229
1 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
2
3 SUGAR CANE GROWERS COOPERATIVE )
OF FLORIDA; ROTH FARMS, INC., and )
4 WEDGWORTH FARMS, INC., )
Petitioners, ) DOAH Case No. 92-3038
5 v. )
SOUTH FLORIDA WATER MANAGEMENT )
6 DISTRICT, an agency of the State )
of Florida; et al., )
7 Respondents. )
- - - - - - - - - - - - - - - - - - x
8 FLORIDA SUGAR CANE LEAGUE, INC.; )
UNITED STATES SUGAR CORPORATION; )
9 and NEW HOPE SOUTH, INC., )
Petitioners, )
10 v. ) DOAH Case No. 92-3039
SOUTH FLORIDA WATER MANAGEMENT )
11 DISTRICT, an agency of the State )
of Florida; et al., )
12 Respondents. )
- - - - - - - - - - - - - - - - - - x
13 FLORIDA FRUIT AND VEGETABLE )
ASSOCIATION; LEWIS POPE FARMS; )
14 W.E. SCHLECHTER & SONS, INC., )
and HUNDLEY FARMS, INC., )
15 Petitioners, )
v. ) DOAH Case No. 92-3040
16 SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an agency of the State )
17 of Florida; et al., )
Respondents. )
18 - - - - - - - - - - - - - - - - - - x
100 S.E. 2nd Street
19 Miami, Florida
February 11, 1993
20 8:00 a.m. - 3:15 p.m.
21 DEPOSITION OF DAVID LEAN
22 Taken before THOMAS R. NEUMANN, Registered
Professional Reporter and Notary Public in and for
23 the State of Florida at Large, pursuant to Notice of
Taking Deposition filed in the above cause.
24 - - - - - - -
230
1 APPEARANCES
2 ON BEHALF OF THE RESPONDENT-INTERVENOR
UNITED STATES OF AMERICA
3
KATHY STARK, ESQ.
4 ASSISTANT U.S. ATTORNEY
99 N.E. 4th Street
5 Miami, Florida 33132
6 ON BEHALF OF THE PETITIONERS FLORIDA SUGAR CANE
LEAGUE, INC., UNITED STATES SUGAR CORP., and
7 NEW SOUTH HOPE, INC.
8 EARL, BLANK, KAVANAUGH & STOTTS P.A.
One Biscayne Tower, Suite 3636
9 Two South Biscayne Boulevard
Miami, Florida 33131
10 BY: MARK T. KOBELINSKI, ESQ.
11 ON BEHALF OF THE PETITIONERS SUGAR CANE GROWERS
COOPERATIVE OF FLORIDA, ROTH FARMS, INC., AND
12 WEDGWORTH FARMS, INC.
13 HOPPING, BOYD, GREEN & SAMS
123 South Calhoun Street
14 P.O. Box 6526
Tallahassee, Florida 32314
15 BY: GARY V. PERKO, ESQ.
GARY P. SAMS, ESQ.
16
SOUTH FLORIDA WATER MANAGEMENT DISTRICT.
17
POPHAM, HAIK, SCHNOBRICH & KAUFMAN, LTD.
18 4000 International Place
100 S.E. 2nd Street
19 Miami, Florida
BY: PAUL NETTLETON, ESQ.
231
1
2 INDEX
3 Witness Direct Cross Redirect Recross
4 DAVID LEAN
5 By Mr. Kobelinski: 232 414
6 By Mr. Perko: 315
7
8
9 EXHIBITS
10 NUMBER BATES NO. PAGE
11
12 6 0001496-0001504 239
13 7 0001556-0001562 294
14 8 Hand Drawing 337
15 9 0001340-0001354 345
16 10 0001620-0001635 409
17 11 1220001-1220032 417
232
1 Thereupon --
2 DAVID LIEN
3 was called as a witness and, having been first duly
4 sworn, was examined and testified as follows:
5 DIRECT EXAMINATION
6 BY MR. KOBELINSKI:
7 Q. Dr. Lean, good morning. I would remind
8 you, although I doubt it's necessary, that you are
9 still under oath and we are going to proceed in the
10 same manner we did yesterday.
11 I would again just remind you if you don't
12 understand a question or don't know the answer,
13 please let me know. I'll attempt to rephrase it. Or
14 simply tell me you don't know or don't remember, all
15 right?
16 A. Yes.
17 Q. And respond verbally, even though the
18 reporter is cleaning it up.
19 You were going to look for, I believe, a
20 paper or two last night. Were you able to locate
21 anything?
22 MS. STARK: We did go back to the office,
23 tried to locate that stuff. We were unable to
24 locate the William Walker document. The Ron
25 Jones information that he was referring to has
233
1 already been turned over and Dr. Jones'
2 documents there are Bates Nos. 7715 to 7719 and
3 they merely are about four pages of charts.
4 Dr. Jones' documents.
5 MR. PERKO: What were the Bates numbers?
6 MS. STARK: 7715 through 7719, a series of
7 graphs that sets for the Jones data.
8 MR. KOBELINSKI: Did you bring it with you?
9 MS. STARK: We do have copies. We prefer
10 that you get it from Dr. Jones' stuff.
11 MR. KOBELINSKI: We can do that. I'm
12 trying to finish by three. I can break the depo
13 any time to go back to my office.
14 THE WITNESS: They are in the Nearhoof
15 report.
16 MS. STARK: We were able to determine all
17 the data is in the Nearhoof report.
18 MR. KOBELINSKI: If that's the case,
19 perhaps we can just avoid the issue in that we
20 do have all the data.
21 MR. PERKO: Is there a reason you didn't
22 want to provide us copies?
23 MS. STARK: I think you have them.
24 MR. KOBELINSKI: I think everyone already
25 has everything in this case.
234
1 MS. STARK: I think that's probably true.
2 The data is in the Nearhoof document. I prefer
3 to work off that. That has been produced
4 already.
5 MR. KOBELINSKI: All right. We will see
6 how that works, and perhaps I can find a runner
7 to bring it over.
8 BY MR. KOBELINSKI:
9 Q. Dr. Lean, under the proviso I just
10 mentioned, let's proceed onward. And you had
11 mentioned several times yesterday that -- I believe
12 it's alkaline phosphatase is a good indicator of
13 stress or precursor, indicator of stress to the
14 Everglades ecosystem; is that correct?
15 A. That's correct.
16 Q. Is it common to refer to that as AP or do
17 we have to say alkaline phosphatase?
18 A. AP.
19 Q. Let's say AP, then.
20 A. Let's say APA, alkaline phosphatase
21 activity.
22 Q. Would you prefer APA?
23 A. Whatever you would like.
24 Q. Let's go with APA. With regard to APA, do
25 you have any opinions or will you be providing any
235
1 opinions at the final hearing with regard to APA
2 activity within the Everglades protection area?
3 A. Yes.
4 Q. To what geographic areas you will be
5 confining your opinions to?
6 A. I think I should draw your attention to --
7 Q. Are you looking for the Nearhoof report?
8 A. I was looking at -- I think it's a very
9 sensitive indicator of phosphorus deficiency.
10 MS. STARK: Just answer the question about
11 geographic locations.
12 BY MR. KOBELINSKI:
13 Q. If you are looking for some of the things
14 we marked yesterday, they are right here.
15 A. Geographic locations. The one I
16 specifically referred to is south of the S-12s. And
17 it's generally acknowledged that when you get to low
18 levels of phosphorus concentration, the analytical
19 determination isn't as sensitive as some
20 physiological indicators. And one of them is
21 alkaline phosphatase activity. I developed a few
22 others.
23 So the S-12 where soil phosphorous is
24 elevated, alkaline phosphatase is very low. And only
25 when you get to the lower soil phosphorus
236
1 concentration do you find elevated alkaline
2 phosphatase activity.
3 MS. STARK: Doctor, the only question
4 pending is concerning the geographic location.
5 Let him ask you the next question.
6 MR. KOBELINSKI: I object to your
7 interrupting the witness in the middle of a
8 response.
9 MS. STARK: The response was south of the
10 S-12s. Go ahead, ask the next question.
11 MR. KOBELINSKI: I would object to your
12 stopping the witness in the middle of his
13 opinion. If you don't like the answer, if he is
14 going too long, he is entitled to speak.
15 MS. STARK: It has nothing to do with me
16 liking or not liking his answer. He is no
17 longer responsive to the question.
18 MR. KOBELINSKI: I'm just going to tell you
19 you are going to lengthen the depo by stopping
20 him in the middle and saying that's enough.
21 MS. STARK: I said he was no longer
22 responsive to your answer.
23 MR. KOBELINSKI: That's not your place to
24 judge.
25 MS. STARK: I can stop my witness.
237
1 MR. KOBELINSKI: I can stop the depo and
2 take it to the hearing officer this afternoon.
3 I'm telling you it will take a lot longer if you
4 keep stopping --
5 MS. STARK: Ask another question.
6 BY MR. KOBELINSKI:
7 Q. You said it's a better indicator and I
8 didn't catch what you had mentioned. Better
9 indicator than -- I'm sorry?
10 A. When you get to very low levels of
11 measurements of reactive phosphorous, whether or not
12 population is phosphorous deficient becomes difficult
13 to interpret. And so you are looking for better
14 methods than simple measurement of reactive
15 phosphorous.
16 As you know, we talked about
17 concentrations. They are down in the 10 micrograms
18 per liter range. The soluble forms a tiny fraction
19 of that. So you are at the limit of detection of the
20 chemical methods. So you are looking for something
21 else.
22 Alkaline phosphatase activity comes to the
23 rescue because it tells you how the organism is,
24 phosphorus deficient or not.
25 Q. I believe you had stated that alkaline
238
1 phosphatase along with a few other methods you had
2 developed. What methods are those you are referring
3 to?
4 A. I found the paper. This is an example from
5 Lake Ontario when I published in 1987 and compared
6 here three methods. This PDI is for phosphorous
7 deficiency indicator and it measured the plankton's
8 ability to take up and assimilate phosphorous. It's
9 a ratio of phosphorous assimilation to -- it's a
10 ratio of carbon assimilation under good light
11 conditions to phosphorous assimilation using radio
12 tracers for balanced growth conditions, balanced
13 growth meaning have they got everything they want, it
14 should be up in the hundred region.
15 When it's down less than 10, 1 to 10, it's
16 in the extreme phosphorus deficiency region. So here
17 it's able to take up far more phosphorous than it
18 requires for growth. Here it's fulfilling it's
19 storage pools. So the phosphorous deficiency
20 indicator is a very useful sensitive bio assay at
21 these very low levels.
22 I always do compare it higher to phosphorus
23 turnover time. These data are from Lake Ontario, so
24 you can see the correlation between phosphorous
25 deficiency indicator and turnover time.
239
1 My ranges of turnover time, I talked about
2 that yesterday, are between .1 and 1,000 hours. So
3 1,000 hours is like when you get down in minutes but
4 are over this end of the curve. When Ron and I made
5 the measurement, this is where we were in pristine
6 Everglades.
7 The real answer to your question comes in
8 the next graph which is the relationship between the
9 phosphorous deficiency indicator and total alkaline
10 phosphatase activity. It very clearly shows alkaline
11 phosphatase activity is high when there is no
12 deficiency.
