405
1 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
2
3 SUGAR CANE GROWERS COOPERATIVE
OF FLORIDA; ROTH FARMS, INC.;
4 and WEDGWORTH FARMS, INC.,
5 and DOAH CASE NOS. 92-3038
92-3039
6 FLORIDA SUGAR CANE LEAGUE, INC.; 92-3040
UNITED STATES SUGAR CORPORATION; 92-6796
7 and NEW HOPE SOUTH, INC., 92-6797
92-6799
8 and 92-6800
9 FLORIDA FRUIT AND VEGETABLE VOLUME III (Pages 405-571)
ASSOCIATION, LEWIS POPE FARMS,
10 W.E. SCHLECHTER & SONS, INC.,
and HUNDLEY FARMS, INC.,
11
Petitioners,
12
v.
13
SOUTH FLORIDA WATER MANAGEMENT
14 DISTRICT,
15 Respondent,
16 and
17 MICCOSUKEE TRIBE OF INDIANS,
THE UNITED STATES OF AMERICA,
18 et al..
19 Intervenors.
_____________________________________
20
Deposition of CURTIS D. POLLMAN, Ph.D.
21
Taken before Lynn Marie Durscher, Registered
22 Professional Reporter and Notary Public in and for the
State of Florida at Large, pursuant to notice of taking
23 deposition filed by the Respondents in the above cause.
24 Wednesday, February 16, 1994
15 Southeast First Avenue
25 Gainesville, Florida 3260l
9:30 a.m. - 4:45 p.m.
406
1 APPEARANCES:
2 On behalf of the Petitioners Sugar Cane Growers
Cooperative, Roth Farms, Inc., and Wedgworth Farms,
3 Inc.:
Hopping, Boyd, Green & Sams
4 123 South Calhoun Street
Post Office Box 6526
5 Tallahassee, Florida 32314-6526
BY: WILLIAM HARRIS GREEN, ESQUIRE
6
On behalf of the Respondent SFWMD:
7 Popham, Haik, Schnobrich & Kaufman, Ltd.
4000 International Place
8 100 Southeast Second Street
Miami, Florida 33131
9 BY: PAUL L. NETTLETON, ESQUIRE
10 On behalf of the Intervenor, United States of
America:
11 United States Department of Justice
General Litigation Section
12 Environment and Natural Resources Division
Washington, D.C. 20530
13 BY: MICHAEL W. REED, ASSISTANT CHIEF
14 ALSO PRESENT:
15 RONALD D. JONES, Ph.D.
16
17
18
19
20
21
22
23
24
25
407
1 - - -
2 I N D E X
3 - - -
4 WITNESS: DIRECT CROSS REDIRECT RECROSS
5 Curtis D. Pollman, Ph.D.
6 BY MR. NETTLETON: 410 (Continued)
BY MR. REED: 467
7 BY MR. GREEN: 544
BY MR. NETTLETON: 563
8 BY MR. REED: 565
9 - - -
10 E X H I B I T S
11 - - -
12 RESPONDENT'S EXHIBITS:
13 NUMBER PAGE DESCRIPTION
14 No. 62 410 Composite of data presentations
15 No. 63 416 File entitled Short-Circuiting in
WCA-2A
16
No. 64 426 Fax from Hewitt to Pollman - 8/26/93 &
17 series of plots
18 No. 65 429 Fax from Hewitt to Green - 9/2/93
& graphs
19
No. 66 431 Fax from Hewitt to Pollman - 9/7/93 &
20 attachments
21 No. 67 433 Fax from Hewitt to Pollman - 9/8/93
and attachments
22
No. 68 436 Letter from Hewitt to Perko - 9/30/93
23
No. 69 436 Letter from Hewitt to Pollman -
24 10/13/93
25 No. 70 443 Fax from Hewitt to Pollman 10/13/93 &
attachment
408
1 NUMBER PAGE DESCRIPTION
2 No. 71 445 Document entitled Calculation of
Rainfall Phosphorus Loadings
3
No. 72 449 Letter from Maristany to Pollman -
4 1/3/91 & tables
5 No. 73 465 Document filed re: Pollman subject
matter of expected testimony
6
No. 74 465 Privileged List - Curtis D. Pollman
7
No. 75 465 Privileged List - Curtis D. Pollman
8
No. 76 483 Partial document from SFWMD to Barton
9 Bibler, P.E. - 12/16/91
10 No. 77 501 Letter from Landing to Pollman - 2/9/93
