241
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 33131
Thursday, February 17, 1994
20 9:15 a.m. - 6:10 p.m.
21 DEPOSITION OF ALLEN S. LEFOHN - VOLUME III
22 Taken before BRIAN GARY BERKOWITZ, Shorthand
Reporter and Notary Public in and for the State of
23 Florida at Large, pursuant to Notice of Taking
Deposition filed in the above cause.
24 - - - - - - -
242
1 APPEARANCES
2
ON BEHALF OF THE PETITIONERS FLORIDA SUGAR CANE LEAGUE,
3 INC., UNITED STATES SUGAR CORP., AND NEW HOPE SOUTH, INC.
4 EARL BLANK KAVANAUGH & STOTTS, P.A.
One Biscayne Tower - Suite 3636
5 Two South Biscayne Boulevard
Miami, Florida 33131
6 BY: ROBERT H. BLANK, ESQ.
7 ON BEHALF OF THE RESPONDENT SOUTH FLORIDA
Water Management District
8
POPHAM HAIK SCHNOBRICH & KAUFMAN, LTD.
9 4000 International Place
100 S. E. 2nd Street
10 Miami, Florida 33131
BY: PAUL L. NETTLETON, ESQ.
11
ON BEHALF OF THE RESPONDENT-INTERVENOR
12 UNITED STATES OF AMERICA
13 STEPHEN G. BARTELL, ESQ.
United States Department of Justice
14 Environmental and Natural Resources Division
General Litigation Section
15 601 Pennsylvania Avenue, N. W.
Washington, D. C. 20004
16
17 - - -
243
1 INDEX
Witness Direct Cross Redirect Recross
2 ALLEN S. LEFOHN
By Mr. Bartell 244
3 By Mr. Nettleton 391
4 LEFOHN EXHIBITS
Exhibit 11..............Resume...................248
5 Exhibit 12..............Notice...................270
Exhibit 13..............Bates No. 1184049........284
6 Exhibit 14..............Bates No. 1219822........304
Exhibit 15..............Bates No. 1183852........315
7 Exhibit 16..............Bates No. 1219824........319
Exhibit 17..............Bates No. 1219844........323
8 Exhibit 18..............Bates No. 1219818........334
Exhibit 19..............Bates No. 0844983........344
9 Exhibit 20..............Bates No. 1219782........353
Exhibit 21..............Bates No. 1219864........358
10 Exhibit 22..............Bates No. 1183797........364
Exhibits 23 through 31..Documents................370
11 Exhibit 32..............Current CV...............391
Exhibit 33..............Calculations.............444
12 - - -
244
1 Thereupon --
2 ALLEN S. LEFOHN
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. BARTELL:
7 Q. Good morning.
8 A. Good morning.
9 Q. I'm Stephen Bartell, with the Department of
10 Justice. I represent the United States in this
11 litigation, which is ongoing over the regulatory
12 program or the SWIM plan, proposed by the South Florida
13 Water Management District.
14 I'm going to be asking you a number of
15 questions this morning. If you don't understand
16 anything, or if anything is unclear, please let me know
17 and I will try to rephrase my questions. This will
18 ensure that you are answering the questions that I'm
19 asking.
20 If you have answered the questions, I will
21 assume that you've understood what I have asked.
22 Is that agreeable?
23 A. Yes.
24 Q. Would you please state your name for the
25 record?
245
1 A. My name is Allen S. Lefohn.
2 Q. Dr. Lefohn, this is a follow-up deposition to
3 one which was taken here in Miami on March 16, 1993.
4 While some of the questions may be somewhat
5 similar to those previously asked, I'm going to make
6 every attempt to try to avoid any repetition.
7 Since last March, has your address changed?
8 A. No.
9 Q. And has your employment or your position
10 changed?
11 A. No.
12 Q. Since last March, have you conducted any
13 research to formulate opinions concerning the effects
14 of peaks in nutrient concentrations on vegetation?
15 A. The effects on vegetation of nutrients, no.
16 Q. Other than the work --
17 MR. BLANK: Excuse me. Could you read back
18 the question, please?
19 (The question referred to was thereupon
20 read by the reporter as above recorded.)
21 MR. BLANK: You're saying "peaks"?
22 MR. BARTELL: Yes.
23 MR. BLANK: Thank you.
24 BY MR. BARTELL:
25 Q. Have you rendered any opinions concerning the
246
1 effects of nutrients on vegetation?
2 A. No.
3 Q. Other than the work on this particular case,
4 have you done any research since last March, on
5 phosphorus and rainfall?
6 A. Could you repeat the question?
7 Q. Other than the work specifically for this
8 case, since last March, have you done any work
9 regarding phosphorus concentrations and rainfall?
10 A. No. Other than this work, no.
11 Q. Again, since last March, have you done any
12 research in South Florida?
13 A. Can I ask for a clarification of that
14 question?
15 Q. Have you done any research at all in South
16 Florida, since last March?
17 A. I have used data from South Florida. I have
18 not physically been here doing research in the field.
19 Q. Have you physically visited South Florida
20 since the last deposition, in March of '93?
21 A. I don't think so. I would say no, but I -- I
22 don't think so.
23 Q. Have you personally been involved in setting
24 up or monitoring sampling sites for measuring
25 deposition, since last March?
247
1 A. No.
2 Q. Have you testified as an expert in any
3 proceedings since last March?
4 A. No.
5 I have testified in things not related to
6 phosphorus or nutrient loading.
7 Q. Could you explain what the forum was in which
8 you testified?
9 A. Yes. I appeared in front of the legislature
10 in Montana, concerning the location and burning of
11 hazardous waste in the state. I appeared in front of
12 the legislature.
13 Q. Do you have a transcript of your testimony
14 before the legislature?
15 A. No.
16 Q. Have you done any research with regard to
17 eutrophication, since last March?
18 A. No.
19 Q. Would you tell me of any government sponsored
20 data bases that you are familiar with, that include
21 data collected concerning nutrient content,
22 concentrations of rainfall, other than those listed in
23 your resume or CV? I understand we have not yet gone
24 through that.
25 MR. BLANK: Do you want to give him a copy of
248
1 what you are referring to? It might make it a
2 little easier for him.
3 MR. BARTELL: Sure.
4 This will be entered as an exhibit shortly,
5 but for now, I'm handing you your current resume,
6 which you produced, as we speak.
7 MR. NETTLETON: Off the record.
8 (Discussion off the record.)
9 THE WITNESS: I'd like to hear the question.
10 MR. BARTELL: Let me withdraw that last
11 question.
12 MR. NETTLETON: Off the record.
13 (Discussion off the record.)
14 MR. BARTELL: Withdraw the last question.
15 Can I please have this marked as Exhibit No.
16 1?
17 MR. NETTLETON: Just for purposes of keeping
18 things consistent, could we start with No. 11,
19 since we left off with 10 last time?
20 MR. BARTELL: Sure.
21 (The document referred to was thereupon
22 marked Lefohn Exhibit 11 for Identification.)
23 BY MR. BARTELL:
24 Q. Dr. Lefohn, I'm handing you what's been
25 marked as Lefohn Exhibit No. 11.
249
1 Would you please identify this document?
2 A. This is a copy of my resume that I submitted
3 to counsel, which was provided to counsel.
4 Q. Is this the most current or up to date copy
5 of your resume or CV?
6 A. No. It's not.
7 Q. Do you have a more current copy?
8 A. Not with me.
9 Q. Do you have one back in Montana?
10 A. Yes. This doesn't look like what I sent, but
11 it -- to counsel, but it may be. If so, I certainly
12 can supply a more current version.
13 MR. BARTELL: Mr. Blank, I'd like to request
14 that as soon as possible, a current copy of Dr.
15 Lefohn's resume be forwarded to myself.
16 MR. BLANK: Okay.
17 MR. NETTLETON: We would like one, too.
18 THE WITNESS: Can we go off the record one
19 second?
20 MR. BARTELL: Off the record.
21 (Discussion off the record.)
22 BY MR. BARTELL:
23 Q. Dr. Lefohn, could you go through and explain
24 to me what is different on your current resume, which
25 we don't have here, as opposed to the one that's before
250
1 you that's been marked as Exhibit No. 11?
2 A. Yes. Since a year ago, the paragraph on page
3 1 of Exhibit 11 has an additional sentence or two,
4 talking about how I was an invited speaker to
5 Switzerland, to Bern, Switzerland, in November, to
6 discuss surface ozone and its effects on vegetation.
7 Then in the -- page 14 of the same exhibit,
8 under, "Technical Publications," the Lefohn-Foley paper
9 has been published by the Air and Waste Management
10 Association in its transactions.
11 The Lefohn-Foley paper has appeared in the
12 Journal of the Air and Waste Management Association,
13 which is publication number two, and the third paper
14 there, Lefohn, McEvoy, Tingey, et cetera, has also been
15 published by Atmospheric Environment.
16 There are one or two other papers that have
17 been published since then, and one of them is a paper
18 that summarizes Norwegian ozone -- ozone data analysis,
19 that appeared in the Atmospheric Environment, in
20 January 1994, and a second paper that appeared on
21 Health Effects and Vegetation Effects in the Journal of
22 the Air and Waste Management Association, in 1993,
23 which I think is the second one that's listed as Lefohn
24 and Foley, 1993.
25 There may be other changes which are minor,
251
1 that are in this resume.
2 In addition, there's one last one. That is
3 the -- in January of 1994, I was requested by UC, Davis
4 to serve on its advisory committee for the ecological
5 research program that they have with the Environmental
6 Protection Agency. And I agreed to do that.
7 Q. Other than the changes that you have just
8 described, are there any other changes that you can
9 think of, other than possibly some very minor changes,
10 from your current resume as opposed to the one that's
11 before you?
12 A. No.
13 Q. If you were to update your current resume,
14 which you do not have here with you today, the current
15 one that you have back in Montana, is there anything
16 that you would add to that one at this time?
17 A. No.
18 Q. Backing up, you just mentioned two
19 additional, I guess they were articles, one from '93
20 and one from '94, that are not listed in here?
21 A. Right.
22 Q. Could you just briefly describe them to me,
23 once again?
24 A. Yes. I think the '93 one I referred to was
25 the Health Study, which I think was the third one I
252
1 listed, the Lefohn and Foley. That's the second one,
2 Lefohn and Foley. It was in press at the time it was
3 published.
4 Q. And the other one was a 1994 publication?
5 A. Yes. It's one on Norwegian air quality,
6 Pedersen and Lefohn, on Norwegian ozone data.
7 Q. Regarding your invitation to be a part of
8 this ecological committee at the University of
9 California, Davis, can you describe what that is going
10 to entail?
11 A. To discuss with the active scientists at the
12 University of California at Davis, their ongoing
13 research, along with other members of the committee,
14 and then to make recommendations concerning the
15 improvements on the program, should they be needed, and
16 future research directions in terms of recommendations.
