve our rights to seek to continue 9 the deposition on some later date, if and when it 10 is determined that these documents are 11 discoverable, and we get them and we want to ask 12 you questions about them. 13 MR. PERKO: For the record, Counsel, I 14 think we previously indicated that we don't have 15 a problem with that, assuming the documents are 16 found to be discoverable and relevant to this 17 proceeding. 18 I would ask, however, that we try to 19 accommodate Dr. Landing's schedule as much as 20 possible. 21 MR. LIPSHULTZ: Of course, certainly. 22 BY MR. LIPSHULTZ: 23 Q I think when we got started down that 24 road -- 25 MR. PERKO: Can we take a quick break? Accurate Stenotype Reporters, Inc. 52 1 MR. LIPSHULTZ: Sure. 2 (Brief recess.) 3 BY MR. LIPSHULTZ: 4 Q What I wanted to return to, Dr. Landing, 5 was just this overview of the FAMS study that you were 6 giving us way back a few minutes ago. I think the last 7 thing that you had described, which I have in my notes 8 here, was that the FAMS study was an application of the 9 MADS study, and that there were five sites involved? 10 A That's correct. The Lake Barco site has 11 been continued now. The difference between MADS and 12 FAMS is that FAMS is now funded by the Electric Power 13 Research Institute, whereas, MADS was funded by DEP, 14 then DNR or DER. 15 Q Is EPRI, which is Electric Power Research 16 Institute, the only funding for FAMS? 17 A Well, there is what we call FAMS II, which 18 is the EPRI portion of the work, which began in the fall 19 of '92, and it is continuing for several more years. 20 There is a FAMS III component, which is 21 funded by DEP, and the tower sites are being equipped at 22 this time, but there is no sampling conducted yet at 23 those sites. 24 Q So, FAMS II is funded by EPRI, and FAMS III 25 is funded by DEP. Is there a FAMS I? Accurate Stenotype Reporters, Inc. 53 1 A Well, we're now referring to the MADS 2 project as FAMS I. I think that is what everyone is 3 using. 4 Q Just so that we're clear on this, your 5 objections with regard to documentation applies equally 6 to all three phases of the FAMS study? 7 A My resistance to the request for 8 documentation deals with the request itself. I have no 9 objection to anyone asking for copies of documents that 10 we have provided to DEP on these various projects. I 11 have no objection to people asking EPRI for copies of 12 documents that we have provided on these projects. 13 Depending on the nature of the request, I 14 may not even object to providing preliminary data that 15 we have accumulated on these various projects. What I 16 resist is the attempt or the request to study what I 17 consider to be my university files related to these 18 projects, for reasons which I have stated in an 19 affidavit. And they deal, primarily, with the 20 intellectual property rights issues. 21 Again, because I believe that if the data 22 are useful, if data on mercury and rainfall in Florida 23 is useful to these proceedings, some of that data is 24 already available. However, I don't see the relevance 25 of my internal university records to that issue, so Accurate Stenotype Reporters, Inc. 54 1 that's what I resist. 2 Q I suppose as long as we're going down this 3 road, you might as well describe, for the record, 4 specifically, what categories of documents you feel fall 5 within this objectionable category. 6 A Laboratory and field notebooks. Copies of 7 communications between myself, my graduate students, the 8 other principal investigators in the project and the 9 funding agencies. Data files contained on various 10 computer disks, and on hard disks and various computers. 11 That covers most of it, I believe. 12 Q Now, FAMS II and FAMS III, you said, were 13 going to be an application of the MADS study to five 14 sites? 15 A That's correct. The FAMS II project 16 involves five sites. The Lake Barco site has been 17 continued. We have a tower in Ft. Myers. We have one 18 at the Fakahatchee Strand State Preserve. That's 19 F-A-K-A-H-A-T-C-H-E-E. That is over in the Big Cypress 20 area of Southwest Florida. We have a tower at the 21 Tamiami Trail Ranger Station. That is on Highway 41, 22 approximately halfway across the State. We have a tower 23 at the Everglades National Park Research Station, west 24 of Homestead. 