1 1 DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA 2 CASE NOS. 92-3038 3 92-3039 92-3040 4 sugarcane GROWERS COOPERATIVE OF ) 5 FLORIDA, et. al., ) ) 6 Petitioners, ) ) 7 vs. ) ) 8 SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, ) 9 ) Respondent. ) 10 ) UNITED STATES OF AMERICA, et. al.,) 11 ) Intervenors ) 12 13 14 99 Northeast 4th Street Miami, Florida 15 March 30, 1994 9:09 a.m. - 12:20 p.m. 16 1:31 p.m. - 4:50 p.m. 17 18 19 Deposition of Doctor William H. Patrick, Jr. 20 21 Taken before Stan Seplin, Certified Shorthand 22 Reporter and Notary Public in and for the State of 23 Florida at Large, pursuant to Notice of Taking 24 Deposition filed in the above cause. 25 - - - - - - - JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 2 1 APPEARANCES: 2 3 ON BEHALF OF THE PETITIONERS: 4 Earl, Blank, Kavanaugh & Stotts, P.A. 5 Two South Biscayne Boulevard, Suite 3636 Miami, Florida 33131 6 BY: Mark Kobelinski, Esq. 7 ON BEHALF OF THE UNITED STATES: 8 United States Department of Justice Environmental and Natural Resources Division 9 Post Office Box 663 Washington, D.C. 20044-0663 10 BY: Susan H. Ponzoli, AUSA 11 ON BEHALF OF THE RESPONDENTS: 12 Popham, Haik, Schnobrich & Kaufman, LTD. 100 Southeast 2nd Street, Suite 4000 13 Miami, Florida 33131 BY: Paul L. Nettleton, Esq. 14 15 - - - - - - - 16 I N D E X 17 WITNESS DIRECT CROSS Dr. W.H. Patrick, Jr. 3 -- 18 GOVERNMENT'S EXHIBITS 19 Patrick One - Page 14 Patrick Two - Page 167 20 21 22 23 24 25 JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 3 1 Thereupon: 2 Doctor William H. Patrick, Jr., 3 was called as a witness by the United States, and 4 after being first duly sworn, was examined and 5 testified under oath as follows: 6 DIRECT EXAMINATION 7 BY MS. PONZOLI: 8 Q. Sir, would you please state your name, 9 for the record. 10 A. William H. Patrick, Junior. 11 Q. And would you please give us your 12 business address and phone number. 13 A. My business address-- my university 14 address is the Wetland Biogeochemistry Institute, 15 Louisiana State University, Baton Rouge, Louisiana 16 70803. 17 My private address as a consultant, is 18 888 Dubois, D-u-b-o-i-s, Baton Rouge, 70808. 19 Q. Doctor Patrick, for the record, I'm 20 Susan Ponzoli, and I represent the United States in 21 this DOAH proceeding, and I will be asking you 22 questions. 23 If any question is unclear to you, 24 please indicate and I'll try to rephrase the 25 question better for you, so that we're clear that we JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 4 1 are understanding each other. 2 A. Yes. 3 Q. That will work for you. 4 You have had your deposition taken 5 before, Doctor Patrick? 6 A. Yes. 7 Q. How many times? 8 A. Maybe a dozen. 9 Q. Just briefly, what were those cases? 10 A. I'll recite as many as I can think of at 11 the moment. 12 One was a deposition taken in relation 13 to-- as a consultant to the Justice Department in a 14 404 wetlands litigation in the Western District of 15 Louisiana. 16 Another was a deposition taken as a 17 consultant to the Justice Department in relation to 18 contamination of the Naval Weapons Station at 19 Concord, C-o-n-c-o-r-d, California. 20 Q. If I may interrupt you, Doctor Patrick, 21 when you were consultant to the DOJ in the 404 22 wetlands litigation, what was the year? 23 A. The 404 case was the so-called marsh 24 case, which was the first major wetlands litigation, 25 and that was in approximately 1980. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 5 1 Q. You were the consultant to the United 2 States at that time? 3 A. Yes. 4 Q. And the issue in that case was 5 jurisdictional in nature? 6 A. Yes. 7 Q. And was it-- did it focus on what was a 8 wetland and what wasn't? 9 A. Yes. 10 Q. And in the second, the contamination of 11 the Naval-- 12 A. Weapons station. 13 Q. Weapons station, was when? 14 A. That was about three years ago, I think. 15 Q. Was that a toxic pollutant case? 16 A. Yes. 17 Q. What was toxic in that case? 18 A. A number of toxic heavy metals; lead, 19 arsenic, cadmium and ammonium. 20 Q. Please go on. I may ask you questions 21 about each one. If you want to pause between, I just 22 might ask you a question about it. 23 Was there a name to this? 24 I'm sure there was, the Naval Weapons 25 Station. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 6 1 Do you recall? 2 Was it pre-filing of a case, or-- 3 A. The suit was against Allied Signal, and 4 I don't recall the name of the case, itself. 5 Q. Okay. 6 A. It was the U.S. Navy, of course, the 7 federal installation, but, of course, Justice 8 handled the litigation. 9 Another case, I think-- then I was-- I 10 have given two or more depositions as a consultant 11 to the State of Florida in the phosphate mining 12 litigation in-- on the Peace River in Polk County, 13 Florida, which dealt with an ordinary high water 14 line, encroachment within the ordinary high water 15 line by phosphate mining. 16 Q. Were you testifying on behalf of the 17 State? 18 A. Yes. I gave depositions on behalf of 19 the State. 20 The case was settled without trial. 21 MR. KOBELINSKI: Is that the one that 22 David Guest was involved in? 23 THE WITNESS: Yes. 24 No, sorry. That was another one. 25 I guess you mentioned David Guest. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 7 1 I was also a consultant to the 2 Attorney-- in both-- all these cases, I was 3 consultant to the Attorney General's Office, either 4 directly or indirectly, but in the case in which I 5 was involved with David Guest, I was a consultant to 6 the Attorney General's Office to the State of 7 Florida, which David Guest handled in the surveyor's 8 rule litigation for determination of ordinary high 9 water line in the State of Florida. 10 BY MS. PONZOLI: 11 Q. That was the Peace River, also? 12 A. No. 13 Q. It wasn't? 14 A. No. It involved all streams. 15 Peace River was one of the streams, but 16 it was a general surveyor's rule that was being 17 proposed. 18 Q. And you gave a deposition in that, also, 19 you believe, or-- 20 A. Yes, I gave a deposition, and I 21 testified in the administrative court hearing. 22 Q. So you have testified in DOAH before, 23 the Division of Administrative Hearings? 24 A. Yes. 25 Q. Is that the first time you have JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 8 1 testified in DOAH before, the-- 2 A. Who? 3 Q. The Division of Administrative 4 Hearings. 5 A. In Florida, yes. 6 Q. You want to go on, what you recall? 7 A. While I'm on ordinary water lines, let 8 me go down the line on those. 9 I had testified as a consultant to-- for 10 Leslie Salt Company in San Francisco on an ordinary 11 high water line case involving the State Lands 12 Commission for the State of California, which 13 involved the-- determining the ordinary high water 14 line in South San Francisco Bay from 1850, when 15 California came into the union. 16 Well, in the first case, this was 17 settled before-- I gave a deposition in this, and it 18 was settled for-- right before it went to trial. 19 I have-- I am presently involved in 20 another ordinary high water line case in South San 21 Francisco Bay, a very similar case, which involves 22 another area of land, and the-- in determining 23 ordinary high water line, determining if a certain 24 land area was above ordinary high water line in 25 1850, when the Swamp and Overflow Act came into JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 9 1 effect. 2 Q. Do you have a name for that case? 3 A. Yes. It's Smith. Smith is the name of 4 the case. 5 It's California-- maybe State of 6 Florida, or California, rather, Land Commission, 7 versus Smith, I think, and I have given a 8 deposition, and it's scheduled for trial in the next 9 weeks or months. 10 I have completed my study and given a 11 deposition. 12 Q. And your study helps delineate the high 13 water line? 14 A. No. It delineates the high water line. 15 Q. I stand corrected. 16 All right. What else? 17 A. I did a study-- oh, incidently, in all 18 of these cases I have indicated, I did both a study 19 and testified, but in addition, I did a study in 20 Orange County, California, on-- to determine if some 21 existing salt marshes were above ordinary high water 22 line, in-- when California obtained title to this 23 land, the same issue as earlier. 24 This was-- was essentially for the 25 Irvine, I-r-v-i-n-e, Company, although the JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 10 1 organization that engaged me was the title insurance 2 company, who had guaranteed the title of this land. 3 I gave a deposition years ago, maybe 15, 4 20 years ago, in federal court in Phoenix, on the 5 effectiveness of a certain soil treatment-- 6 Q. Effectiveness of a soil treatment for 7 what purpose? 8 A. To determine the value of this patented 9 method of soil treatment. 10 Q. What was the purpose of the soil 11 treatment? 12 A. It was to improve the structure and 13 productivity of soils. 14 It was an algae-- addition of a certain 15 type of algae that had the capacity to improve the 16 structure, and thereby the rooting characteristics 17 of soils, that would enhance crop production. 18 It was proposed, or supposed to enhance 19 crop production. 20 Q. There was litigation over this? 21 A. Yes. 22 The litigation had to do-- the First 23 Mississippi Corporation had bought this patent, or 24 had bought a company who held this patent, and I am 25 not at this time clear on just what the legal issue JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 11 1 was, but it had to do-- my role had to do with the 2 evaluation of the effectiveness of this treatment 3 method. 4 Q. Was it basically a patent case? 5 Do you recall? 6 A. I think-- as I recall, it didn't involve 7 the ownership of the patent. It involved the 8 effectiveness of the treatment system, and-- which 9 involved the value of it in this purchase of the 10 company. 11 Q. All right. Any others? 12 A. Or-- it's-- it's easy to forget 13 depositions. 14 Q. They are not very memorable events. 15 A. There have been others. 