13 And these data, of course, are totally
14 independent of the Everglades, but researchers have
15 used this technique in Sweden and New Zealand and
16 other global locations. It's exceedingly sensitive
17 in these very low ranges where the chemical method
18 loses sensitivity because it is too close to the
19 detection limit.
20 MR. KOBELINSKI: All right. First of all,
21 let's go ahead and mark this as Exhibit 6.
22 (The document referred to was thereupon
23 marked Exhibit 6 for Identification.)
24 BY MR. KOBELINSKI:
25 Q. Let me show you, Doctor, what has been
240
1 marked as Lean Exhibit 6 to the deposition, which is
2 the article you are referring to from the Canadian
3 Journal of Fisheries and Aquatic Science entitled
4 Volume 44, No. 12, 1987. It's on pages of the
5 Journal 2069 through 76, Bates Nos. DDL0001496
6 through 1504, and it's a two sided document, just for
7 the record.
8 I'm going to ask you a couple of questions,
9 since you certainly sparked my interest on this.
10 No. 1, this phosphorous deficiency index
11 you are referring to, that I gather is something
12 other than APA; is that correct?
13 A. Yes.
14 Q. Is that something that you have used or
15 attempted to use in the Everglades itself?
16 A. What we used was the turn over assay and
17 the three are interrelated, as shown on these two
18 graphs.
19 Q. Just so I understand, two of the graphs --
20 by the graphs that Dr. Lean is now referring to are
21 on page 2075 on that article, Bates 0001503. And
22 again with regard to the phosphorous deficiency index
23 itself, is that an index that's based upon a
24 particular type of laboratory test or measurement?
25 A. The water samples are transported to the
241
1 laboratory and the test is run within two to four
2 hours. We have made a lot of measurements of changes
3 from time zero to storage times of up to 48 hours,
4 and there is no substantial changes within the four
5 hour period. So that's done in the lab, of course.
6 You can't do -- you can't handle radioactivity in the
7 field with ease.
8 Q. The two to four hours you say was fine.
9 What about your longer period of time that you had
10 mentioned you testified?
11 A. It's still looked okay. I'm just
12 confirming that the problems of transporting samples
13 are minimized by keeping them at ambient
14 temperatures. There is no drastic change by doing
15 the experiments in the lab as opposed to instantly in
16 the field.
17 Q. All right. Now, with regard to again PDI,
18 phosphorous deficiency index, is that the equivalent
19 of AP?
20 A. No. It's three independent methods which
21 have been correlated, all of which give similar
22 values. And probably in the literature there is more
23 information on the turn over times of PDI's than
24 alkaline phosphatase. Here it shows that the three
25 independent methods give very similar results.
242
1 Q. The Exhibit 6 deals with PDI testing in
2 Lake Ontario; is that correct?
3 A. That's correct.
4 Q. Have you done any PDI testing in the
5 Everglades?
6 A. We never made the calculation, but I think
7 the data is there.
8 We have done turnover time measurements
9 sure. Equally strong.
10 Q. When you say "we," you are referring to the
11 one testing time that you were involved in any actual
12 testing, which is back in '86 and '86 with Ron Jones,
13 two to three samples to determine the turnover of
14 phosphorous; is that correct?
15 A. But then I'm sure he did others.
16 Q. But as far as your involvement in it, that
17 was it, just so I understand my notes are correct
18 from yesterday?
19 A. That's correct.
20 Q. What is the information you need to know to
21 determine PDI?
22 A. You add a small amount of substrate to the
23 sample, and the enzyme which exists in solution, the
24 phosphatase enzyme leeches off the terminal
25 phosphorous from the molecule that you have added.
243
1 You have added a trace amount of organic phosphorous
2 compound.
3 If the enzyme exists which cuts off the
4 phosphorous from organic phosphorous, it fluoresces.
5 So you measure the florescence on the fluorometer and
6 you get a number. That number tells you the activity
7 of the enzyme that's present.
8 Q. Now, was that just a description of APA or
9 PDI?
10 A. APA.
11 Q. My question was rather, what information
12 you need for PDI.
13 A. I told you that a moment ago.
14 Q. I missed it, then. I'm trying to
15 understand how it differs from APA.
16 A. Well, I'll try again, but I don't know if
17 I'll be any more successful this time.
18 Q. Let me ask you -- before you do that, let
19 me ask you this. Will you be providing any opinions
20 at the final hearing with regard to the PDI, applying
21 the PDI index to the Everglades protection area?
22 A. Certainly. If you are asking about the
23 validity of APA, I'll bring in other techniques to
24 enforce or to strengthen the validity of APA.
25 Certainly I might talk about anything in
244
1 the literature. I haven't decided what I'm going to
2 talk about.
3 Q. Well, have you done -- again, I'll ask you,
4 have you calculated any PDI indexes for the
5 Everglades or any portion thereof?
6 A. I told you what I have done.
7 Q. Again, I don't want to pursue a line you
8 are not going to be testifying about because we are
9 trying to keep within the 3:00 period.
10 A. Right.
11 Q. So if you are not going to be testifying
12 about PDI, I'll skip that.
13 A. I didn't say I was not going to talk about
14 PDI. If you are asking about alkaline phosphatase,
15 I'll relate it to other indicators -- of which there
16 might be a hundred.
17 Q. Well, which of the hundred do you think you
18 will relate it to?
19 A. I haven't the foggiest idea.
20 Q. For the time being, we don't have time to
21 go through all hundred. Why don't we just go back to
22 alkaline phosphatase?
23 A. We can stop a lot of time asking silly
24 questions.
25 Q. Which ones are silly questions?
245
1 A. The ones you just did. I took great pains
2 to explain what PDI was. You never caught it. Try
3 and keep awake.
4 Q. You have to excuse me, Doctor, but I
5 appreciate you have a Ph.D., is that right?
6 A. Yes.
7 Q. How long did it take you to get one?
8 A. I was giving it to you at the level --
9 about grade 9 level, and I certainly thought you
10 should be able to catch it if you had been paying
11 attention.
12 Q. Well, I'll try to pay a little more
13 attention, Doctor, but appreciate that you are not
14 dealing with doctors or students.
15 A. I appreciate what I'm dealing with. In
16 fact, I know what I'm dealing with. But try to keep
17 on target.
18 Q. I'll attempt to keep on target. With
19 regards to alkaline phosphatase, have you done any
20 APA testing in the EPA?
21 A. No.
22 Q. What APA test results have you reviewed?
23 A. I have already discussed that. I showed it
24 to you yesterday. I discussed it with you yesterday.
25 Q. That's solely Ron Jones' APA testing?
246
1 A. Yes.
2 Q. All the data you reviewed is in the
3 Nearhoof report?
4 A. Nearhoof transformed the data from the raw
5 data. I think you should refer to Ron Jones' numbers
6 which were given to you earlier.
7 Q. Which Ron Jones numbers were given to you
8 earlier?
9 A. Counselor gave it to you when we first sat
10 down this morning. So I don't want to say that
11 Nearhoof represented Ron Jones' graphs. He made some
12 transformations of that data, so you should look at
13 the originals.
14 MR. KOBELINSKI: Counsel, I'll tell you
15 right now we will attempt to get that, but it's
16 clear we can't just work off the Nearhoof
17 report, from what he said.
18 MR. PERKO: Yes, we can.
19 BY MR. KOBELINSKI:
20 Q. What do I need? You just told me I needed
21 to look at the Ron Jones data, which we don't
22 have.
23 A. We can look at the Nearhoof data. I said
24 it had been transformed. Therefore, you should also
25 look at the original data.
247
1 Q. We don't have the original data with us.
2 We seem to be playing a little game today.
3 A. No, we are not.
4 Q. I mean, we had the document. We identified
5 it, but we didn't bring it. We will work with what
6 we can, but we are again putting constraints on what
7 we are doing.
8 Could you identify for us which figure the
9 data is that's transformed?
10 A. Yes. The original data provide alkaline
11 phosphatase activity with distance from the S-12.
12 Nearhoof has done -- also has the phosphorous
13 concentrations known with distance related alkaline
14 phosphatase activity to soil. It tells the same
15 information but only you lose the benefit of knowing
16 if it was simply transformed to alkaline phosphatase
17 activity. It's zero. That's why the phosphorous is
18 high, and it increases and reaches a plateau. So the
19 two measurements are internally consistent.
20 Q. Do you know how many sites Ron Jones tested
21 the alkaline phosphatase in?
22 A. Yes.
23 Q. How many?
24 A. Probably about the same as they measured
25 soil phosphorous, but something like seven. It might
248
1 have been more.
2 Q. With regard to Figure 14 on Exhibit 1,
3 which relates to soil phosphorous, there are 12
4 sites. Is it your recollection he measured alkaline
5 phosphatase activities at 12 sites?
6 A. What did I just say?
7 Q. You said seven, possibly more.
8 A. Good for you. That's exactly what I said,
9 seven. Possibly more.
10 Q. Given the fact that you are relating it to
11 phosphorous, do you recall if he tested at all 12 of
12 the phosphorous sites?
13 A. No.
14 Q. No, you don't recall? No, he did not?
15 A. No, I don't recall.
16 Q. Is the alkaline phosphatase that you are
17 testing, is that in the soil or in the water?
18 A. It's in the water.
19 Q. And is it influenced by the soil
20 phosphorous?
21 MS. STARK: Object to the form of the
22 question.
23 THE WITNESS: What have we been talking
24 about?
25 BY MR. KOBELINSKI:
249
1 Q. I'm talking about --
2 MS. STARK: Just answer his question.
3 THE WITNESS: I have answered the question.
4 I have answered the question. Any grade 9
5 student would have picked it up. Where were
6 you?
7 BY MR. KOBELINSKI:
8 Q. I was sitting right here, Doctor.
9 A. I have answered the question.
10 Q. And the answer is?
11 A. I have answered the question.
12 Q. I don't have it written down, sir. What is
13 the answer to the question?
14 A. To save time in reading it back, what I
15 said before was in this document the values are given
16 for soil phosphorus with distance and the
17 transcription made by Nearhoof is to relate the soil
18 phosphorus concentration with alkaline phosphatase.
19 The two are related.
20 Q. Would alkaline phosphatase in the water
21 relate to the amount of water -- phosphorus in the
22 water?
23 A. We went through that at great length
24 yesterday, and I said the three are interconnected.
25 Q. Three being poor water, soil, phosphorus --
250
1 A. No.
2 Q. Which three?
3 A. Water, soil and alkaline phosphatase.
4 Q. Do you always have high water phosphorus
5 concentrations where you have high soil phosphorus
6 concentrations?
7 A. Not necessarily, because of a difference in
8 timing. The soil may go through a period of
9 enrichment whereby certain contamination occurs. And
10 then following that period, cleaner water comes over
11 it and the signature is left in the sediments of that
12 high exposure.
13 But in general the patterns are that
14 unsteady state conditions, the high levels of
15 phosphorous and soils are related to high levels in
16 the water, and these correspond to low levels of
17 alkaline phosphatase activity.