25 And those are the five sites for FAMS II. Accurate Stenotype Reporters, Inc. 55 1 Q And at each of those sites, you are going 2 to do rainfall, dust and gas sampling? 3 A That's correct. 4 Q Is there anything else that is part of 5 that, in broad terms? 6 A No. No, I don't think so. That's the 7 outline of that project. 8 Q And what about FAMS III? 9 A It has currently two sites which are being 10 set up at this time. One is at a place called Andytown. 11 It's the intersection of I-75 and Highway 27, in Broward 12 County. 13 Q Like Andy, A-N-D-Y? 14 A A-N-D-Y, yes. Is that in Broward County? 15 Yes. 16 And a site on what is called Little Crawl 17 Key, near Marathon, in the Keys. 18 Q And that is going to be the same sort of 19 things; rainfall, dust and gas sampling at those two 20 sites? 21 A Correct. 22 Q In general terms, what is the purpose of 23 the studies or the goal of the analysis; that sort of 24 thing? 25 A The projects are designed to evaluate the Accurate Stenotype Reporters, Inc. 56 1 spatial and seasonal deposition of mercury. And I would 2 say mercury in its various forms. And that is our 3 primary objective. 4 Q Where is the laboratory work going to be 5 performed, or where has it been performed? 6 A The laboratory work is performed in my 7 laboratory at Florida State University, as well as the 8 laboratory of Gary Gill, at Texas A&M University, in 9 Galveston. 10 Q As far as the laboratory analysis, are the 11 procedures similar for analyzing samples from each of 12 the three media? 13 MR. PERKO: You are speaking with respect 14 to rainfall, dust and gas? 15 MR. LIPSHULTZ: Yes. 16 THE WITNESS: There are some similarities, 17 but the chemical procedures that are used to 18 render the sample ready for analysis differ 19 between the different types of samples. 20 BY MR. LIPSHULTZ: 21 Q Just in simple terms, I take it that once 22 you have a sample ready for analysis, it is put into 23 some sort of devise that measures how much mercury and 24 how much mercury is in it, or enables you to draw that 25 conclusion; is that correct? Accurate Stenotype Reporters, Inc. 57 1 A The analytical -- let me think about this. 2 All three methods use the same detector. 3 The way the sample is introduced to the detector varies 4 from sample to sample. So, liquid samples are analyzed 5 in a way different from gaseous samples, but all of the 6 samples are put into the same detector to get a response 7 which is related to the amount of mercury that was 8 present in the sample. 9 Q And the detector can detect from either 10 liquid or gas samples? 11 A Yes, depending. You know, if you do the 12 necessary sample preparation that is described in the 13 MADS report to DEP. The analytical methods are 14 described there. They're, also, briefly described in 15 some of the documents that I have provided for these 16 proceedings. And I think the published references are 17 given in the documents to these proceedings. 18 Q Now, with regard to the work that you did 19 for KBN, where was the laboratory work for that 20 consulting effort performed? 21 A The laboratory work was done after-hours 22 and on weekends in the laboratory that I supervise at 23 Florida State. 24 Q Were there other laboratories used for some 25 part of that work? Accurate Stenotype Reporters, Inc. 58 1 A Yes. Some of the samples were sent to Gary 2 Gill's lab at Texas A&M, in Galveston. And samples for 3 methylmercury analysis were sent to Nicolas Bloom, at 4 Frontier Geosciences, in Seattle. 5 Q Is Mr. Bloom involved at all in the 6 analysis for the FAMS study? 7 A No. I would have to check our records. We 8 may have asked him to measure methylmercury in a sample 9 or two as Gary Gill and I develop our capability of 10 measuring methylmercury, but he's not part of the 11 project. 12 Q With regard to the laboratory work 13 performed at FSU and at Texas A&M for the FAMS study, 14 what aspects of that work, if any, of that laboratory 15 work can be said to be similar or the same as the 16 laboratory work that was performed at those two labs for 17 the KBN work that you were earlier describing for us? 18 A I can't speak for the Texas A&M lab. In 19 our laboratory, the same glassware is used, the same 20 detector is used, the same standards are used. 21 Q Anything else? 22 A Not significant. 