16 Q. Do you recall approximately how many 17 others, Doctor Patrick? 18 A. I just recalled another one, recently. 19 Another one was a deposition given in 20 response to a study I did on the extent of wetlands, 21 in a development north of Atlanta, Georgia, in a 22 case that involved the land-- the development, which 23 was Mobil land, and the Environmental Protection 24 Agency. 25 Q. Were you testifying on behalf of Mobil JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 12 1 land or the EPA? 2 A. I was testifying on behalf of Mobil 3 land, and I only gave a deposition. The case was 4 settled. 5 Q. There seems to be a pattern here. 6 Have you ever given expert testimony 7 and/or depositions, Doctor Patrick, on the issues 8 which you will be giving expert testimony in this 9 proceeding? 10 A. There are so many issues in this 11 proceeding-- you have noticed that I'm being careful 12 to try to think. 13 The-- I will answer that in this way: 14 Some of the techniques and methods that I have used 15 in this case, are also those that I have used in 16 other litigation. 17 Q. And what are those, specifically? 18 A. Those have to do with certain types of 19 chemical analysis. 20 They have to do with certain types of 21 dating procedures. 22 That is the main-- those are the main 23 points that I can think of at the moment. 24 Q. Which of the chemical procedures have 25 you used in other cases, that you will be using JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 13 1 here, or chemical analysis? 2 A. One would be the distribution of 3 chemical components with depth, in wetlands. 4 Another would be the measurement of 5 accretion rates, using Cesium 137 dating in 6 wetlands. 7 Those are the two I can think of. The 8 first is rather general, involving a number of 9 chemical elements, and the second is a specific 10 dating technique. 11 Q. Do you recall any other depositions that 12 you have given at the moment? 13 I understand this is a long period of 14 time. I'm just trying to-- 15 A. Yes, and as I say, I have a poor memory 16 for depositions. 17 Many of them, I don't recall with a very 18 great pleasure-- 19 Q. This one will be different. 20 A. But as this deposition goes along, if I 21 think of others, I will be sure to mention them. 22 Q. I would appreciate that. 23 I would like to show you your notice of 24 taking deposition. I guess we'll just make it an 25 exhibit. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 14 1 (The document referred to 2 was thereupon marked as 3 Patrick Exhibit Number 4 One for Identification, 5 a copy of which is attached 6 hereto.) 7 BY MS. PONZOLI: 8 Q. Patrick Number One-- Doctor Patrick, did 9 you read through this and determine with one of your 10 attorneys, that you had produced the documents that 11 were requested in this particular notice? 12 A. Oh, yes. 13 Q. I would like to-- excuse me. Go ahead. 14 A. Can I interject? 15 Q. Yes. 16 A. Seeing John Lipschultz's name here, 17 reminds me that I also did a study, gave depositions 18 and testified in court on a wetlands case involving 19 Leslie Salt in the Ninth Circuit, I think it's the 20 Ninth Circuit, which-- 21 Q. Fifth? 22 A. San Francisco? 23 MR. KOBELINSKI: Ninth. 24 THE WITNESS: The Ninth Circuit in San 25 Francisco. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 15 1 BY MS. PONZOLI: 2 Q. You are the Fifth. 3 A. This is Fifth here? 4 Q. We're Eleventh. They split the Fifth in 5 half, and part of it is Alabama, Louisiana, and 6 Florida was split in-- 7 A. Fifth is New Orleans? 8 Q. Right. 9 A. Okay. 10 Q. So you worked with John in that case? 11 A. No, I worked against him. 12 Q. Oh, I see, and you-- 13 A. Leslie Salt. 14 Q. Okay. 15 A. And the Justice Department attorney was 16 a young woman, whose name I can't think of now, 17 but-- 18 Q. Mr. Lipschultz was supposed to do your 19 deposition, but he had a mercury conflict, so-- 20 Off the record. 21 (Off the record discussion.) 22 BY MS. PONZOLI: 23 Q. I would like to just walk through it, 24 Doctor Patrick, not that I think something has 25 consciously been held back, but sometimes when a JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 16 1 person sits in a deposition, they remember something 2 that they didn't remember before, and are able to 3 obtain it. 4 The resume we were provided, I can show 5 you, and I'll be introducing it later-- in response 6 to number one (indicating). 7 MR. KOBELINSKI: Page three. 8 BY MS. PONZOLI: 9 Q. I'm on page three. I'm sorry. 10 A. You're on page three? 11 Q. Yes. I'm skipping all the introduction. 12 They asked you to produce everything you 13 have attached-- they are all inclusive. Everyone 14 sends the same instructions. 15 And I'm showing you what has been 16 produced to me. 17 Do you have a different or another CV, a 18 recent one, Doctor Patrick? 19 A. This is 2-94. 20 This is the most recent one that I 21 recall compiling (indicating). 22 Q. All right. 23 A. So I don't think I have a more recent 24 one. I don't think I have added to my resume since 25 then. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 17 1 Q. Is this the standard one that you use, 2 Doctor Patrick, or do you have a different format 3 that you might use, and-- in other purposes? 4 A. No. I use this general one for-- as I 5 recall, for everything that I'm asked to provide. 6 Q. I only ask because the format is 7 somewhat different. 8 A. Oh, yes, that's right. 9 Q. From what I'm accustomed to seeing. 10 I thought maybe you had a different 11 format that you could share with us. 12 A. I use that format. 13 Q. Yes, sir. Number two, a list of the 14 technical and scientific publications, and I believe 15 you did provide us with that list. 16 Isn't that right? 17 A. I-- yes. 18 Q. You certainly got a long list. 19 A. Yes. I provided it. 20 I provided it to the law firm of Earl, 21 et. al. 22 I presume they provided it to you. 23 Q. They did provide it to me, and I 24 actually checked off the publications that were 25 included, but there were additional publications JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 18 1 that I would like to very much receive a copy of, 2 and I had thought this letter would go out prior to 3 your deposition, but it didn't, so I'm going to pass 4 it to you now (indicating). 5 MR. KOBELINSKI: Are these from the list? 6 MS. PONZOLI: They are from the list, and 7 I would like to request that if you can, that you 8 look over that list, maybe on a break or lunch or 9 something, Doctor Patrick, and tell me if it's going 10 to be a problem for you to provide me, after your 11 deposition, copies of these documents (indicating). 12 THE WITNESS: Well, I can answer that 13 now. Anything on my list can be provided, is 14 available. 15 MS. PONZOLI: All right. I would 16 appreciate it. 17 MR. KOBELINSKI: Do you want me to take 18 this one? 19 MS. PONZOLI: No. That was the original. 20 I thought that was going out in the last several 21 days. 22 I would appreciate it. 23 THE WITNESS: I will provide it. You 24 sent a letter to my address, requesting those. 25 MR. KOBELINSKI: I'll arrange to-- JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 19 1 production of them. 2 MS. PONZOLI: Okay. 3 THE WITNESS: I find my memory is not so 4 good during a deposition, and-- when I say I will do 5 this and that. 6 BY MS. PONZOLI: 7 Q. We all suffer from that. We might have 8 50 problems, and the problems are crowded out of our 9 mind. 10 Number three, provide the copies which 11 relate-- that were on the list, that relate to the 12 subject matter of your expected testimony. 13 I have a number of documents here, and I 14 guess I have some desire to be relatively thorough 15 about this, Doctor Patrick. 16 Do you want to just look through your 17 list at a later point and make sure, or do you feel 18 confident-- I can show you what's been provided to 19 me, and you can tell me, again, "Those are the only 20 ones that will pertain to my testimony at trial." 21 You want to do it that way? How is best 22 for you? 23 This is the-- 24 A. Yes. This is-- it is difficult for me 25 to dogmatically say those are the only ones from JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 20 1 which I have obtained any information for my 2 testimony at trial, since I can't anticipate what I 3 will be asked. 4 And those that I provided you are 5 representative, at least, of all of the factors that 6 I can think of that will be involved, but I will 7 admit that there are other publications that relate, 8 either in-- at least in a peripheral way, to the 9 issues here, and I will be pleased to provide you 10 with copies of every published article that you see 11 on that list, because we keep a current file of 12 those. 13 Q. Well, I have to tell you, I find it hard 14 to believe that the ordinary high water line issues 15 are relevant here. 16 You would admit those probably have only 17 the most peripheral relevance, at best, to our 18 opinions? 19 A. Yes. 20 Q. So all 300 of your articles, which I 21 believe is what I have been told you have-- it 22 wouldn't do me any good. It would be an interesting 23 addition to a huge document collection. 24 A. Well-- 25 Q. I think I'm trying to narrow it down, JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 21 1 Doctor Patrick. 2 A. Well, that-- Ms. Ponzoli, that was my 3 intention in selecting the documents here. 4 Q. Right. 5 A. I didn't want to inundate you with 6 everything just to impress you. 7 Q. I'm impressed. 8 A. Well, once you-- one should accomplish 9 something in 40 years of effort. 