18 Q. Is that true throughout the EPA, that high
19 levels of phosphate in the soils are related to high
20 levels of phosphorus in the water throughout the
21 year?
22 MS. STARK: Objection to the form of the
23 question.
24 THE WITNESS: I object to -- I have told
25 you how many times that I don't know anything
251
1 about what happens throughout EPA or anywhere
2 else.
3 I made some measurements at critical
4 locations or I had been aware of measurements
5 that have been made. But to properly sample
6 Everglades National Park at 2000 stations over a
7 respectable time period would cost more than
8 this court case.
9 BY MR. KOBELINSKI:
10 Q. You have quite a bit of testing. I believe
11 you said in 2A millions of dollars' worth.
12 I think you said that was the figure we
13 used yesterday?
14 A. Probably. They haven't made any
15 measurements of sensitive indicators of deficiency.
16 All they have done is measured chemical phosphorous
17 levels.
18 Q. Wouldn't that be able to confirm whether or
19 not you always have high phosphorous levels in the
20 water where you have high phosphorus levels in the
21 soils?
22 A. One would think so, but I haven't reviewed
23 that carefully. I think that's a valid assumption,
24 though.
25 Q. With regard to the dosing study site, is
252
1 that now an area that would be an anomaly that you, I
2 believe yesterday, described at high levels of
3 phosphorous in the soils but not in the water?
4 A. I would think so. That's a guess.
5 Q. Do you believe there are high levels of
6 phosphorous in the water at the dosing sites?
7 A. No. I think the water flowing over
8 contaminated soils once the easily exchangeable
9 phosphorous is removed is fairly low in phosphorous.
10 Q. Do you believe that the soils at the dosing
11 study are still impacted by phosphorous?
12 A. Yes.
13 Q. So what would you anticipate the alkaline
14 phosphatase activity to be there?
15 A. I have no way of knowing. I can't guess at
16 things like that.
17 Q. If I understand your theory, you are using
18 AP as a predictor, an early predictor of impact?
19 A. Yes.
20 Q. In that scenario, you would not be able to
21 directly tell me what you would believe they would
22 be?
23 A. No.
24 Q. Is that because there is a difference
25 between the phosphorous in the water column and
253
1 phosphorus in the soil?
2 A. Nobody knows.
3 Q. When you have water column phosphorous at
4 the level of seven, what would the AP activity be?
5 A. I have no way of knowing.
6 Q. What would you expect it to be?
7 A. I have no way of knowing.
8 Q. Is there a background AP activity found in
9 the Everglades National Park in pristine areas?
10 A. I don't know.
11 Q. How do you use the AP activity as an
12 indicator then?
13 A. Just as Ron has. You can do a transect and
14 it's a relative measure of phosphorous deficiency.
15 There is probably some alkaline phosphatase
16 everywhere. But when it's close to the bank, it's
17 close to bank, I considered that to be zero.
18 To put it on a scale of sensitivity, where
19 the phosphorous analytical technique leaves off is
20 where these sensitive indicators of deficiency begin.
21 And so it gives much greater sensitivity in very low
22 phosphorous readings.
23 Can I open the window?
24 Q. Sure. You have been referring us to
25 Figure 14 and Figure 16 in the Nearhoof report which
254
1 is marked as Exhibit 1.
2 Figure 14 shows a comparison of soil
3 phosphorous concentrations as compared to distance
4 from S-12 C. And Figure 16 shows alkaline
5 phosphatase as comparison to total soil phosphorous.
6 But you have kind data from water conservation area
7 1, 2A, 3, 5 and Everglades National Park?
8 A. Yes.
9 Q. Have you reviewed the data from water
10 conservation area 1?
11 A. I have seen the data. But a review
12 suggests that I did something a little more thorough,
13 and I would not call it a review. I would say -- go
14 ahead.
15 Q. Have you seen the data from water
16 conservation area 2A?
17 A. Yes.
18 Q. Other than in this format as part of
19 Exhibit 1?
20 A. Yes.
21 Q. Where have you seen that data?
22 A. It's in Ron's data that we have already
23 noted.
24 Q. That's the one you identified this morning
25 but you don't have a copy of. Have you reviewed that
255
1 data for 2A?
2 A. I challenge your use of the word "review."
3 I glanced at it, yes.
4 Q. I was using, as you just stated,
5 "reviewing" something other than just looking at it.
6 A. The answer is no. I haven't reviewed it.
7 I glanced at it.
8 Q. With regard to 3A, have you seen the data
9 from -- alkaline phosphatase data from 3A?
10 A. Yes.
11 Q. Have you reviewed that? I'm using the term
12 as you used "review," other than glance.
13 A. I glanced.
14 Q. With regard to the ENP data, have you
15 reviewed that, done more than just glanced at it?
16 A. No. You didn't ask me about that.
17 Q. No, I haven't asked you about that as yet.
18 Is there any way to determine which of
19 these alkaline phosphatase numbers relate to the park
20 data?
21 A. Not from this. Perhaps you can come close.
22 If you look at soil phosphorus, you might be able to
23 pick the numbers off there. But the patterns are
24 very similar. It doesn't really matter.
25 Q. Would the time of day that the alkaline
256
1 phosphatase testing is being conducted have any
2 impact?
3 A. It doesn't seem to.
4 Q. When you say it doesn't seem to, what do
5 you base that upon?
6 A. Not from working the Everglades. Diode
7 patterns in the northern lakes. Other people have
8 looked at diurnal patterns and it doesn't seem to.
9 Q. Do the diode patterns you are referring to
10 match those of the Everglades?
11 A. I said there was no pattern. If you have
12 alkaline phosphatase present, it's fairly constant
13 for 24 hours.
14 Q. What factors do impact alkaline phosphatase
15 activity?
16 A. The presence of high levels of phosphorous.
17 A lot of phosphorous is around. Low levels of
18 alkaline phosphatase exists.
19 Q. How are we defining high levels of
20 phosphorous?
21 A. Probably just about everything that's above
22 detectable limit by a chemical method.
23 Q. Again, we are still talking about in the
24 water column?
25 A. Yes.
257
1 Q. So four to seven, you would have alkaline
2 phosphatase activity?
3 A. No. You are confusing total phosphorus
4 with reactive phosphorous. And so chemical methods
5 can measure something called the reactivity
6 phosphorous which people have thought was a measure
7 of PO4, which is the most biologically available
8 form.
9 The reality is when you get to these low
10 levels the test is unreliable. So if you had a
11 soluble reactive measurement of 1, you wouldn't know
12 if it was 1 or .1 or .01. But alkaline phosphatase
13 is a much better sensitive indicator of how much
14 available phosphorous is around.
15 When the plants or when the community is
16 deficient in phosphorous, alkaline phosphatase shows
17 up.
18 Q. Has anyone attempted to test or detect the
19 amount of soluble reactive phosphorous in the waters
20 of the ENP?
21 A. It's below detectable limit.
22 Q. That's true both south of the S-12s and
23 elsewhere?
24 A. There may be times when there is enough to
25 measure. But by-and-large, when the total
258
1 phosphorous is 8 or so you are testing the limit of
2 sensitivity to try and measure the soluble forms.
3 Q. Does temperature impact alkaline
4 phosphatase activity?
5 A. It should be run either at ambient
6 concentrations or near ambient. But a lot of data
7 exists where they normalized it to 25 degrees. That
8 would be appropriate for the Everglades since 25
9 degrees would be the standard temperature.
10 But as in any other chemical and biological
11 reaction, the effective temperatures, if we ran it at
12 zero degrees we get a different number than 25, so
13 that's normalized out.
14 Q. I guess my question was directed a little
15 bit differently. Would you have the same alkaline
16 phosphatase activity at midnight as you would at
17 12:00 noon on a summer's day?
18 A. I don't know if it has been run in the
19 Everglades. But based on data from elsewhere, I
20 would say it doesn't really matter too much.
21 Q. So swings in temperature and the water
22 column have no impact upon it?
23 A. I have no way of knowing.
24 Q. With regard to the AP testing you have
25 done, are there dramatic swings in temperature of the
259
1 lakes that you have tested?
2 A. No.
3 Q. Are you familiar with what the range of
4 temperatures of the surface waters are in the park?
5 A. Not exactly, no. But I'm sure it's
6 substantial. My guess is that anywhere in the region
7 of 20 odd degrees up into the 30's.
8 Q. And you believe that would have any impact
9 upon the activity?
10 A. It probably does.
11 Q. How so?
12 A. Well, without having the data, I don't
13 know.
14 Q. Would there be any type of seasonal
15 fluctuations?
16 A. Yes. With a season comes a whole lot of
17 different things, plants dying, plants growing, water
18 level depth, the whole thing is at different
19 phosphorus levels. So it would be a very sensitive
20 indicator of the biological deficiency of the
21 community. With season, it would be a lovely
22 experiment.
23 Q. Would rainfall have any impact upon
24 alkaline phosphatase activity?
25 A. It could.
260
1 Q. How?
2 A. If you had high levels of nutrients in the
3 rainfall, it would probably reduce alkaline
4 phosphatase activity.
5 Q. What is your understanding of levels of
6 phosphorous in the rainfall in the Everglades
7 protection area?
8 A. It's my opinion that the contribution of
9 rainfall has been grossly overestimated through
10 errors in collection of samples.
11 Q. And on what do you base that opinion?
12 A. Internationally measuring phosphorous in
13 rain water, a real tough thing to do properly.
14 I had a review paper in my pile which
15 looked at global rain, phosphorous concentrations.
16 I'm not sure if it's still there, so I'll qualify it.
17 Anyhow, the essence of the paper is that in
18 pristine areas, phosphorous -- total phosphorous in
19 rain is rarely more than 10 to 12, something of that
20 region. To get up to numbers of 50 you have to be
21 immediately downstream of some source contributing
22 phosphorous, and generally values in the 50's or
23 higher is associated with people locating rain
24 collectors too close to roads where they get
25 resuspended dust, most of which is in a phosphorous
261
1 form which is not available anyhow. So they get high
2 levels of unavailable phosphorous.
3 Alternatively, they don't service the rain
4 collectors often enough and insects like to lay their
5 eggs in there, or they just fly in and get caught.
6 So you end up with a bunch of bugs which confuses the
7 measurement that you want.
8 I believe that it's a very critical
9 measurement that should have had more direction, more
10 attention paid to it.
11 It's my opinion the values have been
12 overestimated.
13 Q. Does water depth have any impact upon
14 alkaline phosphatase activity?
15 A. No. You are talking about the Everglades?
16 A. Yes, the Everglades. I'm talking about the
17 Everglades.
18 Q. That's a different question.
19 A. I was thinking of all the water bodies that
20 exist from the ocean to whatever.
21 Does water depth have an effect in the
22 Everglades system? I really haven't studied it, so I
23 can't say.
24 Q. Well, have you seen water depth having an
25 impact upon alkaline phosphatase activity in other
262
1 bodies of water?
2 A. What was the effect of alkaline phosphatase
3 deficiency on the plants. This can occur in very
4 deep water columns or very shallow ones. It doesn't
5 matter.
