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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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150 WEST FLAGLER STEET, MIAMI, FL 33130 (305) 371-1537
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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
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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.
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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.
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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
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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.
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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.
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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
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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
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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
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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?
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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.
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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.
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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
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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.
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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?
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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
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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?
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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
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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?
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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.
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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.
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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
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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,
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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?
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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
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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
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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
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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
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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
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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.
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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.
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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
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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
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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?
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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.
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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
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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
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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,
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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,
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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,
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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 removing phosphorus, than the STAs will
16 for some years to come, and in that sense, will
17 serve to-- will continue-- could continue to serve
18 to remove phosphorus, what can be called excess
19 phosphorus, that is-- that that is caused by
20 drainage from the EAA.
21 Q. Okay. That's the global answer, that
22 you believe they are more efficient in removing
23 phosphorus than the STAs, for some number of years?
24 A. Yes.
25 Q. Do you have an idea of how long?
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1 A. My best estimate, it would be six to
2 eight years before the STAs will be able to function
3 at the same level as the water conservation areas in
4 removing phosphorus above the 50 parts per billion
5 level.
6 Could I-- could we take a five minute
7 break?
8 MS. PONZOLI: Sure.
9 (Thereupon a recess was taken
10 in the deposition, after which
11 the deposition continued as follows:)
12 BY MS. PONZOLI:
13 Q. Just to clarify another point, Doctor
14 Patrick, I assume that whether we use the marshes
15 that presently exist, which I believe will be more
16 efficient in removing phosphorus, or we use STAs, is
17 it fair to say that the mercury issue is a separate
18 issue from which of these clean-up mechanisms we
19 use?
20 MR. KOBELINSKI: Object to the
21 mischaracterization of his prior testimony, and if
22 you can respond, go ahead.
23 THE WITNESS: I think that's the general
24 assessment that I would agree with, that would be a
25 separate issue.
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1 BY MS. PONZOLI:
2 Q. And just to carry that one step further,
3 if I understand your answers, we're probably going
4 to have the mercury problem that we're seeing in the
5 Everglades, regardless of which of these two
6 clean-up areas we're using to reduce the phosphorus
7 and-- in the drainage water.
8 Is that accurate?
9 A. Well, not completely.
10 I'm not convinced that in the high
11 nutrient system that the present 2-A, and portions
12 of three-- that are occurring as a result of input
13 of nutrient, or that there are the proposed STAs are
14 going to aggravate the mercury problem.
15 As I indicated earlier, the mercury
16 problem seems to be most pronounced in somewhat
17 pristine areas, that are low in nutrient and low in
18 dissolved and suspended organic matter in the water
19 column.
20 So we have got to-- we have a lot to
21 learn about the causes and the possible solutions of
22 the mercury problem in-- in North America, not just
23 in the Everglades, because this same problem occurs
24 in North Florida, and it occurs all throughout the
25 south, and it occurs in many other parts of the U.S.
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1 and in the world.
2 Many problems we don't know about, until
3 we get the techniques to evaluate.
4 Q. Sure. I understand.
5 Let me ask one more sort of large scale
6 questions, and then I'll try to start cleaning up
7 this notice and moving back to your actual opinions
8 that you have been prepared to come and talk about.
9 In a general sense, is it your opinion
10 that these present marsh areas that have the high
11 nutrient systems you were referring to, that they
12 are stabilized and not expanding?
13 A. That's very difficult for me to answer,
14 since I've only been involved in this work for about
15 four years, but-- and I have not been asked, nor
16 have I observed whether there's a expansion or
17 contraction taking place, but from what I can
18 understand, if there is any expansion, and I presume
19 you're referring to the expansion of typha in
20 relation to sawgrass-- if there is any expansion,
21 it's extremely slow.