10 Q. I think what I would like to ascertain, 11 but-- what we have happen a great deal between the 12 attorneys and then scientists, is little slips, and 13 we understand things differently, so I'm just trying 14 to nail down that the communication that went 15 between you and your attorney for the articles that 16 we had requested, I do, in fact, have those key 17 articles, so I thought I had asked for one of these 18 publication lists, and I guess I would ask you to-- 19 do you recall which one you kicked off on the 20 publication list, if I were to give you a 21 publication list? 22 A. No. 23 Q. How are we going to narrow this down? 24 Help me here. 25 I can hand you the pile of documents, or JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 22 1 I can hand you the list. 2 A. Well, the only way I know to do it 3 completely, is for me to take the documents that you 4 have been provided, and the list, and check them off 5 and see which once you have, and then you can look 6 at the corrected list and choose other documents 7 that you might want to have. 8 Q. I think that would help. 9 A. But this could also be done with anyone 10 else, since they all have titles and citations. 11 Q. Well, in other words, if you just go 12 through the list, you are confined to indicate from 13 that, and then I can have a paralegal check that we 14 have pulled every one. 15 If I were to ask you to highlight on my 16 list which ones you think are relevant, I can just 17 ask you to-- if you have all of those, and then I 18 can request them. 19 Does that seem to narrow it? 20 A. It would narrow it somewhat, but if I 21 listed every document-- if I indicate every document 22 that had any relationship at all to the issues here 23 of environmental chemistry, it would involve most of 24 those, and so I don't know really how to respond. 25 Q. Well, tell me this-- JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 23 1 A. Because I could-- I could miss a 2 document that-- I could leave out a document that 3 one could say, "Well, this contains information on 4 phosphorus, you know, and this might not be relevant 5 to this case," so-- 6 Q. I understand, and I understand that 7 that's a difficult thing to do, so I guess what 8 we'll do, I'll ask you to simply confirm that these 9 documents that we've been provided, are the dominant 10 documents. 11 You made a cut last time, and I'll just 12 ask you to make sure that that cut, has, in fact, 13 occurred, and why don't we do that later, if you 14 want to take a little break or something-- 15 A. Yes. I'll be pleased to do that. 16 Q. That's not a difficult task. 17 A. I will contend, again, all-- almost 18 regardless of any selection I make, I contend that 19 this omitted documents have some peripheral 20 relationship to this case, so if I were to be on the 21 safe side, I would provide you with a copy of every 22 document in my resume. 23 Q. I understand the point you're making. 24 You made a couple before, and I would 25 like you to make that again. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 24 1 All right. Number four, paragraph four, 2 have you provided all of those documents that relate 3 particularly to this topic listed (indicating)? 4 A. Provide all documents, data or-- I 5 provided all the documents, except those that were 6 correspondence with attorneys, in which I was told 7 was protected-- were protected documents. 8 MS. PONZOLI: Is your intent to do a 9 privileged list? 10 MR. KOBELINSKI: Yes. 11 I would also note-- again, I'm not-- I 12 haven't thoroughly gone through what Doctor Patrick 13 has produced, but, for instance, I see a number of 14 things here with regard to, for instance, the data 15 collected in Loxahatchee-- I know that was turned 16 over before, and-- I'm not saying it was not, but if 17 it was not specifically included, that I have been 18 produced a couple of times, and, you know, a-- to 19 the extent that it will become clear in the 20 deposition that Doctor Patrick has reviewed some of 21 Doctor Davis' or some of Curt Richardson's that was 22 produced previously, again. 23 I'm not sure that was again reproduced. 24 He has produced all his own data, and 25 looking at that, I would assume, more than that, but JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 25 1 there was no concerted effort to start replacing 2 previously produced documents. 3 MS. PONZOLI: I understand what you're 4 saying, and I'm not going to quarrel with it at an 5 initial level. 6 I want to wait and see what Doctor 7 Patrick says are the documents he's relying upon, 8 but it may be that I will have to have those 9 documents in a discrete package, because-- and I'm 10 not saying this is confined to the League or the 11 Cooperative or anything. I'm sure the complaint can 12 be made to the United States, given the volume of 13 documents, the pace of the deposition, the way 14 documents appear on sort of a daily basis for a 15 single deposition-- it would be difficult for me to 16 have really any rational idea what has been produced 17 of Doctor Richardson's deposition. 18 MR. KOBELINSKI: I understand. I don't 19 think you will find any problem. 20 THE WITNESS: I would like to amend my 21 answer to the earlier question. 22 MR. KOBELINSKI: That's not his current 23 resume. 24 Just kidding. 25 THE WITNESS: To say that there may be a JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 26 1 document or two that has fallen through the cracks. 2 For example, I think I discovered the 3 results of my redox potential studies-- that I did 4 not provide that in this initial group. 5 My excuse for having at least that 6 document, and maybe another couple of documents 7 falling through the cracks that I don't know about, 8 is that I assembled these documents, I think the day 9 before I left for several weeks in Asia, and I may 10 not have given it the care I would have if I had 11 unlimited time, but to the best of my knowledge, I 12 provided all of them. 13 MR. KOBELINSKI: That redox, I believe, 14 was produced for John Davis, but it's handy at the 15 office. 16 It was actually on there, it was Bill 17 Patrick's data, and again, if that's something you 18 feel the need-- that's something released late 19 yesterday on-- that's sort of an exception of what I 20 was talking about. 21 MS. PONZOLI: I would like that. If you 22 can get that bundle sent over here today when we 23 take a break, if you make a phone call and ask that 24 that discrete bundle be sent over-- 25 MR. KOBELINSKI: About seven pages. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 27 1 MS. PONZOLI: That's a very doable task. 2 MR. NETTLETON: Can I get one, too? 3 MR. KOBELINSKI: No. 4 BY MS. PONZOLI: 5 Q. So other than correspondence with the 6 attorneys, which will appear on the privileged list, 7 we're going to nail down what these Davis and 8 Richardson documents entailed, which you reviewed. 9 Do you know what that is? Are you aware 10 of the ones that you reviewed, that were not 11 provided here? 12 A. No. I can't-- I can't immediately think 13 of it, no. 14 Q. To make this simple for you, so that-- I 15 want to do this as cleanly as possible, because 16 we're really down to the wire-- 17 I want to go through the areas that 18 you're going to testify on, and I want you to tell 19 me, "In this area I'm going to be giving these three 20 dominant opinions, and these are the pieces of data 21 and the documents I'm relying on for that opinion," 22 and I'm going to go through area by area, and I want 23 you to tell me the documents-- I'll have you 24 identify the documents for me, and if there are 25 others, we'll very clearly delineate what those are. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 28 1 Maybe that will help when we get to 2 Davis and Richardson, so when we-- in other words, 3 "Part of my opinion is coming from Doctor 4 Richardson's whatever." 5 Will that do it? 6 A. Yes. I'll do that to the best of my 7 knowledge. 8 Q. There is mention here of mercury data. 9 Did you, in fact, provide mercury data, 10 Doctor Patrick? 11 A. Yes. 12 Q. Someone told me it's in here, and-- 13 MR. KOBELINSKI: She's asking whether or 14 not you produced mercury data. 15 BY MS. PONZOLI: 16 Q. You did produce mercury data in your 17 documents? 18 A. No. 19 Q. Are you relying on mercury data for any 20 of your testimony? 21 A. No. At least I was-- it's my 22 understanding I would not be asked to testify in 23 relation to mercury data. 24 Q. You have, in fact, done mercury work, 25 though, in the Everglades area in the past; have you JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 29 1 not? 2 A. Yes. 3 Q. And was that it, Doctor Patrick? 4 A. There were studies. 5 The first was done to determine the 6 amount of mercury emitted into the atmosphere, as a 7 result of sugar cane burning before harvest. 8 Q. When was that done, the years? 9 A. About three years ago. 10 Q. And how long a study was that? 11 A. It lasted through a harvest season, the 12 fall and spring. 13 Q. And on whose behalf did you do that 14 study? 15 A. For the Sugar Cane League. 16 Q. Do you remember the cost of that study? 17 A. No, I don't remember the exact cost. 18 I-- 19 Q. I have a chart-- did you work in 20 conjunction with WBN on that? 21 A. No. 22 Q. Are you aware-- has WBN done similar 23 type work in the EAA? 24 A. They have done an evaluation of 25 mercury. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 30 1 To my knowledge, they haven't done any 2 experimental work. There was an assessment of 3 existing data, as I recall, but I do know about 4 their study, yes. 5 Q. I have a document, and am presently not 6 introducing it (indicating). It's Mercury Emissions 7 to the Atmosphere, listed by WBN, prepared by the 8 Florida Department of Environmental Regulation. 9 There's a chart in here that's called 10 Estimation of Mercury Emissions by County, from the 11 Florida Sugar Industry in 1990. 12 I have been told by other sources, this 13 might reflect your data. 14 Do you have any knowledge if that is the 15 data from your work or not (indicating)? 16 A. It-- the levels seem to be similar to 17 what I found experimentally, so it very likely could 18 be-- could reflect the results of my study. 19 The results of my study were in the 20 public domain. They were presented at a mercury 21 convention, and are being published. 22 Q. Are they listed in your paper? 23 A. No. They haven't been published. 24 Q. Is there a draft of your report? 25 A. Yes. