179
1 DIVISION OF ADMINISTRATIVE HEARINGS
2 DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
3
4 SUGAR CANE GROWERS COOPERATIVE
5 OF FLORIDA; ROTH FARMS, INC.;
6 and WEDGWORTH FARMS, INC.,
7 Petitioners,
8 -vs- DOAH Case
9 No. 92-3038
10 SOUTH FLORIDA WATER MANAGEMENT
11 DISTRICT, an Agency of the State
12 of Florida; et al.,
13 Respondents.
14 __________________________________/
15 FLORIDA SUGAR CANE LEAGUE, INC.;
16 UNITED STATES SUGAR CORPORATION,
17 Petitioners,
18 -vs- DOAH Case
19 No. 92-3039
20 SOUTH FLORIDA WATER MANAGEMENT
21 DISTRICT, an Agency of the State
22 of Florida; et al.,
23 Respondents.
24 __________________________________/
25
180
1 FLORIDA FRUIT AND VEGETABLE
2 ASSOCIATION; LEWIS POPE FARMS;
3 W.E. SCHLECHTER AND SONS, INC.,
4 and HUNDLEY FARMS, INC.,
5 Petitioners,
6 -vs- DOAH Case
7 No. 92-3040
8 SOUTH FLORIDA WATER MANAGEMENT
9 DISTRICT, an Agency of the State
10 of Florida; et al.,
11 Respondents.
12 __________________________________/
13
14 The continued deposition of ROBERT KADLEC,
15 PH.D., a witness in the above-entitled cause, taken
16 before Lauren B. Bienenstock, CSR-1361, RPR, CM, and
17 Notary Public in and for Oakland County, Michigan,
18 (acting in Washtenaw County, Michigan), at Radisson on
19 the Lake, Ypsilanti, Michigan, on the 22nd day of March,
20 1994, commencing at 9:15 a.m., pursuant to the Michigan
21 Court Rules.
22
23
24
25
181
1 APPEARANCES:
2 GARY V. PERKO
3 Hopping Boyd Green & Sams
4 123 South Calhoun Street
5 Tallahassee, Florida 32314
6 Appearing on behalf of Sugar Cane Growers
7 Cooperative of Florida; Roth Farms, Inc.;
8 and Wedgworth Farms, Inc.
9 RICK J. BURGESS
10 Earl, Blank, Kavanaugh & Stotts, P.A.
11 One Biscayne Tower
12 Suite 3636, Two South Biscayne Boulevard
13 Miami, Florida 33131
14 Appearing on behalf of Florida Sugar Cane League,
15 Inc.; and United States Sugar Corporation.
16 JON M. LIPSHULTZ
17 United States Department of Justice
18 Environmental Defense Section
19 10th and Pennsylvania Avenues, N.W.
20 Room 7328
21 Washington, D.C. 20026
22 Appearing on behalf of United States of America.
23 ALSO PRESENT: Ronald Munson
24 Carlos Marin
25 Curtis Richardson
182
1 Ypsilanti, Michigan
2 March 22, 1994
3 About 9:15 a.m.
4 ROBERT KADLEC, PH.D.,
5 having first been duly sworn, was examined and testified
6 on his oath as follows:
7 EXAMINATION BY MR. BURGESS:
8 Q. Good morning, Doctor Kadlec.
9 A. Good morning.
10 MR. BURGESS: I will just note for
11 the record that counsel has handed me a group of
12 documents this morning that he has represented have been
13 released from the privilege list previously filed for
14 this witness and we are going to endeavor to make copies
15 of these during the day, review them this evening, and
16 time permitting inquire of the witness on these
17 documents, perhaps tomorrow.
18 MR. LIPSHULTZ: That's correct. I
19 just want to also put on the record that we decided to
20 exchange these documents voluntarily and by so doing do
21 not mean to imply any waiver of any privilege that might
22 apply to any similar documents.
23 The other housekeeping thing is I
24 notice there is a bunch of other people in the room
25 today. I just thought maybe it would be useful to give
183
1 their names and affiliation.
2 MR. BURGESS: This is Doctor Carlos
3 Marin, he is a consultant to my law firm, and Doctor
4 Curtis Richardson, the same.
5 MR. PERKO: And next to me is Mr.
6 Ron Munson of Tetra Tech, consultant of my law firm.
7 MR. LIPSHULTZ: Thank you.
8 Q. (BY MR. BURGESS): Good morning, Doctor
9 Kadlec.
10 A. Good morning.
11 Q. If we could turn back to Exhibit 15 and the
12 TP k value summary table?
13 A. I have it.
14 Q. These are the same tables we spent a
15 considerable amount of time on yesterday and I want to
16 go back to them since you have identified these sites as
17 being the ones that would support your opinions in this
18 matter. Why were, why was this table created? Let's
19 start there.
20 A. This table was created for two parallel
21 reasons. One was that this is the information from
22 which I derived the modeling information for the chapter
23 in the textbook which is where it appears, that is what
24 Exhibit 15 is, and the second reason is that since the
25 current proceeding has to do with phosphorus modeling in
184
1 STAs, which is the subject of the chapter, it obviously
2 supports the present litigation.
3 Q. What criteria did you use for selecting sites
4 to include in the table?
5 A. The sites in the table were selected on two
6 grounds. I was looking for sites for which I had
7 information. There are two principal sources of
8 information available to me. One is the information
9 organized in the North American Database and secondly,
10 information not entered into that database that was in
11 my personal files.
12 Q. And then what was the criteria for selecting
13 from the NADB or from your personal files to include on
14 this list?
15 A. As the title indicates, we're dealing with
16 basically emergent marsh wetlands in this subset. As a
17 second criteria for being in this table they had to have
18 the information available to determine the first order
19 rate constant.
20 Q. Would it be your testimony then that all
21 emergent marshes and all emergent marshes with
22 information available to determine first order rate
23 constant in the NADB or in your personal files but not
24 in the NADB is included in this list?
25 A. With some exceptions that we discussed
185
1 yesterday in testimony.
2 Q. The, your reference with that comment is to
3 the list of wetlands we discussed that were an appendix
4 to the Kadlec Newman report or were there others?
5 A. I believe all the sites were on that list. I
6 can't recall. There are others in this table that were
7 not in the list but between those two I think we pretty
8 well had the whole list.
9 Q. Let me just show you what's been previously
10 before marked as Exhibit 8 from this deposition. The
11 sites that we went over yesterday as having first been
12 identified during your initial deposition as sites you
13 might rely on but yesterday you giving me reasons why
14 they were removed from the list, were those -- strike
15 that.
16 When you just said in your testimony
17 with some exceptions, are you referring to the sites
18 that were removed from consideration by yourself as
19 having data that would support your opinions or were you
20 referring to the entirety of that list there in appendix
21 A?
22 MR. LIPSHULTZ: I'm going to object
23 to the form of your question.
24 A. I'm sorry. I'm now confused about your
25 question.
186
1 Q. (BY MR. BURGESS): I need to go, then we need
2 to probably go back through this. When I, I'm asking
3 you whether you have included on this list here in
4 Exhibit 15 all emergent marshes and all emergent marshes
5 which had information available to determine the first
6 order rate constant, whether they be in the NADB or
7 whether they be in your personal files, you said yes
8 with some exceptions that we discussed yesterday. I'm
9 trying to, we discussed a lot yesterday and I guess I'm
10 trying to go back, what are the exceptions that we
11 discussed yesterday?
12 A. The one that comes to mind is that in Exhibit
13 8, entry three o' three is Brillion Marsh and I think I
14 indicated to you yesterday that I had excluded that on
15 the grounds that the overall mass balances for the
16 system appeared incorrect and that other information to
17 do a reasonable estimate of the rate constant were not
18 included and in this list I think that's the only one we
19 discussed in that category.
20 Q. So then this list here in Exhibit 15, the TP
21 k value summary chart, would contain all emergent
22 marshes with information available to determine the
23 first order rate constant other than the Brillion Marsh?
24 A. Yes. Those, there are other emergent
25 marshes. There are other emergent marshes that are in
187
1 the database but those from which I could extract a rate
2 constant appear in the table in Exhibit 15.
3 Q. Approximately how many other emergent marshes
4 are in the database?
5 A. Oh, we discussed that yesterday and without
6 going through and looking at the appropriate cells table
7 in the database, which contains information on over two
8 hundred cells, I really can't answer that question
9 accurately. I would suggest that perhaps on the order
10 of fifty percent of the sites are, would be classified
11 as emergent marshes.