6 Q. Water depth does not have an effect on
7 other body waters as far as alkaline phosphatase
8 activities?
9 A. No.
10 Q. Does water depth have an impact upon
11 phosphorous concentrations in the Everglades?
12 A. Not as such. There is a whole bunch of
13 factors that affect water depth that could also
14 affect phosphorous concentration. So we have gone
15 through the effects of drying out yesterday and how
16 that changes concentration, so I won't go into that
17 again.
18 But generally -- traditionally deep water
19 was associated with wet periods and low water depths
20 associated with dry. But now water depth is more
21 controlled by how much water gets pumped around. So
22 it's a very confusing picture. I can't generalize.
23 Q. Well, I'm shifting to -- for instance 2A,
24 where the water depth is truly controlled greatly by
25 structures -- S-10 structures, is that your
263
1 understanding?
2 A. I really don't know. I know where 2A is.
3 That's about it. I have read some papers.
4 Q. Do you know what the S10 structures are?
5 A. Yes.
6 Q. Would you anticipate the alkaline
7 phosphatase activity south of the S-10s is likewise
8 indicative of the cultural eutrophication?
9 MS. STARK: Object to the form of the
10 question.
11 THE WITNESS: We have Nearhoof transcribed
12 or interpretations of Ron's data and the
13 alkaline phosphatase follows a general pattern
14 with soil peat where you have soils. Ribbed
15 soil alkaline phosphatase tends to be slow where
16 it's low in phosphorous. Alkaline phosphatase
17 is high. That's what applies to all the water
18 conservation areas.
19 The caveat to that is measurements of total
20 phosphorous in soil. If I had a form of
21 phosphorous which was not available, I might get
22 a silly number way over here on the high end
23 which would give the impression there was a lot
24 of phosphorous there.
25 But if it's unavailable phosphorous, if we
264
1 were able to measure available phosphorous,
2 these relationships would be much tighter, I
3 would believe. So the measurement of soil
4 phosphorous is an extremely complex business
5 that people have devoted lifetimes to, and they
6 are still working on a very difficult problem.
7 BY MR. KOBELINSKI:
8 Q. In relation to this exhibit, Figure 16 in
9 Exhibit 1, you recall whether in looking at 500 for
10 the soil total phosphorous, is that background or
11 ambient?
12 A. Generally it's in the region of -- I have
13 seen it as low as 300 to 500.
14 Q. Do you recall where these --
15 A. No.
16 Q. I'm referring to the alkaline phosphatase
17 activity test units on the 500 where they are below
18 zero and 20. Do you know where those tests were?
19 A. No.
20 Q. What would explain these low figures here
21 at the 500, between zero and 10 or zero and 20?
22 A. Those are cases where -- I'll just give a
23 hypothetical answer. If we were in a pristine
24 location where the soil phosphorous was very low but
25 the measurement was made at a time when there was
265
1 just a trace amount of fresh phosphorous coming in,
2 alkaline phosphatase activity would be low under
3 those conditions. So a pulse of phosphorous the
4 previous day perhaps could result in low alkaline
5 phosphatase activities.
6 Q. For instance, if it has rained the previous
7 day would that have an impact?
8 A. If there was any available phosphorous in
9 the rain.
10 Q. Do you recall approximately where in this
11 chart the Everglades National Park data would have
12 fallen? I'm talking about Figure 16.
13 A. No. It's too bad he mixed it all together,
14 but his intent was to show how the general patterns
15 were, how the high levels of alkaline phosphatase are
16 associated with the more pristine areas.
17 By difference, these values up here, there
18 are only a few of them. Soil phosphorous is as low
19 as 200 to 400. For the 200 to 400 ones, it generally
20 would be the Everglades National Park.
21 Q. Are you certain that these are the same day
22 testing as this?
23 A. No.
24 Q. Or the same testing sites?
25 A. No.
266
1 Q. Do you know how many times Ron Jones went
2 out there and tested alkaline phosphatase?
3 A. No. All I have seen is the summary data
4 which I based on my work that I have done in Canada
5 would say this is correct. It absolutely shows
6 whether or not the community is short of phosphorous
7 at these locations.
8 Q. Do you know if all of the testing was done
9 in one day?
10 A. No. It certainly wasn't to cover this kind
11 of an area.
12 Q. I'm talking about just the park again. I
13 know this Figure 16 has a bunch of data.
14 A. Yes. He has shown me the transects and I
15 have agreed that it's a very useful measurement. How
16 many times he repeated it, you have to ask him.
17 Q. Would whether or not the S-12 were open and
18 water was flowing through them have an impact upon
19 the alkaline phosphatase activity?
20 A. I don't know.
21 Q. Would you anticipate they could have an
22 impact?
23 A. Yes.
24 Q. How?
25 A. It's a sensitive indicator of phosphorus.
267
1 When you open the S-12 and phosphorous is delivered
2 over the system, it should be reflected in any
3 physiological phosphorous indicator.
4 Q. So if I understand you correctly, if you
5 open the S-12 and water flows through, you would
6 anticipate the alkaline phosphatase activity would
7 decrease?
8 MS. STARK: Object to the form of the
9 question.
10 THE WITNESS: You could infer that from
11 what I said. But we are speculating on
12 speculation. You will only know if you go and
13 do the measurements under those conditions.
14 BY MR. KOBELINSKI:
15 Q. But has that ever been done?
16 A. I have no idea. There are all sorts of
17 things that you could do. I think the quotation
18 comes to mind a fool can think of more questions in
19 an hour than a wise man can answer in a lifetime.
20 You can ask as many silly questions as you
21 like. But to do the descriptive experiments, it
22 takes a lot of time and lot of money. You have asked
23 me to guess on a guess on a guess, and I won't do
24 that.
25 Q. I'm asking you to give an opinion that AP
268
1 activity is an indicator of cultural eutrophication
2 in the park; is that correct?
3 MS. STARK: Object to the form of the
4 question.
5 THE WITNESS: Do you want to read back what
6 we have done for the last hour?
7 MR. KOBELINSKI: We could, if you like.
8 THE WITNESS: No, we have a 3:00 deadline.
9 I would like to see if we can meet that. I
10 think I made myself clear.
11 BY MR. KOBELINSKI:
12 Q. That is, the AP activity is an indicator of
13 cultural eutrophication in the park?
14 MS. STARK: Object to the form of the
15 question.
16 THE WITNESS: When I said alkaline
17 phosphatase is a sensitive indicator of
18 deficiency in the community --
19 BY MR. KOBELINSKI:
20 Q. Which corresponds with a determination that
21 there is cultural eutrophication in the park?
22 MS. STARK: Object to the form of the
23 question.
24 THE WITNESS: I said that alkaline
25 phosphatase is a sensitive indicator of
269
1 phosphorous deficiency.
2 BY MR. KOBELINSKI:
3 Q. Does phosphorus deficiency delineate the
4 areas where there has been no cultural
5 eutrophication?
6 A. There is a cycle in growth and death of
7 populations, and alkaline phosphatase is a sensitive
8 indicator of phosphorus deficiency as these
9 communities go through the natural cycle.
10 Q. Will you always have decreased alkaline
11 phosphatase activity where you have cultural
12 eutrophication?
13 A. No.
14 Q. Will you always have high alkaline
15 phosphatase activity where you have pristine or no
16 cultural eutrophication?
17 A. You will have high alkaline phosphatase
18 activity when the population is deficient in
19 phosphorous.
20 Q. Is the population always deficient of
21 phosphorus in pristine unimpacted areas?
22 A. No. I just got through saying there are
23 cycles in growth and decay of any population. You
24 may have a highly enriched eutrified population which
25 is deficient in phosphorous.
270
1 To try and simplify this for you, consider
2 the growth rate of an algae culture in a test tube or
3 in a beaker. When you initially start its growth
4 there is no shortage of anything.
5 Are you paying attention?
6 Q. Yes, I am. There is no shortage of
7 anything. Go ahead.
8 A. As the population reaches the maximum
9 biomass, it depletes -- often depletes the units or
10 depletes the phosphorous in the vessel and alkaline
11 phosphatase could be high. So that illustrates my
12 answer that you can have an enriched situation where
13 alkaline phosphatase changes with cycle.
14 Q. Can you predict and use alkaline
15 phosphatase as a predictor for any particular point
16 within the Everglades as to cultural eutrophication?
17 A. Alkaline phosphatase is a predictor of the
18 deficiency of the population as you measured it at
19 that time.
20 Q. Given the variability as to any particular
21 point, alkaline phosphatase activity could be
22 anywhere on the chart, so to speak?
23 A. No. Communities aren't like algae cultures
24 in a vessel. They intend to be more in a pseudo
25 steady state. There are fluctuations within that
271
1 steady state -- which I'm quite confident that based
2 on my lake work, that I could take a sample every
3 hour for a week or two and the phosphorous deficient
4 population would be a phosphorus deficient
5 population.
6 The phosphorus sufficient population would
7 be -- so alkaline phosphatase activities would be
8 high in one case and low in the other.
9 Q. But then you have to do that over time to
10 really be able to predict anything?
11 A. I was referring to work that we have done,
12 and you don't see great fluctuations in alkaline
13 phosphatase over short time scales.
14 A. You are saying, well, maybe we should
15 measure every hour for an entire season at every
16 station. I don't think that's necessary. I think
17 the indicator shows that sites that have plenty of
18 phosphorous have low phosphorous -- low alkaline
19 phosphatase activity.
20 Q. Do you recall participating in a TOK --
21 meeting on May 7, 1992, TOK, sub committee meeting,
22 where you discussed alkaline phosphatase?
23 A. What's this? What meeting?
24 Q. TOK sub committee meeting?
25 A. I didn't recognize it as that meeting.
272
1 Q. On May 7, 1992?
2 A. TOC, yes. In West Palm Beach.
3 Q. At that meeting you were discussing
4 alkaline phosphatase as an indicator and Dr. Redfield
5 was of the opinion that if you plot the data, Ron
6 Jones data as he put it, what you find, you almost
7 can't predict anything.
8 You stated okay. For alkaline phosphatase.
9 In other words, yes, you get significant relationship
10 but if you look at any point on that relationship,
11 you can predict -- you know, your error bounds just
12 go axis to axis?
13 A. Did I say that?
14 Q. No. You said okay.
15 Dr. Redfield's opinion was, in other words,
16 as you know, alkaline phosphatase is affected by
17 whole suite of parameters and it works real well
18 along one transect at one time. Your response was,
19 yes.
20 Do you disagree with Dr. Redfield?
21 MS. STARK: Object to the form of the
22 question. You're asking him to testify about
23 somebody else's opinion. He can answer. He
24 already has.
25 THE WITNESS: My okay should be interpreted
273
1 in light of him acknowledging that I'm listening
2 to him.
3 If he made a statement and I would say okay
4 in that, "Tell me more, okay. I'm with you so
5 far."
6 I don't recall the conversation of alkaline
7 phosphatase or what would be on the next few
8 pages. I think Redfield is dead wrong with the
9 one caveat that in this particular region if you
10 plotted it as Nearhoof has, then for any
11 particular soil concentration you may see a big
12 range in alkaline phosphatase.