17 It's an oversight-advisory committee.
18 Q. If I could refer you to page 7 of the
19 corporate philosophy and background that is attached to
20 your resume, under the subsection, "Project cost
21 control," it refers to monthly status reports.
22 How many of these have you prepared with
23 regards to work on your case here in South Florida?
24 A. More than 15 or 16, but I don't know what the
25 exact number is. It's probably between 15 and 20. 16
253
1 and 20.
2 Q. It then refers to special reports. How many
3 of those have you prepared with regards to work on this
4 case?
5 A. None regarding project cost control.
6 Q. Have there been any other reports, other than
7 these monthly status reports?
8 A. Regarding project cost control?
9 Q. Regarding this project at all.
10 MR. BLANK: What project are you referring
11 to?
12 Q. Your work on this particular case, that
13 you've been hired for.
14 A. There was a draft report which I mentioned in
15 the last deposition, that was prepared, that summarized
16 my phase one effort.
17 Q. Has that report been produced?
18 A. It has not been changed since that time, in
19 terms of any modification to the draft. It's not
20 completed.
21 Q. So, other than the 16 to 20 monthly status
22 reports, and some maybe cost reports, or billing, and
23 this draft report, is there anything else that you have
24 generated with regard to the work you are doing on this
25 case?
254
1 A. There is material that you have seen, that
2 was submitted, that was requested, that I did prepare,
3 and you have copies of that.
4 Q. Can you describe what that is?
5 A. Yes. One of them is the summary of the
6 Kriging effort that resulted in maps with numbers on
7 them, that described various physical things that
8 occurred in the WCA, with regard to total phosphorus.
9 Q. And if I recall, those documents, or those
10 papers, did not have any text. They were simply
11 diagrams or maps. Is that correct?
12 A. That's correct.
13 Q. Other than that, have you produced anything
14 else with regards to your work on this case?
15 MR. BLANK: Can I get some clarification?
16 When you say "produced," are you referring to --
17 BY MR. BARTELL:
18 Q. Have you prepared any additional reports or
19 summaries with regards to your work on this case?
20 A. There is a summary of the three month
21 U.S. G.S. experimental research effort that was
22 performed in 1992, for which there are words and tables
23 and such, and you have a copy of that.
24 Q. Is there anything else that you have
25 prepared?
255
1 A. I have prepared tables of information
2 regarding summaries of data analysis, regarding volume
3 weighted concentration, which you have copies of.
4 MR. BLANK: Can we go off the record?
5 MR. BARTELL: Sure.
6 (Discussion off the record.)
7 BY MR. BARTELL:
8 Q. With respect to these different reports or
9 summaries that you have just described, is there
10 anything else that explains or sets forth the
11 conclusions you've reached with regards to your work,
12 the work you've done on this case?
13 A. Could you rephrase that question?
14 MR. BARTELL: Could you read that back,
15 please?
16 (The question referred to was thereupon
17 read by the reporter as above recorded.)
18 A. No.
19 Q. I'd like to refer you to pages two and three
20 of the corporate philosophy section of this document,
21 and ask you, other than the data bases set forth at the
22 bottom of two and the top of page three, are you
23 familiar with any other government sponsored data bases
24 which include data concerning nutrient concentrations
25 in rainfall deposition?
256
1 A. Yes.
2 Q. Can you tell me what those data bases are?
3 A. There was a three month U.S. G.S. effort, in
4 1992, and there's the Hendry-Brezonik work, that has
5 been published from data generated in May of 1978 to
6 April 1979. Those are the two additional data sets
7 that I'm familiar with.
8 Q. Are there any additional industry sponsored
9 data sets?
10 A. As indicated in my previous deposition, there
11 are additional data that are being gathered out in the
12 area of interest, but I have not seen those data.
13 Q. Could you describe the area of interest?
14 A. The EAA or the WCA area.
15 Q. How are you familiar with the fact that there
16 is additional data being gathered in this area?
17 A. It's just been mentioned in casual
18 conversations, either with counsel or with some of the
19 consultants to counsel.
20 Q. Again, you have not seen that data?
21 A. No.
22 Q. Do you expect to be given that data?
23 A. At this point -- at this time, no one has
24 asked me to look at the data.
25 Q. Which data bases have you relied upon to
257
1 formulate your opinions in this case?
2 A. The district data for the period 1988 to
3 1991, and the Hendry-Brezonik data for the time period
4 I previously described.
5 Q. Are those the only two data bases you have
6 relied upon?
7 A. To draw my conclusions?
8 Q. To draw your conclusions in this case.
9 A. Yes. At this time.
10 Q. Do you expect to be looking at any additional
11 data bases to change or update your conclusions?
12 A. I don't -- at this time, no one has asked me
13 to look at further data. So, I -- if someone were to
14 give me more data, then I would look at it.
15 Q. You do not anticipate that at this time?
16 A. No one has asked me, so I have my conclusions
17 based on what I've looked at, today, at this time, but
18 not -- if someone --
19 MR. BLANK: Just for clarification purposes,
20 we don't have any additional data generated by any
21 of our clients, that we intend to give Dr. Lefohn.
22 We have become aware that there is additional
23 rainfall and atmospheric data, particularly for
24 the Refuge, but we don't have that data yet.
25 If we do get it, then we intend to ask Dr.
258
1 Lefohn to look at it.
2 MR. NETTLETON: For clarification, can you
3 tell us whose data it is?
4 MR. BLANK: I assume -- we found it in the
5 context of the Jones deposition, and there are
6 apparently, three or four collectors in the
7 Refuge, which I assume were being operated by the
8 Refuge. I don't know. Maybe the district is
9 collecting the data.
10 MR. NETTLETON: But you are not intending to
11 have Dr. Lefohn look at the data being collected
12 by the industry?
13 MR. BLANK: I don't know what it is, and I
14 don't know what period of record is there. We've
15 never seen it. We're not intending to have him
16 look at it.
17 BY MR. BARTELL:
18 Q. My understanding is, then, you have relied
19 strictly upon two data sets, the district's data, or
20 data base, and the Hendry-Brezonik data base?
21 A. Yes.
22 Q. With regard to the district data base, are
23 you familiar with their sampling screening procedures?
24 A. I have read material that describes that,
25 those procedures. Summary material.
259
1 Q. Do you know how many sites were used in the
2 district data base?
3 A. Can I ask clarification of that question,
4 please?
5 In drawing my own analysis -- drawing my own
6 conclusions?
7 Q. Both in -- yes, in drawing your own
8 conclusions.
9 A. Yes. There were eight sites of data that
10 were used across the period 1988 to 1991, of which I
11 have provided you the list of those sites.
12 Q. Were there additional sites that the district
13 used in collecting samples?
14 A. Yes, for earlier periods.
15 Q. Why did you choose not to use those other
16 sites for earlier periods?
17 A. Simply because all of those data, for the
18 period 1974 through about 1986, 1987, were bulk
19 samplers.
20 In many cases there was no documentation of
21 the volume of data that were associated with the bulk
22 samples. The wet-dry sampling data is what I focused
23 my analysis on, concerning the district's data, and
24 that started occurring around '86 to '87 time period,
25 when those monitors came on line, and most of those are
260
1 still on line now. Most, but not all.
2 Q. Why did you focus only on the wet-dry samples
3 as opposed to mere bulk samples?
4 A. One reason was the volume.
5 I needed to calculate the volume of
6 concentration. Without the volume, it's impossible to
7 do that.
8 Second, the documentation on the quality
9 control, quality assurance protocols that were being
10 used, was lacking.
11 Q. Are those the only two reasons?
12 A. Third, in many cases, the monitors did not
13 have a continuous overlap of all operating during the
14 same time period.
15 In the early years, in 1988, some of the
16 samplers were actually in the midst of -- were about to
17 be discontinued, but for the '88 to '91 period, we
18 seemed to have a better representation in the area of
19 interest of what was going on. Those are the only ones
20 I can think of at this time.
21 Q. Have you reviewed log books from either the
22 field and/or the labs, which related to the analysis of
23 these samples?
24 A. Yes.
25 Q. Do you know what the detection limits were
261
1 for the district, for phosphorus, for their samples?
2 A. It varied over the years, and I do not have
3 that number in front of me right now.
4 There is a -- but I have seen the
5 documentation on that, and it did vary.
6 Q. Are you familiar with how the stations were
7 set up for the district in collecting their samples?
8 A. No.
9 Q. You just stated that the earlier data bases
10 that you did not rely upon, did not have adequate, or
11 you weren't comfortable with their quality assurance or
12 quality control.
13 Are you familiar with the quality control or
14 assurance used in the samplings that you did rely upon?
15 A. There is a memo that was generated by the
16 district in January 1993, that laid out the protocol
17 that was followed in the very early years, and the
18 protocol that was followed in the period, the time
19 period 1987 through about 1992, and future protocols
20 that were going to be followed from January 1993 on.
21 According to the article by Grimshaw, which
22 was provided in my previous deposition, the quality
23 assurance protocols were lacking even in the second set
24 of data that I just mentioned, the second time period
25 that I mentioned. There were concerns about the
262
1 quality of data during that period, also.
2 Q. Could you sort of explain what those concerns
3 were?
4 A. Lack of documentation in the log books.
5 Q. The log books pertaining to the field or the
6 laboratories?
7 A. It may have been both. It just -- I think
8 the reference was lack of documentation, both by the
9 person who was operating the instrument, as well as in
10 the laboratory.
11 Q. Do you know how the district, in this
12 sampling, treated outliers?
13 A. In the SWIM plan, I believe the cutoff number
14 was 320 parts per billion for total phosphorus, and
15 anything above that amount was eliminated from their
16 calculations on page 161 or 162 of the supporting
17 document volume.
18 Q. Could you explain what your general feeling
19 is regarding the district's data base? And what I mean
20 by that is, do you think it's something that could be
21 relied upon as quality data?
22 A. I think the determination of total phosphorus
23 is questionable, using that data base.
24 Q. Is there anything you could state to further
25 expand upon your answer, other than just stating that
263
1 it's questionable?
2 A. I think there's a great deal of uncertainty
3 in determining total phosphorus, using that data base.
4 Q. Is there any particular reason why there is
5 this uncertainty?
6 A. Yes. Lack of documentation, lack of volume
7 information. There are numerous events, samples, that
8 were collected over a fixed time period, where there's
9 no listing in the log on the volume amount.
10 Third, a tremendous amount of contamination
11 was noted in the log books for the individual samples.
12 Q. Were the samples that were noted with
13 contamination, still considered in the data base?
14 A. Yes.
15 Q. How would that change the phosphorus numbers
16 or percentages in these samples?
17 A. Totally unknown.
18 Q. Is there some contamination that would cause
19 the phosphorus numbers to be higher than they would be
20 otherwise?
