13 inordinate result or an excessive result. Isn't 14 there some way to smooth or otherwise handle data 15 that might appear to be approaching outlier 16 status, short of just rejecting the data entirely? 17 A. In terms of what kind of statistical 18 analysis? 19 Q. Well, the statistical analysis that you 20 have done and that you've been tasked with doing, 21 not only for the cattail coverage, but for the 22 flow data that you're going to be looking at. 23 A. If I understand your question -- let me 24 rephrase it the way I understand it. If you're 25 trying to form certain statistical procedure, in JACK BESONER & ASSOCIATES, INC. 184 1 this case, let's say regression analysis, you can 2 screen your data to determine if you have, 3 "outliers". You could perform some sort of 4 procedure such as Appendix "E" to screen your data 5 first. You could fit a regression model and then 6 do a test to determine whether any of the points 7 are an outlier, assuming that your regression 8 model is the correct model. 9 Now, that test is a parametric test. 10 So then your question is are there other ways to 11 identify what is an outlier or other ways to 12 somehow incorporate the information from an 13 observation without discarding it totally? 14 Q. The latter. 15 A. Well, there is, for example, the 16 procedure of instead of doing a regression where 17 you use least squares as the minimization 18 criteria, you could do some sort of robust 19 regression like least median squares procedure. 20 Q. Okay. Did you try any of those 21 mechanisms in your analysis, rather than simply 22 rejecting the four or five observations? 23 A. What I did -- I think I said this 24 earlier when I was describing the table of "P" 25 values that I produced. So now I'm talking about JACK BESONER & ASSOCIATES, INC. 185 1 the analysis that I did where I took the entry and 2 access period data in Loxahatchee, combined that 3 with the data in '78 to '83 in Appendix "E", and 4 then tried to determine if there was really a 5 difference in the average phosphorus concentration 6 after you adjust your stage. 7 So basically comparing the intercept of 8 those two lines, one way to do that is 9 parametrically. Another way to do that is what I 10 -- one thing that I did was you can try and 11 account for stage by still doing least squares 12 fit, but then instead of just assuming that you 13 have normal distributed areas instead of assuming 14 that. You could, instead, do an analysis where 15 you're looking at residuals and then look at the 16 correlation between those residuals using a 17 nonparametrical approach. 18 Q. Have you received flow data yet for S-7 19 and S-8? 20 A. The flow data that I received back in 21 the period -- it must have been between March and 22 June -- that flow data was in a PK zip file, and I 23 don't know if that only included data for S5-A, 24 S-6 and the S-10 structures. Those are the ones 25 that I recall having. It may have included data JACK BESONER & ASSOCIATES, INC. 186 1 for other structures. 2 Q. Okay. Is that the PK zip file that's 3 on a disk that we just received recently? 4 A. Yes. 5 Q. Okay. You haven't used that data? 6 A. No. No, I haven't. The only flow data 7 that I used was when I started to an analysis 8 trying to relate load coming into S5-A and S-2 9 with the Loxahatchee concentrations. 10 Q. Let me show you a document. I'm not 11 going to mark it yet. The first page is bate 12 stamped 12010119, dated 12/8/93. See if you 13 recognize that. 14 A. Yes, this is the daily load data that I 15 received from Environmental Services & Permitting 16 that covers the period 11/92 through the end of 17 8/93. And John Davis gave me this spread sheet 18 the actual data that he gave me on floppy disks 19 only included two columns that are included are 20 S5-A plus S5-AW and S-6. 21 Q. So at the end of '90, 12/23/93 -- 22 12/8/93 apparently, based on the data in the 23 corner, was this an update at S-5 and S flow data 24 you had gotten prior to our last session? 25 A. No, this is load, not flow. JACK BESONER & ASSOCIATES, INC. 187 1 Q. I'm sorry. Load. So he had conducted 2 the calculation based on the district's algorithm? 3 A. My understanding is that he used the 4 district algorithm. 5 Q. Okay. 6 A. Or it may be at that point maybe they 7 were taking the same kind of sample everyday by 8 then. 9 Q. Do you know if these are based on 10 district samples or are these based on samples 11 done by ES&P? I mean, who's data base is it? 12 A. I believe it comes from the district. 13 Q. Here's 1210164. See if you can tell me 14 what that is. 15 A. This is a printout of some analyses 16 that I ran where I -- these are the analyses that 17 I ran to produce the table of "P" values that I'm 18 talking about. So just to go through this, the 19 first -- the first part of the output on the top 20 of the page where it says district model, that's 21 the model that you get when you plug in the data 22 from Appendix "E" into this regression. 