22 It hasn't been observable, at least to
23 me, so I-- I don't really have a definite opinion on
24 that, except to say that not only does typha respond
25 to increased nutrient, but caladium or sawgrass also
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1 responds to increased nutrients, and this can be
2 seen by looking at the-- observing the height and
3 the growth of sawgrass in areas where there are more
4 nutrients than in other areas, so I cannot say for
5 sure that nutrient inputs, as such, are related to
6 even the establishment or the expansion of these
7 different vegetation communities.
8 I think it's more complex than that.
9 Q. Well, let me ask you this: Let's assume
10 that one's definition of the marsh area, that is in
11 the high nutrient system, went beyond those areas
12 that exhibited typha or increased growth in the
13 caladium-- did I pronounce that--
14 A. Caladium, yes.
15 Q. Let's assume our definition of these
16 areas extended on into elevated phosphorus to
17 greater depths of the soil, than one would find in
18 the background areas, with increased microbial
19 activity, etcetera.
20 Do you have an opinion as to whether
21 there's an expansion that's occurring because of the
22 phosphorus in the drainage water?
23 MR. KOBELINSKI: Object to the form of
24 the question, to the extent it sort of left open
25 parameters, the definition of the nutrient area.
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1 You can go ahead and respond.
2 THE WITNESS: I'm sorry. You really need
3 to restate the question. I really didn't understand
4 what you're asking.
5 BY MS. PONZOLI:
6 Q. You're probably right. No problem.
7 A. Maybe you could break it down into two
8 simple questions.
9 Q. What I'm trying to ask you is-- you can
10 say you have no opinion on expansion--
11 A. I may have an opinion, but I don't
12 understand the question.
13 I will have to understand the question.
14 Q. Clearly-- let's just start with a
15 rational set of, you know, premises.
16 If one were choosing between using the
17 present marsh areas or building the STAs, an issue
18 of concern would be whether the present marsh areas
19 are-- are expanding areas?
20 A. Yes.
21 Q. They are not totally stable, so we can
22 say, all right, you take so many acres of 2-A, and
23 that's it, and that will do the job, but we have an
24 ever expanding area that's needed to do the job, and
25 if I understood your answer before, you kind of, on
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1 the one hand, didn't have an opinion on whether it
2 was expanding, but it wasn't really clear to--
3 A. Yes.
4 Q. Do you have an opinion as to whether
5 that area in 2-A is expanding?
6 A. I thought I had made it clear, I had
7 made no observation; I had no data on whether it was
8 expanding or not.
9 That was not an objective I had, to
10 determine that the transition area was expanding.
11 Q. So you have no opinion today, as you sit
12 here, on expansion?
13 A. I have no definite knowledge whether it
14 has expanded or not, during this period of study.
15 Q. And you have no opinion on
16 stabilization?
17 A. Well, yes, I do have an opinion.
18 Q. Okay. What is your opinion on
19 stabilization?
20 A. Well, my opinion is the system is
21 generally stable, because it's-- it's my belief that
22 the areas in which there is typha that-- the typha
23 is there, not solely because of the nutrient, but
24 because of the-- because of disturbance and water
25 depth.
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1 And unless that changes, I see no real
2 reason for there to be an expansion.
3 I'm not in my-- my opinion is, and this
4 is an opinion-- that it takes more than just
5 nutrient, alone, to cause this transition.
6 There has to be other mechanism for--
7 there has to be a mechanism for typha to become
8 established and move in, because, as I have
9 indicated, sawgrass, itself, will respond to
10 increased nutrient by increased growth, as is
11 evident in the transects below 10-C.
12 Q. Then I would assume that you would
13 agree, the periphyton communities and the microbial
14 communities, would also respond to increased
15 nutrient input?
16 A. Yes.
17 Q. And so the defined area, however one
18 defined it-- wherever one drew the lines on the
19 map-- they would have to be-- would you agree,
20 beyond just the typha areas, but also in the areas
21 where you're seeing changes in the periphyton
22 communities and changes in the microbial
23 communities?
24 MR. KOBELINSKI: Object to the form, to
25 the extent that you're assuming that is beyond the
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1 typha area.
2 THE WITNESS: Well,, I thought I had made
3 it clear in my answer, I had not observed changes.