21 A. Certainly some.
22 Q. Is there some contamination that could cause
23 the phosphorus levels to be lower?
24 A. I cannot think of any that would be lower,
25 no.
264
1 Q. One last question regarding the district's
2 data base.
3 Are you familiar with whether the collectors
4 were washed out between sampling -- between samples,
5 and if so, how they were washed out, with what?
6 A. There was some washing going on, but I do not
7 know the full protocol.
8 Q. Turning to the Hendry-Brezonik data base, I'd
9 like to ask you some similar questions regarding that
10 data base.
11 Are you familiar with how the sampling
12 screening procedures were implemented for this
13 Hendry-Brezonik data base?
14 A. I am not concerning -- no, I am not.
15 Q. Could you state again the sampling period for
16 the Hendry-Brezonik data base?
17 A. Yes. It was May of 1978 through April of
18 1979.
19 Q. What was the number of sites used in this
20 data base?
21 A. 24.
22 Q. Did you rely upon all 24 of those sites?
23 A. Yes.
24 Q. Have you reviewed the log books from both the
25 field and the labs regarding the analysis of the data
265
1 collected?
2 A. No.
3 Q. Do you know if there were log books kept from
4 both the field and/or the labs, regarding these
5 samples?
6 A. I do not know for a fact that there was. I
7 do not know.
8 Q. If you were aware of the fact that there were
9 log books, would you want to review them?
10 A. If asked to.
11 Q. Were you asked to review the log books from
12 the district's data base?
13 A. No.
14 Q. Why did you review those log books?
15 A. Because we had requested from the district
16 the volume information for the sites that I talked
17 about, the wet-dry samplers.
18 Consequently, we received a diskette, or on
19 diskette, the volume information for several years, for
20 several of the samplers.
21 There was a missing time period when in fact
22 no data volume were sent. It turns out that according
23 to the district, that the data were not available on
24 diskette, and so, they Xeroxed -- the district Xeroxed
25 the log books for the volumes, for those samples, for
266
1 the time period of interest.
2 Q. So, now, you were not missing any data from
3 the district's data base?
4 A. I am missing data for the properly -- I have
5 received information for all the volume that we had
6 asked for. Whether or not I'm missing data or not in
7 terms of volume, if there are more volume data
8 available, I do not know.
9 I have what I have from the district. I have
10 it through the end of 1991 and the beginning of 1992.
11 I believe we've requested additional information,
12 additional volume and concentration information from
13 the district for those sites and any additional sites
14 that may have come on line over the time period of
15 interest.
16 Q. You mean since early '92 to present?
17 A. Yes.
18 Q. Returning back to the Hendry-Brezonik data
19 base, do you know what their detection limits were?
20 A. I do not, offhand, know what those levels are
21 at this point.
22 Q. Are you familiar with how the stations were
23 set up in this data base?
24 A. Not in detail. Some of the information is
25 presented in terms of locations, and the agricultural
267
1 versus urban use, et cetera, in the material that I
2 provided to you.
3 Q. What material are you referring to?
4 A. There's a Ph.D. thesis by Hendry. There's a
5 piece by Brezonik and Hendry, that is a report to the
6 U.S. Environmental Protection Agency, and the third is
7 a Chapter 11 that essentially is a consolidation -- a
8 consolidated report of their research effort, that
9 appeared in a book.
10 Q. Again, returning to the Hendry-Brezonik data
11 base, are you familiar with the quality control or
12 assurance programs for the samples that made up that
13 data base?
14 A. I am not intimately familiar with the quality
15 assurance, other than it was a bulk collector, and it
16 suffered from the same problems that the bulk
17 collectors suffered from, that the district ran.
18 Q. What are those problems, other than -- what
19 are those problems?
20 A. The problems are things like contamination,
21 the evaporation. You just have a lot of things in the
22 bulk collector that could contribute to the total
23 phosphorus.
24 Q. Do you know how Hendry and Brezonik treated
25 outliers?
268
1 A. No, I do not.
2 Q. Are you familiar with whether they washed out
3 their samplers, and if so, how and with what, between
4 sampling periods?
5 A. No.
6 Q. Can you tell me if you have a general feeling
7 regarding the Hendry-Brezonik data base, again, whether
8 it's quality data, or data that can be relied upon?
9 A. At the time of its -- at the time the data
10 were gathered, it probably represents some of the best
11 procedures. However, the data, I believe, should be
12 treated as a general ballpark figure, as a rough
13 estimate, versus a finite number.
14 Q. So my understanding -- please tell me if this
15 is correct -- is that you are basing the conclusions
16 you've reached in this case, on two data bases, neither
17 of which you feel is very reliable?
18 A. That's correct.
19 Q. There was one other data base that you
20 summarized, the U.S. G.S. three month data base.
21 Have you relied upon that?
22 A. I have not relied on that concerning my
23 conclusions of the concentration, the concentration
24 amounts in the WCAs.
25 Q. Have you relied upon that to reach any
269
1 conclusions at all?
2 A. Yes.
3 Q. Other than the conclusions you've reached
4 that are summarized in your three or four page report?
5 A. No. Just the -- once again, the dry
6 deposition showed a lot of scatter, and therefore, the
7 large uncertainty associated with dry deposition
8 measurements.
9 MR. BARTELL: Off the record.
10 (Discussion off the record.)
11 BY MR. BARTELL:
12 Q. Dr. Lefohn, I believe I failed to mention
13 this earlier, but if there's any time you would like to
14 take a break, please, don't hesitate to say so.
15 A. All right.
16 Q. What have you done to prepare for today's
17 deposition?
18 A. I have reviewed the materials that I provided
19 to you.
20 Q. Have you read the notice of deposition?
21 A. Yes.
22 Q. When did you first see that notice?
23 A. Two to three weeks ago.
24 MR. BARTELL: I ask you to mark this as
25 Exhibit 12, please.
270
1 (The document referred to was thereupon
2 marked Lefohn Exhibit 12 for Identification.)
3 BY MR. BARTELL:
4 Q. Dr. Lefohn, you've just been handed Lefohn
5 Exhibit No. 12.
6 Is this the notice of deposition that you
7 have recently seen?
8 A. Yes.
9 Q. I'd like to refer you to page 8 of this
10 document. This is a section that begins, "The
11 documents to be produced."
12 I'd like to go briefly through this list.
13 Number one is the current CV, which, as we've already
14 indicated, you will be providing a more up to date
15 copy.
16 MR. BLANK: Just for the record, he sent us,
17 in response to this notice -- he gave us his most
18 current CV, which is what he is referring to, and
19 I'm surprised you don't have it. I'll check at
20 the lunch break to see what's going on.
21 MR. NETTLETON: Unless there was confusion
22 between the doctor and your office, or your office
23 and ours, the copy we got --
24 MR. BLANK: Is the old one?
25 MR. NETTLETON: Is the old one. It came with
271
1 the other documents you did provide.
2 MR. BLANK: It may be confusion in our
3 office, that they just saw a resume and picked up
4 the wrong one or something.
5 MR. BARTELL: Okay.
6 BY MR. BARTELL:
7 Q. Paragraph number two pertains to basically
8 your contract, your employment contract for this case.
9 Is there such a document, or documents?
10 A. Yes.
11 Q. Have those documents been provided?
12 MR. BLANK: I don't believe they have. I
13 think we asserted a privilege over those. If you
14 guys are still interested in them, I'll give them
15 to you, but we will expect reciprocation from the
16 United States.
17 MR. BARTELL: I understand. I'm just asking,
18 going through this request for documents here.
19 BY MR. BARTELL:
20 Q. Pertaining to the third paragraph, it
21 requests documents and reports, memos, and letters
22 reflecting your opinions regarding subparagraphs A and
23 B.
24 Do you have any such documents, and if so,
25 have they all been provided?
272
1 A. Yes.
2 Q. Which documents would you point me to
3 regarding this number three?
4 A. I think all of them that I submitted.
5 Q. Are subparagraphs A and B, a fair summary of
6 what you expect to testify at trial regarding this
7 case?
8 MR. NETTLETON: Let me just state for the
9 record that this notice was sent out, and this was
10 taken from the previous designation by the League,
11 and we since received a new designation. I don't
12 know if that makes a difference, but I just wanted
13 to alert you to that. I don't know that it's
14 changed any, but --
15 A. With reference to the EPA rainfall,
16 phosphorus concentrations, I don't know what that
17 means. I provided you all documents that pertain to
18 the subject categories that we talked about.
19 Q. Going back to my last question, is this a
20 fair summary of what you expect to testify about at
21 trial in this case?
22 MR. BLANK: Are you asking, counsel, if this
23 is -- A and B covers the general subject matter of
24 his testimony?
25 MR. BARTELL: Yes, exactly.
273
1 A. Yes.
2 Q. Going on to paragraph 4, this requests
3 documents that you relied upon to formulate your
4 opinions.
5 Have all of the documents pertaining to this
6 request been produced?
7 A. Yes.
8 Q. Number five asks for all information that you
9 may not have relied upon, and that you may have
10 reviewed, and have all documents responsive to this
11 been produced?
12 A. To the best of my knowledge.
13 Q. No. 6 sort of asks for all other documents
14 and memos.
15 Is there anything that is responsive to No.
16 6? Please take time to read this, if you need to.
17 A. I provided all of the documents.
18 Q. On to paragraph seven. I'd like to ask you
19 the same question, whether everything has been produced
20 pertaining to this?
21 A. Yes.
22 Q. On to paragraph 8.
23 A. Yes.
24 MR. BLANK: Is there a question pending?
25 MR. BARTELL: The question was -- it was the
274
1 same question as previous, whether all documents
2 had been produced responsive to paragraph number
3 eight, to which he responded, it was.
4 BY MR. BARTELL:
5 Q. Paragraph 9 requests any documents prepared
6 or presented by you, over the last 36 months, that were
7 relied upon by you, which reflect the subject matter in
8 paragraphs 3 through 8. Were all documents produced
9 responsive to No. 9?
10 A. Yes.
11 MR. NETTLETON: I don't think it's restricted
12 to those relied upon, for clarification, but which
13 relate to or concern the subject matters.
14 BY MR. BARTELL:
15 Q. Does that change your answer?
16 A. No.
17 Q. Paragraph No. 10, if I could ask you to
18 review that, and tell me if all documents have been
19 produced responsive to it?
20 A. You have -- I have produced that information.
21 Q. I'd like to ask you the same question for No.
22 11, paragraph No. 11 on page 10.
23 A. You have that material.
24 Q. I'm sorry?
25 A. There was no material presented, so the
275
1 answer is, everything that was generated, you have, and
2 there wasn't anything, so nothing was provided to you.
3 Q. Turning to page 11, paragraph No. 12, and has
4 everything been produced pertaining to this request?
5 A. Yes.
6 Q. I'd like to ask you the same question for
7 paragraph No. 13.