23 Q Do you have a clean room at FSU? 24 A Yes. 25 Q Is all of this work done within the clean Accurate Stenotype Reporters, Inc. 59 1 room? 2 A Yes. 3 Q Are there any other facilities, facilities 4 or equipment, that are used that would be the same in 5 both activities? 6 A I use the same computers to enter and 7 process the data. I can't think of anything other that 8 would be significant. 9 Q Both you and Mr. Gill, I take it, worked on 10 the KBN work, as well as the FAMS work, and are 11 continuing to do so? 12 A Dr. Gill and I are continuing to work 13 together on the FAMS project. Well, one of his graduate 14 student assistants has analyzed samples for this KBN 15 consulting work; again, as a subcontractor, as an 16 independent subcontractor, using equipment and 17 facilities after-hours at Texas A&M. I don't believe 18 Dr. Gill has actually done any analysis on these 19 samples. I believe it is one of his assistants. 20 Q Do you know what name of that assistant is? 21 A Mary Stordal, S-T-O-R-D-A-L. 22 Q Ms. Stordal, also, worked on the KBN? 23 A I'm speaking of the KBN work at this time. 24 I'm not sure who in Dr. Gill's lab is performing sample 25 analysis for the FAMS project. He has a number of Accurate Stenotype Reporters, Inc. 60 1 assistants. I'm not sure who is doing what. 2 Q Do you know whether any assistants, other 3 than Ms. Stordal, perform work for Dr. Gill on the KBN 4 work? 5 A An undergraduate analyzed the dissolved 6 organic carbon samples that were collected in January of 7 '94. Her name should be in the records, but I can't 8 recall it at this time. 9 Q Do you anticipate that any of the findings 10 or conclusions of the FAMS study will add relevant 11 knowledge to our understanding of mercury issues as they 12 may affect areas within the Everglades protection area? 13 A From what we know about mercury cycling in 14 freshwater environments, atmospheric deposition of 15 mercury is important to understanding the overall 16 cycling of mercury. So, I would anticipate that our 17 results would be useful to a broader or overall 18 understanding of mercury cycling in Florida. 19 Q And that would include areas within the 20 Everglades protection area? 21 A We don't currently have any sampling. I'm 22 sorry, I am not sure of the boundaries of the Everglades 23 protection area. If the Tamiami Trail site and the 24 Everglades site are within that, then presumably those 25 data would be useful in that. Accurate Stenotype Reporters, Inc. 61 1 The site coming up in Broward County, when 2 it is operational, is, basically, in the heart of the 3 agricultural areas. Or it is next to Water Conservation 4 Area 2A, anyway. And I would guess that those data 5 would be useful. 6 Again, let me state that it is not the data 7 that I'm concerned about revealing necessarily. It is 8 our internal university files which I'm interested in 9 trying to protect. 10 Q What are the capabilities with regard to 11 mercury analysis at your lab at Florida State 12 University? 13 A Our laboratory can analyze what we call 14 total gaseous mercury. We can analyze mercury in 15 atmospheric aerosols. We can do total mercury in water 16 samples. And we can do total mercury in certain types 17 of solids, including sediments, and biological tissue 18 and plant material. 19 Q I'm sorry, that was total mercury? 20 A Yes, total mercury. 21 Q Is your lab equipped to analyze different 22 species of mercury? 23 A We cannot measure methylmercury at this 24 time. We can analyze what is known as reactive mercury, 25 which is an operationally defined measurement of mercury Accurate Stenotype Reporters, Inc. 62 1 which is reactive to stannous chloride reduction. 2 Q What does stannous chloride analysis help 3 you determine? 4 A The analysis of water samples for mercury 5 uses a reducing agent to convert the mercury into a 6 gaseous form, which is what the detector sees. Stannous 7 chloride reduction reduces a fraction of the mercury. 8 It is an intermediate strength reducing agent, and can 9 reduce a fraction of the mercury to gaseous form. The 10 reductant, which is more powerful, that we use, is 11 called sodium borohydride. That reduces, as far as we 12 can tell, all of the mercury, including particulate 13 mercury in a sample to the gaseous form, making it 14 available for analysis. 