23 And, so, you can see under the column 24 labelled value, those are the coefficients that -- 25 more or less what's in Appendix "E". And then I JACK BESONER & ASSOCIATES, INC. 188 1 went through and used the same model of average 2 log TP versus stage using only the new data -- 3 using the new data without 4/93, using the new 4 data, it says use the new data without outliers. 5 This may be an earlier version where I 6 ran an outliers analysis on the new data before I 7 talked with John Davis and got in the results of 8 him going back and looking at the log back to 9 specifically tell me which points are 10 questionable. So this is the last part at the 11 bottom of the page where it says model based only 12 on new data without outliers. 13 The criteria that I used to call 14 something an outlier was I did an analysis similar 15 to what's in Appendix "E", where I fit a separate 16 affect for stages and date on the field 17 replicates, and then just by that statistical 18 analysis threw out the values that were indicated 19 to be "outliers". 20 Q. What was the purpose in producing this 21 document? 22 A. The purpose was to determine how the 23 entry and access data compares to the district 24 model. 25 Q. And what kind of a fit did you get? JACK BESONER & ASSOCIATES, INC. 189 1 A. The question is too vague. 2 Q. You ran your data sets as described for 3 each model, but the underlying model you were 4 employing with those data sets was the district 5 model from Appendix "E". 6 A. Right, the assumption that you use 7 average data station as a predictor variable. 8 Q. And after you did that for each of the 9 data sets as identified, some without outliers, 10 some solely on the 12/92 to 11/93 data, is that 11 without 4/39 -- the April '93 data, some without 12 outliers, without 4/93-- you identified a 13 different measure of fit for each of these data 14 systems. 15 A. Well, you ought to look at how the 16 coefficients differed. 17 Q. And how did they differ? What kind of 18 range did you see? 19 A. Well, if I recall -- if you're not 20 going to let me look at that -- the slope of the 21 -- just using the district's -- I'm sorry. Just 22 using the entry and access period data and ESP 23 access data, as I recall the slope -- sorry. The 24 intercept was lower than the district -- I can't 25 recall the slope. I believe it was slightly JACK BESONER & ASSOCIATES, INC. 190 1 different. 2 But, in fact, when you end up combining 3 the data, as I said before, if you leave out April 4 '93, you don't get a significantly different slope 5 between the two time periods, and you possibly 6 marginally get a different intercept. 7 Q. Did you form any opinions based on 8 utilizing these different data sets with the 9 district model -- any final opinions as a result 10 of this comparison regarding the validity of the 11 Appendix "E" model? 12 A. Nothing that I haven't already stated 13 earlier, and that is there's at least two issues 14 that are of concern, one is the April '93 results, 15 and the second is the Department of Justice data. 16 Q. When you run the Department of Justice 17 data, what result obtains then in comparison to 18 the Appendix "E"? 19 A. As I stated earlier, if you take the 20 Department of Justice data and regression, the 21 fourteen station average of log TP versus average 22 stage, you do not get a significant relationship. 23 The observed correlation is positive, but it's not 24 significantly different from zero. 25 Q. Is that reflected here as well? JACK BESONER & ASSOCIATES, INC. 191 1 A. I'm not sure whether -- it would be on 2 probably the last page -- if I had gotten to that 3 point yet. 4 Q. Why don't you take a look and see if 5 you can find it. 6 A. Okay. No, the Department of Justice 7 data isn't in here. I just started to work on 8 that. 9 Q. Do you have an equivalent document that 10 reflects the results of the work you did on the 11 DOJ data? 12 A. I have one on my computer now. 13 Q. When you provided the total of five 14 data disks to us as part of the current round of 15 trying to complete your deposition, did you 16 include that file? I assume it's under a file of 17 some sort. 18 A. I'm sorry. You're talking about which 19 floppy disks? 20 Q. Well, you've provided the five floppy 21 disks, two appearing to be data for Loxahatchee 22 and data for WCA-2, which I think you've already 23 described as data sets that you got from John 24 Davis that were modified and adjusted. 25 A. Right. JACK BESONER & ASSOCIATES, INC. 192 1 Q. You give us three additional disks. 2 One is a PK zip. In fact, they all have zipped 3 data on them I believe. 4 A. I'm not -- you probably don't have the 5 updated version of that output because I just 6 produced that a couple of days ago. 7 Q. Did you print out that updated 8 version? Do you have that with you? 9 A. I don't mean right now at this very 10 moment, but here in Miami. It's on my lap top 11 here in the hotel if I can figure it out how to 12 hook it up to a computer to print it out -- 13 MR. FITZGERALD: I think that is fairly 14 within the scope of the Notice of Deposition and 15 should be produced while the witness is still 16 here. 17 MR. BLANK: Off the record. 