8 A. Yes.
9 Q. And paragraph 14?
10 A. Yes.
11 Q. And lastly, paragraph 15?
12 A. No. That's what we talked about at the very
13 beginning, that -- No. 15 is a general, global
14 statement, I believe.
15 It's not just pertaining to total phosphorus
16 deposition, and I provided testimony to the Senate and
17 the House, not concerning phosphorus.
18 Q. My understanding is that you do not have a
19 transcript of that testimony.
20 A. That's correct. But one does exist. That I
21 do not have, but one does exist within the legal
22 records of the House and the Senate, in the State of
23 Montana.
24 Q. With regards to all of these documents that
25 you have produced in response to this notice, who have
276
1 you produced all of those documents to? Who have you
2 physically given them to?
3 A. They were forwarded to counsel.
4 MR. NETTLETON: While we're in a lull here,
5 Bob, is there an updated privilege list to go with
6 Dr. Lefohn?
7 MR. BLANK: No.
8 MR. NETTLETON: Are there any additional
9 documents that you intend to add to the privilege
10 list?
11 MR. BLANK: No. As a matter of fact, we will
12 probably be releasing almost everything that's on
13 the privilege list.
14 MR. NETTLETON: It would have been nice if
15 that could have been done before the deposition.
16 MR. BLANK: I don't think it's going to make
17 any difference with regard to the Doctor's
18 testimony.
19 MR. NETTLETON: Perhaps not.
20 BY MR. BARTELL:
21 Q. Dr. Lefohn, you indicated earlier that you
22 felt wet and dry sampling was more reliable than bulk
23 sampling.
24 Could you explain to me, again, why you feel
25 that's more reliable?
277
1 A. Over the wet, you have a cover, when it
2 doesn't rain. You've isolated the sample from possible
3 contamination. The dry part is still susceptible to
4 insects, to frogs, to fecal matter, to dust, to
5 everything else that you can imagine that would go in.
6 But there's still isolation for the wet chemistry --
7 for the wetfall amount.
8 There appears to be, now, more routine
9 control over the length of the sample in the container,
10 versus with the bulk. There were lengthy periods of
11 time when the sample was just out in the field. There
12 didn't appear to be a routine cutoff of when the sample
13 was out there for.
14 Q. Do you feel it's necessary to refrigerate any
15 of the samples if you are looking for phosphorus
16 concentrations?
17 A. The total phosphorus? There's always the
18 possibility of evaporation and such, so you have a
19 change in concentration.
20 In terms of preserving the sample from
21 biodegradation and things like that, I do not think so.
22 Q. What if you were looking for orthophosphorus?
23 A. Definitely, you would need to do whatever is
24 possible to make sure there's not degradation of the
25 sample.
278
1 Q. Could that include or would that include
2 refrigeration of the samples?
3 A. That probably would be one thing that you
4 would want to do.
5 Q. In these samples, can orthophosphorus change
6 to total phosphorus and vice versa, while they're
7 sitting in the sampling containers?
8 A. Total phosphorus --
9 MR. BLANK: Object to the form of the
10 question. You can go ahead and answer, if you
11 know what he's asking.
12 A. Well, total phosphorus is made up partly of
13 orthophosphorus, and you just have phosphorus going to
14 different forms. So, your total phosphorus isn't going
15 to change as orthophosphate goes to whatever form,
16 because you are looking at the ortho plus something
17 else to give you total.
18 Q. I guess what I was trying to ask is whether
19 the percentage of the orthophosphorus could change
20 while it was sitting in the collector?
21 A. It might.
22 Q. How would you suggest either a wet or dry
23 sampler, or a bulk sampler, that has collected a sample
24 of deposition, be treated to separate out true sources
25 of atmospheric deposition from contamination?
279
1 A. At this point, I don't think there is such a
2 sampler, and the U.S. G.S. effort in fact pointed that
3 out. Made up of deposition to the area is the natural
4 cycling of insects and other things.
5 So, at this point, a lot of that, that's
6 contained within the dryfall, may in fact be part of
7 the normal cycling process.
8 Q. When you say "normal cycling process," this
9 includes locally generated materials, such as dust and
10 bugs and pollen, et cetera. Is that correct?
11 A. Yes. Certainly bugs, insects, as well as
12 resuspended material.
13 Q. And would these materials, these resuspended
14 materials or bugs or what have you, if they fell into
15 the samplers, would that be considered part of the bulk
16 deposition?
17 A. It's added to the amount.
18 I -- I would ask you to rephrase the
19 question, because I'm uncertain what you are asking.
20 Q. The question is whether locally generated
21 contaminants, let's say, as opposed to true deposition
22 that falls from the atmosphere, whether these
23 contaminants are included when you have figured out
24 what the bulk precipitation is of phosphorus?
25 A. The bulk precipitation to an area contains
280
1 the recycled material that originates from it as well
2 as material being blown in, to be transported into the
3 area. They essentially give you a total deposition to
4 the ecosystem, for which the ecosystem reuses that
5 material.
6 Q. Can you explain to me specifically what you
7 have been asked to do with regards to this case?
8 A. Yes. In phase one, I was asked to review
9 what the district had done, and to draw some
10 conclusions concerning the estimates of total
11 phosphorus deposition to the WCAs.
12 In addition, we were asked to describe what
13 should have been done, how one would do it, to
14 determine total phosphorus concentrations or deposition
15 in the WCAs.
16 Then in phase two, was reviewing available
17 data, attempt to determine the concentrations and
18 amount of rainfall in the WCAs.
19 Q. So, you were strictly looking at the
20 deposition of WCAs for phase one and phase two?
21 A. And concentration, and rainfall.
22 Q. Have you reached your final conclusions with
23 regards to phase one?
24 A. Yes. And those conclusions are the same as
25 was stated in deposition.
281
1 Q. Have you reached your final conclusions with
2 regards to phase two?
3 A. Based on the data that I've been asked to
4 review, yes.
5 Q. At this time, could I ask you to please
6 explain those conclusions, or would that be easier when
7 we get to your documents that may have summarized this?
8 A. I think it would be easier to go through the
9 documents for you.
10 Q. Okay. What documents, other than those that
11 have been produced since the last deposition -- let me
12 retract that question.
13 What documents have been provided to you
14 other than those that you have produced, that you may
15 have reviewed to reach your conclusions?
16 A. You have all the documents that I have either
17 produced or have seen, to draw a conclusion concerning
18 total phosphorus concentrations and rainfall in the
19 WCAs.
20 Q. Have you been given any information orally,
21 that you may have relied upon?
22 A. Not that I can recall.
23 Q. Other than yourself, is there anybody at
24 A.S.L. & Associates, who has worked on this case?
25 A. Yes.
282
1 Q. Who is that?
2 A. My research assistant.
3 Q. Who is that?
4 A. Mrs. Janelle Foley, F-O-L-E-Y.
5 Q. What did she do with regards to this case?
6 A. She looked at the contamination notes that
7 were provided -- that were provided on a diskette that
8 came through counsel. That was from William Walker.
9 That it's my belief the information looked like it came
10 from the district to Mr. Walker, but I'm not sure of
11 that.
12 Q. Is that the extent of her involvement?
13 A. Basically, reviewing -- she inserted the
14 volume information as we received it from the district,
15 to the individual samplers, the phosphorus
16 measurements.
17 Q. What subcontractors have assisted you in
18 reaching your conclusions in this case?
19 A. Dr. Knudsen, H. P. Knudsen, K-N-U-D-S-E-N.
20 Q. What has he done to assist you?
21 A. He's done the Kriging of the rainfall amounts
22 for the period 1988 through 1991, and the Kriging of
23 the total phosphorus concentrations for the same
24 period.
25 Q. Is that the extent of his involvement?
283
1 A. Yes.
2 I'm sorry. In deposition last time, I
3 mentioned that Dr. Knudsen also served as a
4 subcontractor regarding reviewing the Kriging as
5 described in the SWIM plan.
6 Q. Are there any other subcontractors who have
7 assisted you?
8 A. No.
9 Yes, I'm sorry. Not since the last
10 deposition, but prior to that, Dr. Krupa provided
11 information concerning the quality assurance protocols
12 and such.
13 Q. Has Dr. Krupa done any additional work for
14 you since our last deposition?
15 A. Yes. Dr. Krupa, through a contract with Dr.
16 Walt Lyons, looked at satellite data concerning Sahara
17 dust and its transport to this area.
18 Q. Are you familiar with what conclusions, if
19 any, he's reached? Is it "they"?
20 A. "They."
21 Q. They have reached pertaining to this?
22 A. Just, the conclusions were more couched in
23 terms of when the episodes occurred, of Sahara dust
24 transport. The time periods.
25 Q. Are you familiar with what those time periods
284
1 are?
2 A. Not at this moment. I mean, I do have that
3 information. But I do not have it here.
4 Q. Is there any other work that Dr. Krupa has
5 done since last March?
6 A. No. To this project, no.
7 Q. To this project.
8 Have you worked with Dr. Van Bowersox since
9 last March, for this -- in relation to this case?
10 A. No.
11 Q. Have you had any peer review of the
12 conclusions you've reached with regards to this case?
13 A. No.
14 MR. BARTELL: I'd ask you to mark this as
15 Exhibit No. 13, please.
16 (The document referred to was thereupon
17 marked Lefohn Exhibit 13 for Identification.)
18 BY MR. BARTELL:
19 Q. Dr. Lefohn, you have just been handed Lefohn
20 Exhibit No. 13, which is entitled, "Acidity, nutrients
21 and minerals in atmospheric precipitation over Florida,
22 deposition patterns, mechanisms and ecological
23 effects," by Brezonik and others.
24 Have you relied upon this report to reach
25 your conclusions?
285
1 A. Yes.
2 Q. What part of this report have you relied
3 upon?
4 A. Without going through every page, the key
5 part of it was Appendix D, in the very back.
6 Q. Have you relied upon this entire report to
7 reach your conclusions?
8 A. Not every page of the report.
9 Q. Is there anything you can recall that you
10 specifically disagree with in this report?
11 A. No.
12 Q. Do you feel that it is a reliable or a good
13 quality report?
14 A. In terms of the words on paper, yes, but I
15 have concerns, as I've indicated, about the reliability
16 of the data.
17 It's the best available data that existed at
18 that time.
19 Q. I'd like to refer you to page little i, or
20 Bates number 1184055.
21 A. I'm sorry, 11 --
22 Q. Page little i, at the very beginning.
23 A. Okay.
24 Q. On this page, I'm looking at the second
25 sentence, and I would like to ask you to just read that
286
1 sentence to me and then, if you could, explain what
2 those numbers mean.
3 A. "Comparable values for total phosphorus are
4 17-111 and 50 milligrams of phosphorus per meter
5 squared per year."
6 Q. Can you explain to me what those numbers
7 mean?