12 Q. Fifty percent of the wetlands or fifty
13 percent of the cells?
14 A. Those, the terminology used in the database
15 includes a hierarchy of sites at which there are located
16 systems which are independent flow paths which in turn
17 are comprised of cells. The term wetland can apply to a
18 cell or to a system so --
19 Q. So when you say fifty percent of sites, what
20 are you referring to, systems or cells or wetlands?
21 A. I would be referring to cells in this case.
22 Q. I've totaled up the cells that are written in
23 the column here in Exhibit 15 in the TP k value chart
24 and they come to fifty-four, I believe, so would it be
25 your testimony that approximately another fifty-four
188
1 such cells exist which are emergent marshes which were
2 not included in this chart?
3 A. There would be approximately an equal number
4 that did not possess enough information or sufficiently
5 good information from which to extract a k value.
6 Q. And the insufficient information may pertain
7 not only to other cells for the systems that are listed
8 here in Exhibit 15 but may also pertain to other systems
9 that are not listed in Exhibit 15?
10 A. It would be primarily pertaining to other
11 systems. If you will pardon me just a moment, I think
12 that all of the emergent marsh cells at each site are in
13 fact listed. There are no missing cells for any of the
14 sites listed.
15 Q. There are no missing --
16 A. In other words, Listowel, Ontario, is a
17 site. There are five cells which are also systems
18 because they are one cell apiece. There are no other
19 cells at that site. That's all of them.
20 Q. So, for the systems listed here then in this
21 chart, each emergent marsh cell at each of those systems
22 is listed?
23 A. That's correct.
24 Q. And so I understand your testimony, there
25 would be approximately fifty more emergent marsh cells
189
1 from other emergent marsh systems which are not listed
2 because you could not derive a rate constant?
3 A. That's right. They would be missing
4 information on either phosphorus in or phosphorus out or
5 flow rates or areas or some information that would be
6 needed to calculate rate constant.
7 Q. Can we go through that list in Exhibit 8 and
8 can you tell me what systems were missing information?
9 I don't need to know specific information that was
10 missing but what emergent marsh systems were missing
11 some sort of information that didn't allow you to
12 calculate the flow rate, is that possible?
13 A. Well, it's possible in part but there are
14 probably a hundred wetlands listed here so you are
15 really pushing my memory to the extreme here but I'm
16 willing to go through the list. I mean insofar as I can
17 recall as I sit here, I would be pleased to provide that
18 information, but I by no means can do this whole list
19 from memory.
20 Q. One second.
21 (Whereupon an off the record
22 discussion was held).
23 Q. (BY MR. BURGESS): Appendix A does not
24 distinguish as it goes through the list here what is
25 emergent marsh, what is forested, is that correct?
190
1 A. That's correct.
2 Q. Well, let me ask you with respect to
3 Armstrong Slough, Central, Vereen, Santa Rosa, Lake
4 Apopka, Bellaire, and Island Lake. Are any of those
5 emergent marsh systems which were excluded for lack of
6 information?
7 A. Well, it is my recollection that Armstrong
8 Slough would have been excluded for lack of data because
9 it is my belief that that is an emergent marsh system, I
10 believe. I think, as we discussed yesterday, Central
11 and Vereen are forested systems. Santa Rosa was missing
12 flow rate information. Lake Apopka has not produced
13 data. Island Lake I am, I cannot recall in the case of
14 Island Lake. I would have to consult the database.
15 Q. And Bellaire?
16 A. Bellaire is a forested system.
17 Q. What is the minimum amount of data that you
18 need to, in order to calculate the flow rate, I mean in
19 order to calculate the TP k value?
20 A. Well, in principle one could use one reported
21 value of inlet phosphorus, one reported value of outlet
22 phosphorus, one reported value of flow rate, and an
23 area. However, but I was attempting to categorize the
24 data by quarters and I felt that I should have at least
25 one quarter of data so there may have been some systems
191
1 in here that had one reported value and those cases it
2 would have been a value judgment as to whether that
3 reported value was someone's judgment as to a long-term
4 value behavior or not but in general these are the
5 systems that had significant bodies of information.
6 Q. As I go through this list I don't see where
7 you included any systems that had one quarter. Was your
8 criteria a minimum of two quarters of data?
9 A. Not intentionally. That may be just
10 coincidental, and as a matter of fact, I would point out
11 that the latest system that we've just most recently
12 provided, the Tarrant county system, that will be
13 information from one quarter because that's all we have
14 since finished start-up.
15 Q. Was data collected at Tarrant county during
16 start-up?
17 A. There was a large amount of data collected
18 during start-up, yes.
19 Q. Are you including that data?
20 A. Well, I would not use that data. In the time
21 I've had available, I wasn't using it to put it in the
22 table. A large number of events happened at that site
23 during start-up including two major floods during
24 start-up period so data are interrupted for a variety of
25 reasons.
192
1 Q. Yesterday we, when we went through this list,
2 you identified, I believe, for me the first four systems
3 and I'm on Exhibit 15 now, the TP k value table. You
4 said the first four systems were calculated from
5 input/output data, is that correct?
6 A. Well --
7 Q. Why don't we do this. Tell me how you
8 calculated the k value for the first four systems.
9 A. The answer to your question, first question
10 was yes. All right. The TP k values were computed in
11 one of two ways, generically. One is from input/output
12 data. The second is from transect data. In both cases
13 a model was applied which was one or another variance of
14 what is usually called a plug flow model.
15 Q. Is the model that you applied documented in
16 Exhibit 15?
17 A. At least two of the major variants, I
18 believe, are documented and perhaps, yes, also the third
19 variant is also included. The answer to your question
20 is yes.
21 Q. If we can perhaps run through the list and I
22 think we've dealt with the first four which would have
23 been done on input/output data, was --
24 MR. LIPSHULTZ: When you say first
25 four --
193
1 Q. (BY MR. BURGESS): Des Plaines, Jackson
2 Bottoms, Lakeland, and Pembroke. Great Meadows input or
3 transect?
4 A. Input/output.
5 Q. Fontanges?
6 A. Input/output.
7 Q. Houghton Lake?
8 A. Transect.
9 Q. Cobalt?
10 A. Input/output.
11 Q. Brookhaven?
12 A. I'm going to abbreviate. I/O, input/output.
13 Q. Leaf River?
14 A. I/O.
15 Q. Clermont?
16 A. I/O.
17 Q. Sea Pines?
18 A. I/O.
19 Q. Benton?
20 A. I/O.
21 Q. Listowel?
22 A. Listowel was basically I/O but they have a
23 limited amount of transect information as well.
24 Q. And did you use both sources of information
25 for calculating TP k?
194
1 A. Primarily the input/output basis.
2 Q. Iron Bridge?
3 A. Input/output, but also transects across the
4 system. In this case it's an interconnected cluster of
5 cells and I have in the past used information based on
6 the fractional distance through that system so the
7 answer is I have used both at various times.
8 Q. How about for calculating this thirteen point
9 five TP k value here, do you know what you used?
10 A. The thirteen point five in this case I
11 believe is I/O generated.
12 Q. Do you recall what the values were for the ks
13 that were generated based upon the transect data?
14 A. If you give me one moment, I can find that in
15 Exhibit 8. Yes. Value was ten point o'.
16 Q. Ten point o'?
17 A. Yes.
18 Q. What page is that on in Exhibit 8?
19 A. That's in Exhibit 8 on page that has a
20 number, it's four page four dash four of Exhibit 8. I
21 should also point out that the figure ten point o' is a
22 different period of record because the document in
23 Exhibit 8 was written prior to doing the I/O data so I
24 believe there is at least one more year's data involved
25 in the figure of thirteen point five.
195
1 Q. So just by including one more year's worth of
2 data you can increase the settling rate by thirty-three
3 percent?
4 A. No, that's not what I said. There is two
5 different techniques being applied. One is input/output
6 data which is being used in Exhibit 15 and then you
7 inquired about a value that might have been obtained
8 from transect interpretation which is value of ten point
9 o' for a different period of record which appears in
10 Exhibit 8.
11 Q. Can you tell me how much of the variation
12 between the ten o' and the thirteen point five is due to
13 the additional data and how much is due to transect
14 interpretation verses input/output data?
15 A. No. I have not done a transect
16 interpretation of the larger data set because I don't
17 have the information from which to add those years and
18 the reason for that is that my colleague entered the
19 more recent data into the North American Database and it
20 does not include sufficient information to do the
21 transect calculation.
22 Q. Do you have an opinion as to which method is
23 better utilization of input/output or transect
24 interpretation?