15 Q So, the purpose of either of these 16 techniques for reduction is to reduce the mercury to 17 gaseous form which assists somehow in being able to run 18 it through the detector? 19 A Yes. The detector detects gaseous mercury. 20 So, the analytical methods that we have developed, 21 basically, are chemical means to convert the mercury 22 sample into the gaseous form so that it can be delivered 23 to the detector. 24 Q And are both of these techniques -- I'm 25 never going to remember the names of these chemicals -- Accurate Stenotype Reporters, Inc. 63 1 but stannous chloride and -- 2 A And sodium borohydride. 3 Q -- sodium borohydride, are they standard 4 techniques in the field? 5 A Yes, they both appear in the literature, 6 and are commonly used by the individuals that I 7 mentioned earlier who are known for their ability to 8 collect and analyze low level mercury samples. 9 Q You said that you could not measure 10 methylmercury in your lab. What is the reason for that? 11 A We have not set up the analytical equipment 12 to do that yet. It is a separate analysis. 13 Q Is the problem that you need to buy an 14 additional piece of equipment? 15 A That's correct. 16 Q If you had that equipment, you would be 17 able to do it? 18 A We would begin developing that capability. 19 It is not something that you purchase off the shelf and 20 start running. It involves some detailed chemical 21 procedures; which, again separate the methylmercury from 22 the sample, reduce it to elemental mercury or gaseous 23 mercury, which is then delivered to the detector. 24 Q Is that something that you know how to do 25 at this point, or is it something you have to learn? Accurate Stenotype Reporters, Inc. 64 1 A The published methods exist, but it is 2 difficult to take a published method and apply it 3 without some time period for experimentation and 4 evaluation. 5 Q Have you done this? Have you conducted 6 such a procedure to date? 7 A For methylmercury analysis? 8 Q Yes. 9 A No, I have not. 10 Q I wanted to start going through some of 11 these documents. What I have done, just so you know, in 12 an effort to make this a little less burdensome on all 13 of us, is I put together four packages of documents. 14 I'm not representing to you anything other than in my 15 mind they seem to be a useful way to lump things 16 together. 17 And when I hand you this package, except 18 for this first one, which is very short, I don't expect 19 you to leaf through them all and tell me whether you 20 recognize them or anything like that. I will just give 21 them to you. I am doing this only for convenience. If 22 I want to refer to a particular pack, you will have the 23 package in front of you and you can refer to the 24 particular page. 25 So the record is clear, I'm not saying that Accurate Stenotype Reporters, Inc. 65 1 this is the order in which they were produced. I'm not 2 saying every relevant page is attached. When we get to 3 a document, you will have the opportunity to explain 4 anything that you think is wrong with it. 5 MR. LIPSHULTZ: This first package we'll 6 have marked as Exhibit 2. 7 (United States of America Exhibit 2 marked 8 for identification.) 9 BY MR. LIPSHULTZ: 10 Q What I have put in this Landing Exhibit 2 11 are three pieces of correspondence, which appear to me 12 to have something to do with this conflict issue. 13 And if you would take a second to leaf 14 through them, and see whether they look familiar to you 15 and just refresh your memory about it. 16 A All right. I recognize these documents. 17 Q All three of them look like documents that 18 you have seen before? 19 A Yes. 20 Q Let's refer to the first document, which is 21 a letter to Dr. Tom Atkeson, from Curtis D. Pollman, 22 dated January 21, 1994. 23 It is indicated in the cc list that you 24 were copied on this. Do you have a recollection of 25 that, in fact, having happened? Accurate Stenotype Reporters, Inc. 66 1 A Yes. 2 Q In the first paragraph, it refers to the 3 participation of Drs. Gary Gill and William Landing. Do 4 you see that? 5 A Correct. 6 Q One basic question that I had is, 7 procedurally, how did it happen that you and Dr. Gill 8 were employed to participate in mercury related issues 9 on behalf of the Sugar Cane Growers Cooperative? 