13 BY MR. KOBELINSKI:
14 Q. You are referring to the 500?
15 A. That is right. And as I explained that a
16 little earlier, the reason for that is plus or minus
17 some unavailable forms of phosphorus in the soils
18 could shift this back and forth.
19 So alkaline phosphatase is probably the
20 sensitive indicator of the deficiency of the
21 community in the water column, whereas soil
22 phosphorous is the one that's providing the
23 misinformation about the availability of phosphorous
24 that exists in the muds.
25 So if I decided which measurement is
274
1 telling us something about the phosphorous status of
2 the population, I would go with alkaline phosphatase.
3 And in the original way that this data was used, it
4 was to show differences in alkaline phosphatase with
5 distance as opposed to soil phosphorous.
6 So Nearhoof was trying to form a very nice
7 general pattern which was intended to simplify, but
8 the -- it has been misinterpreted from -- by Redfield
9 in that way.
10 Q. Well, looking at again Figure 16 where you
11 have the soil phosphorous approximately 500 and you
12 have all these data points below 20 and below 10,
13 would you anticipate if you went back a day or a week
14 later that those could be up there as high as 30, 40
15 or 50?
16 A. No. As I said before, unless you went
17 something like a week after Andrew or something like
18 that, the deficient populations remain deficient for
19 long period of times generally in ecosystems that are
20 reasonably stable.
21 If there was a fire, for example, through
22 there alkaline phosphatase would certainly change.
23 So major disturbances would affect it, certainly.
24 But by and large, one day is like the next.
25 And I think you put your finger on an
275
1 important thing that should be done, which is to see
2 what the variability is, but it's expensive.
3 MR. KOBELINSKI: Let's take a quick break.
4 (Thereupon, a brief recess was taken,
5 after which the following proceedings
6 were had:)
7 BY MR. KOBELINSKI:
8 Q. Dr. Lean, can you test for soil APA?
9 MS. STARK: Object to the form of the
10 question. Did you say attest or test?
11 BY MR. KOBELINSKI:
12 Q. Can you test for soil APA?
13 A. I haven't.
14 Q. Can you do so?
15 A. I'm sure you can.
16 Q. Would it be a better indicator of --
17 long-term indicator of a phosphorous deficient
18 system?
19 A. There are other ways to go.
20 Q. Are there better ways to go?
21 A. Yes.
22 Q. What are the better ways?
23 A. This question is not a simple question.
24 It's the goal of researchers in at least five
25 countries. How do you identify bio availability of
276
1 soil P. You can see how much algae you can grow on a
2 certain amount of soil P. That's one method.
3 There is a more elaborate sequential
4 chemical extraction series where you had a whole
5 bunch of chemicals in different steps. So you remove
6 a certain easily extractable form first and then a
7 more extractable form, then you get down to boiling
8 it in concentrated acid. So this gives you a kind of
9 a gradient of bio availability of soil phosphorous.
10 There are a few other methods but those are
11 the two main ones.
12 Just when you think you have answered the
13 important questions, a famous soil chemist said to me
14 once all forms are available, it's the time scales
15 are different. For example, some are available on a
16 time scale of a few days to grow algae. Whereas at
17 the other extreme, it's available on time scales of
18 thousands of years.
19 And you say a thousand years, we are not
20 going to worry about that one. But quite often
21 that's the big pool that's there.
22 So availability time scales make it very
23 difficult to deal with availability of soil
24 phosphorus. There is a short-term availability,
25 there is longer term availability. There is
277
1 refractory forms, less refractory forms. That's why
2 you are looking for something simple to say is the
3 algae community which lives in proximity to this
4 settlement short of phosphorous or not.
5 The easiest thing is to shake it up with a
6 chemical and assay it. Alkaline phosphatase is the
7 answer in many ways.
8 Q. You had mentioned a number of different
9 things you can do to the soils. Can you measure
10 alkaline phosphatase activity in the soils?
11 A. What comes to mind is some work that was
12 done -- you can even measure the depth of the soils,
13 but that's probably residual enzyme that -- I am
14 mistaken. I was thinking of another enzyme that was
15 associated with an organic carbon extract.
16 The answer is there is no alkaline
17 phosphatase in soils. There is usually plenty of
18 phosphorous. So the organisms that are living there
19 aren't short of phosphorous, by and large.
20 Q. That would be true of porewater?
21 A. Yes.
22 Q. Physically if you went out to the
23 Everglades to do a transect -- I don't care, you can
24 pick below the 12 structures -- how would you go
25 about doing it if you are going to measure AP in the
278
1 water column?
2 A. I would follow the method Ron described, I
3 guess, or any number of examples.
4 Q. Which is?
5 A. Did you really want to take the time?
6 Q. Sure.
7 A. You go out with a nice clean bottle that
8 had been properly prepared to make sure there is no
9 contamination either from phosphorous or anything
10 else and get a water sample, take it back to the lab
11 and add the appropriate chemicals, put it in a
12 cuvette, read the value in the fluorometer.
13 Q. How do you get the water sample?
14 A. It depends on how deep the water is. But
15 by-and-large you invert a water bottle and let it
16 glug in or use any number of samplers to transfer it
17 from the water to the bottle.
18 Q. Would it make a difference, for instance,
19 if the water depth is one foot where you took the
20 sample?
21 A. No, but it would be an interesting study.
22 I think it would would certainly make a difference if
23 you took it next to some animal.
24 Q. Would it make a difference if you took it
25 near the surface or just below the surface as
279
1 compared to near the sediment?
2 A. I don't believe so.
3 Q. Would it make a difference if you took it
4 in one place where the water depth was one foot and
5 they went whatever, five kilometers or 8 kilometers,
6 and the water depth was six inches?
7 A. I don't believe so.
8 Q. Is that based upon studies you have done?
9 A. No, that's just a guess.
10 Q. Is the AP activity dependent upon
11 phytoplankton species composition?
12 A. Indirectly the phytoplankton that are
13 present are in many ways related to the phosphorous
14 availability, and the phosphorous availability is
15 related to alkaline phosphatase activity. So you
16 tend to have different species of communities present
17 where you got a lot of phosphorous.
18 But you are inferring again some sort of
19 direct relationship, does one particular population
20 tend to contribute more to alkaline phosphatase
21 activity than another. And that's not a valid
22 question.
23 Q. Because one does not?
24 A. I turned it around the other way. Where
25 you got a lot of phosphorous you tend to have a
280
1 different community than where you have little
2 phosphorous.
3 Where you got a deficient population you
4 usually have a little phosphorus. They are related.
5 Q. Do phytoplankton communities vary between
6 pristine areas of the Everglades protection area?
7 A. I'm not a taxonomist, but I think that's
8 one of the focuses, is to look at species composition
9 and diversity of various periphyton communities
10 related to nutrient availability.
11 Q. Was that an answer of "I don't know if they
12 do"?
13 A. I was just saying that it appears that --
14 Q. I couldn't hear you because of the coughing
15 from the end of the table.
16 A. I was being very specific, that you wanted
17 me to answer about alkaline phosphatase as it's
18 related --
19 Q. My question was, do phytoplankton species
20 composition differ from one pristine area of the
21 Everglades protection area to a different pristine
22 area of the Everglades protection area?
23 A. I'm sure they do.
24 Q. Would the differences in those communities
25 have an impact upon the AP activity?
281
1 MS. STARK: Object to the form of the
2 question.
3 THE WITNESS: That's why I turned it around
4 for you. Where you got a lot of phosphorous you
5 tend to have different communities from where
6 you have a little bit of phosphorous. Where you
7 have a little bit of phosphorous, you have
8 phosphorous deficiency and you find phosphatase
9 activity at those sites.
10 BY MR. KOBELINSKI:
11 Q. I'm comparing two pristine sites. Will you
12 have different phytoplankton communities between two
13 pristine sites in the Everglades?
14 MS. STARK: Objection, asked and answered.
15 THE WITNESS: Yes. That's a little
16 different.
17 MS. STARK: Okay. I withdraw the
18 objection.
19 THE WITNESS: But the reality is this, I
20 admire the people that make the measurements of
21 periphyton communities.
22 You would be lucky to do one sample a day.
23 So to illustrate my point on periphyton
24 communities, you know, this is the sort of thing
25 that's required for the measurement of
282
1 periphyton.
2 And as I said, an entire day for one sample
3 and you add it all up, you got this big species
4 list and you say is this community like this
5 community. And then the statistics are weighed
6 in and they say oh, you didn't use the
7 appropriate transformation. I mean, so the eyes
8 of one expert can be a little bit different from
9 another expert.
10 Any one expert from one day to the other,
11 you know, a whole day looking through a
12 microscope, he has to have good days and bad
13 days. But I'm only on the outside looking in
14 saying I'm glad there is somebody doing it, but
15 it's not going to be me.
16 It's a very important observation about
17 diversity of the periphyton community as
18 discussed yesterday.
19 BY MR. KOBELINSKI:
20 Q. Then let me make it easier for you. Do you
21 have an opinion as to whether or not there are
22 differences in phytoplankton communities between
23 pristine areas within the Everglades protection area?
24 A. Yes. Pristine refers to places that
25 haven't been impacted. And anywhere where other
283
1 variables caused a change in the physical or chemical
2 components of the habitat the community will adjust
3 to that.
4 Generally when you observe a community you
5 are looking at the survivors, so the best adapted
6 species will be there. This automatically
7 illustrates that it's going to be different.
8 Where you have any sort of differences in
9 physical and chemical properties in non-impacted
10 areas, communities will shift to reflect no
11 differences.
12 Q. We are talking we -- when you say
13 non-impacted we are talking about non-phosphorus
14 impacted?
15 A. Yes.
16 Q. Where you have different phytoplankton
17 communities in these non-phosphorus impacting the
18 areas where you have differences in AP activity?
19 MS. STARK: Object to the form of the
20 question.
21 THE WITNESS: Generally not, but you might
22 be able to find some cases. You know, you
23 mentioned water depth before. If one place is
24 almost drying out as opposed to the other one
25 has a little more, you may find some slight
284
1 differences.
2 BY MR. KOBELINSKI:
3 Q. I'm trying to find the Olson paper.
4 Did not Olson in his paper come to the
5 conclusion that AP activity was related directly to
6 phytoplankton species composition?
7 A. I would have to look at it.
8 Q. Do you disagree with that conclusion?
9 MS. STARK: Object to the form of the
10 question.
11 THE WITNESS: I avoid relationships that
12 involve taxonomic measurements, by and large. I
13 mentioned this earlier that too often we are
14 looking at greater and greater detail and we
15 have far too much information to synthesize, so
16 we need to develop predictive relationships. We
17 need to focus on things we can measure and
18 things that we can predict, and then we maybe
19 have a more global picture of what's going on.
20 BY MR. KOBELINSKI:
21 Q. Well, do you believe that if there is a
22 correlation between phytoplankton species and AP
23 activity, that should not be considered in whether or
24 not AP activity is an indicator of phosphorous
25 deficiency in the system?
285
1 MS. STARK: Object to the form of the
2 question.