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 31 1 Q. Could I obtain a copy of that? 2 A. If you write me and request that. 3 MS. PONZOLI: Mr. Kobelinski, may I ask 4 that be added to my list, without another letter? 5 MR. KOBELINSKI: Yes. As Doctor Patrick 6 has stated, he's not going to be offering direct 7 testimony on mercury, and will not be relying upon 8 any data that he's collected. 9 I'll be honest. I don't know if we're 10 claiming any privilege, per se, because he's not 11 relying on it. 12 Given-- this is something that is 13 already in the public domain, but-- just to 14 summarize what has just occurred here, but-- there's 15 no problem, but-- 16 MS. PONZOLI: I understand what's being 17 said in between the lines of what you're saying, 18 that if mercury testimony is offered by others, 19 you're not relinquishing your right to put him on in 20 rebuttal or-- 21 MR. KOBELINSKI: Even in that situation, 22 I would not be relying on his data. 23 You're correct. He always may be asked 24 to look at what is presented by others, but at this 25 point in time, I would just reiterate, he's not JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 32 1 going to rely on his data, just be looking at it 2 from-- 3 MS. PONZOLI: I understand. 4 MR. KOBELINSKI: This is specifically-- 5 are you looking for-- I believe you said there was a 6 report that is already in the public domain, or 7 looking for a draft of what is going to be 8 published? 9 MS. PONZOLI: I would like both. 10 I assume it's-- similar thing, one is 11 just for a scientific publication, and-- 12 THE WITNESS: No. It's the same 13 document. 14 MS. PONZOLI: Very same? 15 THE WITNESS: Yes. It was presented at 16 the governor's conference several years ago on-- 17 BY MS. PONZOLI: 18 Q. What were the results of that? 19 A. Well, it briefly showed that sugar cane 20 burning produces a very, very small amount of 21 mercury going into the atmosphere, since the sugar 22 cane plant does not absorb mercury from the soil. 23 And all of the mercury that is produced 24 by burning the plant, is that-- is absorbed from-- 25 by the plant from the atmosphere, which is a very JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 33 1 small amount. 2 Q. So in other words, your study showed 3 that the plant only absorbs atmospheric mercury, and 4 only when it's burned, gives back into the 5 atmosphere, that mercury? 6 A. Essentially, yes. 7 Q. Did you-- 8 A. There is a small amount of mercury in 9 the soil. 10 It is splashed against the lower part of 11 the plant, by rainfall, and when the plant is 12 ignited, this mercury-- is emitted into the 13 atmosphere, and this is an extremely small amount in 14 relation to the ordinary atmospheric fallout of 15 mercury. 16 Q. Did you do testing of the soil and water 17 as part of your study? 18 A. I have tested the soil. 19 Q. And what were the results of the soil 20 test? 21 A. The Everglades-- the soils in the 22 Everglades agricultural areas, the random sites that 23 I selected, which, as I recall, were 17, showed 24 normal total mercury contents, and most of this was 25 associated with the organic matter in these muck JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 34 1 soils. 2 Q. When you say normal, can you give me 3 numbers that would indicate to a scientist-- I'm a 4 layman. They wouldn't be normal to me. I have no 5 idea. 6 A. The values were similar to that in 7 natural areas, wetland organic areas in the upper 8 Midwest and in Sweden, and as I recall, it was about 9 .2 parts per million total mercury. 10 Q. Have you done any testing in background 11 areas of the water conservation areas, to see if 12 there are similar levels to those areas? 13 A. Yes. 14 Q. Was that part of this same study? 15 A. No. 16 Q. Did it show a comparable amount of total 17 mercury? 18 A. Yes. 19 Q. About the .2 parts per million? 20 A. Somewhere in that range, yes. 21 Q. When did you test in the water 22 conservation areas for mercury? 23 A. Well, during the last year or so. 24 Q. Has this been in conjunction with Doctor 25 Richardson? JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 35 1 A. No. 2 Q. Is this a second study on mercury? 3 A. Yes. 4 Q. Let me finish with the first study, 5 then, before we move on to the second one. 6 Are all of your data, or at least 7 summaries of your data, reflected in this report 8 that we'll been getting? 9 A. Yes. 10 All of the data that I did for the-- 11 Q. The first data? 12 A. Yes, the Sugar Cane League-- 13 Q. Yes. 14 A. In addition to the study that I did for 15 the League and reported and are publishing, I also 16 had a post-doctoral scientist from-- who was 17 interested in mercury fractionation, and we did some 18 fractionation studies that was not related to this 19 particular project, but we did this on the same 20 samples, since we had those samples available. 21 Q. And what did those show? 22 A. They showed that most of the mercury in 23 the Everglades agricultural area was as I expected, 24 associated with the organic fraction of the soil. 25 Q. All right. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 36 1 A. Since mercury interacts with organic 2 matter greatly. 3 Q. All right. Is there a published study 4 from that post-doctoral work? 5 A. No. 6 Q. There's a report? 7 A. No. It's in-- well, it's in manuscript 8 form. 9 Q. Is he using that as-- is he-- would it 10 be a problem for him to provide that to us? 11 A. How do you know it's a man? 12 Q. A woman-- I don't care. 13 A. It's a woman, and the documents are in 14 my possession, but I haven't done anything with 15 them. 16 Q. Would that be a problem to provide us 17 with a copy again? 18 A. No. 19 It's-- it's not anything that I have 20 relied on, but I'll be glad to provide that. 21 Q. I appreciate it. 22 A. I will again need a written request for 23 that. 24 Q. I understand. The-- Mr. Kobelinski is 25 being very helpful here. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 37 1 MR. KOBELINSKI: I will-- again, I'll 2 review this. 3 It does not appear that this would 4 just-- it does not appear that is something that 5 would be privileged. 6 Maybe I shouldn't be saying it on the 7 record-- it's something that he just said he's not 8 relying on. 9 The manuscript related to fractionation 10 of mercury? 11 THE WITNESS: Yes. 12 MS. PONZOLI: I want to tell you, just 13 because something is a document which he isn't 14 relying upon, it doesn't automatically fall into a 15 privileged category. 16 We can defer on that, but I don't want 17 the record to reflect that we agree on that legal 18 conclusion, because I don't. 19 MR. KOBELINSKI: Okay. 20 MS. PONZOLI: Without getting on to that 21 whatever-- 22 MR. NETTLETON: It would certainly cut 23 down on discovery to us. 24 BY MS. PONZOLI: 25 Q. Let's move into your second mercury JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 38 1 study, which I also understand was not produced, 2 or-- 3 A. I did not produce it. 4 Q. I would like to know about your second 5 mercury study. 6 A. The second mercury study was carried out 7 in water conservation area 2-A and three, and 8 consisted of analyzing mercury with depth in a 9 number of undisturbed cores taken at various 10 locations in the-- in these water conservation 11 areas. 12 Q. On whose behalf did you do this? 13 A. I did this, presumably for the Florida 14 Sugar Cane League. 15 I-- at the request-- either at the 16 request of the law firm of Earl, et. al., or at the 17 request of the environmental committee of the-- 18 Doctor Rosendahl-- is that right, Rosendahl? 19 Q. Is that the EPD environmental committee? 20 A. I-- 21 Q. Is it the Everglades Protection 22 District? 23 A. No. 24 It was a group that was in-- that met a 25 time or two. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 39 1 I attended it a time or two to discuss 2 these problems, but the authorization for this, I 3 know came from either Mr. Stotts and Mr. Earl, from 4 the law firm, or-- probably in consultation with the 5 League. 6 Q. All right. Let me ask you who else was 7 on the environmental group, other than Doctor 8 Rosendahl. 9 A. Let's see. I think Doctor-- maybe 10 Doctor Dunkelman, and maybe Mr. Andreis, because we 11 met at the time-- well, we met once at West Palm, 12 once at their office, and once at-- in Clewiston, as 13 I recall. 14 Q. Is it Mr. Andreis-- does his name appear 15 on some of your documents? 16 A. Andreis, A-n-d-r-e-i-s-- 17 Q. Yes, sir. I think his name must have 18 been-- 19 A. He was coauthor of a study that I did on 20 the use of lime rock to remove phosphorus. 21 Q. Anyone else that was part of this 22 environmental group? 23 A. I can't recall any. 24 Q. What was the purpose of this 25 environmental group? JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 40 1 A. I'm not sure I know, because it was a 2 group, organized and headed by Doctor Rosendahl, 3 for-- was an employee of the League, but I do know 4 that it-- the meetings that I went to dealt with 5 just these environmental issues of the Everglades 6 agricultural areas. 7 Q. Were they focused on problems that you 8 wanted to investigate, as to whether they were or 9 whether they were not a problem? 10 A. That's probably a good assessment from 11 my point of view. 12 My only interest was from that point of 13 view, that this was a problem that I felt like would 14 be amenable to scientific investigation. 15 Q. And the one that you participated on, 16 was mercury? 17 A. That's the only thing I recall coming 18 out of this meeting, that I think I recommended that 19 perhaps a study of the mercury levels in the water 20 conservation areas would be appropriate. 21 Q. What were the concerns at that time 22 regarding mercury? 23 Have I nailed down the time when this 24 took place? I'm not sure I have. 25 A. Probably maybe three years ago, two JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 41 1 years ago. 2 Q. Two to three years ago? 3 A. Yes. 4 Q. Okay. To the best of your recollection, 5 you-- 6 A. Well, at that-- okay. To answer your 7 question, as I recall, at that time there was quite 8 a bit of concern that the high mercury in fish in 9 the Everglades, might be related to sugar cane 10 burning, or the export of mercury from the EAA. 11 And I felt like-- it appeared to me that 12 this was something that needed to be examined. 