25 MR. LIPSHULTZ: Object to form. It
196
1 is unclear what you mean by better.
2 Q. (BY MR. BURGESS): For purposes of
3 calculating TP k value?
4 MR. LIPSHULTZ: Same objection.
5 A. I don't as I sit here have, I don't believe,
6 any, any belief that either of those methods should be
7 regarded as better. They both under the assumptions of
8 the model that is being used, they should both be
9 equivalent in terms of extracting data and k values.
10 Q. (BY MR. BURGESS): For both methods do you
11 need to define an impacted area?
12 A. You don't need to define an impacted area for
13 either method.
14 Q. Continuing going down our list, Iron Bridge
15 we just finished. How about Boney Marsh?
16 A. That was input/output data.
17 Q. 2A?
18 A. That was a transect interpretation.
19 Q. Orlando, Orange County Eastern Service
20 Center?
21 A. That was a transect basis.
22 Q. Humboldt, neither?
23 A. Humboldt is neither because it's a batch
24 operation. That is the equivalent of a transect
25 interpretation. Tarrant county will be input/output.
197
1 Q. Is the TP k value the same as a ke value?
2 A. Counsel has touched upon an area of great
3 confusion in the documents in this case because there
4 are wide variety of nomenclatures in use and I myself
5 has used more than one nomenclature. The TP k value
6 that is in the table in Exhibit 15 is a long-term first
7 order aerial phosphorus removal constant.
8 Q. And is that similar or different to the ke
9 value that is expressed in your 12-20-92 model
10 transmission to Galen Miller?
11 MR. LIPSHULTZ: Do you have a
12 specific document?
13 A. I would, I know the document you are
14 referring to.
15 Q. (BY MR. BURGESS): I know you do.
16 A. But I don't recall at this point. The
17 nomenclature has changed as time has gone on.
18 MR. PERKO: Exhibit 6, Rick.
19 MR. LIPSHULTZ: Why don't we
20 identify this for the record. This is Exhibit 6 to the
21 earlier deposition of Doctor Kadlec.
22 A. Yes, it would be the same as the ke in the
23 Exhibit 6 document.
24 Q. (BY MR. BURGESS): For purposes of defining
25 TP k value, what do you mean by long term?
198
1 A. Well, as we discussed yesterday, I'm
2 excluding the events during start-up period and I have
3 from time to time expressed a k value calculated during
4 a period when the marsh was undergoing development or
5 significant transformation as an uptake value so the k
6 values we're talking about in Exhibit 15 and in Exhibit
7 6 are the long term, meaning past start-up values of the
8 aerial uptake constant.
9 Q. The start-up period of time is different or
10 is dependent upon the system, is that correct?
11 A. Yes, it's in general terms a time span that's
12 anywhere from a few weeks for a wetland that has been
13 vegetated by moving blocks of soil, litter, and so
14 forth. In Des Plaines is perhaps as long as three or
15 four years.
16 Q. Let me go back to Exhibit 15 and our list.
17 Yesterday we addressed subject matter of data quarters
18 and the follow-up to some of those. Did the quarterly
19 data consist of weekly, daily, or monthly data?
20 A. It varied from site to site and in some cases
21 from cell to cell.
22 Q. Is that or are those variations shown in the
23 NADB?
24 A. In the construction of the North American
25 Database, a decision had to be made of the, as to the
199
1 smallest frequency that we would be able to include on
2 conditions of the size of the actual database. The
3 decision was taken that in general we would enter in the
4 database information averaged by quarter with some
5 exceptions where monthly data was easily transcribed
6 into the database but in no case, if it existed, did we
7 enter daily or weekly information.
8 I must also point out then in some
9 systems there was no regular interval between sampling
10 points.
11 Q. So you didn't use weekly or daily entries in
12 NADB or you did use them?
13 A. In a case where weekly or daily data was
14 available, in the interests of space conservation in the
15 database, those values were averaged separately to the
16 quarterly basis and then entered into the database.
17 Q. And do monthly data appear on the database or
18 those similar?
19 A. They do and for the reason I just gave and
20 that is that if it was electronically easily
21 transcribeable, that information was in some cases then
22 just copied into the database.
23 Q. And the data that, for the systems which
24 appears in a monthly basis, were those averaged to get
25 the quarterly values?
200
1 A. Insofar as possible. In other words, if
2 monthly data existed in constructing the table TP or PK
3 sum. in Exhibit 15, the quarterly averages were formed
4 from the monthly data.
5 Q. You said in some instances?
6 A. Yes. Bear in mind that there is a proviso at
7 the top of the table that in some instances there are
8 periods that were slightly different from a quarter and
9 they were called quarters and there may be one or so
10 instances in here in which perhaps an annual data was
11 all that we had access to and that may have been
12 represented in here as well.
13 Q. Are the TP in and TP out numbers that appear
14 in Exhibit 15 in the table flow weighted or time
15 averaged values?
16 A. They are averaged out of the database which
17 could be one or the other. It is basically, I guess the
18 best characterization is to say that that is time
19 averaged information.
20 Q. As opposed to flow weighted?
21 A. Yes, and the distinction in most instances in
22 this table is not existent because a large number of
23 these are steady flow systems for which there is no
24 difference between a flow weighted average and a time
25 average.
201
1 Q. Does the database contain independent
2 measurements of flow in and flow out?
3 A. In those cases in which that information was
4 available, yes.
5 Q. If that wasn't available, does anything else
6 appear?
7 A. Well, there are three columns for flows
8 associated with a given cell, flow in and flow out and
9 an average flow. There are also columns pertaining to
10 rainfall and evaporation but as far as I can recall
11 those are nearly always empty in the database because
12 those are not generally estimated or measured for these
13 sites.
14 Q. In the column marked cell and with reference
15 to the Cobalt, for instance, and the Brookhaven, there
16 are Ts next to the numbers. What do the Ts represent?
17 A. Backing up a little bit remembering that at
18 each site there may be different systems. A system is
19 an independent flow path. Then that system may have
20 different cells. Now, in the case of a site that has a
21 system with one cell, rather than having a number, no
22 one would number it cell one if they only had one cell
23 at the site so our designation there would be T or one T
24 or T colon one depending on who entered the information
25 into the database and when they were entering it.
202
1 Q. And what does T stand for?
2 A. There is a total of one cell in the system.
3 Q. These TP k values that appear here in the TP
4 k value summary chart, were they calculated based on
5 water quality data or soil data or both?
6 A. This table refers to water.
7 Q. If you had soils data for these systems,
8 would you expect the TP k value calculated for the soils
9 to be similar to that calculated for water?
10 MR. LIPSHULTZ: What type of soils
11 are you referring to, phosphorus?
12 MR. BURGESS: No, soils at the
13 site.
14 MR. LIPSHULTZ: What type of soils
15 data do you mean then? What type of data? Just object
16 to the form.
17 A. I don't understand the question. The table
18 in question deals with water in and water out and a
19 first order aerial settling rate constant.
20 Q. (BY MR. BURGESS): Can you calculate a first
21 order aerial settling rate constant based on soils data?
22 A. Yes.
23 Q. And if you were to calculate such a value for
24 the systems in the TP k value summary chart, would you
25 expect those values to be similar to the TP k values
203
1 calculated based upon water data?
2 MR. LIPSHULTZ: Objection, calls for
3 speculation.
4 A. Well, I can say this, that in theory the
5 phosphorus that disappears from the water column should
6 show up in the soil so given the, in the long term and
7 so for these long-term settling rate constants if one
8 had comparable data quality subject to the error
9 analysis and the mass balances, in theory you can, can
10 do exactly that.
11 Q. (BY MR. BURGESS): You would expect exactly
12 that?
13 A. If the data quality for the soil information
14 was comparable to the data quality for the water
15 information, I would expect to be able to use the soil
16 mass balance to estimate the rate constant with equal
17 confidence to using the water information to estimate
18 the settling rate constant.
19 Q. And would you anticipate or expect the
20 settling rate constants to be similar?
21 MR. LIPSHULTZ: Objection, again
22 calls for speculation.
23 A. I think I indicated in my previous answer
24 that the answer is basically yes, based on equivalent
25 data quality in the data sets.
204
1 Q. (BY MR. BURGESS): To go back to your
2 definition of long term. In each instance your
3 definition of long term would exclude a start-up period,
4 is that correct?
5 A. Yes.
6 Q. If you included the start-up period, would
7 your k values be higher?