4 I have observed a gradient that is
5 there, but--
6 BY MS. PONZOLI:
7 Q. A gradient in what, Doctor Patrick?
8 A. In the plant communities, but your
9 question was based on the supposition that I had
10 observed changes in that, and I thought I made it
11 clear I had not observed changes in the extent of
12 these plant communities.
13 Q. Do you mean that-- when you say you have
14 not observed changes, you didn't see it-- see a
15 change from sawgrass to cattail?
16 It was always cattail, when you saw it?
17 Is that accurate, that you--
18 A. Right.
19 Q. Is that--
20 A. I presume, change is an event over time.
21 Q. It goes to our definition of change, and
22 I understand exactly what you're saying.
23 You do see a gradient in plant
24 communities?
25 A. Yes.
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1 Q. Where would you, along that gradient in
2 plant communities, come to the end of your line and
3 say, "This is the enriched area which is doing the
4 job for the phosphorus, and it's not going to go
5 beyond that, in my opinion"?
6 Do you have such an area in your mind?
7 A. Is not or has-- is not--
8 Q. Has not. Let's start with has not.
9 A. That is pretty evident from transects
10 done by Doctor Richardson, Doctor Reddy, and by me,
11 and goes for some kilometers down south of 10-C, and
12 goes into the-- into the sawgrass, caladium zone,
13 because there's some increase in nutrient on down
14 into the solid sawgrass?
15 A. That is the present situation.
16 Q. So you can draw that line where the
17 increased nutrient stops, simply by data collection?
18 A. Yes.
19 Q. And you have no knowledge of whether
20 that place is expanding, year by year?
21 A. That's correct.
22 Q. But you would conclude that is an
23 important consideration into which you would use the
24 natural areas or the man-made areas?
25 A. It would be one consideration.
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1 Q. I would like to return and clean up a
2 few things here before lunch.
3 We had gone down this long trail,
4 beginning with paragraph four of your notice duces
5 tecum, where the word mercury appeared.
6 A. Let's see. We got no further than that.
7 Q. We got no further than that.
8 And then in paragraph five, you have
9 been asked to provide the documents and data that
10 would go to your expert opinions in the proceedings,
11 and there have been some mention in the prior
12 paragraph, that there are certain documents by
13 Doctor Davis and Doctor Richardson, that have not
14 been reproduced, but there's a belief that they
15 have-- they have been produced for prior
16 depositions, and we're going to have to get with
17 what those are.
18 Other than those, do you believe that
19 you provided everything in paragraph five?
20 A. Okay. Let me read paragraph five, to
21 make sure I understand it.
22 Q. Go ahead.
23 A. To my knowledge, this is essentially
24 correct.
25 Although having carried out dozens and
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1 dozens of research type projects dealing with
2 nutrient and phosphorus, and-- it would be almost
3 impossible to say that I didn't get one bit of
4 information that I wouldn't use from some document
5 that I did not provide, but in-- within-- to the
6 best of my knowledge, yes. Yes, for five.
7 Q. Okay, and also for number six, is this
8 what Mr. Kobelinski of the League is saying, and
9 U.S. Sugar is saying, that they do not believe that
10 they have to provide?
11 A. Let's see. Provide all correspondence,
12 contracts, agreements--
13 Yes. As I say, I provided all of that,
14 except that which was denoted to me as protected.
15 Q. Have you done reports, Doctor Patrick,
16 to Earl, Blank, or the Sugar Cane League?
17 Have you actually done reports on your
18 work?
19 A. Yes. Some reports, yes.
20 Q. What were those?
21 Were those withheld, Mr. Kobelinski?
22 I'm not trying to take your deposition,
23 but I don't think I have any such reports, so I'm--
24 MR. KOBELINSKI: You want to take a five
25 minute break, because I'm not sure I know what
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1 report he's referring to.