13 Q. All right. Did Doctor Dunkelman or Mr. 14 Andreis, have any-- or Doctor Rosendahl, have any 15 contributions as to what should be done regarding an 16 investigation of the mercury issue? 17 A. The only thing I can recall, is I 18 enlisted Doctor Dunkelman, who is an agricultural 19 scientist, who helped me with finding representative 20 areas in the Everglades agricultural area, to sample 21 for the sugar cane burning experiment. 22 Q. Well, let me ask you-- you said you did 23 two studies, the sugar cane burning study and the 24 sampling within the water conservation areas. 25 Were they discrete and separate studies? JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 42 1 A. Yes. 2 Q. When you did the sugar cane burning 3 study, that was only a sort of air deposition type 4 study? 5 Is that accurate or-- 6 A. Air emission. 7 Q. I'm sorry. Air emission? 8 A. Right. 9 Q. At the time you did it-- at that point, 10 you did not have in your mind, you would be going 11 into the water conservation areas and sampling 12 soils, and so forth? 13 A. I think that's correct. 14 Q. We have already finished the sugar cane 15 burning study, which your conclusion was, which you 16 presented to me a little while ago, a very small 17 emission from the sugar cane burning? 18 A. Yes, in relation to that from other 19 atmospheric sources. 20 Q. But now the mercury issue is 21 continuing-- what is the time between these two 22 studies? 23 You finished the sugar cane burning one. 24 You come to the conclusion, sugar cane burning is a 25 small contribution, and I'm not going to fight with JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 43 1 you what small means, because I wouldn't understand 2 it at this point. 3 There's a gap in time, before you begin 4 the second? 5 A. Yes. I think the sampling for the 6 second study began, either late or in the year that 7 I finished the first study, or perhaps even the next 8 year. 9 Q. Let me ask you this: You're saying 10 Doctor Dunkelman was helping you find places in the 11 EAA, to look for-- for sugar cane burning? 12 A. Yes. 13 Q. Isn't this second meeting occurring 14 after that gap in time? 15 A. I'm sorry? 16 Q. This environmental meeting, didn't this 17 occur and you finished your study? 18 A. I don't think so. 19 This committee-- this committee didn't 20 function very long, and I think the meetings of this 21 committee that I attended, were during the time that 22 I was doing the study on the sugar cane burning, as 23 I recall. 24 Q. Did the meeting precede the sugar cane 25 burning study, the first one? JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 44 1 A. I can't be sure about that. 2 I think that probably the first one did, 3 and perhaps the second one took place during the 4 time I was doing the study. 5 Q. In regard to the study, did any one of 6 these gentlemen, help you in choosing sites within 7 the water conservation areas? 8 A. No. 9 You mean the second study? 10 Q. Yes, sir. 11 A. No. 12 Q. Did anyone assist you in your second 13 study of the water conservation areas? 14 A. Yes. 15 Q. Who would that have been? 16 A. Doctor John Davis. 17 Q. Anyone else? 18 A. No. 19 Q. I'm not sure I ever knew what the cost 20 of the first study was. 21 Do you recall what that cost was, Doctor 22 Patrick? 23 A. You asked me once, and I told you I 24 didn't recall. 25 Q. I'm sorry. I apologize. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 45 1 The cost of the second study. 2 A. I can't-- excuse me. I can't answer 3 that specifically, because my billing was not 4 necessarily broken down completely on the basis of 5 the mercury work and the other work. 6 But it is often reflected in my billing 7 to the law firm, so personally, I have no concern 8 how you-- you can obtain any of that information you 9 want from them. 10 Q. Well, they sort of refused to produce 11 it, so-- 12 MR. KOBELINSKI: I would just, to 13 respond, so we don't get in a fight-- as I 14 understand it, Doctor Kadlic and others had the same 15 problem. 16 We all agree with consistency-- if 17 there's a consistent position reached, we'll agree 18 with it. 19 BY MS. PONZOLI: 20 Q. How long have you been employed by the-- 21 are you still under the Florida Sugar Cane League or 22 employed by the law firm, Doctor Patrick? 23 A. That's a good question. 24 In my view, I'm employed by the Florida 25 Sugar Cane League, as represented by the law firm. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 46 1 Q. But your bills go to the law firm, and 2 your checks come from the law firm? 3 A. That's correct. 4 Q. How long has this relationship existed? 5 A. At about the time of the Key Largo 6 symposium, and slightly before then, because I-- 7 absolutely before then, and I think that was in 8 1989, but that is to be determined. 9 Q. It is what comes to my mind, the Key 10 Largo symposium. 11 A. Yes. 12 Q. Since '89, how much have you been paid 13 by the sugar industry and/or the law firm, whomever 14 is your employer, for these various efforts that 15 you've carried out on their behalf? 16 A. I can't answer that at this time. 17 I mean, I have documents that will 18 provide that information. 19 Q. Well, assuming they will not give me the 20 documents, can you give me an idea-- has it been a 21 hundred thousand a year, roughly speaking, or 22 150,000 a year, roughly speaking, or-- I mean, the 23 figures in this case are large, so you're not going 24 to shock anyone at this table. 25 A. Right. Actually, I will probably shock JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 47 1 you at the modesty of your billing. 2 MR. KOBELINSKI: I was going to say, you 3 might want to take me out to dinner. 4 MS. PONZOLI: Some of us work for very 5 modest salaries, so we don't shock that way, 6 either. 7 THE WITNESS: I would say my billings in 8 this case, have probably amounted to an average of 9 60,000 a year for these last three years. 10 BY MS. PONZOLI: 11 Q. So-- and we're-- so for '93, '92, '91, 12 and maybe '94, it's been in that ballpark? 13 A. Yes. That's what I recall, yes. 14 Q. And before that, maybe slightly less or 15 slightly more? 16 A. Before when? 17 Q. '89 and '90. 18 A. Oh, '89, much less, and '90, probably 19 less. 20 Q. But somewhere in that ballpark? 21 A. Yes. Maybe $30,000. 22 Q. Is that the sum total of what comes to 23 you? 24 If you use a graduate student to help 25 you, do you get additional money, or is that, like, JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 48 1 everything, and you take that money-- 2 A. That's everything. That's my total 3 billing. 4 Q. Okay. You share it with whomever you 5 have to share it with? 6 A. Yes. That's my total billing and my 7 expenses. 8 Q. Let's go to what-- it's not possible to 9 break out what this mercury study cost, but-- 10 A. It's possible, but I just don't have 11 that data in hand. 12 Q. Tell me how long the study lasted. 13 A. Which mercury study? 14 Q. I want to talk about the second mercury 15 study now, in the water conservation areas. 16 A. It lasted several months. 17 MR. KOBELINSKI: Off the record. 18 (Off the record discussion.) 19 BY MS. PONZOLI: 20 Q. I would like to go back to the second 21 mercury study, Doctor Patrick, in the water 22 conservation areas. 23 You say it lasted several months, and 24 can you give me the exact year in which it took 25 place? JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 49 1 A. I would-- my estimate was, it took place 2 in 1992, year before last, as I recall. 3 Q. Okay. What was your-- did you have a 4 hypothesis for that study? 5 A. No. I did not, no. 6 Q. What were you attempting to do, then? 7 A. I wanted to determine the mercury levels 8 with depth, in representative areas of the water 9 conservation areas, of water conservation area two 10 and three. 11 Q. And what did you think that was going to 12 tell you? 13 A. It would give me some indication if 14 mercury levels were elevated over other areas, or if 15 they were normal, and what the depth, distribution 16 of mercury might be. 17 Q. Before I ask you specifically what you 18 found out, did you find what you went looking for? 19 A. Yes, I did. 20 Q. Let me ask you this, before we go into 21 those specific findings: Why didn't you do this same 22 work within the EAA? 23 A. I have done this within the EAA on the 24 17 locations that I mentioned to you, except I did 25 not do a depth distribution, but I did determine the JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 50 1 mercury content of the root zone of the soil. 2 Q. Why did you think it was not necessary 3 to do a depth distribution-- that it was not 4 necessary? Why did you think it was not necessary? 5 A. Because the only way that mercury could 6 get from the soil into plants and into the 7 atmosphere, would be from the root zone or the plow 8 layer, and I felt this was a significant zone to 9 deal with. 10 Q. All right. 11 A. This was not a depositional area. This 12 was an area in which decomposition had taken place. 13 Q. I don't understand what you just said. 14 You said it was not a deposition area? 15 A. No. The EAA is an area that's been 16 drained, and the soils are decomposing, whereas in 17 the water conservation area, natural vegetation is 18 still causing sediment and other soil to be accreted 19 at the surface, and incoming mercury could be 20 trapped in that accreted sediment. 21 Q. Then is it fair to say that your study-- 22 your first study on the aero mixing, did not really 23 determine mercury export through water into the 24 water conservation areas? 25 A. Yes. It was not designed to determine JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 51 1 that. 2 Q. Do you know the study that has 3 determined mercury export through water into the 4 water conservation areas? 