8 A. Not necessarily.
9 Q. Why not?
10 A. Well, because I know of instances in this
11 table where the initial k values were very much lower
12 than the long term as well as instances where they were
13 very much higher.
14 Q. In this table here?
15 A. Well, I refer to the table. What I really
16 meant to say was for those systems that are in the
17 table, there are instances, examples of both types of
18 behavior, low values to start with and high values to
19 start with.
20 Q. Can you tell me which one had low values to
21 start with?
22 A. I can tell you some. The system at Houghton
23 Lake, Michigan, which has a long-term settling rate of
24 approximately eleven began with what I would call an
25 uptake constant because it's characteristic of the
205
1 start-up period of I believe close to a hundred. An
2 example in the other direction would be Iron Bridge in
3 which if you look at the first month of operation, there
4 was a phosphorus release and so there was a negative
5 uptake constant although the long-term value over the
6 last three years is a little over thirteen, about
7 thirteen and a half, so there are instances of both
8 types of behavior depending on the original state of the
9 piece of real estate.
10 Q. In instances where, with respect to this
11 table where you did not include a start-up period, if
12 you had included that start-up period, would your TP k
13 value in each instance be higher?
14 MR. LIPSHULTZ: Object to form.
15 A. Well, I think I've just answered that
16 question.
17 Q. (BY MR. BURGESS): Let me -- first of all, my
18 confusion is you pointed out for Iron Bridge, I'm sorry,
19 was it Boney Marsh or Iron Bridge that you had one
20 month?
21 A. Iron Bridge is the one I referred to.
22 Q. Was the one month the entirety of the
23 start-up period for Iron Bridge?
24 A. It was not. It was nine quarters as we
25 discussed yesterday.
206
1 Q. But then for all nine quarters?
2 A. No. I can perhaps best answer the question
3 by referring to Exhibit 8 and in Exhibit 8 in figure
4 four five I have calculated monthly uptake coefficients
5 spanning the first fifty some odd months of operation
6 and --
7 Q. I'm sorry, you said table four five?
8 A. Table four dash five on page four dash nine
9 and what is seen in that figure is the very first point,
10 as I just mentioned to you, for Iron Bridge had actually
11 a negative uptake constant, then through the course of
12 the first year or show the uptake constant increased
13 from a negative value up to a high of thirty-five at
14 which point the operators and engineers were quite
15 optimistic about the capability of the system. It then
16 fell over the next year to a value in a band in this
17 figure of say ten fifteen, thereabouts, and when that's
18 extended out for the next two years data, that's the
19 figure thirteen five as a mean for the period past the
20 first two years. So even for one system as it started
21 up there were values both higher and lower than the
22 long-term average.
23 Q. For Iron Bridge, you testified yesterday,
24 excluded nine quarters, is that correct?
25 A. That's correct.
207
1 Q. With reference to that chart, figure four
2 dash five you were speaking to, can you tell me where on
3 the months access you would have cut off the start-up
4 period?
5 A. Yes. Give me just a moment. Graph starts on
6 6-1-87 and the last quarter of '87 then would end on
7 nine and then nine plus an additional forty-eight months
8 would be, no, excuse me, plus an additional twenty-four
9 months would be thirty-three so I would have identified
10 the beginning of what I call the long-term period
11 starting at month thirty-three in that diagram.
12 Q. Under your definition of long-term ke which I
13 believe you said was a ke based on data past the
14 start-up period, does this mean that a ke based on two
15 quarters after start-up is a long-term ke and comparable
16 to a ke based on forty quarters after start-up?
17 MR. LIPSHULTZ: Object to form.
18 MR. BURGESS: What is wrong with the
19 question?
20 MR. LIPSHULTZ: I think it's more
21 than one question and I think it mischaracterizes his
22 testimony.
23 Q. (BY MR. BURGESS): Does it mischaracterize
24 your testimony?
25 A. I'm sorry. Repeat the question, please.
208
1 Q. Why don't you repeat your definition for
2 long-term ke.
3 A. Ke is an aerial, first quarter aerial uptake
4 coefficient computed from data past the start-up
5 period. Now, as I understand your question, is there a
6 difference between a number computed from say one
7 quarter of data past start-up or a ke calculated from
8 say twenty quarters of data past start-up. Since we're
9 dealing with systems that have some stochastic behavior,
10 the one quarter number would be extracted from the same
11 population of k values as the twenty values that were
12 computed from quarterly data would be so it should
13 represent same population but within the uncertainty,
14 no, I shouldn't say uncertainty, within the variability
15 band of quarterly behavior could be higher or lower than
16 an average determined from twenty quarters.
17 Q. I'm sorry. You said that if you had one
18 quarter's worth of data, it would be taken from the same
19 population?
20 A. Well, in statistical sense. What I'm trying
21 to -- let me try to answer the question in a different
22 way. The confidence interval for a number determined
23 from one quarter's data is obviously wider from a number
24 computed from twenty quarters of data.
25 Q. You said obviously wider?
209
1 A. Yes. If I have twenty values, twenty
2 measurements, I would expect to have a narrower
3 confidence interval in the k value so determined but in
4 the absence of any prejudicial information, the one
5 quarter sample has as much chance of being high as it
6 has of being low compared to the twenty quarter
7 measurement that might be made.
8 Q. And would you have the same degree of
9 confidence in both values?
10 A. No, I've just stated the opposite, that the
11 confidence interval for the one quarter of information
12 would be in my estimation wider than it would be for a
13 system that had twenty quarters of information.
14 Q. Have you calculated confidence intervals for
15 your TP k values in Exhibit 15?
16 A. No.
17 Q. For any of those sites?
18 A. No. I have indicated in table PK sum. rather
19 a standard deviation across the quarterly values.
20 Q. Why is there no standard deviation for the
21 Jackson Bottoms site?
22 A. I probably made that decision based on the
23 fact that there are two quarters of information which
24 then suggest that I ought to be consistent and for a
25 system like Fontanges I should not list one either. Two
210
1 quarters of information is really a marginal amount of
2 information from which to compute a standard deviation.
3 Q. Is it also in your opinion a marginal amount
4 of information from which to compute a TP k value?
5 A. In the context of the answer to your earlier
6 question, it's just as valid a number as one derived
7 from a larger data set. It just has a larger confidence
8 interval or standard deviation associated with it.
9 Q. Can we go through the list in Exhibit 15 and
10 will you tell me for each of those wetlands whether they
11 are constructed on peat base soil or mineral soil?
12 A. Insofar as I am aware of that information I
13 will try and do some. Starting with Des Plaines, it
14 varies from cell to cell and I can't quote you the
15 percentage organic matter although the data exists on
16 the soils of system three, four, five, and six at Des
17 Plaines. In general terms system three was, had some
18 preexisting wetland soils.
19 I think historically that particular
20 portion of the site had been a wetland before it was a
21 Christmas tree farm so when we reconstructed the
22 wetland, there were organic soils there, and in contrast
23 system six was primarily on sandy soils and without
24 going back to soils information from our project files I
25 cannot do better than that, so Des Plaines basically
211
1 soils were partly mineral in character at some
2 locations, partly organic in character at other
3 locations, and would be best characterized as land use
4 as in agriculture prior to the construction of the
5 wetlands. Some wetland remnants were present.
6 Q. What type of agriculture?
7 A. As I indicated it was some, I believe they
8 had hay fields there, some forage crops, and there was
9 still remnants of an old Christmas tree farm at the
10 site.
11 Q. Does the soils data exist in the NADB?
12 A. I have to test my memory on this. Very
13 limited and I believe in most instances it was
14 unavailable.
15 Q. Would you characterize Des Plaines as a
16 Histosol soil area?
17 A. There -- well, I'm not, I'm not conversant in
18 the various soil classifications. There is a study of
19 the soil at that site and their alteration from, or
20 their original state to the wetland soils that now exist
21 there. There is such a study. I'm not prepared at this
22 time to quote the results of that study.
23 Q. Who did the study, do you know?
24 A. It's been done and is in progress, I believe,
25 under Doctor Richardson.
212
1 Q. Which Doctor Richardson?
2 A. I think his first name is James and he's from
3 North Dakota, I believe.
4 Q. Do you know whether the agricultural land
5 uses at Des Plaines involved the use of fertilizer?
6 A. Within the recent past I would think not. I
7 would be, I'm acquainted with the site from a time
8 period ranging from about 1985 when I first started
9 visiting the site and what I was looking at were fallow
10 fields and remnant Christmas tree farm so I would think
11 fertilizer applications, if any, were in the past some
12 decade or more.