10 A I think, actually, there is somewhat of an 11 error in this that Curt has put in. 12 Gary Gill provided very little input to the 13 consulting work. He has received a small amount of 14 money from this. Primarily, his graduate student, Mary 15 Stordal, has done analytical work for me as an 16 independent subcontractor. 17 I would have to look at my financial 18 records to know exactly how much Gary was paid. But he 19 has provided almost no input into the sampling and 20 analytical work that we're talking about here, with the 21 exception that he initially supervised Mary Stordal in 22 her training on how to make these measurements. That's 23 it. 24 For myself, again, Curt, basically, called 25 me at some point and asked if we would be interested in Accurate Stenotype Reporters, Inc. 67 1 collecting and analyzing samples on a consulting basis. 2 And as I have stated already, at the time I wasn't sure 3 who it was being done for, other than that I was doing 4 it as a subcontractor, an independent subcontractor to 5 KBN. 6 Q And was it you who suggested that Dr. 7 Gill's lab be somehow employed? I believe that you said 8 that his lab or somebody that worked for him helped in 9 some of the analysis. 10 A Correct. 11 Q Was it you that suggested that that happen, 12 or did KBN have some sort of independent relationship 13 with Dr. Gill? 14 A No, they do not, I don't believe. It is my 15 recollection that all of the funds paid to Gary Gill or 16 Mary Stordal on this work, on the consulting work, 17 flowed through me as the independent consultant and then 18 I paid them as independent subcontractors. 19 I will say that the reason for having 20 measurements made at both laboratories was from a QA/QC 21 perspective. We wanted to have analyses run at two 22 different laboratories as a check on our analytical 23 accuracy. 24 Q And when you say two different 25 laboratories, you are referring to Dr. Gill's laboratory Accurate Stenotype Reporters, Inc. 68 1 and your own? 2 A Correct, yes. As well as samples run, 3 ultimately, at Frontier Geosciences. We have had 4 samples run at three independent laboratories. 5 Q Did you have a contract with KBN for the 6 work that you did with the Sugar Cane Growers 7 Cooperative? 8 A No. The work was done on an event-by-event 9 basis, and I simply submitted invoices for work done. I 10 have no standing contract with KBN to do consulting 11 work. 12 Q Was there any written delineation of your 13 scope of work on that project or those projects? 14 A I believe in the documents that I have 15 provided there are notes, conversations between Dr. 16 Pollman and myself, perhaps involving Gary Gill 17 peripherally, that would have discussed what we were 18 expected to do, and how many samples and things like 19 that. 20 Q But that would be it? There would be no 21 formal letters or contracts? 22 A I don't recall any. 23 Q And with regard to the first sentence in 24 paragraph 2, it says, "Pursuant to your request, KBN, 25 the FAMS research team and I agree that we will not Accurate Stenotype Reporters, Inc. 69 1 participate in any further mercury data collection and 2 interpretation for surface waters and biological 3 specimens beyond that which is required to complete the 4 work currently underway in the ENR, the Holey Land and 5 WCA-2A for the Sugar Cane Growers Cooperative related to 6 the current SWIM challenge." 7 I have two questions. One is, the work 8 that is excepted, if you will, from that sentence, i.e., 9 the work currently underway, is that all completed now, 10 as far as you know? 11 A With the exception of my appearing at this 12 deposition, and ultimately appearing at a hearing or a 13 trial, I believe that my participation has ended. 14 Q So, at this point, you have no plans to do 15 any further work in this case, other than to testify on 16 the matters of which you have knowledge right now; is 17 that correct? 18 A That's correct. 19 Q With regard to the next sentence, which 20 begins, "As to that ongoing work," would that sentence 21 be an accurate description, as far as you are concerned, 22 of the nature of your continuing involvement; i.e., the 23 nature of the testimony that you expect to testify to at 24 the hearing? 25 A He is simply stating that we can't just Accurate Stenotype Reporters, Inc. 70 1 stop being involved. That we have to follow through, 2 and do this deposition and any further testimony. 