5 A. No. 6 This was one of the purposes of my 7 second study, was to do-- in the sense that it might 8 have given some indication of input of mercury from 9 all sources, into these accreting soils, organic 10 soils. 11 Q. Did it indicate that there is mercury 12 export through water into the water conservation 13 areas? 14 A. I can't-- I can't say that it did. 15 All I can say is that there was a slight 16 increase, slightly higher mercury in the surface 17 layers of the organic soils in the Everglades, as 18 compared to deeper zones, but the-- the source of 19 this could not be ascertained. 20 These-- because this increase also 21 occurs in pristine organic soil areas all over the 22 Northern Hemisphere, as a result of increased 23 mercury fallout following, industrialization in the 24 last century. 25 Q. Is it your opinion as you sit here JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 52 1 today, it is unknown whether it is air deposition or 2 water, that is causing this slight increase in the 3 surface layers of soil in the Everglades? 4 MR. KOBELINSKI: I'll object, to the 5 extent you're attempting to draw an expert opinion 6 for use at trial. 7 You are, just up to this point, asking 8 him to explain to you the data that he collected, 9 and perhaps to a certain extent, explain a study 10 that's been published, as a result. 11 I'm going-- I won't instruct the witness 12 not to respond, but I'm just objecting. 13 MS. PONZOLI: You can answer. 14 THE WITNESS: The depth distribution of 15 mercury in the Everglades, in my opinion, is 16 consistent with the depth distribution in areas that 17 have not been subject to water inflows. 18 BY MS. PONZOLI: 19 Q. So that you mean that you believe that 20 this air deposition may be causing the slight 21 increase in the top layers of the soil? 22 A. Well, I made no final conclusion in 23 regard to the interpretation of these mercury 24 analysis in the water conservation areas. 25 Q. Has anyone asked you to begin putting JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 53 1 that together? 2 A. No. 3 Q. What is your best hypothesis, as you sit 4 here today, for that slight increase in the surface 5 layers of the-- 6 MR. KOBELINSKI: I'll just have a 7 standing objection. 8 MS. PONZOLI: I understand. 9 THE WITNESS: That is consistent with 10 increase in atmospheric deposition of mercury, as I 11 indicated a moment ago. 12 BY MS. PONZOLI: 13 Q. All right. How many sites did you 14 select in the water conservation areas 2-A and 15 three? 16 A. For what analysis? 17 Q. For the second mercury study. 18 Did you select different sites for 19 different purposes? 20 A. Yes, I did. 21 Q. Okay. 22 A. I don't recall exactly, although that 23 figure is easily obtainable, but I would say 15. 24 Q. I guess I would say-- is this 25 information within your attorney's-- the results of JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 54 1 this study-- they were in the possession of your 2 attorneys, Doctor Patrick? 3 A. Yes, they-- yes. 4 MS. PONZOLI: Mr. Kobelinski, would you 5 have a problem providing those? 6 This would go much faster and easier, if 7 I had the documents in front of me, and move rapidly 8 through what he did and how you did it, instead of 9 having to dream up every way of dragging it out of 10 him. 11 THE WITNESS: I would hope that this 12 information is not being dragged out of me. 13 MS. PONZOLI: If I were cleverer, I could 14 do it easily. Since I'm not, I have to do it in a 15 difficult way. 16 THE WITNESS: It is being willingly 17 provided. 18 MS. PONZOLI: I'll agree. 19 MR. KOBELINSKI: You know our position as 20 far as the fact that he's not testifying with regard 21 to this data that he's collected. 22 I'll tell you what-- that is not an area 23 that I am involved in. You understand the 24 difficulty that arises, and I think that happens on 25 your side, also. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 55 1 I'll tell you, I'll respond to you in 2 the morning, because it's an area that I'm not 3 involved in. I don't want to say I'm going to turn 4 it over or not. 5 I will see maybe I can get a response 6 later on this afternoon, and-- 7 MS. PONZOLI: If you can this afternoon, 8 I would appreciate it, because I think it would be 9 cleaner and a lot easier, if I had it in front of 10 me. 11 Let me just tell you for purposes of 12 sort of crystallizing the issues-- I don't believe 13 that you appropriately should hold it back from us, 14 but if you're going to hold it back from us, then I 15 believe it would only be appropriate that the League 16 would have to stipulate that it would never use any 17 testimony from Doctor Patrick related to this study 18 and work at trial, in rebuttal or any other form, 19 and I suspect very seriously, you would not want to 20 bind yourself in that way, so therefore, I think 21 it's only appropriate that it be presented and 22 talked about, and then we can go. 23 MR. KOBELINSKI: As I have stated before, 24 and again, I'll get back to you-- my understanding 25 is that he will not be relying upon it. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 56 1 I will review it, get back with you this 2 afternoon. If, in fact, some of the other people are 3 in depositions, I will get back to you tomorrow 4 morning. 5 MS. PONZOLI: I appreciate it. 6 BY MS. PONZOLI: 7 Q. I'm going to go ahead and do it, and I 8 think I'm doing it rather clumsily, but I'm trying 9 to understand what you are doing. 10 You said there were approximately 15 11 sites. 12 How did you choose these 15 sites? 13 A. I chose those in consultation, as I 14 indicated earlier, with Doctor Davis, who is very 15 knowledgeable about the patterns of water flow and 16 the history of the water conservation areas. 17 One point I wanted to-- I wanted to make 18 sure, though, that I took samples, as I recall, 19 along the transect south of 10-C, and as I recall, I 20 think I did mercury analysis on those. 21 I'm not being intentionally vague on the 22 location and the results of the mercury analysis, 23 since I was told I would not be asked to give 24 testimony on mercury at this time, so I haven't 25 reviewed this in some months, but-- so I'm answering JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 57 1 these questions to the best of my ability. 2 I think I did mercury analysis on this 3 transect south of 10-C, and then in various places 4 in water conservation area two-- rather three, and 5 also, there-- I tried to select sites where there 6 was little or no history of water inflow from the 7 EAA, and I think this would have been in the-- one 8 of these may have been in the Rotenberger tract, and 9 another in the-- another in this Cypress area. 10 Q. Big Cypress? 11 A. Yes, although that is a misnomer. 12 Q. All right. Any other places? 13 A. No. Those are the-- the area 2-A, area 14 three, and these other sites. 15 Q. All right. As you went down the 16 transect in 2-A, did you find a gradient of mercury 17 as you went down the transect? 18 A. No. I don't-- I don't recall there was 19 any gradient of mercury. 20 The sediment and material accreted, that 21 had been accreted along this transect, as I recall, 22 was consistent with the fallout of mercury from 23 atmospheric-- general atmospheric sources, and with 24 the expected mercury content of the material coming 25 in, which would have been about that, the vegetation JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 58 1 and soils of the area. 2 That's my recollection at this time. 3 Q. Okay. You say it was consistent with 4 the fallout of mercury from general atmospheric 5 sources, and so what did you use as your base line 6 for that consistency? 7 A. Studies in the Upper Great Lakes, have 8 shown that in preindustrial times, mercury fallout 9 was something like five to ten micrograms per meter 10 squared, per year. 11 In post-industrial times, this has 12 increased to 15 to 20 micrograms per meter squared. 13 Q. Did you find it consistent along the 14 transect, that to the same depth and same degree, 15 you would find mercury? 16 I want to make sure my gradient 17 concept-- we're thinking-- it was the same? You got 18 the same amount of mercury close to the structure, 19 as found at the end of the structure, and to the 20 same depth? 21 A. The same general concentration of 22 mercury, yes, as I recall. 23 Q. And it was in the same range at the-- 24 what was it-- .2 micrograms per liter you found in 25 the EAA? JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 59 1 A. I can't-- I can't relate it completely 2 to the EAA, because the EAA was much less organic 3 than the water conservation areas. 4 And I-- I think I recorded it in parts 5 per million or parts per billion. 6 I can't really answer that just right 7 now, accurately, but it was probably on a weight 8 basis. 9 It was probably on-- somewhere in the 10 same range, yes. 11 I want to hedge on that, because I 12 haven't really reviewed on that. 13 Q. Is that reflected in your report? 14 A. I have no report. 15 I just have the data. 16 Q. The actual data, itself? 17 A. Yes. 18 Q. So what-- 19 A. Yes, it would be reflected, yes, in the 20 analysis of the-- in the profiles of mercury 21 analysis. 22 Q. Did you find the same levels in the 23 profiles of mercury in 2-A, along the 10-C transect, 24 as you found in the Rotenberger and Big Cypress? 25 A. No. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 60 1 Actually, the-- as I recall, Big Cypress 2 was lower than any of the others. 3 Q. How about the same-- 4 A. I think, but I'm not sure. 5 That may have been phosphorus that I was 6 thinking about in the Big Cypress. I know the 7 phosphorus was much lower. 8 I can't even guarantee that I did 9 mercury in the Big Cypress. I think-- it would be 10 so much easier if we had the data at hand. 11 Q. I do agree. 12 A. Since I was not-- since I was not 13 prepared to give a deposition on this material. 14 Q. I have to tell you, I didn't think I was 15 going to be questioning you on this, either. 