18 BY MR. FITZGERALD: 19 Q. Is that work complete? 20 MR. BLANK: The witness previously 21 testified that he had wanted to look at the 22 replicates. 23 THE WITNESS: Yes, I don't have the DOJ 24 -- as I understand it was -- and I don't know if I 25 said this earlier or not, but yes, the DOJ data, JACK BESONER & ASSOCIATES, INC. 193 1 as far as I understand, is actually the result of 2 averages of field replicates. And, so, I would 3 actually need to go back and look at the original 4 data so I could get a feel for the kind of field 5 replicate variability and the DOJ data as well. 6 BY MR. FITZGERALD: 7 Q. What kind of field did you develop for 8 the variability in the field replicates on the 9 ES&P data? 10 A. What kind of field did I develop for 11 it? 12 Q. Yes, they are your words. I mean, 13 don't laugh when I use them. 14 A. I guess -- well, it depends on what 15 you're comparing it to, the variable of the field 16 replicates versus the variables -- the variables 17 in the field replicates compared to variables in 18 what the average at the station is overall, the 19 dates or the variables in the model or -- 20 Q. Well, you're the one who wants the 21 data, and you're the one who has suggested that it 22 will tell you some -- it will give you a feel for 23 something. What is it going to give you a feel 24 for? How are you going to apply -- 25 A. Okay. Well, one thing that I would do JACK BESONER & ASSOCIATES, INC. 194 1 -- one task that I would do is look at the field 2 replicate variability in the Department of Justice 3 data and compare that to the field replicate 4 variability in the ES&P data to determine whether 5 there's a similar amount. 6 And then, also, if I have those field 7 replicates, then I have a way of looking at them 8 and trying to determine if there are "potential 9 outliers" that would influence any relationship 10 that I may or may not see between the fourteen 11 station average and the stage using just the 12 Department of Justice data. 13 Q. How are you going to resolve the April 14 '93 data problem with the ES&P data? 15 A. When you -- 16 MR. BLANK: When you refer to it as the 17 problem, you're talking about the difference in 18 the concentrations? 19 MR. FITZGERALD: Well, the problem is 20 the word the witness used when he said -- and he 21 also has characterized it as an issue of concern, 22 and I took from that that he felt that it needed 23 to be addressed and resolved in some fashion as an 24 historic event. He has the data. 25 BY MR. FITZGERALD: JACK BESONER & ASSOCIATES, INC. 195 1 Is it their observation, as Dr. Davis 2 is unable to explain why this -- why is the data 3 in the outlier too high in its concentration or 4 does it appear to be too low? What is the concern 5 with the data? Why is it an issue of concern? 6 MR. BLANK: Let me just object to the 7 form of the question. I think we got multiple 8 questions pending here. 9 MR. FITZGERALD: I think it's all asking 10 for the same answer. 11 MR. BLANK: I think so, too, but I think 12 I think the question is why is the concern -- 13 BY MR. FITZGERALD: 14 Q. Well, first, what is it about the ESP 15 data of April '93 that causes you a concern? 16 A. If you look at just the ES&P data, as I 17 stated earlier, if you just look the ES&P data, 18 the entry and access, and assuming you're going to 19 average the field reps, which may be one way to do 20 -- it's not necessarily the way to do it. And 21 then looking at the relationship between the 22 fourteen station average and average stage, if you 23 leave 4/93 in, there's not a significant 24 relationship. If you take it out, there is a 25 significant relationship. JACK BESONER & ASSOCIATES, INC. 196 1 Q. What is it about the 4/93 data that 2 causes you to focus on that instead of some other 3 month, when you're doing your analysis over a ten 4 or eleven month data set? 5 A. If you look at the data plot you can 6 see that it's very low relative to the other 7 observations. 8 Q. Did Dr. Davis suggest to you that it is 9 actually ridiculously low or unbelievably low? 10 A. No. 11 Q. Did he indicate to you that he felt 12 that it, in fact, may reflect an actual true state 13 of affairs at that time in Loxahatchee at those 14 sampling stations? 15 A. He probably didn't say that it in those 16 words. 17 Q. Well, isn't it fair to surmise that he 18 thinks there's something wrong with it too since 19 he has tried to explain it and says he can't find 20 an explanation? 21 A. No, because I asked him about it. 22 Q. So you're the one who identifies the 23 problem. Did you identify the problem solely 24 because of the affect on the correlation analysis? 