11
No. 78 503 Letter from Landing to Pollman -
12 4/26/93 & attachments
13 No. 79 504 Letter Landing to Pollman - 5/14/93 &
attachments
14
No. 80 507 Letter from Good to Ward - 8/5/93 &
15 attachments
16 No. 81 508 Letter from Landing to Pollman -
9/14/93 & attachments
17
No. 82 509 Fax from Pollman to Green - 9/20/93 &
18 attachments
19 No. 83 509 Letter from Pollman to Green - 10/4/93
& attachments
20
No. 84 513 Letter from Bailey to Green - 10/15/93
21 & graph
22 No. 85 514 Fax from Good to Pollman - 11/18/93 &
graphs
23
No. 86 518 Letter from Whitten to Grimshaw -
24 2/3/94
25 No. 87 519 Graphs and notes - Pollman
409
1 NUMBER PAGE DESCRIPTION
2 No. 88 525 Maps
3 No. 89 542 Fax from Good to Green - 8/23/93 &
attachments
4
5 PETITIONERS' EXHIBITS:
6 NUMBER PAGE DESCRIPTION
7 No. 90 552 Curtis D. Pollman, Ph.D. CV
8 No. 91 563 Memo from Maceina to Green - 2/4/94 &
attachments
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
410
1 P-R-O-C-E-E-D-I-N-G-S
2 - - -
3 (Thereupon, Respondent's Exhibit No. 62 was marked
4 for identification.)
5 Thereupon,
6 CURTIS D. POLLMAN, Ph.D.,
7 being by the undersigned Notary Public previously first duly
8 sworn, was examined and testified further as follows:
9 DIRECT EXAMINATION (Continued)
10 BY MR. NETTLETON:
11 Q. Dr. Pollman, showing you what has been marked as
12 Exhibit Number 62, which appears to be a composite exhibit
13 of a number of different data presentations. The first page
14 of that, am I correct, that is a map of the
15 Curtis Richardson-Duke Wetland transects?
16 A. Yes. I believe that's correct.
17 Q. Okay. And the tables on the following two pages,
18 Table 4 and Table 6, are those from the Duke Wetland report,
19 to your knowledge?
20 A. That appears to be the case. I couldn't say it
21 with absolute certainty.
22 Q. Well, do you recall yourself or anyone at KBN
23 possibly creating these tables, Table 4 and Table 6?
24 A. No. These do not look like anything that KBN
25 produced or developed.
411
1 Q. Okay. The next page is handwritten labeled Figure
2 5. Do you know who prepared or created this presentation?
3 A. No, I do not.
4 Q. Okay. I take it this is not something created by
5 KBN or Tetra Tech?
6 A. That's correct.
7 Q. Or Info Tech?
8 A. That is correct.
9 Q. Turning to the following page, can you tell me who
10 created that presentation and data?
11 A. I don't know with certainty.
12 Q. Do you have an idea?
13 A. I believe it might be Dr. Richardson of Duke
14 University.
15 Q. The following page, it's labeled or dated Monday,
16 October 5, 1992. Do you know who created that presentation
17 of data?
18 A. I believe that also was developed by Dr.
19 Richardson.
20 Q. All right. With regard to these pages we've just
21 discussed, have you utilized these in any way in formulating
22 any opinions you've expressed?
23 A. Not these particular tables.
24 Q. The following page, presentation of data entitled
25 Total TP versus P, All Data Points, do you know who created
412
1 this presentation?
2 A. I believe this also was prepared by Dr. Richardson
3 of Duke University, but, again, I cannot be absolutely
4 certain.