3 THE WITNESS: Yes. There may be a
4 different community, but I would say that the
5 alkaline phosphatase activity is probably a
6 better indicator of the deficiency of the
7 plankton, irrespective of species composition.
8 It may change and it may not.
9 When a community changes, it probably means
10 it was a little less deficient anyhow.
11 So if Olson said it, it's very tough to
12 prove. I don't believe there is a relationship
13 with species composition that's illustrated by
14 the seasonal craft that I showed earlier. I
15 showed a correlation with other phosphorous
16 indicators for Lake Ontario. And there we would
17 see shifts between diatoms -- bluegreen algae,
18 phytoplankton and other algal species. But all
19 indicators of phosphorous deficiency were
20 internally consistent.
21 BY MR. KOBELINSKI:
22 Q. Does that equate directly to the Everglades
23 system?
24 A. I think so.
25 Q. You are dealing with the same type of --
286
1 A. No. But we are dealing with algae.
2 MS. STARK: Let him finish the question.
3 THE WITNESS: We are dealing with bacteria.
4 BY MR. KOBELINSKI:
5 Q. You are deal with the same type of
6 phytoplankton?
7 A. They are never the same. What grows in the
8 Everglades -- there is still the same basic groups,
9 but we have diatoms in Lake Ontario, we have diatoms
10 in the Everglades. They are not the same ones.
11 Q. Would you need to do testing of the
12 Everglades systems to make a prediction for the
13 Everglades system?
14 A. The physiological processes are the same.
15 Q. So testing in the Everglades is
16 unnecessary, then?
17 A. No. If you want to know alkaline
18 phosphatase activities in the Everglades, you have to
19 measure.
20 Q. But you can ignore the periphyton or
21 phytoplankton communities?
22 MS. STARK: Object to the form.
23 THE WITNESS: I didn't say it should be
24 ignored. I said I would ignore it because I
25 don't like looking through a microscope. One
287
1 sample a day is pretty heavy.
2 BY MR. KOBELINSKI:
3 Q. Has there been a finding of AP activity in
4 eutrophic lakes previously?
5 A. Generally it's slow.
6 Q. Are there cases where its high?
7 A. Yes.
8 Q. Where would you find that?
9 A. Sometimes you can have a high biomass just
10 before it changes because it's phosphorous deficient.
11 That's an exception. You would probably find that in
12 less than 5% of the cases.
13 Q. With regard to your measurements of AP
14 activity in lakes in Ontario, did you find
15 differences between AP activity in the various lakes?
16 A. Yes.
17 Q. Is there then a different relationship
18 between phosphorous and AP activity for each lake?
19 MS. STARK: Object to the form of the
20 question.
21 THE WITNESS: I provided the three
22 physiological indicators which have been useful
23 in cleaning up the uncertainty about
24 measurements at detection limits for
25 phosphorous. And they are consistent whether in
288
1 lakes in Ontario or New Zealand or whatever.
2 BY MR. KOBELINSKI:
3 Q. With regard to your measurements in Jack's
4 Lake, as I understand it, you found an extreme
5 phosphorus deficiency as measured by PDI; is that
6 correct?
7 A. Yes.
8 Q. But the AP for Jack's Lake was low relative
9 to the AP in Lake Ontario?
10 A. I see. I don't know what you are referring
11 to.
12 Q. Have you done testing in Jack's Lake?
13 A. Only measurements.
14 Q. Have you done testing in Lake Ontario?
15 A. Yes.
16 Q. Was the AP activity lower in Jack's Lake as
17 compared to Lake Ontario?
18 MS. STARK: Are you referring to one of his
19 papers there?
20 MR. KOBELINSKI: I'm referring to his
21 testing.
22 MS. STARK: Can you show him what you are
23 referring to?
24 MR. KOBELINSKI: I'm going to ask him
25 questions.
289
1 MS. STARK: Can you give me the Bates
2 numbers of what you are referring to?
3 MR. KOBELINSKI: I wasn't referring to
4 anything, I was referring to his testing.
5 MS. STARK: Do you have in your hands a
6 document that we produced?
7 MR. KOBELINSKI: Absolutely not.
8 MS. STARK: All right. Thank you.
9 THE WITNESS: I can read it through the
10 page.
11 MR. KOBELINSKI: Probably not. That's a
12 different page. You can feel free to read that
13 one if you would like to.
14 THE WITNESS: What was your question?
15 BY MR. KOBELINSKI:
16 Q. My question was with relation to your
17 testing of PDI and AP in Jack's Lake and Lake
18 Ontario. You did both?
19 A. Our study was focused on Lake Ontario, so
20 we made some measurements on Jack's Lake, which is a
21 small inland lake, that's correct.
22 Q. Did your PDI for Jack's Lake indicate there
23 was extreme phosphorus deficiency?
24 A. Sure.
25 Q. And was AP activity in Jack's Lake lower
290
1 than that of Lake Ontario?
2 A. I also can't remember. I didn't make the
3 measurements myself.
4 Q. Would that be in the material that you
5 produced to us?
6 A. It may be.
7 Q. During a break we will find it.
8 If the AP was lower, even if the
9 phosphorous deficiency was greater in Jack's Lake,
10 how would that be explained?
11 A. I don't honestly know. The measurements in
12 Jack's Lake were made intermittently. So, you know,
13 the main data sets for Lake Ontario and -- oh, yes,
14 we have two measurements for Jack's Lake. I honestly
15 can't remember if the AP was higher or lower.
16 Q. How often did Ron Jones test the AP in the
17 park?
18 A. I don't know. What's he showed me was data
19 for some transects. And I think these were early on
20 in the study -- certainly have been back since, but I
21 don't know how many times.
22 Q. You have reviewed essentially one day's
23 work?
24 A. He showed me one transect, which would have
25 been probably one sampling.
291
1 Q. Is that sufficient, then, based upon what
2 we are talking about, Jack's Lake? Is that
3 sufficient to draw any conclusions?
4 MS. STARK: Object to the form of the
5 question.
6 THE WITNESS: I would like to see more
7 data, sure. But certainly for that day it
8 showed a very nice relationship with soil
9 phosphorous and to some extent seemed to be
10 consistent at other sites, as well. So, yes.
11 BY MR. KOBELINSKI:
12 Q. If you -- is there a particular measure --
13 and I guess I'll just conclude with this --
14 is there a particular number -- this figure, I think it's
15 16 -- is there a particular number on the alkaline
16 phosphatase activity units that you would select as
17 an indicator, then, that you have a phosphorous
18 deficient system?
19 A. No. You would have to -- these are
20 relative units that are presented. And high means
21 it's high, low means it's low. So the other units --
22 the absolute amount of alkaline phosphatase is not
23 generally reported.
24 If it's zero, obviously it's zero. But the
25 magnitude of alkaline phosphatase activity -- and I
292
1 think it's unfortunate a lot of authors normalize it
2 per unit chlorophyl on -- quantity of chlorophyl has
3 very little to do with it.
4 You put your finger on the weakness in the
5 literature or weakness in the method, that it doesn't
6 have an absolute unit which allows us to relate
7 alkaline phosphatase from one lab in Sweden to one
8 lab in New Zeland to one lab here. But certainly
9 consistently within a sampling set the relative units
10 are appropriate.
11 Q. Well, if you went out to anywhere in the
12 Everglades protection area and you pulled the sample
13 and you found out that the alkaline phosphatase
14 activity was 20, would you be able to tell me this is
15 an impacted area or an unimpacted area?
16 A. I would be able to say that at this
17 particular time the community was deficient in
18 phosphorous. 20 happens to be on this one. I would
19 feel more comfortable with 50 or 60 being, say, at
20 that particular time the community is short of
21 phosphorous.
22 Q. In this instance, 50 or 60, there are only
23 approximately four out of --
24 A. No. I mean, if you said how about 50, you
25 happened to pull 8, 20, between 10 and 20, you are in
293
1 the grey zone, probably.
2 Q. 50 you would say absolutely this is
3 indicative that I'm staying in an unimpacted area?
4 A. If you said zero, I would feel very
5 comfortable saying that these -- this community is
6 not short of phosphorous.
7 Q. And if I said five?
8 A. Then you are moving on that gradient.
9 Q. Would you be able to say yes, I'm
10 definitely in an impacted area?
11 MS. STARK: Object to the form of the
12 question.
13 THE WITNESS: Five is starting to show
14 signs of deficiency. So I would say generally
15 where you have got concentrations of phosphorous
16 in the -- and reactive phosphorous at least
17 greater than 50, it's not even going to be five.
18 It will be zero. You are going to get a lot of
19 zeros or near zeros.
20 BY MR. KOBELINSKI:
21 Q. If you went out to an area and you found
22 35, would you be able to say this is an unimpacted
23 area --
24 MS. STARK: Object to the form of the
25 question.
294
1 BY MR. KOBELINSKI:
2 Q. -- or it's an impacted area?
3 A. I don't think so.
4 Q. Moving then very quickly -- and I'll try to
5 finish up in 15 minutes, Gary -- with regards to your
6 belief that the oxygen profile within the soils is an
7 indicator of the area of cultural eutrophication, if
8 I recall that's what we discussed yesterday, is that
9 right?
10 A. I'm sorry. You have to repeat the
11 question.
12 Q. I believe yesterday you had stated that the
13 oxygen profile in the soils of the Everglades is an
14 indication of cultural eutrophication. You can
15 measure or attempt to delineate it by looking at the
16 oxygen profile?
17 A. I think what I said was the principal
18 feature of pristine soils in Everglades National Park
19 is that they have oxygen. And very quickly if you
20 are adding phosphorous to them, the oxygen goes away.
21 MR. KOBELINSKI: Mark this as Exhibit 7.
22 (The document referred to was thereupon
23 marked Exhibit 7 for Identification.)
24 BY MR. KOBELINSKI:
25 Q. Dr. Lean, I'm showing you what has been
295
1 marked as Lean Exhibit 7 to your deposition. I
2 believe it was marked as 21C of documents you
3 produced to us. It is a paper entitled, "Potential
4 Rates of Mathanogenesis in Sawgrass Marshes with Peat
5 and Marl Soils in the Everglades," by Dave Bachoon
6 and Ronald D. Jones. It bears Bates Nos. DDL0001556
7 through 0001562. It's all one side.
8 A. Okay.
9 Q. Drawing your attention, sir, to page --
10 Bates number page 0001559 where you have two graphs --
11 A. Yes.
12 Q. -- what do these graphs depict here?
13 A. Can I have a moment to review that?
14 Q. Yes, please review that.
15 A. What was the question?
16 Q. What is it that these particular charts
17 depict?
18 A. The methane concentration with depth.
19 Q. That would be the methane concentration,
20 that would be the bottom portion?
21 A. That is right, for peats, soils and marl
22 soils. Peat is the top one, marl is the bottom one.
23 And along with that is measurements of what's called
24 EH, which is measure of reducing potential of the
25 soils.
296
1 Q. What is the EH scale on this one at the
2 top?
3 A. That's what I said. It's reducing
4 potential.