3 Q But, basically, that is going to be what 4 you did, and how you did it and what the data is, I 5 suppose? 6 A That's correct. The statements are 7 somewhat broad, in that he is removing himself from any 8 further data collection and interpretation. Well, Curt 9 has done no data collection. He has done 10 interpretation, perhaps. I have done no interpretation. 11 I have done data collection. So, it is broad, to cover 12 all of us. 13 Q With regard to the next sentence, which 14 says, "As indicated earlier, primary interpretation," et 15 cetera, you earlier identified Dr. Presley as perhaps 16 somebody who may provide some interpretation of that 17 nature. Within the meaning of this sentence, is Dr. 18 Presley still the only person that you can think of who 19 might fall into that category? 20 A I really don't know who is being asked by 21 the Sugar Cane Growers Cooperative to interpret the 22 data. I am aware that Dr. Presley has been asked to 23 look at the data. I'm not sure if he's the only person. 24 Q Do you know Elizabeth Henry? 25 A I don't think so. Accurate Stenotype Reporters, Inc. 71 1 Q And then the last sentence says, "KBN, 2 including myself, and Drs. Gill and Landing, may 3 continue to provide consulting guidance to the Sugar 4 Cane Growers Cooperative regarding mercury in capacities 5 that will involve neither further field studies nor 6 involve expert testimony." 7 That seemed a little confusing to me. 8 A Yes. Well, I don't want to pull you 9 forward out of order, but I have drafted my own letter 10 to this effect, which appears in the last page here. 11 And I think that language was removed from my statement. 12 I was not quite sure what it meant, either. I do not 13 intend -- well, let me state this: I, as an independent 14 consultant -- 15 THE WITNESS: I think he is looking for me. 16 I think that's the guy with the subpoena. 17 MR. LIPSHULTZ: Off the record. 18 (Discussion off the record.) 19 MR. LIPSHULTZ: Back on the record. 20 THE WITNESS: I'm looking at the last 21 sentence here and trying to decide what it meant 22 to me. I am not anticipating doing anything 23 further for the Sugar Cane Growers Cooperative 24 through KBN, beyond completing the testimony and 25 discussion of the work that I have already done. Accurate Stenotype Reporters, Inc. 72 1 However, we wanted to reserve the right 2 into the future that if a conflict of interest, 3 if the perception of conflict of interest, were 4 changed, then perhaps funds from the Sugar Cane 5 Growers Cooperative could be used in further 6 mercury studies. 7 I am disturbed about this. As I said, I 8 don't believe that a conflict of interest exists. 9 There is a perception that it might exist, and, 10 therefore, we're voluntarily withdrawing from 11 further work. 12 However, as an independent consultant, I 13 want to reserve my right to do whatever I feel is 14 a useful, and important and valid thing to do. I 15 have made a statement to that effect, I believe, 16 in my letter, although I may not have stated it, 17 specifically. 18 BY MR. LIPSHULTZ: 19 Q I guess we are referring to what is Bate 20 stamped as DWL 13. It is the last page in this package, 21 right? 22 A I have not, specifically, stated that I 23 reserve the right to do any consulting work that I might 24 choose to do into the future, but that's my opinion. 25 Q Well, is what you mean by that is that you Accurate Stenotype Reporters, Inc. 73 1 are not intending to say that you will never work with 2 KBN, again? Is that what you are saying? 3 A Exactly. I don't mean to imply that I will 4 never possibly work for the Sugar Cane Growers 5 Cooperative of Florida in the future. For the time 6 being, we're withdrawing voluntarily to avoid this 7 appearance of conflict of interest. 8 Q And is that, in your mind, intended to last 9 at least until the FAMS study is completed? 10 A Or future, yes. It would occur no sooner 11 than the end of the FAMS work. It might extend beyond 12 that, depending on what other projects we're involved 13 in. 14 Q Just so we're clear on this, it is clear to 15 me, but I want to make sure, the first sentence of the 16 last paragraph of your letter -- not the last paragraph, 17 but the one that begins, "In order to ethically meet" -- 18 you are saying there that you are going to remove 19 yourself from work with the Sugar Cane Growers 20 Cooperative, but, obviously, you do intend to testify at 21 the hearing? 