25 A. Yes. JACK BESONER & ASSOCIATES, INC. 197 1 Q. All right. I guess at that point you 2 all said, why the heck are these so low in 3 comparison to anywhere else because they are -- 4 A. Correct. 5 Q. Which automatically, to a 6 statistician's eye, makes them suspect and worthy 7 of further inquiry. 8 A. Worthy of further inquiry. 9 Q. You don't like suspect I gather. How 10 are you going resolve this issue of concern? Can 11 you resolve this issue of concern? 12 A. I'm not sure at this point. 13 Q. When do you think you'll have a final 14 opinion then, if ever, since you say you don't 15 know if you can? We may have just wasted a day, 16 but let's hear his answer. 17 A. I think I'll have a final opinion 18 within a couple of weeks, however, the caveat is 19 that my final opinion may be that it can't be 20 resolved. 21 Q. Then we have wasted a day and longer. 22 You've looked at the DOJ data set for the same 23 period. 24 A. Yes. 25 Q. Does the same anomalous result appear JACK BESONER & ASSOCIATES, INC. 198 1 in the DOJ data set? 2 A. By the same anomalous result, you mean 3 -- do you mean that 4/39 appears lower? 4 Q. Aberrationally lower. Extremely low in 5 comparison to all other values. 6 A. No, but on the other hand, the 7 correlation is the opposite direction to have the 8 DOJ data. 9 MR. FITZGERALD: I understand. Off the 10 record. 11 (Discussion off the record.) 12 BY MR. FITZGERALD: 13 Q. In one of your documents you identify a 14 concern over discrepancy between the SWIM Plan 15 data and the data you were utilizing for the 16 Loxahatchee stations 1-1 through 1-16. Did you 17 successfully resolve that concern -- sort it out? 18 A. The way it was left, Bruce Meyer at 19 Environmental Services & Permitting -- in fact, I 20 believe it's probably in that fax that you're 21 holding. He indicated to me -- 22 Q. No. 23 A. No? Okay. Then maybe it's in another 24 document. He indicated to me that the data that I 25 had been supplied by in Environmental Services & JACK BESONER & ASSOCIATES, INC. 199 1 Permitting matched Walker's data. 2 Now, when he says Walker's data, I'm 3 not sure whether he means the data that appeared 4 in Walker's May report -- May '92 report or some 5 other source. But the way it was left -- that was 6 just the way it was left is that yes, there's a 7 discrepancy between the data as it appears in 8 Appendix "E" and the data that he received from 9 Environmental Services & Permitting. 10 However, that discrepancy doesn't end 11 up changing -- as I recall, doesn't end up 12 changing the fourteen station average. It looks 13 like some values were switched. If you're looking 14 at the matrix data and the replicates and the 15 columns representing the stations, it looks like 16 certain values got switched between stations or am 17 I saying that wrong? 18 Q. Well, I'm taking it that you're 19 suggesting that once you looked at it or Bruce 20 Meyer did, you figured out it was essentially 21 topographical. It does not reflect the result or 22 outcome in your analysis. 23 A. Yes, my conclusion was is that it 24 wouldn't affect any conclusions I had. 25 Q. So which data set did you use, the SWIM JACK BESONER & ASSOCIATES, INC. 200 1 Plan, or did you use -- 2 A. The one from Environmental Services. 3 Q. Okay. Did you ever prepare questions 4 for Bill Walker? 5 A. I was asked to do that, but then the 6 litigation was stayed before I made up a list. 7 Q. Okay. In one of your commentaries in 8 the documents you talk about receiving the BDA 9 data, having to ultimately analyze data pertinent 10 to work order 32. I assume this is the vegetative 11 stuff for the Loxahatchee refuge. 12 And you said that you had gotten an 13 updated version of it after doing some data 14 snooping. What are you referring to there? 15 A. To the best of my recollection, I think 16 what happened is I was given a floppy disk with 17 the data, and I was given a hard copy of the data, 18 and I think maybe there was some mismatch between 19 the hard copy and what was on the floppy disk. 20 Q. How did you resolve the apparent 21 discrepancy? 22 A. I called up Breedlove, Dennis and 23 Associates and/or I faxed them or talked to them 24 over the phone and told them where I thought the 25 discrepancies were and requested them to send me a JACK BESONER & ASSOCIATES, INC. 201 1 revised set of data. 2 Q. You also mention EAA to EMP study, 3 although this may be put on the back burner if the 4 loading estimate issue gets hot, did you ever 5 conduct that work or reach any conclusions or 6 final opinions regarding EAA loading or flows to 7 Everglades National Park? 8 A. No. As I said earlier, I believe 9 Dennis Lettenmaier and I met with Dick Slyfield in 10 May, and we identified stations that would be 11 important for that study, and I probably got as 12 far as me receiving flows from structures coming 13 out of the EAA, possibly Loxahatchee too, as well, 14 but then that was it. I didn't do anymore work on 15 it. 16 Q. Okay. Have you made any effort to go 17 back before the SWIM Plan period of record to '73 18 through '75 for their early data collections by 19 the district to see how concentration of 20 phosphorus in earlier years demonstrates increase 21 in loss of concentration over periods of time? 22 A. No. 23 Q. Have you seen any data sets for that 24 period of time at all, other than the flow and 25 concentration data that you've received from ES&P, JACK BESONER & ASSOCIATES, INC. 202 1 which I believe goes back to '72? 