8 A. The --
9 MR. BLANK: I'm confused, counsel, as to what
10 your question is.
11 What do you mean, what do the numbers mean?
12 BY MR. BARTELL:
13 Q. What are the values? When it says 17 to 111,
14 what does that mean?
15 MR. BLANK: You're asking what units?
16 MR. BARTELL: Yes.
17 A. Without going into the tables and such, I
18 assume what they're saying is the range is from 17 to
19 111, and the average is 50 milligrams of phosphorus per
20 meter squared per year.
21 Q. Forgive me for not being that familiar with
22 this, but 17 to 111 what? I mean, is there a unit? It
23 may be clear and I don't understand it.
24 A. I think the unit is milligrams of phosphorus.
25 Q. Can these numbers be converted to parts per
287
1 million and parts per billion?
2 A. No, because one is in deposition, and what
3 you just said is in concentration.
4 Q. The third sentence states, "Highest
5 deposition rates occurred in agricultural areas, and
6 lowest rates in coastal and forested areas."
7 Can you explain to me why they would have
8 stated this?
9 A. Yes. What they were saying was that there
10 was a lot of resuspension and such associated with
11 agricultural activities that resulted in higher amounts
12 of deposition of total phosphorus, and I assume
13 nitrogen, in those agricultural areas, compared to the
14 other areas.
15 Q. I'd like to refer you now to page 1-2,
16 paragraph number five.
17 MR. BLANK: Do you have another copy of this
18 report, counselor?
19 MR. BARTELL: No. I'm sorry, I don't.
20 BY MR. BARTELL:
21 Q. Dr. Lefohn, I'm sorry. I'm going to ask you
22 to refer back to the previous page we were looking at.
23 A. I'm sorry?
24 Q. Page little i.
25 The fifth sentence states that, "Wet only
288
1 input accounted for 68 and 81 percent of the total wet
2 plus dry deposition of," and I'm not going to attempt
3 to read what that says, but what I'm focusing on is
4 what follows. But dry fallout was more important for
5 organic nitrogen, and especially, I'm not quoting this
6 verbatim, and especially for phosphorus, 80 percent of
7 total input.
8 My understanding is, this states that it's --
9 basically, dry input is accounting for 80 percent of
10 the phosphorus.
11 A. That's correct.
12 Q. Is that correct?
13 A. That's correct.
14 Q. Do you agree with that?
15 A. Well, that's with the authors concluded based
16 on looking at their data, which is summarized in the
17 appendices.
18 Q. So, you don't have any reason to feel that
19 that 80 percent number could be wrong, based upon their
20 research?
21 A. I have no reason to challenge that in terms
22 of either the way they analyze their data or gather
23 their data, at this point, in terms of my saying that
24 if they used a different technique or such they would
25 have come out with a different number. I'm looking at
289
1 that at face value.
2 MR. BLANK: I object to the form of the
3 question.
4 I'm not sure if you are asking him about this
5 report or about his work.
6 MR. BARTELL: I wanted to know his opinion as
7 to whether this was a fair statement, based upon
8 his work.
9 A. I'm sorry, based upon what?
10 Q. Based upon the work in this report, if you
11 felt that was a fair statement.
12 MR. BLANK: As to what?
13 MR. BARTELL: As to the percentage. Based
14 upon the numbers that they generated in the data
15 base, if he felt that it was fair to say 80
16 percent of the phosphorus deposition came from dry
17 outfall.
18 A. Pardon me one second, while I find one of the
19 tables.
20 On table 4-6 on page 4-21, there is a
21 separation of wet and dry for four samplers. I believe
22 their conclusion of the 80 percent would be linked to
23 those numbers. I'm not going to -- I don't have a
24 calculator right here to confirm it's exactly 80
25 percent.
290
1 Q. That's fine.
2 Based upon other data bases that you looked
3 at, that look at phosphorus deposition, would you agree
4 that approximately 80 percent of phosphorus deposition
5 comes from dry outfall?
6 MR. BLANK: Object to the form of the
7 question and the vagueness of it. For what area?
8 Are you talking across the United States in
9 general?
10 BY MR. BARTELL:
11 Q. Let's say first in the South Florida region,
12 in general.
13 MR. BLANK: Urban plus rural? It's a very
14 broad question. I'll repeat my objection.
15 BY MR. BARTELL:
16 Q. Let's break that down. Based upon the data
17 bases that you've reviewed, do you feel that dry
18 outfall accounts for approximately 80 percent of the
19 phosphorus deposition in the Everglades Agricultural
20 Area? Again, I'm not asking for precise numbers.
21 MR. BLANK: Now you're asking for the EAA?
22 MR. BARTELL: Yes.
23 A. I -- I'll couch my answer in terms of,
24 dryfall is more important than wetfall in those areas.
25 Q. If I were to break down my questions into
291
1 different geographic zones in South Florida, would your
2 answer change?
3 A. Yes.
4 Q. Okay. Do you feel that dryfall is more of a
5 contributor to total phosphorus deposition, in the
6 coastal areas of South Florida?
7 A. I would reserve judgment to review the actual
8 data and analyze it for a site such as the B-50 site,
9 which is on the East Coast of Florida.
10 I would suspect that dryfall would play less
11 of a role along the coastal area for that site than it
12 would for some of the inland sites.
13 Q. Even if it was less of a role, would you --
14 would it be your opinion that it would still contribute
15 to more than fifty percent of the total phosphorus
16 deposition?
17 MR. BLANK: Doctor, I would caution you not
18 to speculate.
19 A. I cannot answer that question right now,
20 without looking at the data.
21 Q. I would now like to refer you to page 1-2.
22 In looking at the first sentence of paragraph
23 number six, could you explain -- could you read that
24 sentence and explain to me what the numbers in that
25 sentence mean?
292
1 MR. BLANK: Where are we now, counsel?
2 MR. BARTELL: The first sentence of paragraph
3 six.
4 A. "Bulk precipitation has significant levels of
5 total phosphorus; the statewide annual average is 38
6 micrograms per liter, and the mean deposition rate was
7 50 milligrams per meter squared-year."
8 Q. Could you explain to me what those two
9 numbers mean?
10 A. One is an annual average over all 24 -- over
11 probably 20 sites, of 38 micrograms per liter, which is
12 concentration, and the mean deposition rate, the
13 average deposition rate, across those sites, was the
14 number that I cited, 50 milligrams phosphorus per meter
15 squared-year.
16 Q. I'm looking at the last sentence of paragraph
17 6. It states that, and I'm not quoting this exactly,
18 but rural, non-agricultural and coastal sites have the
19 lowest rates, and agricultural sites had the highest
20 rates, and this is pertaining to phosphorus, total
21 phosphorus.
22 Why do you think this was concluded, or what
23 led to this type of conclusion?
24 A. The data base.
25 Q. Would your answer change from what you
293
1 previously stated, that this is probably due to locally
2 generated dust and what have you, from agricultural
3 practices, things of that nature?
4 A. It's not just --
5 MR. BLANK: Let me first object to the form
6 of the question. I don't think that's what the
7 witness previously testified to.
8 THE WITNESS: That's what I was going to say.
9 BY MR. BARTELL:
10 Q. Could you explain to me why the numbers would
11 come out to give this type of conclusion?
12 A. It's a matter of the land use near the
13 monitors themselves. In the coastal areas, you do not
14 have a lot of, perhaps, soils and such that are
15 resuspended into the bulk collector. For the
16 agricultural areas you have insects and everything else
17 that is drawn from the waterways or whatever, that is
18 in that local area, plus you have resuspension of
19 things that are associated with the use of the land.
20 Q. Now, looking at the bottom of page 1-2, the
21 last full sentence and the sentence that continues on
22 to the top of page 1-3, could I ask you to please read
23 these two sentences?
24 A. Yes.
25 MR. BLANK: You want him to read them into
294
1 the record, counsel?
2 MR. BARTELL: Yes.
3 A. Excuse me one second. I'd like to read the
4 whole --
5 Q. Sure.
6 A. The first sentence you would like me to read
7 is which one?
8 Q. It starts with, "Thus."
9 A. "Thus, most of the phosphorus of bulk
10 precipitation is dry fallout, presumably of wind driven
11 particles of dust and soil. These particles probably
12 are large and are not transported large distances, and
13 thus do not represent a source of new phosphorus for
14 terrestrial ecosystems."
15 Q. Can I ask you if you would have agreed with
16 these two sentences based upon the data that you have
17 reviewed and/or the data that's set forth in this
18 report?
19 MR. BLANK: Object to the form of the
20 question. You can answer, Doctor.
21 A. I would not necessarily agree that the total
22 amount of dryfall is just associated with wind blown
23 particles of dust and soil, based on my evaluation of
24 other data.
25 Q. This first sentence states that most of the
295
1 phosphorus in bulk precipitation is dry fallout.
2 Stopping there -- I don't believe I changed
3 the meaning of the sentence -- would you agree with
4 that statement?
5 A. Yes. Based on reviewing the data.
6 Q. Turning to the following sentence, which you
7 have already read, the last part of the sentence states
8 that most of the particles are large. They do not
9 represent a source of new phosphorus for terrestrial
10 ecosystems.
11 Do you agree with that statement?
12 A. Based on the data I've looked at to date, I
13 don't have any reason to disagree with this statement.
14 Q. What I'm trying to understand is, how far
15 away new phosphorus has to come from, to be considered
16 a new source of phosphorus. Do you have any opinions
17 on that?
18 A. Not at this time.
19 Q. I'd like to refer you to the last sentence of
20 paragraph 8 on page 1-3, which states that in most
21 areas of Florida, bulk precipitation supplies only
22 about 12 to 16 percent of the loading required to
23 reduce eutrophic conditions.
24 Do you agree with that statement, based upon
25 your research?
296
1 A. I have no comment on that.
2 Q. I'd like to refer you to page 2-1, the second
3 paragraph. This is in a chapter entitled,
4 "Recommendations."
5 A. Yes.
6 Q. I'd like to ask you to read the second
7 paragraph. You can read this to yourself. Then I
8 would like to ask you your opinion on it.
9 (Pause.)
10 A. Okay.
11 Q. Is there anything in that paragraph you
12 specifically agree and/or disagree with?
13 MR. BLANK: Object to the form of the
14 question.
15 THE WITNESS: Am I supposed to answer that?
16 MR. BLANK: Yes. Unless I instruct you not
17 to, you can go ahead and answer.
18 A. This is -- I believe this research certainly
19 is needed, and people are trying to do that.
20 Q. Do you have any idea how such
21 characterization could be accomplished?
22 A. I have discussed -- other people who are
23 thinking about this, have discussed it with me, but
24 I'm -- their expertise is -- they have more experience
25 in this area than I do. They've just talked about it.
297
1 Q. Do you have any general opinions, how you
2 might be able to describe how this characterization
3 could be accomplished?