13 Q. And how would you characterize the soil at
14 Jackson Bottoms?
15 A. Jackson Bottoms, there is also a soil report
16 that exists for Jackson Bottoms. There are a variety of
17 different soils that existed there. I certainly can't
18 quote all of them. I know that there was variability in
19 type. I know that there was one which was a clay, I
20 believe, or clay loam, I think it was Wapato, but there
21 were a variety of other soil types as well associated
22 with those seventeen cells.
23 Q. Do you know what the primary --
24 A. Excuse me. I'm sorry.
25 Q. Do you know what the primary soil type was
213
1 for the seventeen cells?
2 A. There were two primary and one of them was
3 the Wapato and I can't remember the other.
4 Q. How would I go about getting a copy of the
5 soil report?
6 A. I believe you would contact Mr. Stan Gieger
7 whose address we discussed yesterday.
8 Q. Lakeland, Florida, what is the soil?
9 A. Lakeland is built in old phosphate mine pits
10 and I don't know, I guess you would characterize the
11 soils as phosphate slimes.
12 Q. Pembroke?
13 A. Pembroke was an agricultural field I think
14 for fodder crops. However, in construction it was cut
15 through the top soil and I believe down to some clays.
16 I remember slipping and sliding on red clay.
17 Q. Great Meadows?
18 A. Great Meadows, organic based system. That
19 was, I believe, an existing wetland and after seventy
20 years what the original soils were I don't think anybody
21 knows.
22 Q. Fontanges?
23 A. Fontanges is a northern sphagnum peat land.
24 Q. Houghton Lake?
25 A. Peat land.
214
1 Q. Cobalt?
2 A. I believe mineral soils but I'm not sure that
3 Gordon Miller reported what they cut down to when they
4 built that wetland.
5 Q. Brookhaven?
6 A. Again, I don't think Max Small reported what
7 he cut down to when he built that wetland. I would
8 presume mineral soils.
9 Q. Leaf River?
10 A. Unknown to me.
11 Q. Clermont?
12 A. I can't recall as I sit here. It would be in
13 the reports from the project.
14 Q. Would Leaf River's, also?
15 A. I'm not sure what reports exist on Leaf
16 River. It is my recollection that that's an industrial
17 project and I'm not sure about the availability or
18 existence of reports. One of my colleagues entered that
19 into the database.
20 Q. Sea Pines?
21 A. Sea Pines is a wetland, a natural wetland.
22 It was located between old beach ridges on Hilton Head
23 Island and it has I think combination soils. I think
24 there's some sandy mineral soils but there are also
25 areas of organic deposits in that wetland.
215
1 Q. Benton?
2 A. Benton, Kentucky, I do know was cut into
3 clay, very dense, impermeable clay.
4 Q. Listowel?
5 A. Listowel had a preprepared soil placed in the
6 constructed wetlands and it was a blend by recipe but I
7 can't recall without looking at the report, that was
8 partly mineral and partly organic in nature, preprepared
9 soil.
10 Q. Iron Bridge?
11 A. Iron Bridge, again, I don't, I can't recall
12 the exact soil information that exists. I think it
13 basically was on mineral soils.
14 Q. Boney Marsh?
15 A. Just by accident I had read a little piece of
16 one of those reports again just a few days ago and the
17 soils there are interspersed sands and organic deposits
18 associated with the old river flood events presumably.
19 Q. 2A?
20 A. Peat land.
21 Q. Orange county?
22 A. Orange county is a sequence. The first unit,
23 however, was, I believe, mostly mineral soils and that's
24 the portion of it that was analyzed here.
25 Q. And Humboldt?
216
1 A. Humboldt was basically mineral soils, I
2 believe, and so was Tarrant county.
3 Q. In your opinion does the type of soils make a
4 difference to the, in the TP k values?
5 A. It's my opinion that it makes very small
6 differences --
7 Q. And what -- I'm sorry.
8 A. -- if any.
9 Q. And what is the basis for that opinion?
10 A. The basis for that opinion is that this table
11 that we've just gone through, we have seen a wide
12 variety of preproject soil types. We see some
13 variability in the TP k values in the long term for
14 those sites leading me to think that perhaps some small
15 part of variability may be due to those original soils.
16 The larger part of my opinion is
17 based on the fact that wetland soils develop rapidly in
18 response to constructing a wetland and then after the
19 start-up period the absorption capacity of those
20 original soils is probably equilibrated that the contact
21 zone has, the first layer of soil in the wetland has
22 been built by the wetland itself so that the, all these
23 factors taken together lead me to believe that the
24 original soil type is not a major factor in determining
25 the TP k value.
217
1 Q. You said that there were a wide variety of
2 soil types represented by these sites. Isn't there also
3 a wide variety of TP k values ranging from one to over
4 thirty-seven?
5 A. That's correct.
6 Q. You consider the standard deviation of seven
7 point seven with a global mean of eleven point six to be
8 wide variety, or I'm sorry, wide variability?
9 A. In the context of the number of different
10 factors that could have affected that TP k value, I find
11 it remarkably narrow range.
12 Q. I'm sorry, you said given the --
13 A. Yes, for instance, we have systems that
14 started as peat land, systems that started on mineral
15 soil, systems from the far north and Quebec, systems to
16 Florida, different meteorological conditions, different
17 vegetation types, and in calculating anything from that
18 wide variety of sites and finding a standard deviation
19 that is on the order of fifty percent or sixty percent
20 of the mean to me is a surprisingly narrow range given
21 all those different factors.
22 Q. If you could turn to in Exhibit 15 it is mass
23 balance design model, MB page twelve, it is on the top.
24 A. I'm sorry.
25 Q. Midway.
218
1 A. MB page twelve.
2 Q. Under emergent marshes, third sentence, given
3 the large number of significant differences in site
4 specific factors, it is perhaps surprising that this
5 band is not larger. Is this what you were just speaking
6 about?
7 A. I think I said the same thing, yes.
8 Q. What type of differences exist in site, well,
9 let's start with this, what site specific factors are
10 you referring to?
11 A. I think in the question before last, I just
12 listed them.
13 Q. Can you do that again?
14 A. Yes. There are differences in climate, there
15 are differences which reflect differences in
16 geographical location, there are differences in
17 vegetation type, there are differences in the
18 preexisting soil conditions, differences in the
19 concentration level of phosphorus that's entering these
20 systems, differences in the hydraulic loading rates to
21 the systems. I think those, that's a good list of the
22 extremely important variables that go into that
23 statement.
24 Q. And those are variables which would cause
25 variability in the ke rates or TP k rates for emergent
219
1 marsh system?
2 A. I think in the absence of data such as we're
3 looking at from the database and other sources, I think
4 it would be a logical, preconceived notion that all of
5 those things would lead to a very wide distribution of k
6 values.
7 Q. Let me ask you with respect to those
8 factors. For purposes of contrasting WCA2A and the
9 proposed STAs, assume we expect the climate to be the
10 same or similar?
11 A. Yes.
12 Q. Geographic location?
13 A. Excuse me. You want to compare STAs and 2A,
14 was that the premise of the question?
15 Q. I think you had, I had asked you to list for
16 emergent marshes what site specific factors might lead
17 to variability in TP k rates.
18 A. Yes.
19 Q. And what I would like to do is review those
20 factors for 2A, WCA2A in emergent marsh wetland and the
21 STAs. So, you would expect the climate to be similar?
22 A. Similar to what?
23 Q. Each other, for 2A and the STAs?
24 A. Oh, and the STAs.
25 Q. Geographic location.
220
1 A. I thought that's what you meant. Geographic
2 location would be similar.
3 Q. Vegetation?
4 A. Vegetation type I would anticipate after
5 start-up would be similar.
6 Q. And what is the vegetation type?
7 A. It is currently a cattail system in 2A.
8 Q. Preexisting soil conditions?
9 A. Would be variable in the STAs, as I
10 understand it, because the locations which I have seen
11 discussed possess some differences from 2A. One is the
12 preexisting agricultural use and secondly there may be
13 differences in the character of the soils as well.
14 Q. What documents are you relying on for your
15 information in preexisting use and differences in soil
16 character?
17 A. Well, I don't know that I characterize it as
18 a document. I think it's more like common knowledge
19 that the locations that are being discussed have been in
20 agriculture. I assume there is a document somewhere
21 that shows land use patterns but I've driven through the
22 area in the sugar cane fields there and saw farms there
23 now.
24 Q. Do you have any data on the antecedent
25 conditions vis-a-vis phosphorus and those soils and the
221
1 proposed STAs?