5 Q. Just going through the remainder of the pages of
6 this exhibit, is it your understanding that all of these
7 were created by Dr. Richardson at Duke University?
8 A. Yes, I believe so.
9 Q. Okay. Have you utilized any of the information
10 contained in this exhibit in formulating your opinions?
11 A. We have utilized the raw data that lay behind
12 these exhibits in formulating our opinions.
13 Q. In reviewing this particular presentation of the
14 data in your work in this case, have you formed any
15 conclusions as to the accuracy of the presentations?
16 A. No, I have not.
17 Q. Let's go about five pages from the back of the
18 exhibit. One of the presentations refers to all data minus
19 outliers, do you see that?
20 A. Yes.
21 Q. Do you know what constituted an outlier for the
22 purposes of this graphic displayed data or what data was
23 eliminated?
24 A. I can only speculate.
25 Q. On the following page which refers to data from
413
1 all points except Reddy's bad points, do you know what would
2 be considered a bad point?
3 A. I believe that there was at least one station near
4 the S-10 structures that Dr. Richardson believes has
5 accumulation rates that, for lack of a better word, might be
6 considered an artifact.
7 Q. Do you know which station that is? Is it the
8 nearest to the S-10?
9 A. It could be that station.
10 Q. Do you know which transect?
11 A. Which one of Dr. Reddy's transects?
12 Q. Yes.
13 A. No, I don't recall.
14 Q. Do you recall which particular S-10 structure it
15 would be adjacent to?
16 A. No, I don't.
17 Q. And what was the nature of the site which would
18 lead it to be deemed an artifact as compared to the other
19 sites?
20 MR. GREEN: Object to the form. I think he just
21 testified he didn't know where the site was.
22 MR. NETTLETON: I didn't ask where it was.
23 MR. GREEN: Well, you asked the nature of it. I
24 think you need to know where it was to know the nature of
25 it, but if he doesn't, he's certainly welcome to answer.
414
1 BY THE WITNESS:
2 A. Perhaps you can elaborate on what you mean by the
3 nature of the site.
4 Q. Well, the nature, I guess, of the data that was
5 collected which rendered it different than the other sites
6 that it would be labeled a bad point.
7 A. My recollection of Dr. Richardson's concerns about
8 this particular site was that the apparent accumulation
9 rates were inordinately high, and I think he had some real
10 problems with the interpretation of that particular core.
11 You got to bear in mind that the accumulation
12 rates are a function of how you interpret the underlying
13 data in the core.
14 Q. Do you share Dr. Richardson's concern about the
15 accumulation rates from that particular core?
16 A. To be perfectly honest, I haven't critically
17 examined that particular core and formulated any conclusions
18 as whether or not there are artifact problems with it.
19 Q. Can you tell me what the accumulation rate was for
20 that particular core?
21 A. I believe it's above .8 grams per meter squared
22 per year.
23 Q. And can you tell me what, in comparison to the .8
24 grams, what was expected to be found which would have
25 rendered this a non-bad point, if you will?
415
1 MR. GREEN: Object to the form.
2 A. I can't tell you what was expected, to be
3 perfectly honest.
4 Q. Well, let me rephrase the question. Relatively
5 speaking, what were the other cores showing pursuant to Dr.
6 Richardson's analysis in comparison to this particular
7 point?
8 A. Well, according to this particular plot that I
9 have in front of me here, they range in -- phosphorus
10 accumulation rates ranges anywhere from close to zero to a
11 little bit less than 1 gram per meter squared per year. I
12 guess more likely about .9.
13 Q. Turning back three pages in the exhibit where
14 there is a graphic display of all data points, can you
15 identify the particular data point from comparing the two
16 which would be the bad point?
17 MR. GREEN: Object to the form.
18 A. Yes. It looks to me from this plot that the point
19 that was deleted by, again, this is apparently Dr.
20 Richardson who has done this analysis, is the point that
21 corresponds to a total phosphorus concentration in the water
22 column of approximately .25 milligrams per liter and a soil
23 accumulation rate of about 1.1 grams per meter squared per
24 year.