4 A. It's difficult in terms of getting an
5 accurate dry collector that would adequately measure
6 the amount of total phosphorus in dryfall. There
7 certainly are various techniques that can look at the
8 sizing of the samples that are gathered. But whether
9 or not the total sample that would be gathered would be
10 representative of dryfall, is open to considerable
11 question.
12 MR. BARTELL: I would like to note for the
13 record that in the copy of this report which has
14 been supplied to us, we are missing three pages.
15 Those pages are 4-2, 4-5, and 4-8.
16 THE WITNESS: I would like to note that those
17 are the same pages that were missing in my copy
18 that I received from counsel, and they received it
19 from Dr. Hendry.
20 BY MR. BARTELL:
21 Q. Do you have any knowledge of what's contained
22 on those three pages?
23 A. Could you refer me to the exact page numbers
24 again? I've been through this thought process before.
25 MR. BLANK: I don't know how in the world he
298
1 can answer that question, since he just said he
2 didn't see it.
3 MR. NETTLETON: He may have seen another
4 version of the report.
5 THE WITNESS: I have not.
6 BY MR. BARTELL:
7 Q. These pages continue with -- sort of in the
8 middle of sentences. These are all in Chapter Four.
9 The first one is -- 4-2 is missing.
10 A. Okay.
11 Q. 4-5, which I'll assume is a table or a graph
12 of some type?
13 A. Yes.
14 Q. And 4-8, which is probably text.
15 A. Let me remark that I did not find this to be
16 a serious omission in being able to draw my
17 conclusions, because the tables I needed were found
18 elsewhere in the document.
19 Q. Are you aware of any other missing pages in
20 this document?
21 A. That pertain to my area of interest, that I
22 needed, no.
23 Q. Are you aware of any other missing pages, in
24 general? I'm not asking for specific pages, and you
25 may not have --
299
1 A. I'm unaware, because I would have not been
2 needing that to focus on.
3 Q. I'd like to now refer you to page 4-24 and
4 ask you to read the first full paragraph, beginning at
5 the top of the page, to yourself.
6 (Pause.)
7 A. Okay.
8 Q. Is there anything in this paragraph you
9 specifically disagree with?
10 MR. BLANK: Again, counsel, you are asking
11 him with regard to the conclusions in this report?
12 You're not asking him to extrapolate this language
13 to the EAA or the WCA, are you?
14 MR. BARTELL: I don't believe -- no, I'm not
15 asking him to extrapolate it whatsoever, but I
16 believe that the statements set forth in this
17 paragraph only refer to the areas they considered.
18 I understand that this is based upon the data
19 set forth in this report, but is there anything in
20 this paragraph you specifically disagree with?
21 THE WITNESS: I'm now totally confused. Can
22 we go off the record? I don't know how you want
23 to handle this. You said something about the area
24 being considered, and I don't know what that
25 means.
300
1 BY MR. BARTELL:
2 Q. Let's break this down. Does the first
3 sentence coincide with the results that you have seen
4 in data bases in general? If you could read the first
5 sentence to yourself, does that --
6 A. Is your question regarding the four sites
7 that they looked at, and whether I agree that the
8 average over those four sites was 80 percent?
9 Q. No. What I'm asking you -- forgive me. That
10 was a horrible question. Do you have any reason to
11 believe that -- let me withdraw that question.
12 I'd like to ask you to look about halfway
13 through this paragraph, to the sentence that begins,
14 "Since phosphorus is a non-volatile element."
15 Can you explain to me what that sentence
16 means? I did not read the entire sentence.
17 MR. BLANK: You are asking him to give you
18 his interpretation of what the author meant when
19 the author wrote that sentence?
20 MR. BARTELL: Yes. I'm asking asking him to
21 explain to me what that sentence means to him, as
22 it is not clear to me.
23 A. What the author is saying is that, phosphorus
24 is being recycled in the area, and that it's going from
25 rock, broken down into the soil, running off into the
301
1 water, and that it is not being volatilized into the
2 air.
3 Q. What does it mean to be volatilized into the
4 air?
5 A. It means that something can essentially emit
6 it in the form of a gas or something. Some physical
7 reaction can occur that causes it to be emitted into
8 the air as a gas. And the word is, "generally" is
9 limited to, in the authors' opinion.
10 Q. You indicated that the key part of this
11 report that you relied upon was Appendix D.
12 A. Yes.
13 MR. BLANK: Are you done with the text now,
14 counsel?
15 MR. BARTELL: Yes.
16 MR. BLANK: I would like to get a copy of
17 just the pages you referred to. Maybe when we
18 break for lunch or whatever, you can do that.
19 BY MR. BARTELL:
20 Q. Can you tell me what on this Appendix D,
21 specifically, you've relied upon?
22 A. Yes.
23 MR. NETTLETON: Just for the record, I
24 believe the way the report is set up, this is
25 subsection or table labeled D, in Appendix II, is
302
1 the way I look at the index.
2 MR. BLANK: Have we identified the Bates
3 stamp numbers? That may be appropriate.
4 MR. BARTELL: It's No. 1184258. And this
5 subpart D continues on to the following page.
6 BY MR. BARTELL:
7 Q. In this table D, can you identify what it is
8 that you relied upon?
9 A. The second column that has numbers in it, the
10 rain column.
11 MR. BLANK: Could we just take a quick break,
12 and could I get a copy of this made? Because I
13 don't want to mark on this, but I would like to be
14 able to follow along and, you know, mark, if you
15 are going to inquire in detail. Would that be
16 possible?
17 MR. NETTLETON: Sure.
18 (Pause.)
19 BY MR. BARTELL:
20 Q. Can you tell me what you relied upon from
21 this table D?
22 A. The column that is entitled, "Rain," and then
23 in the third row, the column that is entitled, "TP
24 Dep."
25 Q. I see the column that's titled, "Rain."
303
1 Where is the second column?
2 A. The third row down.
3 Q. Okay.
4 A. Approximately mid --
5 Q. What do the numbers in the "Rain" column
6 represent?
7 A. It represents for the period May 1, 1978
8 through April 30, 1979, the rainfall in centimeters.
9 Q. What does the column that is "TP Dep" stand
10 for?
11 A. The total phosphorus deposition in kilograms
12 per hectare per year.
13 Q. Is this considered a data base?
14 A. It's a summary of the investigator's data
15 analysis.
16 Q. Is this one of the two data bases that you've
17 indicated you relied upon to reach your conclusions?
18 A. Yes.
19 Q. Is this the entire data base that you have
20 relied upon pertaining to the -- one of the two -- let
21 me start that question again.
22 You've indicated you relied on two data bases
23 to reach your conclusions.
24 This is one of them. Is this the entire data
25 base?
304
1 A. No. The reason is, because this is rainfall,
2 now, for all collectors, and there were four collectors
3 that had dryfall.
4 I'm sorry. This is the bulk amount for those
5 collectors that are not wet-dry. Those that had
6 wet-dry, this is the wetfall summary. Therefore, I had
7 to go to another table in text, which I referred to
8 earlier. Bear with me one minute.
9 Q. That would be on page 4-21, I believe.
10 A. Yes. That is a summary of the wet and
11 dryfall for the four collectors.
12 Q. With these two pages, is that the entire data
13 base you relied upon?
14 A. Is the -- it appears -- I believe it's the --
15 the total sources of data that I depended upon
16 regarding this data base.
17 MR. BARTELL: I'd like to ask you to mark
18 this as Exhibit No. 14.
19 (The document referred to was thereupon
20 marked Lefohn Exhibit 14 for Identification.)
21 BY MR. BARTELL:
22 Q. Dr. Lefohn, I believe you've just been handed
23 what's been marked as Exhibit No. 14.
24 A. Yes.
25 Q. Does this correlate with the stations set
305
1 forth in the Brezonik report, Exhibit No. 13?
2 MR. BLANK: Does what correlate?
3 Q. Does the column on the left side of the page,
4 correlate with the stations set forth in the Brezonik
5 report, which is Exhibit No. 13?
6 A. It correlates with the initials on the maps.
7 That's correct. In that report.
8 Q. Whose handwriting is this?
9 A. My own.
10 Q. Can you explain to me what this exhibit is?
11 A. Yes. It essentially is a -- the
12 calculation --
13 MR. BLANK: Let me just raise a cautionary
14 note here. Although we did not assert a privilege
15 with regard to this document, it was prepared
16 during the mediation process, for mediation
17 purposes. So that you know.
18 A. It is taking the total deposition value,
19 which is the second column that's entitled,
20 "Deposition, milligrams phosphorus per meter squared
21 per year," and taking the rain values, which are in
22 centimeters, that were obtained from the table at D,
23 previously referred to, and obtaining the total
24 phosphorus concentration in milligrams per liter, for
25 each of the sites.
306
1 Q. Forgive me, but I understand where the
2 numbers came from for the "Rain" column. Where did the
3 numbers come from for the first column of numbers?
4 A. The second column of numbers? The first
5 column being the initials?
6 Q. Yes.
7 A. They come from the third row -- in table D,
8 the third row, "TP Dep." The units are different.
9 They're off. They're not off. They're being converted
10 to the milligrams per meter squared per year.
11 Q. For example, the first row is station AP,
12 which is site number one?
13 A. Right.
14 Q. And the number 58 comes from the number on
15 table D, which is .0875?
16 A. That's part of it. Remember, I referred to a
17 table 4-6 to pick up the rest of the information for
18 four sites. That's one of the four sites. That's why
19 the asterisk is there, for four of the sites.
20 So, to get the 58, you would use nine, which
21 is the .0875 multiplied by a hundred, for conversion,
22 the factor conversion, plus going to table 4-6, you
23 will see the number 48 under the dry deposition, on the
24 Brezonik report, on page 4-21. Those two added
25 together, give you, actually, 57, instead of 58, and
307
1 the reason that I had written 58, was because I had
2 interpreted the .0875 as .0975, because of the poor
3 reproduction of the copy I received. So, there's a --
4 the number should be 57, instead of 58.
5 Q. Are there any other numbers that you would
6 change based upon --
7 A. Not that I can recall at this point. That
8 was the only one I found when I went back over the
9 data.
10 Q. And the last column on Exhibit No. 14, the
11 farthest column to the right, would you explain to me
12 again, what does that column represent?
13 A. That represents the total phosphorus
14 concentration at that site for the May through April
15 time period, based on the other two numbered columns.
16 Deposition divided by rainfall.
17 Q. I'd like to ask you to turn to the second
18 page of Exhibit No. 14. Is this a continuation, the
19 top half of the previous page?
20 A. No.
21 Q. Could you explain to me what is set forth on
22 the second page?
23 A. It's a segregation of the various sites into
24 their land use characteristic, as characterized by the
25 authors of the report.
308
1 Q. Forgive me for not understanding your answer,
2 but could you explain that to me once again?