16 I thought you had done a little sugar 17 cane testing, and that was it. 18 I didn't realize you had been out there 19 doing soil cores on mercury. 20 Was the profile the same along the 10-C 21 transect, as you found in the Rotenberger tract? 22 A. It's difficult to say, but I'll-- I'll 23 answer it in a general way. 24 I saw nothing in my analysis that would 25 indicate a significant influx of mercury in the JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 61 1 drainage water from the Everglades agricultural 2 area, and maybe that will-- 3 Q. Shorten this torture. 4 A. Yes. 5 It's not torture. I'm enjoying this. 6 Q. So in a very crude layman's sense, it 7 would be your opinion that any mercury problem that 8 we're finding within the water conservation areas, 9 is not as a result of mercury actually being carried 10 out of the EAA, in the water into the conservation 11 areas? 12 MR. KOBELINSKI: Same standing objection, 13 with regard to his opinions along this line. 14 THE WITNESS: That is very difficult to 15 answer, because in my opinion, mercury intake in the 16 fish is not related to the total amount of mercury 17 in the system. 18 It's related to microbial and 19 biogeochemical processes that mobilize mercury, as 20 methyl mercury, and put it into the food chain, and 21 this can happen almost without regard to the total 22 mercury content of a substrate. 23 Can we go off the record a second? 24 MS. PONZOLI: Yes, sir. 25 (Thereupon a recess was taken JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 62 1 in the deposition, after which 2 the deposition continued as follows:) 3 BY MS. PONZOLI: 4 Q. You had looked at the water flows as one 5 of your criteria for choosing your sites, Doctor 6 Patrick. 7 Why was that? 8 A. Well, I-- there seemed to be a lot of 9 interest in water conservation area 2-A, which was-- 10 which received water from-- through the ten 11 structures, and other work that had shown that there 12 had been some accumulation of peat and phosphorus in 13 that level, and I thought it would be appropriate to 14 see what was the accumulation of mercury in that-- 15 in those profiles, as well. 16 Q. Is it accurate that you weren't looking 17 so much to see mercury carried in the water, perhaps 18 from the EAA into 2-A, so much as you were looking 19 to see the peat accretion and the phosphorus levels 20 and what relationship that might have to mercury? 21 A. Well, yes. Actually, as I told you, I 22 had no particular hypothesis, except to determine 23 the general levels of mercury in the soils-- the 24 organic soils in water conservation two, or 2-A, 25 really, and three, and a few other samples, like, JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 63 1 Big Cypress, and as I recall, Rotenberger, and I 2 also was-- will say that the location on mercury-- 3 of mercury samples are subject to correction later 4 on, since I didn't really-- haven't reviewed just 5 where I took those samples in some months. 6 I did those-- did these analyses, and 7 really haven't done much with them since then, see, 8 and-- but I was not looking for-- to get any 9 particular idea of input from any particular source. 10 First step in this, was just to assess 11 the mercury content with depth in a number of 12 profiles in these areas. 13 Q. All right. 14 A. And my interpretation, as it related-- 15 hasn't really gone beyond that. 16 Because I have been concentrating on 17 other aspects of this case since phosphorus seemed 18 to be of more immediate concern than mercury. 19 Q. In your opinion, Doctor Patrick, is 20 there a relationship between phosphorus levels and 21 mercury methylization? 22 MR. KOBELINSKI: Just for the sake of 23 argument, since we took a break, I do have an 24 objection as to drawing opinions, as previously 25 stated, as to Doctor Patrick's opinions regarding JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 64 1 mercury. 2 I'm not instructing the witness not to 3 respond, but I'm reserving any objection to this 4 line of questioning. 5 That will be a standing objection. 6 THE WITNESS: I don't understand the last 7 part of your question. I couldn't see your face 8 when you were finishing that. 9 BY MS. PONZOLI: 10 Q. I was asking you if there was a 11 relationship, in your opinion, between phosphorus 12 levels and mercury methylization. 13 A. No. There's no necessary relationship. 14 Q. So I can go and retrieve for you the 15 language which I'm sure you're fairly-- have you 16 followed any of the mercury debate in the 17 Everglades, Doctor Patrick? 18 A. Yes. 19 Q. Do you have any opinions on that debate, 20 or hypothesis on that debate? 21 A. Well, maybe my perception of the debate, 22 may be different than yours. 23 If you describe the point in the debate, 24 I would be glad to-- 25 Q. Rather than do it that way, because I JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 65 1 think the crudeness of some of my questions, it 2 makes it difficult sometimes to answer appropriately 3 so I can retrieve language and present that to you 4 tomorrow, but I'm asking you, as we sit here right 5 now, since you're the scientist and I'm the layman, 6 do you have opinions as to the mercury problems in 7 the Everglades, and if you do, what are they? 8 A. Yes. I have opinions. 9 Q. Okay. Would you please give those to 10 me. 11 A. The mercury problem in the Everglades 12 is, as in-- 13 MR. KOBELINSKI: I'm sorry. Let me 14 just-- 15 MS. PONZOLI: You have a continuing 16 objection. You don't need to continue to make it. 17 MR. KOBELINSKI: I understand that. 18 Just so I understand, you're asking him 19 as a scientist, does he have any opinions, as 20 opposed to, do you have any expert opinions on this 21 matter for trial? 22 MS. PONZOLI: That's right. 23 MR. KOBELINSKI: I just wanted to make 24 sure the record is clear. 25 I apologize for the interruption. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 66 1 THE WITNESS: I consider myself rather 2 knowledgeable about the mercury biogeochemistry in 3 the environment, and I review data and attend 4 meetings in different parts of the world, so I do 5 have some opinions. 6 The mercury problem I presume that 7 you're referring to, is the accumulation of mercury 8 in fish and other top predators in an ecosystem, and 9 as I stated in two or three presentations-- invited 10 presentations on mercury in Florida, and as others-- 11 I won't say everyone, but almost everyone else 12 agrees, mercury moves into the food chain as methyl 13 mercury, which is a microbial process, and two or 14 three things are necessary for this to happen. 15 The substrate where methyl mercury is 16 formed, must be very anaerobic, so that methylation 17 of mercury will occur, and there also-- apparently, 18 the water column must be low enough in dissolved 19 organics, so that the mercury is not absorbed by the 20 dissolved and suspended organic matters, because 21 mercury, methyl mercury, has a high affinity for 22 organic matter, and this is why some of the highest 23 levels of mercury in fish, occur in very low 24 nutrients or oligotrophic systems, and so that is 25 the-- that's my general impression of the mercury JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 67 1 problem. 2 Also, I might add, since you are sort of 3 asking an open-ended question, research has shown 4 that the mercury that gets into the fish, is not the 5 methylmercury in the sediment, but it is the 6 methylmercury in the water column. 7 Studies at Oak Ridge by Turner, have 8 shown these conclusively, so that essentially is my 9 assessment of the way the mercury problem develops. 10 MS. PONZOLI: Mark that page for me, 11 please. 12 BY MS. PONZOLI: 13 Q. Thank you, Doctor Patrick. I think 14 that's very helpful and I'll reread it and think 15 about it. 16 Do you have an opinion as to why we are 17 seeing the elevated levels of mercury in the fish 18 and the top predators in the Everglades? 19 You have explained the process to me, 20 but you haven't explained to me what is going-- what 21 is causing this process. 22 MR. KOBELINSKI: Same objection. 23 THE WITNESS: It's my belief that in 24 organic areas, as the Everglades is, that 25 methylmercury information and mobilization, is more JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 68 1 likely than in mineral areas, where the mercury is 2 more highly interactive-- interacts more tightly or 3 bonds more tightly to the mineral sediments, and I 4 believe that in all such areas, that the top 5 predators have higher mercury content than in more 6 mineralized areas, and I also think that this is a 7 condition that has always existed in these systems. 8 About 25 years ago, there was a big 9 mercury scare in some water bodies, and in marine-- 10 long-lived marine fish, such as swordfish, and it 11 was discovered that preserved samples that were 12 approximately taken a hundred years ago, also add 13 high mercury, so I think the increase that we're 14 seeing in mercury, is due, in part, to our better 15 understanding of this problem, and I would also 16 mention that throughout, in many other areas of the 17 U.S. and in Europe, they are finding that top 18 predators in both fish and animals, have high 19 burdens of mercury, so it's a rather widespread 20 problem. 21 During the-- by being here at this 22 deposition today, I'm missing a conference on 23 mercury, contamination on fish and biota in 24 Louisiana and Arkansas, also is discovering that 25 they have the same problem, and none of this can be JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 69 1 related to known inputs of mercury, either from the 2 air or from the water, known inputs from the water. 3 It is known, as I have indicated 4 earlier, that there's a general increase in 5 atmospheric fallout of mercury. 6 Q. That's one thing I would like to nail 7 down, in my own layman's understanding. 8 Are we looking at, in your opinion, a 9 mercury problem that has always been pretty much at 10 the same level it's at now, and we just simply 11 didn't have the technology to notice and measure it, 12 or do we have an increased mercury problem, with 13 which we will have to deal with in some manner? 