2 A. I believe I have some documents that contain
3 information on the STA which is now known as the ENR
4 project.
5 Q. Any other?
6 A. I don't own any studies of preexisting soil
7 conditions at what I believe to be the most recent
8 positioning of the STAs.
9 Q. Do you anticipate testifying that antecedent
10 soil conditions play a role in TP k value calculation?
11 A. I would anticipate that I may offer testimony
12 that it is not in my mind an important factor in
13 performance of STAs.
14 Q. And what would be the basis for that opinion?
15 A. The basis for that opinion is the exercise we
16 just went through in which we went through all of those
17 systems that have different antecedent soil conditions
18 and yet no great differences that one can attribute to
19 that variable.
20 Q. So then NADB would be the basis for that
21 opinion?
22 A. Plus those other systems that we've indicated
23 that I have in the table in Exhibit 15 that did not come
24 from the NADB.
25 Q. Iron Bridge, Boney Marsh, 2A, and Humboldt?
222
1 MR. LIPSHULTZ: Is that a question?
2 MR. BURGESS: Yes.
3 Q. (BY MR. BURGESS): What systems you indicated
4 didn't come from NADB?
5 A. We went through that yesterday.
6 Q. I know. I want the record to be clear,
7 though.
8 MR. LIPSHULTZ: What document are
9 you referring to?
10 A. I lost my table.
11 Q. (BY MR. BURGESS): Exhibit 15.
12 A. Here we go. The ones that are not in the
13 database in this table are Boney Marsh, 2A, Humboldt,
14 and Tarrant County.
15 Q. Thank you. Going back to those list of
16 factors that you gave me, I think the next one you gave
17 me was concentration level of phosphorus, its inflow
18 concentration?
19 A. That's correct.
20 Q. And your TP k summary chart shows for WCA2A a
21 point one two two milligrams per liter inflow
22 concentration over the period of record, is that
23 correct?
24 A. That's correct.
25 Q. What would you expect that to be for the
223
1 STAs?
2 A. Similar to that one.
3 Q. Lower, higher?
4 A. Well, I think that depends on the success of
5 the BMPs that are put in place. The number over that
6 period of record also fluctuated from year to year
7 depending on agricultural practices and other factors so
8 I would anticipate that it would be approximately the
9 same order of magnitude. In other words, we are talking
10 about something on the order of a hundred fifty parts
11 per billion that would be coming into the STAs and I
12 don't intend that to be a precise number. That is an
13 order of magnitude.
14 Q. Hydraulic loading rate for 2A is listed here
15 as point nine three centimeters per day, is that
16 correct?
17 A. That's what's in the table, yes.
18 Q. And what would you expect the hydraulic
19 loading rate to be for the STAs?
20 A. As they're currently configured it's somewhat
21 higher than that. I think it's around two centimeters a
22 day.
23 Q. In your opinion does the fact that the
24 hydraulic loading rate for the STAs is two centimeters a
25 day and that for 2A is point nine three centimeters a
224
1 day have any effect on the transferability of the ten
2 point two settling rate to, as a design criteria for the
3 STAs?
4 A. No, because the model that's being used takes
5 into account the hydraulic loading rate as one of the
6 variables in the equation.
7 Q. What area is the point nine three hydraulic
8 loading rate for 2A based upon?
9 A. I would have to go back and look at Doctor
10 Walker's document.
11 Q. Are you speaking of his March, '93 paper?
12 A. Yes, it should be in that paper, I believe.
13 Q. Yesterday we talked, or you spoke in terms of
14 a ten kilometer by ten kilometer area, is that the area
15 you would be looking for?
16 A. It would be the area that he used in the
17 inland zone 2A that I would be looking for. That would
18 be the area associated with the point nine three.
19 Q. With respect to vegetation, you said that
20 after start-up you would expect it to be similar. How
21 long are you anticipating start-up to be for the STAs?
22 A. Well, the experience from other systems
23 around the country appears to indicate that a time
24 period on the order of one to two years in warm climates
25 and perhaps a little longer in colder climates is
225
1 necessary for complete vegetative replacement or fill
2 in, depending on whether it was planted or not to begin
3 with.
4 Q. Are the STAs going to be planted?
5 A. That is a question that to the best of my
6 knowledge has not been finally resolved.
7 Q. But there are some documents that may speak
8 to that that you have not reviewed?
9 A. There are no documents that speak to that
10 that I have seen since the time of my last deposition.
11 I'm not sure I own any documents on that subject
12 although it certainly has been discussed.
13 Q. If they are planted, is the start-up period
14 longer or shorter?
15 A. Well, based on our most recent information
16 from Tarrant county it doesn't appear to matter.
17 Q. Your testimony regarding the one to two years
18 in warmer climates and longer in colder climates, is
19 that based upon the TP k value summary tables in Exhibit
20 15?
21 A. No, because as we discussed, the TP k summary
22 values are wherever I could establish the start-up
23 period and are not based on the start-up period.
24 Q. What is, what are the source documents for
25 your opinion testimony that the start-up periods appear
226
1 to be one to two years in warmer climates and longer in
2 colder climates?
3 A. Well, one of them would be Exhibit 8 in which
4 we have the information on the start-up period for Iron
5 Bridges documented in there. Other materials that I
6 have provided show the start-up for the Houghton Lake
7 system. There are also materials that show the start-up
8 period, I believe, for the Listowel system. Information
9 from District documents allows one to infer the time
10 period for start-up for Boney Marsh so there is a large
11 number of supporting documents that contain that
12 information.
13 Q. Do you -- I'm sorry. Do you anticipate
14 offering opinion testimony at the hearing as to what the
15 likely start-up period for the STAs will be?
16 A. I would imagine I could offer such testimony,
17 yes.
18 Q. And so that we are consistent, what is meant
19 by start-up period?
20 A. The start-up period is the period during
21 which the ecosystem is rearranging itself into that
22 state which produces the long-term settling rate
23 constant.
24 Q. And what would your opinion testimony on this
25 subject be or on the subject of how long the start-up
227
1 period for the STAs is likely to be?
2 A. Since these are situated in a warmer climate,
3 I would imagine that that start-up period would be on
4 the order of one to two years.
5 Q. And would that be based on data from Iron
6 Bridge, Houghton Lake, Listowel, and Boney Marsh?
7 A. Well, because of the climatological
8 considerations, I think that would be based primarily on
9 Boney Marsh and Iron Bridge, to a certain extent on the
10 information from Lakeland.
11 Q. And that information on those three systems
12 would be in Exhibit 8 and where else?
13 A. I think I indicated that Boney Marsh is in
14 District documents.
15 Q. Do you know what District documents that
16 would be?
17 A. Yes. It's, the information I have in mind is
18 in the District report authored by Steve Davis that we
19 discussed yesterday. I'm sorry. I also alluded to
20 Lakeland. That information is contained in the
21 operating information that, from the site and that, of
22 course, has been transferred over to the database. Did
23 I cover -- I think I got them.
24 MR. BURGESS: Do you want to take a
25 break?
228
1 MR. LIPSHULTZ: Yes.
2 (Recess).
3 Q. (BY MR. BURGESS): Doctor Kadlec, going back
4 to Exhibit 15, TP k value summary table, for those
5 systems which you identified as transect systems which I
6 believe was Houghton Lake, Orange county, 2A, and
7 Humboldt, I would like you to tell me how you determined
8 where to end your data collection on your transect for
9 purposes of using the data points in calculation of the
10 phosphorus in?
11 A. I think the first on the list, in the table
12 is Houghton Lake. The transects in that case carried
13 out to a line which is approximately eight hundred
14 meters from the discharge. That line is also a line of
15 sample stations that are used as a, I guess I could best
16 characterize it as just an early warning set of sample
17 stations for determining not compliance but to give an
18 indication of what's going on. They are regulatory
19 points, although the compliance point is quite a lot
20 further as I indicated yesterday.
21 So, the transects end at the,
22 basically end at the eight hundred meter distance for
23 purposes of analysis.
24 Q. And is that because the stations that are
25 there, those regulatory points, are in compliance?
229
1 A. Those points are all within compliance. When
2 field expeditions are run, typically the transects are
3 run out to that point which is a background peat land or
4 close to background peat land location. It is not quite
5 background any longer. It is a matter of field
6 practicality and the fact that we are below the
7 compliance levels at that location.
8 Q. Is that, those are the determining factors?
9 A. That together with the difficulty of
10 traveling by foot in a large peat land.