3 A. Yes. I'll try.
4 Q. We're looking at the top part of the second
5 page.
6 A. Yes. When you see the initials MLST, et
7 cetera, under "Coastal," it is taking the information
8 that has been provided in terms of concentration and
9 deposition, for each of the sites. Instead of listing
10 them as site one down through site 24, taking them and
11 now segregating them into where does the Miami site
12 fit, or where does the Belle Glade site fit, et cetera,
13 in terms of land use, and the land use is defined by
14 the authors of the report. So it's not the generation
15 of new information. It's just the resorting of the
16 data by land use.
17 Q. And that sorting of land use was done by the
18 authors?
19 A. This sorting was done by me, using the
20 categories as listed by the authors.
21 In the report, in one of the -- it may be in
22 this report. It's definitely in one of the other
23 things that I've provided to you -- they actually go
24 through and talk about several of the sites by land use
25 category, but not every one of them is listed, and that
309
1 had to be done by deduction.
2 Q. And you did that?
3 A. I did that.
4 Q. Is the number on the right side of each
5 column -- for instance, in the first one entitled,
6 "Coastal," it says .039. Does that represent .039
7 parts per million?
8 A. .039 milligrams per liter or parts per
9 million. That's correct.
10 Q. What is the little section at the bottom left
11 part of page 2, that is entitled, "Other, represent."
12 A. The sites that didn't appear to fall into any
13 specific type of category; they tend not to fit into
14 any other categories.
15 Q. This number in a box at the bottom right side
16 of page 2, what does that number represent?
17 MR. BLANK: Hold on just a minute. I need to
18 consult.
19 (Pause.)
20 MR. NETTLETON: Mr. Blank, I don't want to
21 interrupt you. Is this consultation related to
22 whether this is a privilege issue?
23 MR. BLANK: Yes, it is.
24 MR. NETTLETON: Okay.
25 (Pause.)
310
1 MR. BLANK: I'm going to instruct the witness
2 not to answer.
3 MR. NETTLETON: On the grounds?
4 MR. BLANK: Mediation.
5 MR. NETTLETON: What's that?
6 MR. BLANK: As I understand it --
7 MR. NETTLETON: Is that a privilege?
8 MR. BLANK: As I understand, what the hearing
9 officer has determined is that documents produced
10 during the mediation process are privileged with
11 regard to the cloak of cover of compromise or
12 settlement. I may be wrong about that, but that's
13 my understanding of what he has said, is that
14 we're not to inquire in deposition with regard to
15 documents produced during mediation.
16 MR. NETTLETON: Well, again, maybe I missed
17 that hearing.
18 MR. BLANK: You may have.
19 MR. NETTLETON: It's very possible, but I
20 know for a fact that our witnesses have been
21 questioned extensively concerning documents
22 created in mediation, during the last couple of
23 weeks. So, I don't know where that -- again, I
24 don't know that -- as I understood the Doctor's
25 previous testimony, this document is essentially
311
1 the data, or presentation of the data, contained
2 in a report that he's relying upon. So, I don't
3 understand how that can be privileged.
4 MR. BLANK: I don't think the data is.
5 That's why we gave it to you.
6 MR. NETTLETON: Or whatever he's done to
7 manipulate the data from the report.
8 MR. BLANK: Well, what we asked the Doctor to
9 do during the mediation, was to produce a number
10 for us, kind of a back of the envelope, best guess
11 number, at that time, and that's what that paper
12 reflects.
13 It is not a document that is necessary to be
14 reviewed with respect to his conclusions, with
15 regard to atmospheric deposition rates in the
16 WCAs. You don't need it with regard to that
17 testimony.
18 MR. NETTLETON: With all that being stated on
19 the record, you are still instructing your witness
20 not to answer?
21 MR. BLANK: Correct.
22 MR. BARTELL: Would you instruct him not to
23 answer for any additional questions pertaining to
24 this document?
25 MR. BLANK: It depends on what they are.
312
1 We've given you the document.
2 MR. BARTELL: I understand.
3 MR. BLANK: I'll be specific. I'll be more
4 specific than that. What I'm concerned about is
5 the number that's on the bottom of the page, and
6 the purpose that it could be used for, because we
7 requested him to give us a number. That is the
8 number he gave us, but what we were requesting of
9 him is different than what we requested him to do
10 with regard to his testimony in this case.
11 In other words, they're different numbers.
12 MR. NETTLETON: I'm a little confused, Mr.
13 Blank. Are you saying that the witness would
14 change his calculations based upon what you ask
15 him to calculate? I mean, the numbers are the
16 numbers.
17 MR. BLANK: Certainly, he would.
18 MR. NETTLETON: Okay.
19 MR. BLANK: It's different data.
20 MR. NETTLETON: It's not my turn.
21 BY MR. BARTELL:
22 Q. Back to page 1 of Exhibit No. 14.
23 Are the numbers in the right-hand column,
24 the -- let me withdraw that question. Let's go on to
25 the next document.
313
1 Dr. Lefohn, according to the Brezonik report,
2 which is Exhibit No. 13, only approximately 20 percent
3 of the total phosphorus deposition came from wet
4 precipitation. Is that correct?
5 A. That was their conclusion based on four sites
6 of the 24 sites.
7 Q. For those four sites, then, would it be
8 fair -- so, for those four sites, would the total
9 phosphorus as demonstrated in parts per million, as set
10 forth on Exhibit No. 14 -- let me withdraw that
11 question.
12 Returning to Exhibit No. 14, are the numbers
13 in the right-hand column, the total phosphorus
14 concentration of both wet and dryfall deposition?
15 A. For 20 of the sites that -- bulk samples
16 which represent wet and dryfall. For the other four,
17 they are the sum of wet plus dryfall.
18 Q. And for those four that are the sum of wet
19 and dryfall, are those the same four sites that
20 Brezonik and others interpreted or stated that only 80
21 percent -- 80 percent was from dryfall?
22 A. I believe they're referring to their data in
23 table 4-6 on page 4-21 to draw that conclusion, which
24 would be the same information for which I summarized on
25 this sheet on Lefohn 14.
314
1 Q. Do you have an opinion as to what the total
2 phosphorus concentration would be, reflected in parts
3 per million, or milligrams per liter, if you only
4 considered wet outfall?
5 MR. NETTLETON: I think you meant parts per
6 billion.
7 MR. BLANK: Could you read back the question,
8 please?
9 (The question referred to was thereupon
10 read by the reporter as above recorded.)
11 MR. BLANK: You're not required to speculate,
12 Doctor.
13 A. I possibly can answer the question, but to do
14 it, I would need to hear it in a different form, or I
15 can rephrase it myself.
16 Q. Could you rephrase it so that you could
17 answer the question?
18 MR. BLANK: You're not required to do that,
19 either, Doctor.
20 MR. BARTELL: But it would be appreciated.
21 A. Let me see if I can answer that question. If
22 the question is, either in parts per billion or parts
23 per million, what the phosphorus is, concentration is,
24 at those four sites, in terms of wetfall, I can answer
25 that.
315
1 Q. That is my question.
2 A. I can tell you how to calculate it, but I'm
3 not going to do it right here with a calculator.
4 On page 1, column 2, that's labeled,
5 "Deposition," you will note there are two values in
6 parentheses, for the four starred sites, which
7 represent the four wetfall/dryfall collectors on table
8 4-6 on page 4-21 of Lefohn 13.
9 If you take the number, for example, 9, on
10 the AP site, on Lefohn 14, and divide by the rainfall
11 amount, you have the concentration. If you multiply
12 the two, you essentially have the number of milligrams
13 that are available, associated with wetfall.
14 If you multiply the second number, you have
15 the number of milligrams associated with dryfall.
16 That gives you an idea of what you are
17 dealing with in terms of contribution.
18 Q. For this first row, for site AP, 9 represents
19 the wetfall and 48 represents the dryfall?
20 A. Yes. And that's also stated on table 4-6.
21 MR. BARTELL: I'd like to ask you to mark
22 this as Exhibit No. 15, please.
23 (The document referred to was thereupon
24 marked Lefohn Exhibit 15 for Identification.)
25 BY MR. BARTELL:
316
1 Q. Dr. Lefohn, you've been just handed Exhibit
2 No. 15, which is entitled, "Spacial and temporal
3 variations of both wet and dry atmospheric deposition
4 of acidity and minerals across Florida," by Charles
5 David Hendry, Jr., dated 1983.
6 Have you relied upon this report to formulate
7 your opinions in this case?
8 A. General background information, to draw the
9 conclusions.
10 Q. Is there anything specific in this document
11 that you have relied upon?
12 A. No.
13 Q. Is there anything in this document, that you
14 specifically disagree with, that you can recall?
15 A. None that I can recall.
16 Q. I'd like to refer you to page 170, Bates
17 stamp 1184031.
18 A. Yes.
19 Q. Referring to that page, do you feel that
20 these numbers are reliable?
21 MR. BLANK: What numbers are you referring
22 to, counsel?
23 MR. BARTELL: The numbers on the page. All
24 of the numbers. The data.
25 MR. BLANK: Object to the form of the
317
1 question.
2 THE WITNESS: Do I answer it?
3 MR. BLANK: Yes.
4 A. I have no reason to believe that these
5 numbers are not reliable.
6 Q. Do you feel that this is a good quality
7 report, or a report that can be relied upon in general?
8 A. Well, let me -- let me clarify that.
9 The part that I looked at in this report,
10 dealt with total phosphorus.
11 This report also deals with pH, acid, things
12 that deal with pH. Acid rain, lake eutrophication, or
13 any other discussions he has here, I did not focus on
14 in this report. It's not relevant to my drawing a
15 conclusion regarding total phosphorus. It was used as
16 background information only, for total phosphorus.
17 Q. Did you rely upon the numbers in this table?
18 A. No.
19 Q. Have you reviewed the numbers in this table?
20 A. Yes.
21 Q. Do you know what data base these numbers came
22 from, or what --
23 A. I assume they're from the same data base.
24 Q. The same as what?
25 A. The numbers were generated from the same data
318
1 base as summarized by Brezonik-Hendry, et al., in the
2 EPA report, which is Exhibit 13.
3 Q. So that it would be fair to say that this is
4 one of the data bases that you relied upon to reach
5 your conclusions, if, in fact, this is the same as the
6 one in the Brezonik report?
7 A. This table is not the same table as table D.
8 Q. So, therefore, you did not rely upon this,
9 the numbers on this page, of this data base, to reach
10 your conclusion?
11 MR. BLANK: I believe the witness has already
12 answered the question.
13 THE WITNESS: Do you want me to answer it?
14 MR. BLANK: Ask him.
15 THE WITNESS: Do you want me to answer?
16 MR. BARTELL: Yes.
17 A. The data base I had relied on. This table I
18 have not relied on. This table is not the same.