2 A. No. 3 Q. Let me show you a single page 1210217 4 and see if you recognize the handwriting on that. 5 A. That's mine. 6 Q. Okay. There are notes in there then in 7 which you mention Loftis. 8 A. Yes. 9 Q. Bill Loftis and various commentary on 10 Walker's report or report by Walker and people for 11 DOJ. When were these notes made? 12 A. To the best of my recollection, 13 sometime in the spring of '93. I believe these 14 are notes from a conversation that I had with Mr. 15 Blank. 16 Q. So you've never spoken with Loftis? 17 A. No. 18 Q. And on what basis was it suggested to 19 you Loftis held that Walker didn't do a good job 20 for accounting for dry years? 21 A. I'm sorry. Repeat the question. 22 Q. One of the notes there says or 23 attributes that Loftis -- according to your 24 writing. 25 A. Uh-huh. JACK BESONER & ASSOCIATES, INC. 203 1 Q. A comment -- an insight that Walker 2 didn't do a good job of accounting for dry years. 3 A. That was information that was conveyed 4 to me by Mr. Blank. 5 Q. I understood that. The question is: 6 What basis was provided to you that led you to 7 believe that was credible, I mean not that Mr. 8 Blank didn't say it to you? Do you understand 9 what I'm asking? 10 A. No. This is a transcription of a 11 conversation that I had. 12 Q. Was Loftis' basis for that view ever 13 communicated to you many? 14 A. I don't recall. 15 Q. Okay. Your notes claim that -- or your 16 statement that you reviewed Loftis reviewed 17 Walker's report and paper for DOJ, down if that is 18 the same report that you reviewed, the May '91 19 report or is it speaking about a different report 20 or reports? 21 MR. BLANK: By the May '91 report, 22 you're talking about the Loxahatchee report, 23 aren't you? 24 MR. FITZGERALD: Uh-huh. 25 THE WITNESS: I'm sorry. Can you tell JACK BESONER & ASSOCIATES, INC. 204 1 me where on the page you're referring to? 2 MR. FITZGERALD: Oh, I see. All right. 3 It's not there. 4 BY MR. FITZGERALD: 5 Q. Were you aware that Loftis reviewed 6 Bill Walker's May '91 report for the Department of 7 Justice? 8 A. The May '91? 9 Q. Uh-huh. 10 A. And that report had to do with 11 Loxahatchee or inflows to Everglades? 12 Q. Inflows to Everglades? 13 A. Yes, I think I was aware that he 14 reviewed that report. 15 Q. In your handwriting you attribute a 16 comment back to Loftis that a slight trend was 17 identified in phosphorus over the period of 18 record; is that correct? Is that what that note 19 means? 20 A. Yes. 21 Q. Do you know what that percentage of 22 trend or increase over that period of record was? 23 A. No. 24 Q. Who else was present during the 25 conversation in which you received these -- where JACK BESONER & ASSOCIATES, INC. 205 1 you received the paper? 2 A. At my end? 3 Q. Yes. 4 A. No one except myself. 5 Q. Oh, this was a telephone conversation? 6 A. Yes. 7 Q. Was it a conference call? 8 A. No. 9 Q. So no one was on but you and Mr. Blank? 10 A. As far as I know he was the only one 11 there. An assumption. 12 Q. As a result of your meeting with Dick 13 Slyfield, what's your understanding of how waters 14 reaches Everglades National Park through the 15 Central and South Florida Flood Control Project in 16 periods of low flood? 17 A. I would have to go back and review my 18 notes from that meeting. All I remember is that 19 the main point that I got was that it was a very 20 complicated system. 21 Q. I think you got, you know, the basics. 22 What is your understanding of the source of 23 inflows to Everglades National Park? 24 A. Again, I'd have to look at my notes, 25 but I recall the S-12 structures and some -- one JACK BESONER & ASSOCIATES, INC. 206 1 or two others, but I can't remember what their 2 labeling is. 3 Q. All right. Is 343 and 344 your -- 4 A. Yes, and if I recall, I think you're 5 supposed to subtract out of what goes through 344. 6 Q. Did you determine from your discussions 7 with Dick Slyfield whether water ever moves 8 directly from Lake Okeechobee to Everglades 9 National Park without going through -- over land 10 flow? 11 A. I don't recall. 12 Q. Did you ever evaluate Dr. Walker's 13 application, the seasonal Kendall test to 14 determine what happens if you leave the '84, '85 15 water year out of the analysis? 16 A. No. 17 Q. What caused you to make that comment in 18 your note, or ask yourself the parenthetical 19 question what happens if you do that? 20 A. It somehow came up in the conversation 21 when Dr. Lettenmaier and Slyfield and I were 22 talking. I don't recall the exact context. 