25 Q. Again, comparing the two different presentations,
416
1 it appears to me that the, am I correct, that the data
2 plotted on this, the one that references the bad point,
3 appears to more closely resemble the Duke data as identified
4 in the all data points presentation; is that right?
5 MR. GREEN: Object to form.
6 A. No, I wouldn't say that.
7 (Thereupon, Respondent's Exhibit Number 63 was
8 marked for identification.)
9 Q. Dr. Pollman, showing you what has been marked as
10 Exhibit Number 63, which consists of a composite exhibit of
11 documents produced in your file entitled Short-Circuiting in
12 WCA-2A, can you identify this as your file?
13 A. Well, the handwriting on the file folder is not my
14 handwriting. This actually may have been produced in Mr.
15 Good's files, but, nonetheless, I believe some if not all
16 this information was in my files as well.
17 Q. Can you the tell me what is meant by
18 short-circuiting of flow?
19 A. Yes. Short-circuiting of flow, one good example
20 would be if you take a system that you considered to be
21 well-mixed, for example, let's take a rectangular-shaped
22 reservoir that has one inflow at the upper end and it has
23 one outflow at the lower end. Water comes into this
24 reservoir or this basin, and if you assume that the system
25 is well-mixed, what that would mean is that as water comes
417
1 in, essentially, the entire system is well-mixed, the water
2 that comes into the system mixes with all the other water in
3 the system before water exits out.
4 In a situation where you have short-circuiting,
5 there may be paths of least resistance, if you will, a
6 preferred route or an easier route for water to take as it
7 comes into the system and exits the system, and the
8 consequence, then, would be reduced mixing.
9 Q. Well, can you tell me the significance of
10 short-circuiting in area 2A that led you to look into this
11 issue?
12 A. Yes. We were concerned about Dr. Walker's
13 analysis when he did his analysis of settling velocities in
14 Water Conservation Area 2A, that it had been raised that
15 there was the possibility that there might be
16 short-circuiting in Water Conservation Area 2A that would
17 affect his hydrologic assumptions in the course of his
18 analysis.
19 Q. Can you explain how, assuming short-circuiting did
20 exist, how that would affect the analysis?
21 A. Yes. The way it would affect the analysis is as
22 follows. If there was short-circuiting, then the assumption
23 that water coming in through the S-10 structures flows
24 unimpeded along a linear path along the transects that he
25 used in the course of his analysis would be incorrect.
418
1 Q. Am I correct that at this time you have not -- you
2 have not concluded that there is any short-circuiting
3 involved in area 2A?
4 A. That is correct.
5 Q. There is a reference in this, the first memorandum
6 in the file dated January 12, 1994, to, "The relationship
7 between stages at the two sites appears to change around
8 elevation 12.2 feet."
9 Can you tell me what the significance of that
10 particular relationship is?
11 A. Significance of that relationship suggests that
12 there is the possibility that short-circuiting might occur.
13 Q. And that would be at the approximately 12.2-foot
14 elevation area, where the contour changed to that level?
15 A. That would appear to be the critical depth.
16 Q. Okay. This memorandum, again, at the end
17 recommends that the work on this task be halted. Has that,
18 in fact, occurred?
19 A. Yes, that's correct.
20 Q. So no one at KBN is currently continuing
21 researching the issue of whether or not the short-circuiting
22 is occurring in 2A?
23 A. Yes, that's correct.
24 Q. Do you intend to offer any opinions concerning the
25 effects of short-circuiting on Dr. Walker's analysis?
419
1 A. No, not unless I'm asked.
2 Q. Do you have any opinions on the effect of
3 short-circuiting on Dr. Walker's analysis?
4 A. At this point I would say that the results are
5 inconclusive.
6 Q. Are there any plans to continue this research at a
7 later date?
8 A. No.
9 Q. Again, I believe the page following the memorandum
10 we just discussed is a map of area 2A. Can you tell me the
11 the source of that particular map?