19 Q. This table was generated, then, from the data
20 base, the same data base as is in the Brezonik report.
21 Is that your understanding?
22 A. That's my understanding, but I did not rely
23 on this table.
24 MR. BARTELL: I'd like to ask you to mark
25 this as Exhibit No. 16.
319
1 (The document referred to was thereupon
2 marked Lefohn Exhibit 16 for Identification.)
3 BY MR. BARTELL:
4 Q. Dr. Lefohn, you've been handed what's been
5 marked as Exhibit No. 16. It is a collection of
6 approximately eight documents. The first one is
7 entitled, "Table, total milligrams volume weighted
8 concentration and arithmetic mean phosphorus values for
9 selected Southwest Florida Water Management District
10 site years, units in PPM," parts per million.
11 Can you tell me what this document is?
12 MR. BLANK: Are you referring to Bates number
13 1219824?
14 MR. BARTELL: I am, but actually --
15 BY MR. BARTELL:
16 Q. Before you answer that, were these documents
17 supplied by you to counsel, to your counsel?
18 A. Yes.
19 Q. When you supplied these documents, were they
20 intended to be considered as one document or one
21 exhibit?
22 A. Yes.
23 Q. Can you identify for me, then, what this
24 entire document or exhibit is?
25 A. Yes. It is a summary of my calculations on
320
1 the total milligrams, volume weighted concentration,
2 arithmetic mean, for each of the eight sites for the
3 year specified in column 2. That is page 1. And the
4 rest of it are the calculations of each of the
5 episodes, each of the events that were used to
6 determine the total milligrams, the volume weighted
7 concentration and the average, that is summarized on
8 the front page.
9 Q. So the front page is a summary?
10 A. That is correct.
11 Q. It indicates at the top that it's the
12 Southwest Florida Water Management District. Did you
13 intend to say South Florida?
14 A. South Florida.
15 Q. I'd like to refer you to the site entitled,
16 "ENPRC," for the year 1989.
17 Can you tell me why you feel the numbers are
18 so high for that particular year?
19 MR. BLANK: What are you referring to, what
20 page?
21 MR. BARTELL: I'm on the page, the summary
22 page, entitled, "Table." The site is ENPRC. The
23 year is 1989. I'm in the last column on the
24 right. Actually -- excuse me. I'm looking at the
25 numbers in all three columns, for 1989.
321
1 BY MR. BARTELL:
2 Q. My question is, if you have an understanding
3 of why the numbers, particularly in the volume weighted
4 concentration, are so much higher than the other years.
5 A. The physical reasons I cannot explain. I
6 don't think anybody can explain as to why high
7 concentrations of total phosphorus occurred for
8 particular episodes or events.
9 There are several events on the accompanying
10 page, 1219829, that show, for example, on May 16, 1989,
11 a concentration of .197, of two liters, and a little
12 further down on June 15, there was .226, and on
13 September 6, there was a 4.785 liter sample of a
14 concentration of .117.
15 Those events are probably determining the
16 volume weighted concentration. There was sufficient
17 volume as well as concentration to weight the sample
18 high.
19 The physical reason for that, I cannot
20 explain.
21 Q. In your opinion, is it likely it's due to
22 contamination?
23 A. Without looking at the information that I
24 have also provided you from Mr. Walker, that may
25 possibly have come from the district, I cannot say that
322
1 to a fact, at this point.
2 Q. I'd like to refer you back to the first page,
3 the table summary page, for size B-50, and ask you if
4 you have an opinion as to why the numbers for this
5 site, in general, for all three of those years, seem so
6 much lower or are so much lower than so many of the
7 other sites?
8 A. Yes. It's the same thing that Brezonik and
9 Hendry saw, that the coastal sites were lower than the
10 inland sites.
11 Q. Was site B-50 sampled more often than the
12 other sites?
13 A. I don't -- well, it's extended over longer
14 periods of years, yes. Do you mean in any particular
15 year?
16 Q. Yes.
17 A. Let me check.
18 (Pause.)
19 A. Without counting, it appears that the year
20 1988 is no different than the number of samples that
21 would have been generated, approximately generated, for
22 some of the other sites. So, that doesn't appear to be
23 a particular reason.
24 Q. In spite of that answer, can I ask you, do
25 you feel that if samples are checked more regularly, or
323
1 more frequently, that they will have a lower total
2 phosphorus concentration in the samples?
3 A. No.
4 MR. BARTELL: That's all I have for this
5 exhibit.
6 I ask you to please mark this as Exhibit No.
7 17.
8 (The document referred to was thereupon
9 marked Lefohn Exhibit 17 for Identification.)
10 BY MR. BARTELL:
11 Q. Dr. Lefohn, you've just been handed what's
12 been marked as Exhibit No. 17. It is a -- it looks
13 like a series of maps. There is no text here. The
14 Bates ranges, pages run from 1219844 through 1219863.
15 Could you explain to me what this document
16 is?
17 A. Yes. It's a summary of the Kriging analysis
18 that was performed by Dr. H. P. Knudsen, for me.
19 Q. Does that refer to this entire document, all
20 of the pages that we just referred to?
21 A. Yes. This is material that is either the
22 result of Kriging or shows the data that were used in
23 the Kriging process, by Dr. Knudsen.
24 Q. Dr. Knudsen, then, generated this document?
25 A. Yes. That's correct.
324
1 Q. When I say "this document," I am referring to
2 a series of five documents, which are included within,
3 or five collections, which are included within the
4 Bates numbers.
5 A. Yes.
6 Q. Where did the numbers come from that are set
7 forth in this collection of documents?
8 A. The --
9 MR. BLANK: Could you be more specific,
10 counsel? I think there are a lot of numbers.
11 MR. BARTELL: Very well. Yes.
12 BY MR. BARTELL:
13 Q. My understanding is, this document is broken
14 into five little subgroups. Let's take the first one,
15 which has a lot of numbers. It consists of four pages.
16 Can you explain to me what this document
17 demonstrates?
18 A. This shows the rainfall stations that were
19 used for each year, as -- yes.
20 Q. Where do these numbers come from?
21 A. They came -- they were given to me by
22 Environmental Services and Permitting, from John
23 Walker. John Davis, I'm sorry.
24 Q. Going to the second collection within this
25 document, which is also -- which also consists of four
325
1 pages, and it looks like it also is a summary of
2 rainfall.
3 Can you explain to me what this document is?
4 A. It is a summary of rainfall. It is the
5 result of the Kriging of the data that we previously
6 talked about, and Dr. Knudsen has Kriged the rainfall
7 amount in inches over Southern Florida.
8 Q. Did he use ordinary or universal Kriging?
9 A. I believe he used ordinary Kriging.
10 Q. Is the use of Kriging a judgment call by a
11 scientist, as opposed to alternatives to Kriging?
12 A. It is a method that -- it is one method that
13 could be used to interpolate the information, and it's
14 up to the individual to decide, the engineer or
15 scientist.
16 Q. Do you feel that it's more appropriate to
17 use, I believe you said universal Kriging, as Dr.
18 Knudsen did, than ordinary Kriging, or than some other
19 alternatives to Kriging?
20 A. I think I said the opposite, that he used
21 ordinary Kriging.
22 Q. Excuse me. Okay.
23 A. That's a call by Dr. Knudsen, and he would
24 have made that decision based on if there's a trend in
25 the data, and using ordinary Kriging implies there was
326
1 no trend in the data.
2 Q. Would he have used, then, universal Kriging
3 if there was a trend? Is that basically where the
4 difference falls?
5 A. One attempts to use a different model in
6 Kriging to take out some of the effects of trending and
7 such. Whether or not he would have ended up using that
8 model, I don't know. It depends on how well the data
9 would have fit into that model.
10 Q. I'd like to refer you to the third
11 collection, and ask you to please identify what this
12 is.
13 A. Yes. For the record, the first and the third
14 sets of information, or the first set of information,
15 is labeled 1219844, and the second set of maps are
16 labeled 1219852, and has the borders "Easting" and
17 "Northing." Those are really latitude and longitude
18 numbers, and should have read probably "Latitude" and
19 "Longitude," instead of "Easting" and "Northing," which
20 have connotation for military coordinates.
21 In answer to your question, what this
22 information is, is the concentration information that
23 started out in milligrams per liter, but for
24 presentation, Dr. Knudsen has noted in the right corner
25 there, has multiplied by 10,000, for ease of
327
1 presentation, instead of decimal points.
2 Q. The numbers are what, again?
3 A. For example, the number 211 at the top, for
4 the OKEEFS site, is the volume weighted concentration
5 of .0211 milligrams per liter or parts per million.
6 Q. So, these numbers correlate to the table
7 summary from Exhibit No. 16?
8 A. That's correct. Multiplied by 10,000.
9 Q. Could you please identify what the fourth
10 collection of documents is?
11 A. Yes. What that is, is the amount of rainfall
12 that has been Kriged into the WCAs, rainfall amounts in
13 inches.
14 Q. In looking at this document, for instance,
15 the number 43 pertains to the entire Water Conservation
16 Area 3?
17 A. Yes.
18 Q. Now, turning to the fifth collection --
19 A. That is the Kriged concentrations into the
20 WCAs, in units of either parts per million or
21 milligrams per liter, by year.
22 Q. What year is the first page, which is
23 1219860?
24 A. That -- it's been -- at the top right of that
25 page, it used to say 1988.
328
1 Q. Does this then reflect your conclusions as to
2 phase two of your requested work on this case?
3 A. Looking at the data that I have looked at to
4 date, these are my conclusions concerning phase two.
5 Q. Do you have any explanation for why the
6 numbers in 1988 are so much lower than the other three
7 years?
8 A. Yes, I do.
9 Q. Can you tell me what those opinions are?
10 A. Yes. In going to page 1219852, you will see
11 that there were four sites of data, and that none of
12 those sites are near the WCA.
13 In comparison, as you go to the next page,
14 1219853 and following the next couple of pages, for the
15 years 1989 through 1991, there are two additional sites
16 that show up, the S-7 site and the S-140 site. S-140
17 shows up in 1990 and 1991.
18 Those two sites really affect what the value
19 is in the WCAs, in terms of the Kriging approach,
20 because it weights greater the samples that are closer
21 to the area of interest.
22 So, consequently, there were no data in 1988,
23 that were very close to that WCA area.
24 In the latter years, the S-7 and S-140 sites
25 appeared, and contributed to the higher concentration
329
1 estimate, greater.
2 Q. Does this then -- do these four pages -- are
3 they the complete conclusion that you have reached with
4 regard to phase two of your work?
5 Is there anything else regarding your
6 opinions for phase two, other than these four pages?
7 MR. BLANK: Object to the question. I think
8 the witness already said there are other things he
9 relied on.
10 MR. BARTELL: I'm not asking if he relied on.
11 Are these the output from the witness of his total
12 conclusions regarding phase two?</