23 Q. Were you aware that, in fact, Dr. 24 Walker did that in his analysis? 25 A. Now that you mention it, I think after JACK BESONER & ASSOCIATES, INC. 207 1 I wrote down that comment, then I think I later 2 read his report and saw that he did. 3 Q. Do you recall what it did to the trend 4 analysis? 5 A. No, I don't recall. 6 Q. And, in fact, did you excise that spike 7 year -- well, what question was focused on for the 8 '84 year? What was it that Slyfield told you that 9 it that raised that one year? 10 A. I don't recall. 11 Q. You weren't aware that there was a big 12 spike and phosphorus in Everglades National Park 13 that year? 14 A. I probably was at that time. 15 Q. At the time. Off the record. 16 (Discussion off the record.) 17 BY MR. FITZGERALD: 18 Q. Did anybody ever discuss with you the 19 inaccuracies that might enter that any flow load 20 calculation based on the use of historic rating 21 curves for the pumping structures? 22 A. In my conversations with Dr. 23 Lettenmaier, I'm aware that he's investigating 24 something along those lines. 25 Q. Do you understand how he intends to JACK BESONER & ASSOCIATES, INC. 208 1 cope with that potential problem? 2 A. I don't recall exactly what strategies 3 he's carrying out. 4 Q. You had a notation in your notes after 5 speaking with Dick Slyfield about asking John 6 Davis about, first, the model and second, the 7 validity of flow data, real or estimated. Did you 8 ever do that -- discuss that at inspection with 9 John Davis? 10 A. If I did, I don't recall. 11 Q. Okay. Let me show you a document 12 121210 and 233, a schematic of the Loxahatchee 13 National Wildlife Refuge. Who produced that 14 schematic? 15 A. I don't know who actually produced the 16 document. It was given to me during a meeting 17 that I attended with Dr. McClave. 18 Q. What work have you done with Dr. 19 McClave? 20 A. I've only met with him once about two 21 weeks ago. Dennis Lettenmaier and I and John 22 Davis met with him, and one other person from his 23 company, and I don't recall that gentleman's name. 24 Q. A statistician? 25 A. Yes. JACK BESONER & ASSOCIATES, INC. 209 1 Q. What was the purpose of that meeting? 2 A. The purpose was to discuss the work 3 that Dr. McClave had done analyzing the Appendix 4 "E" data and also the entry and access data. 5 Q. What analysis of the entry and access 6 data is Dr. McClave doing? 7 A. He earlier had done some work, and he 8 -- I believe he testified to this in his 9 deposition -- where he looked at a model where 10 that instead of taking the fourteen stage average, 11 the single response as the single response 12 variable, he divided Loxahatchee up into these 13 four quadrants and then fit some models allowing 14 for -- I guess, as I recall, allowing for a 15 different line -- different rep in the four 16 quadrants. 17 Q. Did the division into quadrants result 18 in different coefficients to a regression line or 19 fundamentally different correlations? 20 A. I don't recall whether the correlations 21 changed or not. 22 Q. Do you have any documents from that 23 meeting? 24 A. Only what was in my folder, which I 25 gave to him. And we gave copies to you. JACK BESONER & ASSOCIATES, INC. 210 1 Q. So none of that has been withheld on 2 the claim privilege so far as you know? 3 A. No, from that meeting this and 4 probably some handwritten notes are the only thing 5 that were in that folder. 6 Q. Were the notes dated? 7 A. I don't know. 8 MR. FITZGERALD: Counsel, do you know if 9 those notes were provided because I have seen 10 nothing? 11 MR. BLANK: I don't know. We will give 12 you a privileged list. I think the bulk of that 13 list relates to mediation materials. 14 Are we looking for handwritten notes? 15 THE WITNESS: Yes. 16 MR. BLANK: Would the date of these be 17 1/27/94? 18 THE WITNESS: Yes. 19 MR. BLANK: They will be on your 20 privileged list. 21 MR. FITZGERALD: What is the basis of 22 the privilege claim? 23 MR. BLANK: I suspect it's attorney work 24 product, but we will let you know when we give you 25 the list. JACK BESONER & ASSOCIATES, INC. 211 1 BY MR. FITZGERALD: 2 Q. Was there an attorney meeting? 3 A. No, we were all surprised. 4 Q. Who scheduled that meeting? 5 A. It just evolved out of a consensus 6 between Dr. McClave and Dr. Lettenmaier and myself 7 after we had a phone conversation. 8 Q. Who set up the phone conversation? 9 A. Mr. Blank, I believe, was the one who 10 directed me to get in touch with Dr. McClave. 11 Q. Are you reviewing Dr. McClave's work? 12 A. No. 13 Q. Then what was your purpose for meeting 14 with Dr. McClave? 15 A. To find out exactly what he has done 16 with regard to the limits in the Loxahatchee, it's 17 analysis, and part of it was to make sure that we 18 weren't duplicating effort. 19 Q. And what is your understanding of what 20 he's doing with respect to the limits in 21 Loxahatchee as opposed to what you're doing? 