11 Q. I believe next was 2A.
12 A. 2A, the information in the table is, referred
13 to Doctor Walker's work and it's my understanding in
14 rough terms that the criteria that Doctor Walker used
15 are in his paper, I believe, and he basically was going
16 out to a limit that was somewhat below the intended
17 design level for the STAs. I would, you would have to
18 ask Doctor Walker for what his reason was for picking
19 the end of the transect.
20 Q. Did you concur in his decision?
21 A. Yes. I felt that it was reasonable because
22 he had gone to the fifty part per billion level in terms
23 of the historical water level concentrations, water
24 concentrations, and beyond, I believe, somewhat. So, it
25 was an appropriate zone for which to extract a k value
230
1 for design.
2 Q. Can you calculate from the hydraulic loading
3 rate for 2A what is listed there as point nine three,
4 can you calculate the area?
5 A. Not from that number alone.
6 Q. What else do you need?
7 A. I would need the accompanying flow rate.
8 Q. Have you ever done it?
9 A. No, not in that direction. What I have done,
10 and it's quite sometime ago, is to look at a preliminary
11 data set that I believe has been superseded by corrected
12 and more modern information and divided that flow rate
13 by various areas. At one time I think I probably looked
14 at the loading rate on the entirety of 2A, at other
15 times I looked at the loading rate based on an area used
16 by Burns and McDonald in one of their early documents.
17 It is a very simple relation that flow rate divided by
18 the area chosen by the person doing the calculation.
19 Q. Orange county, no, I'm sorry, is that next?
20 A. Orange county. We discussed that one
21 yesterday.
22 Q. That is the transect and the forested?
23 A. That's right. That is the system that's
24 somewhat confused so the transect information that I
25 used ran from the inlet point to the first intermediate
231
1 structure and the end of that transect, however,
2 although points are on the graph, is in a forested
3 system so to that extent although they happen to fall on
4 the same line as the emergent marsh front end portion
5 could, I suppose, be excluded if one wanted to, and I
6 think the last one you mentioned in your question was
7 Humboldt and that is the batch system and in that case I
8 used a criteria since some of those batches ran for very
9 long times, I used a criteria of approximately ninety
10 percent of the change as the criteria for the ending
11 time value which is, which corresponds to the ending
12 transect value because in general we're talking about
13 something on the order of sixty to eighty percent
14 reduction in phosphorus so in the case of that data I
15 terminated at about, somewhere around eighty to ninety
16 percent reduction of the change that was going to occur.
17 Q. I remember we discussed Humboldt yesterday,
18 where you filled it to a level and then there was no
19 inflow or outflow?
20 A. Correct.
21 Q. So, I'm sorry, how would you, was there a
22 transect?
23 A. There was not a transect. In this case the
24 equivalent of distance from the point of inflow becomes
25 time since the beginning of the batch experiment.
232
1 Q. In Exhibit 15, if you can turn to, it is
2 listed on the top input/output correlations, I/O page
3 six, it is in the front twenty-five percent of the
4 paper, and then turn two pages further. What is that
5 graph?
6 A. It's a graph of the outlet phosphorus
7 concentration verses the inlet phosphorus concentration
8 for quarterly data from forty-nine wetland cells.
9 Q. Why did you prepare that? What is the
10 significance of it?
11 A. Well, an alternative to the spacial model
12 that's being used, the first order aerial model, an
13 alternative to that is to use a strictly regression
14 correlation representation of the data from the systems
15 in the database so this section of the chapter addresses
16 attempts to display regressions of the information in
17 the database rather than mass balance aerial uptake
18 models and this graph is one scatter plot with the
19 associated regression line just on input and output
20 concentrations.
21 Q. And your opinion is a valid alternative?
22 A. This particular correlation is not to be
23 preferred for design because it's simply, it does not
24 contain the appropriate spacial factor that allows it to
25 be used in a system which is clearly a spacially
233
1 dependent system.
2 Q. Well, what factor is that?
3 A. The hydraulic loading rate would have to be
4 included or some other variable that was responsive to
5 the distance aspects of these systems which I also
6 provided in that same document.
7 Q. When I add up the cells and data quarters
8 that are present in the PK sum. table, I get fifty-four
9 and four hundred fifty-seven and this chart has
10 forty-nine and three hundred seventy-three.
11 A. That's correct, this is a draft document.
12 Pieces of this were done at different times and
13 therefore there would not necessarily be a one-to-one
14 correspondence.
15 Q. This is not necessarily a subset?
16 A. It is in the sense that the information I
17 think in this particular section of this chapter was
18 brought from the North American Database and did not
19 include some of the information in the table which was
20 drawn from nondatabase systems. There are some systems
21 that were used in the table that are not in databases
22 we've discussed so those were not included in this
23 regression.
24 Q. Have you ever plotted this regression with
25 the entirety of the PK sum. table?
234
1 A. No, I have not.
2 Q. Would you anticipate doing that for final
3 chapter of the book or would you perhaps like or would
4 these graphs likely stay the same?
5 A. I may but I really don't think so.
6 Q. Why not?
7 A. Well, the use that I would envision for the
8 correlation that we're discussing here since it
9 basically, it basically says that since the outlet
10 concentration is thirty-four point three four times
11 inlet concentration to the point nine six power, it
12 basically says that wetlands, if you just regress inlet
13 and outlet, have a tendency to get about two thirds
14 reduction in phosphorus and I think that that's about
15 the only message that one should draw from that so in
16 context of this chapter immediately go on in the next
17 section to recommend the first order aerial uptake model
18 as the preferred alternative.
19 MR. BURGESS: Will you mark that?
20 DEPOSITION EXHIBIT 16
21 WAS MARKED BY THE REPORTER
22 FOR IDENTIFICATION.
23 Q. (BY MR. BURGESS): I will show you what's
24 been marked as Petitioner's 16 and ask you if you can
25 identify that for the record?
235
1 A. Yes. It appears to be a three page FAX
2 communication from Doctor Walker.
3 Q. And what was the purpose of the
4 communication?
5 A. I honestly can't recall. Clearly we're
6 exchanging information on correlation of the performance
7 of wetland systems and this particular communication is
8 a regression of a slightly different sort on essentially
9 the same data set with different variables involved. In
10 this case it's the phosphorus out verses the inlet
11 loading.
12 MR. PERKO: Just so I can follow
13 along, what is the date of this FAX?
14 THE WITNESS: January 27th, 1994.
15 MR. PERKO: Thank you.
16 A. I also see from the subject here that that
17 was transmitted to Doctor Walker in connection with a
18 review of a draft paper authored by Qian and Reckhow.
19 That's what it says on the subject.
20 Q. (BY MR. BURGESS): Have you reviewed the Qian
21 and Reckhow paper?
22 A. Yes, I have.
23 Q. Have you provided written comment on that
24 paper?
25 A. Insofar as they exist, I'm trying to think if
236
1 they exist and I believe there may be one page of
2 written comments on that, yes, and I have provided it to
3 my counsel.
4 Q. What is the difference between the graph in
5 Exhibit 16 and the graph in Exhibit 15?
6 A. The independent variable and the regression
7 in Exhibit 16 is the inlet phosphorus loading rate, not
8 the inlet phosphorus concentration.
9 Q. Have you calculated the inlet phosphorus
10 loading rate for WCA2A?
11 A. If I did so, it's a long time ago.
12 Q. Would the inlet phosphorus loading rate for
13 2A be one of the dots on this graph?
14 A. It could conceivably be. I rather think not,
15 though, because WCA2A is not an entry in the database
16 for which quarterly data have been entered and so I
17 don't think it would be a dot on this graph so I don't
18 believe it's included in here, to the best of my
19 recollection.
20 Q. And why wouldn't it be?
21 A. Because the information supporting these
22 graphs is taken from the North American Database and
23 this is not a system that's been entered.
24 Q. Have you calculated a flowing rate for the
25 STA in grams per meter square per year?
237
1 A. I have done so historically at some times,
2 yes.
3 Q. Where would we find that?
4 A. Well, for instance, in Exhibit 8, it will
5 take me a minute to find this. I believe it's in here.
6 Yes. For instance, this appears in, I think here and in
7 other places as well but on Exhibit 8 on page three dash
8 two, just as an example, in the line below equation
9 three dash one contains a statement, says the projected
10 loading rate for the combined STAs is one point one six
11 grams per meter square per year and I would point out
12 that that number is contingent on forecasts of
13 phosphorus and water flows that have changed from time
14 to time through this proceeding and so this has to be
15 associated with a point in time dated about July, 1992.