14 A. Both of those statements are essentially 15 true. 16 As I have indicated earlier, we have 17 always had this situation, but we have only recently 18 recognized that top predators in almost all 19 environment, of higher mercury than the lower-- than 20 lower organisms, lower in the ecosystem. 21 But as I've also indicated, and it's 22 very well documented, that during the industrial-- 23 since industrial development has occurred and 24 there's much more burning of coal, much more 25 emission of mercury through smelters, that the total JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 70 1 atmospheric burden of mercury is significantly 2 higher than it was 150 years ago, and this has been 3 well documented in cores from various parts of the 4 world. 5 Q. So there is a problem with which we will 6 need to deal? 7 Is that accurate, on a broad scale 8 sense? 9 A. This problem has always been there. 10 It has always-- it is, in my view, 11 accentuated by increased fallout atmosphere of 12 mercury. 13 Q. But I'm asking you, do we need to do 14 something to remediate the atmospheric inputs of 15 mercury, in your opinion? 16 MR. KOBELINSKI: Which atmospheric 17 inputs? 18 THE WITNESS: Are you talking about 19 worldwide, industry-wide or Florida-wide or-- 20 BY MS. PONZOLI: 21 Q. Worldwide, U.S., Florida. 22 A. Okay. That's going to be very 23 difficult. There are two major sources of mercury 24 in the atmosphere. 25 Mercury in the atmosphere is elemental JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 71 1 mercury. It's the same mercury you see in a 2 thermometer, except instead of being in liquid form, 3 it vaporizes. 4 And this comes from two major sources, 5 as I have indicated. 6 One is a natural source, mercury, or 7 cinavar, c-i-n-a-v-a-r, mercury, which is mercury-- 8 mercuric sulfide. 9 These deposits are exposed in different 10 parts of the earth, and there's always a small 11 amount of mercury being vaporized, and that's been 12 in-- this source has been there for geologic time, 13 and is a low initial source that I spoke about. 14 The other is mercury that largely 15 results from burning of coal, incinerators, 16 smelters, the-- that is emitted into the atmosphere, 17 in a gaseous form, and circulates into the-- and 18 comes out in rainfall and in dry deposition. 19 It is, to answer your question what-- as 20 I understand it, you asked is there a problem, that 21 we need to do something about it and what can we do 22 about it. About the only thing that can be done is 23 to try to curtail emissions of mercury from these 24 industrial sources, by preventing mercury from going 25 into incinerators, and by not-- by not incinerating JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 72 1 medical and scientific products that contain 2 mercury; by using non-mercury batteries. 3 All of these things are being done, and 4 by using scrubber systems in power plants and 5 smelters that will remove mercury. 6 Nothing can be done about the natural 7 emissions from geologic materials. 8 This is my own opinion. 9 Q. Right. I understand, and that's really 10 what I'm pretty much asking you. 11 Now, we have taken care of, in some sort 12 of a broad brush fashion, the air. 13 Let's look at the water. 14 Is there something, in your opinion, in 15 the Everglades, that needs to be done regarding the 16 water and whatever processes occur for the 17 methylization of the mercury, to remediate the 18 mercury problem? 19 A. The Everglades presents an interesting 20 situation with regard to mercury. 21 I would confess, in the beginning, I 22 didn't understand completely, and I would like to 23 understand it better. 24 In fact, it's a research area I very 25 much would like to get into with my institute, but JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 73 1 the movement of mercury into biota and on into fish, 2 is less in eutrophic systems that contain 3 appreciable dissolved organic matter, so the very 4 conditions that are causing eutrophic conditions in 5 the Everglades as a result of nutrient inputs, 6 mediate against methylmercury movement into the food 7 chain, and, in fact-- 8 Q. Is that demethylization? Is that the 9 process that's referred to as demethylization that, 10 you're referring to? 11 A. No. That's-- one of the other is 12 absorption of mercury into organic matter, that 13 makes it not bio-available. 14 Q. Let me ask you this: Do you have an 15 opinion whether the proposed STAs of whatever size, 16 will, as I guess the Cooperative has on occasion 17 referred to them-- the methylization creators, so 18 that there is a net export of methylmercury coming 19 out of the STAs? 20 MR. KOBELINSKI: Object to the form of 21 the question, to he extent that it presumes-- that 22 is the position taken by the other side, and my 23 prior objection held. 24 THE WITNESS: I haven't dealt with that 25 specific problem as such, but there is no question JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 74 1 that there will be more methylmercury formed in 2 anaerobic sediment, which the STAs will create, as 3 compared to the agriculture soil, which is aerated 4 and in which methylmercury cannot form to any 5 appreciable extent in the aerated portion of the 6 soil. 7 It's not quite that simple, though, 8 since presumably, the STAs, will be very eutrophic. 9 They are designed for high biomass 10 production and removal of phosphorus, and this will 11 make it more difficult for any methylmercury 12 produced to get into the food chain, so it is hard 13 to know how to balance these-- these two effects. 14 I have no definite opinion that-- that 15 the drainage from the STAs will or will not increase 16 the movement of mercury into the food chain. 17 I haven't worked through this to that 18 extent that I can offer an opinion at this time. 19 Q. Do you have an opinion that if you 20 assumed that the STAs reduced the phosphorus coming 21 into the greater water conservation areas, would 22 that decrease the movement of mercury in those water 23 conservation areas into the food chain? 24 A. Let's see. I'm not sure I understand 25 your question. JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 75 1 Q. It's probably the question's fault. 2 A. If I could paraphrase your question. 3 Q. Right. 4 A. To make sure I understand it-- that I'm 5 answering the right question. 6 Just the reduction of phosphorus, alone, 7 if the STAs significantly reduce phosphorus-- 8 Q. Yes, sir. 9 A. In the drainage water-- 10 Q. Yes, sir. 11 A. If this, alone, would have some effect 12 on the mercury export or the mercury uptake? 13 Q. No. The-- would it have some 14 significant effect on the methylization occurring 15 within the water conservation areas, and 16 subsequently the movement of that methylmercury into 17 the food chain? 18 A. My opinion is that it would not, because 19 the-- as we perhaps sometimes will learn-- 20 Q. We have three days, Doctor Patrick. 21 I'll get around to it. 22 A. The redox potential values in the-- all 23 parts of the Everglades, are producing enough to 24 support methylization, and so those conditions 25 already exist, so I can't imagine that if the STAs JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 76 1 do treat water to the design concentrations, that it 2 will have any effect one way or the other. 3 Q. Just so I can sort of leap to the bottom 4 line, do you see any beneficial effect to reducing 5 phosphorus if the drainage water for the water 6 conservation areas, through STAs or any other 7 mechanism? 8 MR. KOBELINSKI: Could you read that last 9 question back? 10 (Thereupon the referred to 11 question was read back by the 12 reporter as above recorded.) 13 THE WITNESS: Do I see any benefit of 14 reducing the phosphorus export from the EAA into the 15 water conservation areas? 16 BY MS. PONZOLI: 17 Q. Yes. 18 A. There would be the benefit of lessor 19 lower plant growth. 20 There would be-- if this is a benefit. 21 The-- my observation is, in general 22 answer to this question, is that phosphorus in the 23 drainage water of the-- from the EAA coming into the 24 water conservation areas, is removed pretty rapidly 25 into a fairly low level, within a short distance, JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 77 1 some kilometers, and the only impact is in the-- 2 that area receiving the drainage water. 3 This does represent a higher phosphorus 4 level than ordinarily would be in that area, and 5 certainly stimulates the growth of all species of 6 plant, both the typha and the caladium. 7 That may or may not have detrimental 8 effects-- my expertise is not so much the ecological 9 impact of the phosphorus as its characteristics-- 10 it's built up in the soil and it's built up-- effect 11 on the primary productivity, not necessarily the 12 whole ecosystem, as such. 13 Q. I understand what you're telling me. 14 So in this same, very broad brush 15 fashion that I have been asking these questions, let 16 me ask you this: If I understand your answer sort of 17 accurately, the issue is do you put STAs, sort of in 18 the ag land areas or public land areas, or do you 19 simply use those marshes that exist within the WCAs, 20 to reduce the drainage water phosphorus? 21 A. Yes. 22 Q. It's a choice of one or the other? 23 A. Yes. I have a very definite opinion on 24 that. 25 Q. Is that what we're choosing between, JACK BESONER & ASSOCIATES 150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537 78 1 more or less, in your opinion? 2 A. Yes. 3 Q. You do have a definite opinion on which 4 one is the better choice, I gather? 5 A. Yes. 6 Q. I got a feeling I know what it is, but I 7 need to ask you. 8 A. You may never guess. 9 Q. Doctor Patrick, which is the better 10 choice, in your opinion? 11 A. As I presume I will deal with in the-- 12 talk with the STAs, the capacity-- their capacity to 13 remove phosphorus, the present marsh areas that are 14 receiving this water are going to be much more 15 efficient in re