12 MR. GREEN: It's the third page in?
13 MR. NETTLETON: Yes. If you count the cover page,
14 it's the third page in.
15 A. I'm sorry. I really don't recollect what the
16 source of this map is.
17 Q. The following page labeled C-302 Survey, do you
18 know what the source of this data presentation is?
19 A. I believe this survey information was obtained
20 from Environmental Services and Permitting.
21 Q. Do you know who collected the data?
22 A. No, I do not.
23 Q. The following page entitled Daily Stage
24 Comparisons or Comparison, can you tell me who created that
25 data presentation?
420
1 A. It was prepared by KBN.
2 Q. Can you tell me what that shows?
3 A. It is a bivariate plot of stage at structure S-10A
4 versus the stage at gage 300.
5 Q. And what's the significance of the line that's
6 drawn?
7 A. The line that's drawn is a one-to-one line. In
8 other words, it's a line that you would expect to see if
9 there was an exact relationship between the two points in
10 terms of stage. In other words, if stage goes up in one,
11 does stage go up in a like manner at the other station.
12 Q. And where the data points cross that particular
13 line, is it about 12.2 feet; is that right?
14 A. Yes, that's correct.
15 Q. And the following page entitled Time Series of
16 Stage, can you tell me who created that presentation?
17 A. I believe that staff at KBN also prepared that
18 plot.
19 Q. And can you explain what this shows?
20 A. It's a time series plot that shows stage as a
21 function of time between 1988 through, looks like, the early
22 part of 1990 at two different locations, gage 300 and at the
23 structure S-10A.
24 Q. I think the next few pages are duplicates of
25 things that we've already looked at. If you could turn to
421
1 the page that's labeled Stage Comparison -- I'm sorry, this
2 looks familiar, too.
3 Okay. The page labeled Stage Comparison
4 1989-1990 with handwriting on it, can you tell me whose
5 handwriting that is?
6 A. It's either John Good's handwriting or Fay Baird's
7 handwriting, both staff members of KBN.
8 Q. Just for the purpose of the record, can you
9 translate -- I have a hard time reading it -- what this
10 handwriting says, assuming you can read it.
11 A. Okay. I'll do my best here. At the top
12 coincident with the heading, I believe it says Daily Values.
13 Then within the body of the graphic, there is a
14 heading that says Possible Causes, colon, one, and I believe
15 it says destruction of flow around, and that may be -- no,
16 I think that's obstruction of flow. Excuse me. Obstruction
17 of flow around elevation 12.2.
18 Then there is a second item. I believe it says
19 negative flows at 10A instead of flow into Water
20 Conservation Area.
21 The third item would be opening and I have to
22 presume it's and closing of structure below gage 300. Then
23 in parens -- parentheses, rather, the S-11s.
24 Q. The second item, negative flows at 10A instead of
25 flow into WCA, what does that mean?
422
1 A. Means that --
2 MR. GREEN: Object to the form.
3 A. I believe that the author was referring to the
4 fact that flows through the S-10 structures could apparently
5 go both directions, both into Water Conservation Area 2A and
6 out.
7 Q. On the next page can you identify whose
8 handwriting appears on that data presentation?
9 A. The handwriting appears to be the same handwriting
10 on the previous plot, so, again, it's either, to the best of
11 my knowledge, it's either John Good's or Fay Baird's.
12 Q. Can you turn back into the exhibit to a page at
13 the top, there is a handwritten note, "John - preliminary
14 results at normal depth," et cetera.
15 A. Are we going backwards or forwards in the exhibit?
16 Q. Towards the back of the exhibit.
17 A. And you were looking for "John - preliminary
18 results"?
19 Q. No. I just wanted to identify the page. The note
20 in the middle of that page --
21 A. I just want to make sure I'm at the right page.
22 Q. You are. The note at the middle of the page, can
23 you tell me whose handwriting that is?
24 A. Well, I can't identify the handwriting based upon
25 my knowledge of handwriting, but based upon the note at the
423
1 top, I believe it's Fay Baird's.