16 Q. Do you have any later estimates of the
17 loading rate for the STA?
18 A. I have not personally done such formulations
19 or calculations, no.
20 Q. What is the loading rate dependent upon?
21 A. The incoming flow rate of water, the incoming
22 concentration of phosphorus in that water, and the area
23 to which that area is being applied.
24 Q. With respect to having, with respect to 2A,
25 you said that a long time ago maybe you had calculated
238
1 it, a loading rate. Do you recall what area you used
2 for purposes of calculating a loading rate?
3 A. Well, I honestly cannot recall but I would
4 have done perhaps two different things. I would have
5 attributed a loading rate to the entire area of 2A to
6 get some concept of the loading over the entire water
7 conservation area and I would think that sometime I
8 would have also used either Burns and McDonald or Walker
9 definition of an inlet zone area and computed that as
10 well but I could not point to that as I sit here today.
11 Q. Is this graph in Exhibit 16, is this also an
12 alternative to the mass balance aerial uptake model in
13 your mind, in your opinion?
14 A. This as a regression approach in my view
15 since it fails to embody the water budget for the
16 wetland is not as good an approach as using the first
17 order aerial uptake constant in conjunction with water
18 budgets and phosphorus budgets.
19 Q. So, what is it you would need to, in order to
20 give you some comfort level, a water budget for these
21 wetlands?
22 A. I'm not sure I understand the question. A
23 comfort level with these wetlands does not ring a bell
24 with me.
25 Q. What's the, this regression approach is not
239
1 appropriate for design, is that your opinion?
2 A. Well, I would answer it this way. If there
3 were no better alternative, I think, and there has not
4 been in early history of this technology, that this
5 approach has sometimes been relied on in the past but at
6 the moment if as we now can do, if we can use
7 conservation of mass of the water being added into the
8 system plus conservation of mass of the phosphorus being
9 added to the system and calibrate a model that
10 acknowledges both of those, we have a much more powerful
11 design tool than our regression line.
12 Q. Can you use this as a check on what you
13 received from your mass balance model?
14 A. One could use this tool to form a second
15 estimate of a required area and by this tool I'm
16 referring to the figure in Exhibit 16. That can also be
17 used to estimate a treatment area.
18 Q. Do you know if anybody has done that with
19 respect to the STAs?
20 A. I'm trying to think. It's very easy to do.
21 Whether or not I have done it and written it down I
22 don't know but one can take the anticipated inlet
23 phosphorus loading rate as an entry point into this
24 graph and read the exit concentration from a graph. I
25 don't believe I've done that, written it down, but it is
240
1 very easy to do.
2 Q. How do you determine the area from that?
3 A. In this case it's not done in that
4 direction. What you can do is take the inlet loading
5 rate such as we alluded to in the earlier document, the
6 1992 version where the loading rate was one point one
7 six grams per meter square and one would enter that on
8 the abscissa of the graph in Exhibit 16, go up to the
9 regression line and read the predicted outlet phosphorus
10 concentration.
11 Q. What is the abscissa and how do you spell it?
12 A. It is the horizontal access on the graph and
13 it is A-B-S-C-I-S-S-A.
14 Q. If you plugged in one point one six to this
15 graph, do you know what it would give you?
16 A. Approximately. I can't read it that
17 accurately without a triangle but it's somewhere around
18 fifty to sixty parts per billion.
19 Q. And if the loading rate were higher than one
20 point one six using this graph, would your TP k outlet
21 concentration be higher than fifty to sixty parts per
22 billion?
23 A. It would.
24 Q. Can one use this graph to conclude that if
25 the hydraulic loading rate, I'm sorry, if the loading
241
1 rate to the STAs were higher than one point one six,
2 that based upon data from the North American Database
3 you would expect that the TP concentration out from the
4 STAs would be higher than fifty to sixty parts per
5 billion?
6 MR. LIPSHULTZ: Object to form.
7 MR. BURGESS: What is your
8 objection?
9 MR. LIPSHULTZ: There is a variety
10 of objections. A, it is impossible to understand. B,
11 it is a compound question. C, it is premised on a bunch
12 of assumptions that I'm not sure are in line with the
13 witness' earlier testimony.
14 MR. BURGESS: I think I only asked
15 him to do one thing so I don't think it is compound.
16 MR. LIPSHULTZ: Perhaps you can
17 rephrase the question so that it is clear.
18 Q. (BY MR. BURGESS): Did you understand the
19 question?
20 A. Well, I think I do but I wouldn't mind
21 hearing you rephrase it.
22 Q. I don't want to rephrase it. If you
23 understand it, I think you need to answer it.
24 A. In that case can we have it read back?
25 (The requested portion of
242
1 the record was read by the
2 reporter).
3 MR. LIPSHULTZ: Same objection.
4 Q. (BY MR. BURGESS): You still don't understand
5 it?
6 A. I think the correct answer to your question
7 is yes.
8 Q. Thank you. Doctor Kadlec, I'm going to show
9 you what purports to be a paper by William Walker dated
10 March 8, 1993, titled A Mass Balance Model for
11 Estimating Phosphorus Settling Rate in Everglades Water
12 Conservation Area 2A without marking it as an exhibit
13 and just ask you whether you have seen that paper
14 before?
15 A. Just judging from the title page I believe I
16 have.
17 Q. I believe it is, on the top of the second
18 page there is a paragraph that talks about defining the
19 inlet zone area. We've spoken numerous times over the
20 last day and a half about what Doctor Walker used as his
21 inlet zone area for 2A and we have often times referred
22 to a March paper by Doctor Walker. I wanted to see
23 whether that paragraph in that paper is what your
24 understanding is?
25 A. Yes. This is my understanding of the last,
243
1 latest, and best dimensions used by Doctor Walker.
2 Q. Do you know whether those dimensions refer
3 to, refer to an impacted area in 2A?
4 A. Not specifically. I can't tell you
5 specifically what's in Doctor Walker's mind but I know,
6 I believe that this is predicated on a width that spans
7 the inlet structures.
8 Q. What's the purpose for defining that area?
9 A. It's to define the area over which the
10 phosphorus and the incoming water has been removed to a
11 level that's as represented by the data at the southern
12 edge of that area.
13 Q. Does the size of that area affect the
14 calculation of ke?
15 A. To a slight extent I believe it does.
16 Q. Can you elaborate in what way?
17 A. Well, the model that's being used is a one
18 parameter model that allows one to assign a spacial
19 variability based on that one parameter. I think it's
20 pretty well-known that life is more complex than that
21 ecosystem, dynamics are more complex than that, so that
22 when you look at a specific area that may be smaller
23 than the overall area, it's clear that you could get
24 effects that differ from the mean behavior over the
25 entire area.
244
1 Q. Assume for purposes of my question that the
2 area in fact is larger than the area referred to there
3 by Doctor Walker in that top paragraph, would that
4 increase or decrease the ke?
5 A. It's my recollection that when Doctor Walker
6 extended the size of the transects and distances, that
7 he obtained a larger value of ke.
8 Q. And if the area was smaller than that?
9 A. And of course the converse would then be
10 true, that if you use the, a smaller region of the
11 transect, you would get a smaller number.
12 Q. Thank you.
13 MR. BURGESS: Going back for a
14 moment to Exhibit 16, counsel, do you know whether the
15 comments that Doctor Kadlec referred to as being having
16 been referred to counsel have been referred to us?
17 MR. LIPSHULTZ: Well, you would
18 either have the document or it would be on privileged
19 list, I imagine.
20 MR. BURGESS: Well, if it's on the
21 privileged list, it's not referred to as comments on
22 Qian and Reckhow and I would state for the record that
23 Exhibit 16 was not provided by Doctor Kadlec or in
24 Doctor Kadlec's documents to us, rather we got it from
25 examining Doctor Walker's documents.
245
1 MR. LIPSHULTZ: It's possible. I
2 can't represent to you that Doctor Kadlec's and Doctor
3 Walker's files are identical with regard to
4 correspondence they remain amongst themselves. I will
5 say that I don't recognize this offhand as a document
6 that we withheld. It may just be that it's not in
7 Doctor Kadlec's files for some reason.
8 MR. BURGESS: It's also not on a
9 privileged list because there are no FAXes on the
10 privilege list from Doctor Walker to Doctor Kadlec.
11 Q. (BY MR. BURGESS): Do you normally retain
12 copies of your communications to Doctor Walker?
13 A. In the best of all possible worlds I would
14 like to do so but my office is a trag