5 Q. Is that also referred to as redox?
6 A. Yes.
7 Q. What's that an indicator of?
8 A. The state of oxidation or reduction, redox,
9 reduction oxidation shorted to redox potential. So
10 it's a measure. You stick an electrode into the soil
11 and you get a number, and it's measured in
12 millivolts. You see MV.
13 Q. In highly saturated pristine Everglades
14 society, which I believe you said was near 8 --
15 A. We were talking oxygen before.
16 Q. -- right, what would your redox reading for
17 highly saturated oxygen profile soil be?
18 A. The measurement of redox is very useful,
19 but there are a couple of ways to do it. I'm not
20 waffling on this, but some people subtract a blank
21 number and some don't. The numbers that I generally
22 view have negative values. In other words, the range
23 of soil, redox conditions from say minus 200 to plus
24 350 or something like that.
25 So I would need to review with them how
297
1 they measure the EH. Or maybe we can take a moment
2 at lunch time to -- these numbers look -- what I'm
3 saying, I'm not sure if this number was subtracted.
4 So generally anything around plus 100 or so
5 is oxidized. Minus 100 would be reduced. So I'm a
6 little confused in the EH values.
7 What was your question, then?
8 Q. If there was no standard unit subtracted,
9 is that what you are talking about from the EH
10 measurements?
11 A. Yes.
12 Q. With regard to the peat soils, which I
13 believe is A, would these readings -- I'm talking
14 about the redox readings -- indicate a reduced
15 condition for oxygen?
16 A. The peat soil was taken adjacent to Tamiami
17 Trail. If you look back at Figure 1, sample A, that
18 was considered to be the peat soil, and so the EH
19 values, it's close to an impacted site. But the EH
20 values ranging -- whether or not they subtracted this
21 by plus 100 would indicate it's fairly well
22 oxygenated.
23 Q. So in your opinion the reduction reading
24 plus 100 is where its fairly well oxygenated?
25 MS. STARK: Object to the form of the
298
1 question.
2 THE WITNESS: Yes. Why I said that, I
3 would like to clarify that. But I believe so,
4 yes.
5 BY MR. KOBELINSKI:
6 Q. If you want to clarify that, that's fine.
7 A. I couldn't do it without --
8 Q. On the redox soil where nothing is
9 subtracted, where would you find oxygen, at what
10 point on the scale within the soil?
11 MS. STARK: Object to the form of the
12 question.
13 THE WITNESS: I don't know.
14 BY MR. KOBELINSKI:
15 Q. Is there a particular point on this scale
16 where no free oxygen would exist?
17 A. I don't know.
18 Q. Can you use redox measurements to determine
19 whether or not there is oxygen in the soil?
20 A. Yes, in a general sense. My redox volumes
21 occur when soils are oxygenated. Low redox
22 conditions exist where there is no oxygen.
23 Q. If there was no subtraction done by Ron
24 Jones with regard to the peat soils, would this show
25 a reduced value for oxygen in this sample?
299
1 MS. STARK: Object to the form of the
2 question.
3 THE WITNESS: I didn't get the specific
4 question.
5 BY MR. KOBELINSKI:
6 Q. With regard to figure A or sample A on page
7 0001559 of Exhibit 7, that's the one you are looking
8 at there, would the redox reading for that particular
9 sample indicate a reduced oxygen profile?
10 MS. STARK: Object to the form of the
11 question.
12 THE WITNESS: Yes. I'm not sure of the
13 absolute unit on the top end.
14 BY MR. KOBELINSKI:
15 Q. You are not familiar with redox units?
16 A. I am familiar with the redox units with the
17 caveat that sometimes they subtract a number,
18 sometimes they don't.
19 Q. Assuming no number was subtracted here?
20 A. I don't know. Generally my redox scales go
21 from minus 200 to plus 300. There is a zero value
22 here.
23 Q. Where in your redox readings would you have
24 pre oxygen?
25 MS. STARK: Object to the form of the
300
1 question.
2 THE WITNESS: Plus one hundred.
3 BY MR. KOBELINSKI:
4 Q. Do you subtract a standard unit?
5 A. I don't use it very often. I'm aware of
6 the measurement. I only did about five measurements
7 in my life. It's a useful indicator of the degree of
8 oxidation or reduction, but I do very little work on
9 sediments. When I do, I don't use a lot of EH
10 measurements.
11 Q. You were talking about your scale going
12 from negative 20?
13 A. Not my scale. Commonly EH values are
14 reported on a scale of negative 200 to plus 300.
15 Q. And the scale that you are saying, that
16 negative scale 200 plus 300, is that based upon a
17 standard number being subtracted?
18 A. Yes.
19 Q. What is that standard number?
20 A. I don't know. You follow the method. And
21 as I already said, I don't do it a lot of times. But
22 when EH is high, it tends to oxygenate.
23 Q. Would you agree, then, that redox readings
24 would be a means of determining what the oxygen
25 profile or an indicator of what the oxygen profile is
301
1 within the Everglades?
2 A. Right.
3 MR. KOBELINSKI: Let's take a break. I
4 think we will be concluded at the end of that
5 break.
6 (Thereupon, a brief recess was taken,
7 after which the following proceedings
8 were had:)
9 BY MR. KOBELINSKI:
10 Q. Dr. Lean, I believe you indicated during
11 the break you reviewed these charts and perhaps your
12 review of them -- given a greater opportunity to
13 review them has an impact upon what you were
14 discussing with me earlier.
15 Given that, do you understand what the
16 redox readings mean? For instance, the peat sample?
17 A. Yes. I was confused on the EH scale
18 initially. If you look back to --
19 Q. If you read the DDL Bates page?
20 A. 0001557, towards the end of the page under
21 sample process, EH values were reported blah, blah
22 adding the standard EH for the calomel electrode, 280
23 millivolts.
24 So if you go back to the figure and you
25 take 280 find where 280 is and change that to zero
302
1 and then subtract a hundred, call that minus 100,
2 subtract another 100 call that minus 200, then I'm on
3 familiar grounds.
4 Q. Okay. As I understand, then, you would
5 show zero at what is approximately 2830, and negative
6 100 would be around 180; is that correct?
7 A. Yes.
8 Q. Negative 200 would be around 80?
9 A. Yes. And as a rule of thumb, and a very
10 perhaps imprecise rule of thumb, negative 200 is
11 considered to be for reducing conditions where you
12 can have some methane production in natural
13 conditions.
14 Near the surface there is probably a little
15 oxygen diffusion. Then the EH is quite high at
16 depth. You can see in both soils indicating that
17 these are not particularly reducing. But at this
18 particular point, about two centimeters below, it
19 appears to be sufficiently reducing for methane
20 formation at that point.
21 But as you notice with both samples in
22 these deep cores, there is no methane and the redox
23 is quite high.
24 Q. And you are referring to -- and again I'm
25 just looking at the P depth, approximately 8 to 10
303
1 down 16 to 18 -- in other words, from 8 to 18, they
2 are all at or above negative 100?
3 A. That is right.
4 Q. Where do you start finding oxygen in the
5 scale as you have corrected it now?
6 A. You have no way of knowing. There is not a
7 linear scale between the two. I can tell you that
8 negative 200 you are at low oxygen conditions.
9 Q. Low or no oxygen?
10 A. No oxygen conditions at negative 200. But
11 in this region it's not as reduced and there would be
12 some oxygen or oxygen containing compounds present
13 such as sulphate or carbon dioxide and things like
14 that.
15 Q. What area would have no free O2?
16 A. I don't know. It's much easier just to
17 measure.
18 Just to avoid getting hung up on this, the
19 essential feature of Everglades National Park soils
20 is there is oxygen. They are not fully reduced.
21 This is illustrated here. So most flooded soils
22 would be at least negative 200 and increasing with
23 depth or decreasing with depth rather than coming
24 back up again. So this is the unique feature that I
25 was illustrating.
304
1 Q. Well, in this instance, then, do you have
2 your oxygen with regard to sample A, would you then
3 see your oxygen --
4 A. We should have oxygen values, then we could
5 talk intelligently about it.
6 Q. As I understood from yesterday, in pristine
7 areas you anticipate to have fully saturated oxygen
8 profiles?
9 A. Fully saturated is too strong. The
10 essential feature is there would be some oxygen as
11 opposed to most impacted soil where there is none at
12 all.
13 Q. So you would anticipate that the redox, if
14 you looked at redox as an indicator as oxygen, which
15 you previously stated it is, you would anticipate
16 that the redox for the impacted areas would be
17 substantially less?
18 A. Yes.
19 Q. And if it was not?
20 MS. STARK: Object to the form of the
21 question.
22 THE WITNESS: The one caveat on that, of
23 course, is that to his credit Curtis
24 Richardson's report did show some effects of
25 depth when the soils were high and dry. You get
305
1 different values when they are fully wet in
2 impacted areas.
3 The depth of water is an important
4 consideration in impacted areas. It will impact
5 both oxygen levels and redox.
6 BY MR. KOBELINSKI:
7 Q. Is it important in unimpacted areas?
8 A. I think not.
9 Q. Are you familiar with a gentleman by the
10 name of Bill Patrick --
11 A. No.
12 Q. -- from Louisiana State University?
13 A. Yes. He is the grandfather of wetlands
14 research.
15 Q. And would you believe that he, as far as
16 redox, would you believe his opinion as to redox? Do
17 you think he would have a good one?
18 MS. STARK: Object to the form of the
19 question.
20 THE WITNESS: I have never read a single
21 paper of his. But I will add that redox is a
22 useful measurement to make, as Ron and Dave have
23 used it here.
24 But as far as there is probably, you know,
25 entire sessions at geo chemical workshops where
306
1 they debate the relative merits of EH, the
2 interpretation is not easy.
3 BY MR. KOBELINSKI:
4 Q. Would soil chemistry be an area of your
5 expertise?
6 A. No. I dabble in a whole lot of areas
7 because I like to think of myself as an ecosystem
8 ecologist, and so I'm looking at changes in the big
9 picture which draws on the detail information from
10 soil science from microbiology to biochemistry and
11 general biology.
12 Q. Would an expert in wetland systems soil
13 chemistry be the person I would need to speak to with
14 regards to the means of testing the indicators of
15 phosphorus in the soil profile?
16 MS. STARK: Object to the form of the
17 question.
18 BY MR. KOBELINSKI:
19 Q. Oxygen profiles in the soil?
20 MS. STARK: Object to the form of the
21 question.
22 THE WITNESS: Different strokes for
23 different folks. The soil chemist will give his
24 interpretation.
25 But if you wanted an interpretation what
307
1 the measurements mean on an ecosystem level,
2 you'd better ask an ecologist.
3 MR. KOBELINSKI: Perhaps -- let me rephrase
4 the question.
5 BY MR. KOBELINSKI:
6 Q. Should I be going to a wetland soil
7 chemist, an expert in wetland soils, to determine
8 what the phosphorous -- oxygen profiles are in the
9 wetland soils of the Everglades protection area?
10 A. No. It's much easier to just go and
11 measure them.
12 Q. What about the interpretation of redox in
13 those soils?