2 Q. Okay. And I'm going to read the note and tell me
3 if I correctly interpret. This note in the middle of the
4 page says, "It will be hard to justify using n this large,"
5 dash, "but it's the only way to," quote, "force," end quote,
6 "the equation to get nearly the right Q."
7 Did I read that correctly?
8 A. I believe so.
9 Q. Okay. Can you tell me what that means?
10 A. Well, Manning's n is a hydrologic parameter or a
11 hydraulic parameter, rather. It's also, I believe, known as
12 a roughness coefficient, and it's used in doing hydraulic
13 flow analysis, and to explain what the significance of
14 Manning's n, you need to talk to an expert in hydraulics,
15 which I'm not.
16 Q. Do you understand why it's difficult to justify
17 using a Manning's n as large as a .3?
18 A. No, I don't, because I'm not, quite frankly, that
19 familiar with the use of Manning's n. I'm not an expert in
20 hydraulics.
21 The only thing I could say is that Manning's n
22 would have a typical range of values. This value,
23 apparently, is at the upper end of commonly accepted values,
24 and we had some concerns about having to use a value that
25 large to employ in our analysis.
424
1 Q. Okay. Was this particular document prepared by
2 Tetra Tech?
3 A. No. This particular table was prepared by KBN.
4 Q. Okay. And what's the analysis that's being
5 performed here? What purpose is it being performed for?
6 A. I believe the analysis that's being performed here
7 is the analysis of trying to determine whether or not
8 short-circuiting is likely to occur within Water
9 Conservation Area 2A. I believe it would be called a flow
10 routing analysis or an analysis of that sort.
11 Q. And what are the results you're looking for
12 through these particular calculations? I mean, what's the
13 purpose of making them other than --
14 A. The purpose of the calculations was to ascertain
15 whether or not there was any apparent impedance in the
16 system that likely would lead to short-circuiting. That's
17 the whole objective of the analysis.
18 Q. Is the John referenced at the top, would that be
19 John Good?
20 A. Yes, I believe so.
21 Q. Turn to a page that looks like that. That will
22 come out well in the record.
23 A. (Witness complies.)
24 Q. This page appears to present a grid pattern of
25 elevations over water conservation areas. Can you tell me
425
1 who created this particular document?
2 A. No, I cannot. I've never seen this document
3 before.
4 Q. All right. Do you have any idea when this
5 document would have been created?
6 A. No.
7 Q. The following page, what appears to be a form of
8 vegetative map for the WCAs, can you tell me the source of
9 this document?
10 A. Unfortunately, I can't. I don't really -- I
11 don't really know.
12 Q. Okay. Do you know what particular or approximate
13 time period this vegetative map purports to depict?
14 A. It would appear to be some earlier time period
15 based on the fact that the figure legend includes the title
16 Central and Southern Florida Conservation Areas.
17 Q. Can you put any kind of time frame on it?
18 A. No, I can't.
19 Q. The following page, the figure labeled Topography
20 of Conservation Area 2A, do you know where this particular
21 figure comes from?
22 A. I can't recall.
23 Q. Do you recall approximately what general or
24 approximate date this purports to depict?
25 A. No. I've never seen this document before.
426
1 Q. Turn back a couple more pages to a document that
2 appears to be an excerpt from some other document beginning
3 on Page 81.
4 A. Yes.
5 Q. All right. Can you tell me what that's from, what
6 this is excerpted out of?
7 A. I'm afraid not. I don't recall.
8 (Thereupon, Respondent's Exhibit No. 64 was marked
9 for identification.)
10 Q. Showing you what's been marked as Exhibit Number
11 64, can you tell me what this document contains?
12 A. This document is a document that was faxed to me
13 by Cindy Hewitt at Info Tech, and it contains a series of
14 plots that show, looks like, phosphorus loadings coming out
15 of the EAA as a function of time between 1979 and extending
16 through roughly the present.
17 Q. The values along the Y axis, what do they
18 represent?