22 A. As I said, he's looking at a different 23 model where he's divided up Loxahatchee into these 24 four quadrants. Rather than just taking an 25 appendix, he used the model. JACK BESONER & ASSOCIATES, INC. 212 1 Q. Are these regression, his models? 2 A. Yes, I believe so. 3 Q. Do you know what kind of fit he was 4 getting in the individual sets -- quadrants? 5 A. The main point that I remember is that 6 the variability was a bit higher If you partition 7 it up into different quadrants. So the limit is 8 obviously going to be higher. 9 Q. Do you remember what that kind of 10 numbers you're talking about in parts per billion 11 of those limits? 12 A. No, I can't recall. 13 Q. What was Dr. McClave's expressed 14 rationale, if any, for engaging in this construct 15 in Loxahatchee rather than treating it as a 16 hydrological unit? 17 A. Well, any time you take average, you're 18 going to mask any sort of individual relationship 19 that you might see. So he was concerned about 20 looking to see how the -- as I said, looking to 21 see whether the model -- when you get a similar 22 type model in the four quadrants, whether the 23 limits are similar or what happens. 24 Q. Was there similarity among the 25 quadrants at all? JACK BESONER & ASSOCIATES, INC. 213 1 A. To my best recollection, I think the 2 relationship with stage was similar, but as I say, 3 the variability increased so that the limits 4 increased. 5 Q. Okay. As I understand it, that's the 6 result you'd expect as a result of dividing the 7 area up because you are increasing the 8 variability. 9 A. You're reducing the sample size on 10 which you're basing an average. If you only -- if 11 you take the average just at the station, say in 12 quadrant 3, there are no longer fourteen stations. 13 It's three stations or whatever, and the variance 14 of an average is -- the general formula is the 15 population variance divided by the sample size. 16 Q. Do you agree that's a valid mechanism 17 for considering or modelling the Loxahatchee 18 refuge? 19 A. I think it's a valid alternative to 20 consider. 21 Q. How would you go about determining 22 whether it is ultimately preferable to treating 23 the refuge as a unit -- a single unit rather than 24 four compartments? 25 A. There are a lot of different ways that JACK BESONER & ASSOCIATES, INC. 214 1 you can go about doing that. One possible method 2 is to look at site entry and access period, and 3 say -- for example, assume that the limits are -- 4 in effect, look at whether you're in compliance or 5 out of compliance based on the limits in Appendix 6 "E" to have the entry and access period. 7 It may be that in cases where you are 8 "out of compliance", and it's actually only due to 9 a couple of stations rather than all these 10 stations. So in that case it may make sense to 11 look at a model where, in instead of averaging 12 everything so that you loose the spatial 13 information, it may be preferable to look at a 14 model like this. 15 Q. In your public policy purposes to 16 achieve a certain level or limit in phosphorus 17 within an area you desire to protect -- isn't it 18 counter-intuitive to subdivide the area in a 19 manner that's guaranteed to suggest higher limits 20 that may not be justifiable on a biological 21 basis? 22 MR. BLANK: Object to the form of the 23 question. 24 THE WITNESS: I don't agree with that. 25 If I tell turns out that, for example, stations in JACK BESONER & ASSOCIATES, INC. 215 1 this area are almost all the time in compliance, 2 whereas stations in this area happen to be out of 3 the compliance for some reason, then it makes 4 sense to try and figure out why those particular 5 stations are out of compliance. 6 I mean, it's the -- it's similar to -- 7 in the case of monitoring hazardous waste sites 8 under RCRA regulations, under those regulations 9 the operator of the hazardous waste facility is 10 instructed to look at each down gradient. Well, 11 the person doesn't take an average of those. The 12 person looks at each of those down gradients as 13 well and compares it to the background. 14 BY MR. FITZGERALD: 15 Q. Based on the work as explained to you 16 by Dr. McClave, which of the quadrants are most 17 likely or under his analysis like to the be out of 18 compliance on a regular basis? 19 A. I don't recall. 20 Q. Did he not, in fact, divide the 21 quadrants up so that the influence of the S-5A and 22 S-6 are each restricted to the smallest possible 23 quadrants? 24 MR. BLANK: You're assuming prism 25 influence from 5A and 6. JACK BESONER & ASSOCIATES, INC. 216 1 BY MR. FITZGERALD: 2 Q. You're familiar with the source of the 3 surface flowing water, aren't are you, Doctor? 4 A. Yes. 5 Q. They are S5-A and 6, aren't they? 6 A. Yes. 7 Q. The ones you've been looking at in your 8 flow data. 9 A. Yes. 10 Q. Did he not construct his quadrants, in 11 fact, not even characterize them as quadrants 12 based on the chart that you're looking at and 13 that's been constructed to bracket with one 14 quadrant each taking in the surface water inflow 15 points, and that also demonstrates the highest 16 levels of phosphorus in surface water column in 17 Loxahatchee, right? I mean, you've looked at the 18 data. 19 MR. BLANK? What's the question? 