14 A. Yes. That's why I say the interpretation
15 of redox is a tough one. You wouldn't get agreement
16 if you brought 35 of them into the room. You would
17 probably get four different opinions and
18 interpretations of redox. You would have four
19 different groups of the 35 experts. It's a very
20 debatable area.
21 What does redox tell you? It tells you a
22 great deal when you do simple experiments -- your
23 correspondence, your time. You measure redox.
24 But to say I'm going to measure redox
25 across southern Florida, then we will know what we
308
1 need to know, you won't know very much of anything
2 other than where redox is low and where redox is
3 high. You add it with everything else and you are a
4 little wiser.
5 Q. You would not know where there is free
6 oxygen, where there is O2 and no O2?
7 MS. STARK: Objection.
8 THE WITNESS: Generally, yes.
9 BY MR. KOBELINSKI:
10 Q. Which would be the indicator of the oxygen
11 profile?
12 A. More oxygen on the surface. Redox is very
13 good when you get to the low end of oxygen. But as
14 soon as you have enough oxygen, then you see no
15 change in redox but a big change in oxygen. It's
16 good at the low end.
17 MR. KOBELINSKI: Again, I'm in the position
18 I was with yesterday. I have some Bates numbers
19 of Ron Jones. I'm willing to wrap up. I know
20 if Gary does not start we will not finish you
21 today.
22 But based upon what we discussed yesterday,
23 I think I'm willing to certainly stop at this
24 time. I'm going to have to go back and look at
25 this Bates number.
309
1 BY MR. KOBELINSKI:
2 Q. But your opinion is limited to, then, your
3 review of the Ron Jones studies, and you had
4 mentioned a couple of Ron Jones studies.
5 Are they all Bates numbers you identified,
6 the four pages?
7 A. No. My opinion is formed from probably a
8 thousand papers in the international literature or
9 more. At least a hundred papers on the Everglades,
10 of which I have tried to in the limited amount of
11 time get together some of the critical papers that I
12 thought were important.
13 But as we go over them in more detail, say
14 gee, you know, I'm missing a few. What I would
15 really wish I had was to have a week to do a more
16 thorough literature search to provide detailed
17 information with. But the essential features are
18 provided by SWIM Plan documents, by substance budgets
19 for phosphorous in the various locations for papers
20 produced by the District.
21 And so my opinion, fuzzy as it is, is
22 shaded by a lot of information, not just to his
23 credit. Ron Jones has been generating a lot of
24 critical information, and he has educated me to a
25 large extent on our trips to the Everglades.
310
1 I think my first impression, as I mentioned
2 earlier, was because of Mark Flora coming to see me
3 in 1980 saying these are the problems, what kind of
4 experiments should I do. In the course of that
5 discussion we laid out what became then the dosing
6 experiment.
7 My opinion is also shaded by reading books
8 and papers on wetlands at other locations other than
9 EPA.
10 Q. I understand that you are drawing upon your
11 background --
12 A. Yes.
13 Q. -- so don't get me wrong on that. I'm
14 somewhat concerned with what you stated because
15 yesterday we went through each area of your expertise
16 and you identified for me papers upon which you were
17 primarily relying.
18 Do we need to do that because you believe
19 it's expanded now or the papers you identified
20 yesterday or identified in the general sense in that,
21 for instance, cultural eutrophication of the park you
22 identified papers by Ron Jones you hadn't produced.
23 You couldn't quite recall the title of those papers.
24 But, again, we know what the Ron Jones papers are.
25 My question is, do we need to go back and
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1 start seeing if there are additional papers you need
2 to add as the basis for these opinions?
3 A. You asked me questions in the course of the
4 last day and a half which I didn't expect to be asked
5 but I knew something about it. To the best of my
6 ability I gave you answers. And since I didn't
7 expect to be asked these questions, you know, I was
8 reaching into often areas that -- things that I had
9 read in the last couple of years, but I tried to give
10 an honest answer.
11 But what I could do, if you give me a list
12 of things where you would like clarification, I could
13 then do a more careful literature search to say these
14 are the documents that have influenced my opinion in
15 this area.
16 Q. To allow me to at least, then, finish up
17 and pass the baton, so to speak.
18 Other than the testing that you did in the
19 park in '86 and '87 dealing with the turnover rate of
20 phosphorous with Ron Jones, you have done no testing
21 yourself; is that correct?
22 A. That's correct.
23 Q. You have related to us again in the past
24 day and a half papers you have reviewed?
25 A. Yes.
312
1 Q. And you had explained at times that you had
2 not gone back and looked at the raw data but relied
3 upon the data presented in the paper?
4 A. Yes.
5 Q. With regard to this data that you indicated
6 today by Bates Nos. 7715 through 7719, is that a set
7 of raw data that you have reviewed?
8 A. Yes.
9 Q. And by "reviewed," I'm using your term,
10 more than just looked at it, you have analyzed and
11 come to conclusions upon --
12 A. Yes. Ron showed it to me. I looked at it.
13 I said this looks good, and it's the same data that
14 that appeared in, Exhibit 1.
15 Q. I'm going to first of all go on the
16 assumption that the Bates number was discussed with
17 Ron Jones?
18 A. I called him last night. I was quite
19 prepared to, if I could find it, to give it to you.
20 And he said, "I don't think you are obliged to turn
21 over my data."
22 Q. So on that you didn't turn it over. I
23 don't understand what you are saying.
24 A. He is not in town today. So I remember
25 seeing it. I could draw you a picture, but I don't
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1 have it.
2 Q. With any degree of specificity, when you
3 say draw me a picture, you are talking about graphing
4 out the data?
5 A. Yes.
6 Q. Would that be with any degree of
7 specificity or just general terms?
8 A. Just general terms.
9 Q. Are your opinions with regard to that data
10 different than Ron Jones?
11 A. No. If we disagreed on anything our
12 disagreements were settled a long time ago.
13 MR. KOBELINSKI: I'll go back and look at
14 that, but I'm going to go on the assumption we
15 went on that. We will attempt to get more
16 information. I guess we will follow suit.
17 Kathy, we will write to you from the
18 deposition transcript where I identified papers
19 he relied upon but could not identify what they
20 specifically were.
21 We will reserve the right to depose him
22 since he has not produced the documents upon
23 which he is relying, but on the basis that you
24 are merely agreeing with Ron Jones' opinion
25 based upon review of his papers and the Walker
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1 papers.
2 I don't at this point in time see a
3 necessity to do that. If you have differing
4 opinions -- that's why I'm curious about that.
5 If you have differing opinions, I believe at
6 this point I really need to see the data and
7 what you are relying upon to come to opinions
8 other than what you expressed by Ron Jones or
9 other people.
10 THE WITNESS: Right.
11 MR. KOBELINSKI: On that understanding that
12 your opinions do not differ from his, I will
13 pass the baton, but again with the reservations
14 I just expressed.
15 MR. PERKO: Doctor, my name is Gary Perko.
16 I'm here on behalf --
17 MR. KOBELINSKI: One moment, Gary. I'm
18 sorry. Kathy, I just wanted you to understand
19 that you also acknowledge this little speech I
20 made.
21 I don't need you to agree with it. You
22 heard me telling you we do reserve the right,
23 since there is data he identified repeatedly, to
24 redepose him if that becomes necessary. I don't
25 foresee it.
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1 MS. STARK: I understand. And I would
2 assume that we would be able to work out
3 whatever arrangements are appropriate at the
4 time.
5 MR. KOBELINSKI: All right.
6 CROSS EXAMINATION
7 BY MR. PERKO:
8 Q. My name is Gary Perko, Dr. Lean. I'm here
9 on behalf of the Sugar Cane Growers Cooperative, Roth
10 Farms, Wedgeworth Farms in the same administrative
11 proceeding regarding the Everglades SWIM challenge.
12 Like Mr. Kobelinski, I'll be asking you a
13 series of questions about the fact opinions you have
14 regarding the issues in this case.
15 If you don't understand my question, sir,
16 please tell me. I'll try to rephrase it.
17 I'm going to be following up on some of the
18 things Mr. Kobelinski touched upon. I'll try to be
19 briefer in those areas, but I will be addressing
20 additional areas. I think we will get you out of
21 here by three.
22 With that said, Dr. Lean, I believe
23 yesterday in connection with STAs you testified that
24 any reduction in phosphorus coming out of EAA would
25 have an effect; is that correct?
316
1 A. I expressed a personal opinion that's
2 probably not shared by everyone. I think any
3 reduction was major improvement, and the sooner the
4 better.
5 Q. What effects, say, would 30% reduction in
6 the phosphorous coming out of the EAA have?
7 MS. STARK: Object to the form of the
8 question.
9 THE WITNESS: No one can be sure, but
10 certainly I'm excited about a 30% reduction.
11 You are asking me to make an uneducated guess.
12 BY MR. PERKO:
13 Q. I'm trying to understand your testimony
14 yesterday when you mentioned effects. What types of
15 effects would you expect to see?
16 A. I think a 30% reduction would be reflected
17 in -- at least a 30% reduction further downstream,
18 and would result in less phosphorous being
19 transported throughout the system.
20 Q. And are you speaking in terms of the water
21 column?
22 A. The system, the reduction would result in a
23 lower rate in the water column, lower concentrations
24 in the water column, reduced rate at which soils
25 become loaded with phosphorous.
317
1 Q. Reduced rate at which the soils become
2 loaded with phosphorous.
3 Would it have any effect on the phosphorus
4 concentrations currently in the soils?
5 A. That's a tough question. It would have
6 little influence probably on the saturated -- one
7 saturated phosphorous at the present time, but it
8 reduced the rate at which soils are showing an
9 increase in phosphorous.
10 Q. So it would reduce the progression of the
11 phosphorous that you testified about yesterday?
12 A. Yes.
13 Q. Would you see any reversal of the cultural
14 eutrophication which you previously discussed?
15 A. That's a question that's asked many times
16 and many places, not just the Everglades. Once the
17 wetland has been eutrified, what is the rate of
18 recovery?
19 Based in part on the dosing experiment,
20 recovery is slow. I think we would be happy -- I
21 would be happy to see a reduction in the rate of
22 spreading of the front.
23 Q. Do you have an opinion as to the rate at
24 which the front is currently expanding?
25 A. Not really. I know that people have done a
318
1 thorough job of looking at patterns of distribution.
2 That I think really is an important question that
3 needs to be properly articulated by someone, but I
4 can't do that.
5 Q. Would the information that you hoped to
6 obtain through the Everglades nutrient threshold
7 research plan, would that help you in answering that
8 question?
9 A. Yes.
10 Q. How so?
11 A. Yes and no, really. We were trying to
12 focus our attention on specific transects where good
13 historical data exists, and from this data vegetative
14 surveys say something about the entire relationships
15 about an ecosystem level.
16 However, to answer your question about
17 spreading in the front, then you need a very large
18 survey as opposed to the specific transect where you
19 want to collect a lot of information.
20 Looking at the spreading of fronts might be
21 done better by satellite or quick grab samples or
22 something like that. So a less detailed survey over
23 the entire area.
24 Q. You mentioned that the reversal of any
25 cultural eutrophication would be very slow. That was
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1 based upon what's going on at the ENM dosing site?
2 A. As one example,