19 A. Those would be phosphorus loads.
20 Q. In what units?
21 A. I don't know what the units are.
22 Q. Am I correct these graphic displays are plotting
23 two separate data bases, one from the District and one that
24 Tetra Tech has created?
25 A. Yes. I believe that's correct.
427
1 MR. GREEN: Excuse me, would you read that last
2 question?
3 (Thereupon, the question referred to was read back
4 by the reporter as above recorded.)
5 BY MR. NETTLETON:
6 Q. Can you tell me what was the source of the data
7 that Tetra Tech used to create its data base?
8 A. I believe Tetra Tech would really be in the best
9 position to answer that question, but it's our belief that
10 ultimately the source of data were the South Florida Water
11 Management District.
12 Q. Since I noticed that throughout the graphs the
13 lines generally match up for most of the year but there are
14 some locations where they're off, do you have an explanation
15 as to why Tetra Tech's data base would show differing points
16 along the continuum than the District's data that came from
17 the same source?
18 MR. GREEN: Object to the form.
19 A. Would you repeat the question, please?
20 MR. NETTLETON: Can you read it back?
21 (Thereupon, the question referred to was read by
22 the reporter as above recorded.)
23 BY THE WITNESS:
24 A. I don't have an explanation. I'm sorry.
25 Q. Well, do you understand that Tetra Tech may have
428
1 been manipulating the data in some manner?
2 MR. GREEN: Let me lodge an objection. It's
3 really clarification. I mean, I -- never mind. It's just
4 going to be worthless to you. I mean, I don't want to
5 prompt the witness, that's not my intent, but I think there
6 is an underlying assumption here that's incorrect factually,
7 but you're welcome to go ahead.
8 A. I'm not exactly sure how these data are
9 constructed, Mr. Nettleton. It may be quite simply that the
10 comparison that we're doing here is the District data that
11 Info Tech has in their possession and the data set that
12 Tetra Tech has, which ultimately, again, was derived from
13 the District, and that the only manipulations, if any
14 manipulations were done, would be concentration times flow,
15 and one of the problems that we have historically had in
16 working with the data is that the District has modified its
17 data files, and so we're constantly concerned about making
18 sure that we are using the most appropriate data files, so
19 we do a fair amount of internal checking across our files to
20 make sure that everybody is operating on the same
21 wavelength.
22 Q. Well, on each of the graphic displays of the data
23 beginning towards the latter part of 1991, the only plotting
24 referred is the Tetra Tech data. Can you explain why the
25 District data has not been plotted for that particular time
429
1 period?
2 A. I can't explain that, no. It may be that there
3 are not the same data available for that time period from
4 the District that were available for the earlier time
5 periods and that the remaining or the extension of the time
6 series there reflects simulation results from the EPH
7 model.
8 Q. Would the entire Tetra Tech plotting of data be a
9 simulation from the EPH model?
10 A. I don't know. You'll have to ask Tetra Tech.
11 MR. GREEN: Off the record.
12 (Thereupon, a brief discussion was held off the
13 record.)
14 BY MR. NETTLETON:
15 Q. And would Steve Gherini be able to answer these
16 questions, do you believe?
17 A. Steve Gherini or Ron Munson.
18 (Thereupon, Respondent's Exhibit No. 65 was marked
19 for identification.)
20 Q. Showing you what has been marked as Exhibit Number
21 65, can you identify this document?
22 A. Yes. This is a fax communication from Cindy
23 Hewitt to Mr. Green that I was copied on.
24 Q. The note at the bottom of the page to you
25 referencing, "Curt, these plots would come from Bill not
430
1 Info Tech, I'm giving him the data so he can reproduce
2 them," can you explain why the routing of the data was
3 important?
4 MR. GREEN: Object to the form.
5 A. I believe what this note refers to is that Cindy
6 Hewitt was doing work directly for Mr. Green at his request,
7 she was providing him with the data, and I believe Mr. Green
8 had his own purposes in looking at the data, and I think
9 ultimately I was to receive copies of those results from Mr.