2 It won't be five minutes, but--
3 MS. PONZOLI: Sure.
4 Off the record.
5 (Thereupon a recess was taken
6 in the deposition, after which
7 the deposition continued as follows:)
8 MR. KOBELINSKI: I think if you pursue
9 perhaps a little bit of the questioning.
10 What this witness was referring to--
11 nothing like records or draft reports. He's just
12 referring to a couple of status letters that he's
13 done, telling us the status.
14 Has not done any type of report on the
15 work, conclusion, etcetera, as such, yet.
16 We have letters to-- between the witness
17 and attorney. We are withholding those as
18 privileged, although I don't recall it's the report
19 that you're referring to.
20 I don't think you have the correct
21 conception of what those are, that Doctor Patrick
22 mentioned in the record a few moments ago.
23 BY MS. PONZOLI:
24 Q. Is that accurate, you have not done
25 status reports, but letters, Doctor Patrick?
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1 A. I'm not sure I can distinguish between
2 status letters and reports.
3 Q. I certainly don't think I can, and I am
4 certainly going to argue that I'm entitled to every
5 one of those reports.
6 I would like to put on the record, Mr.
7 Kobelinski, I'm requesting those reports be produced
8 or status letters, tomorrow morning, in addition to
9 the correspondence and the contract and agreements,
10 as to his employment.
11 Mr. Nettleton and I have been refreshing
12 our memory, while you discussed the report concept
13 with Doctor Patrick, and it's our recollection this
14 issue was resolved at a hearing before the hearing
15 officer, and that contract-- all this is supposed to
16 be produced, and if federal people have withheld
17 those improperly, if you will give me their names, I
18 will try to remediate the situation, but I am asking
19 that those be produced tomorrow morning, and would
20 like to make it clear that we expect those to be
21 done, and that we are willing to do the same thing.
22 If we have not--
23 MS. PONZOLI: I know.
24 MR. KOBELINSKI: I know at least Doctor
25 Kadlic has not. I know Doctor Wetzel has not and
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1 Doctor Mendelson-- Doctor Mendelson was unable to
2 say specifically how much, and Doctor Wetzel, same
3 thing, and etcetera, so as I said, it's-- as long as
4 it's on a consistent basis, that's fine.
5 With regard to correspondence between
6 attorneys and expert witnesses, we will not be
7 producing those. Those are privileged, and if you're
8 asking him with regard to that type of matter, I can
9 add to that list almost every witness they have
10 taken from the federal government, which Bob Johnson
11 has had numerous correspondence with counsel in
12 this--
13 MS. PONZOLI: I believe that's
14 different. An attorney-client communication is far
15 different from a communication between hired
16 consultant or testifying expert, and the attorney.
17 That's a very different situation, and I
18 don't believe that we have held back correspondence
19 for testifying witnesses.
20 MR. KOBELINSKI: Bob Johnson is listed as
21 a testifying witness.
22 MS. PONZOLI: But he is a client. He's
23 not like Mr. Wedgeworth, or I don't know if you have
24 some of your clients listed as witnesses or not.
25 I don't believe you have been very
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1 anxious to put those before the court.
2 MR. KOBELINSKI: I don't have many
3 clients that are scientists, and that's what this
4 case deals with.
5 That's not for this record, but I-- I
6 disagree with your distinction, someone is an
7 employee and-- an expert you retain and have
8 correspondence with in the preparation of your case,
9 is not attorney work product, is what you're saying,
10 and I-- I believe it is attorney work product, which
11 is privileged, and as such, has been listed on the
12 privileged list, and it's not extensive.
13 If there has been some sort of
14 resolution with regard to the contract materials and
15 particularly bills, that's fine.
16 As I said at the beginning of this
17 deposition, as long as it's a consistent and mutual
18 matter, that's-- then I believe everything will be
19 resolved.
20 MR. NETTLETON: I'll just join in Ms.
21 Ponzoli's comments and request, and just for
22 clarification, my understanding was that there was
23 a-- with Bill Hyde, that the League would be turning
24 over all contracts and invoices and so forth, with
25 regard to your experts.
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