22 A Correct. Exactly. 23 Q If asked by your attorneys, I take it? 24 A Correct. 25 MR. LIPSHULTZ: These packages get bigger Accurate Stenotype Reporters, Inc. 74 1 and bigger, I warn you. But it doesn't 2 necessarily relate to how many questions I will 3 have on them. If the reporter will please mark 4 this packet as Exhibit 3. 5 (United States of America Exhibit 3 marked 6 for identification.) 7 BY MR. LIPSHULTZ: 8 Q Now, this package of separate documents has 9 been put together by me, simply because they appear, in 10 one way or another, to relate to the microfiltration 11 experiment. I just want to go through some of them and 12 ask some questions. 13 A Okay. Let me point out that on page 2 of 14 this, which is DWL 16, there is an error in the first 15 line of data. The methylmercury value in the rain 16 sample is less than .01, not greater than .01. A 17 typographical error there. I don't want to make a note 18 on this, but it is just a typographical error. 19 Q That is understood. I was going to ask 20 you, is the .01 the detection limit of your equipment? 21 A The methylmercury measurements were made at 22 Frontier Geosciences. And without going through his 23 data report, I believe that is their analytical 24 detection limit. That was the value as reported to us, 25 as shown on DWL 29. Accurate Stenotype Reporters, Inc. 75 1 Q I see what you are saying. Did they report 2 to you what their detection limit was? 3 A Not in these documents. In the last 4 sampling event they have provided a more detailed 5 description of their analytical methods, which may 6 address their detection limit definition. But this is, 7 I believe, their analytical detection limit. 8 Q Did Frontier do only the methylmercury 9 measurements or the whole thing? 10 A In this episode, I believe they only did 11 the methylmercury measurements. And the total mercury 12 measurements were run by Jane Guentzel. 13 Q This work, I think you said earlier, was 14 done mostly by Jane Guentzel; is that correct? 15 A Yes. 16 Q I see, on page DWL 22, which is about the 17 fourth page of this document, that she refers to a 18 conversation with Bill Green, who, I believe, is a 19 lawyer for the Sugar Cane Growers Cooperative. 20 This seems to indicate that Bill Green was 21 perhaps directing the work or suggesting ways in which 22 to do the work, to me. Is that, in fact, what happened, 23 if you know? 24 A I don't know. 25 Q I think earlier when I asked you this Accurate Stenotype Reporters, Inc. 76 1 question, you said that Curt Pollman would have been the 2 contact person for your staff, as far as what to do and 3 when to do it. Do you have any knowledge whether there 4 was anyone else involved in that? 5 A Yes. The field records from this will list 6 the name of -- I don't know his name offhand. It is 7 another fellow from KBN, who, I believe, was in the 8 field at the time. John Good may have been present. 9 Q These would have been decisions that were 10 made in the field? 11 A The decision to make the rain sample was 12 made before the sampling event took place. 13 Q And this seems to suggest that Bill Green 14 suggested that, but you don't know one way or the other? 15 A I have no idea. When I read that, I didn't 16 pay attention to who may or may not have suggested it. 17 It was simply whether or not we would do it. 18 This is a letter from Jane. 19 Q We will move on from that one. 20 Did any of that effort impart anything to 21 you of significance with regard to your understanding of 22 mercury cycling in the Everglades? 23 A We made a statement in there that the 24 mercury level found in the rainfall was consistent with 25 what we observed at our South Florida towers. It was at Accurate Stenotype Reporters, Inc. 77 1 that time, to my knowledge, the only rain sample. 2 Certainly, the only rain sample that I was aware of that 3 had been collected in the agricultural areas. 4 I did find it interesting that the total 5 mercury concentration was what it was, and that the 6 methylmercury concentration was low. Because we had 7 been asked numerous times, in our university related 8 work,