20 MR. FITZGERALD: And I think it calls 21 for a yes or no at this point. 22 MR. BLANK: What is the question 23 though? 24 BY MR. FITZGERALD: 25 Q. Is that not the effect of what Dr. JACK BESONER & ASSOCIATES, INC. 217 1 McClave has done? 2 MR. BLANK: I'm going to object to you 3 asking the witness to testify as to the rationale 4 of what Dr. McClave may have used to devise this 5 or -- if you know. 6 MR. FITZGERALD: I'm not asking the 7 rationale, counsel. I understand that he can't 8 answer as to what Dr. McClave's plans were, but he 9 can say yes, that is the effect, and that is the 10 question that is pending. 11 BY MR. FITZGERALD: 12 Q. Is that not the affect of what Dr. 13 McClave has done? 14 A. Is what the affect? 15 Q. Has not Dr. McClave partitioned the 16 refuge in such a way that the two areas most 17 likely -- the two areas that are under the 18 greatest influence of the two surface water inflow 19 points are also the two areas most likely to be 20 out of compliance based on the historical data 21 from the sampling sites? 22 A. I can't answer your question for two 23 reasons. The first reason is that I can't say 24 that this is the area most under the influence of 25 a structure because I don't know what you mean by JACK BESONER & ASSOCIATES, INC. 218 1 influence and what's been proved. 2 Q. Do you understand the flow path 3 hydrologically of surface water entering 4 Loxahatchee from S5-A? 5 A. In general, yes. 6 Q. Where does the water come from? From 7 Dick Slyfield, I presume, or do you have some 8 other source for this information -- 9 A. The water can either flow through 10 Loxahatchee or can go through the canal. 11 Q. That's the extent of your understanding 12 of the flow pattern? 13 A. Yes. 14 Q. And what is your understanding of the 15 flow pattern of 4S-6? 16 A. Similar. It can go out into 17 Loxahatchee or it can go through the canal. 18 MR. FITZGERALD: All right. Why don't 19 we stop here. We can pick up tomorrow. 20 (Thereupon the deposition was concluded.) 21 22 23 24 25 JACK BESONER & ASSOCIATES, INC. 219 1 CERTIFICATE OF OATH 2 3 STATE OF FLORIDA 4 COUNTY OF DADE 5 6 I, the undersigned authority, certify 7 that Steven P. Millard, Ph.D., personally appeared 8 before me and was duly sworn. 9 10 WITNESS my hand and official seal this 11 22nd day of February, 1994. 12 13 14 _________________________ 15 Lora Lee Knorr 16 Notary Public, State of Florida 17 My Commission Expires: 18 April 30, 1995 19 20 21 22 23 24 25 JACK BESONER & ASSOCIATES, INC. 220 1 CERTIFICATE OF REPORTER 2 3 4 5 STATE OF FLORIDA: 6 COUNTY OF DADE: 7 8 I, Lora Lee Knorr, Certified Shorthand 9 Reporter, certify that I was authorized to and did stenographically report the foregoing deposition; 10 and that the transcript is a true record of the testimony given by the witness. 11 I further certify that I am not a relative, employee, attorney, or counsel of any of 12 the parties nor am I a relative or employee of any of the parties' attorney or counsel connected with 13 the action, nor am I financially interested in the action. 14 Dated this 22nd day of February, 1994. 15 Lora Lee Knorr 16 Certified Shorthand Reporter ACKNOWLEDGMENT 17 STATE OF FLORIDA 18 COUNTY OF DADE The foregoing certificate was 19 acknowledged before me this 22nd day of February, 1994, by Lora Lee Knorr, who is personally known 20 to me. 21 ___________________________ 22 23 24 25 JACK BESONER & ASSOCIATES, INC. 221 1 READING AND SIGNING 2 3 4 I have read the above transcript, pages 1 5 through 218 and I find: (MARK ONE) 6 7 ( ) The transcript is true, correct, and 8 completely accurate. 9 10 ( ) The transcript is true, correct, and accurate, 11 except as set forth in my List of Corrections 12 attached hereto, citing page and line and reason 13 for the correction realizing that, for this 14 purpose, I am still under oath. 15 16 _______________ _________________________ 17 (DATE) STEVEN P. MILLARD, Ph.D. 18 19 20 Sworn to and subscribed before 21 me this______day of____________, 1994. 22 ___________________________ Notary Public 23 My Commission expires: 24 25 JACK BESONER & ASSOCIATES, INC. 222 1 TO BE EXECUTED BY THE NOTARY IF THE DEPONENT DOES 2 NOT SIGN: 3 4 5 6 I hereby certify that a letter with reference 7 to reading and signing deposition was mailed to 8 the witness through his attorney, on 9 ___________________, 1994, and that the witness 10 ( ) Witness refused to sign, giving the following 11 reason: 12 ( ) Neither the witness nor his attorney has 13 responded to request to read and sign. 14 15 16 _______________ ___________________________ 17 (DATE) Notary Public 18 MY COMMISSION EXPIRES: 19 20 21 22 23 24 25 JACK BESONER & ASSOCIATES, INC.