10 Green.
11 Q. Do you know what Mr. Green's purposes were?
12 A. I'm not privy to the mind of Mr. Green.
13 Q. Have you been told what his purposes were?
14 MR. GREEN: I guess I'll object to -- I don't
15 mind the witness answering, but I don't waive any attorney
16 work product privileges with regard to future questions on
17 this. I don't mind him answering that.
18 A. I believe the idea was to look at loadings out of
19 the EAA on a subbasin basis and see if there were any trends
20 within each basin or, rather, within each subbasin.
21 Q. Well, Dr. Pollman, do you know why this
22 information was to be only supplied to you by Mr. Green as
23 opposed to from Info Tech?
24 MR. GREEN: Object to the form. Where does it say
25 that?
431
1 MR. NETTLETON: The note at the bottom of the
2 page.
3 MR. GREEN: Okay, go ahead.
4 THE WITNESS: Could you please repeat your
5 question?
6 MR. NETTLETON: Could you read it back.
7 (Thereupon, the question referred to was read by
8 the reporter as above recorded.)
9 BY THE WITNESS:
10 A. No. I really don't know why.
11 (Thereupon, Respondent's Exhibit No. 66 was marked
12 for identification.)
13 Q. Showing you what has been marked as Exhibit Number
14 66, can you identify this exhibit?
15 A. Yes. This is a fax communication from Cindy
16 Hewitt to myself transmitting, looks like, a time series
17 plot of phosphorus concentrations leaving the various
18 subbasins in the EAA as a function of time.
19 Q. Do you know why -- is it Dr. Hewitt or Miss
20 Hewitt?
21 A. It's Miss Hewitt.
22 Q. Why she wanted you to look at this data before it
23 was passed onto Mr. Green?
24 A. She wanted to, I believe, if I recollect
25 correctly, she wanted my impressions of whether there were
432
1 any outliers of any importance in these time series data.
2 Q. Did you conclude that there were any outliers?
3 A. Yes. I believe that I did.
4 Q. Did you identify the particular outliers?
5 A. Yeah, in a very gross sense. Just visually
6 looking at these plots, there's clearly at least one
7 outlier, possibly two outliers in the plot identified as
8 subbasin S-5. There appears to be an outlier in the plot
9 for subbasin S-8.
10 There may be other outliers that would be
11 uncovered with a rigorous statistical analysis, but that was
12 not the objective of my looking at these data.
13 Q. And those outliers being the high points on the
14 graphics display?
15 A. Yes, that's correct.
16 Q. And what was the basis for determining that these
17 particular points were outliers?
18 A. Well, they're clearly, and at least in my mind
19 based on the concentrations, these concentrations are well
20 and above and beyond levels that were reported at any other
21 point in time during that time series, and the difference in
22 concentrations is so high that it suggests very strongly
23 that these data are contaminated or samples are
24 inappropriately taken.
25 Q. Is that based simply on the numbers themselves?
433
1 A. Yes.
2 Q. And do you know the source of the data that's been
3 plotted here?
4 A. Yes. It's ultimately the South Florida Water
5 Management District.
6 (Thereupon, Respondent's Exhibit No. 67 was marked
7 for identification.)
8 Q. Showing you what has been marked as Pollman
9 Exhibit Number 67, can you identify this document?
10 A. Yes. This is another fax transmittal from Cindy
11 Hewitt to myself. It's dated September 8, 1993, and
12 attached to the fax transmittal letter are a series of
13 plots.
14 Q. Okay. And the transmittal memo makes reference to
15 a presentation. Do you know what presentation is being
16 referred to?
17 A. I can't recall whether the presentation was to be
18 before the hearing officer or whether it was to be given to
19 the technical committee that was involved in mediation.
20 Q. Who was to give the presentation?
21 A. I would have.
22 Q. That presentation did not occur, or did it
23 occur?
24 A. I really can't recollect. Certainly I did not
25 make a presentation for the hearing officer on these data.
434
1 I may have attended a meeting of the technical committee
2 involved in mediation and brought these data with me, but I
3 don't recall whether or not a presentation was actually
4 made. My recollection is that we actually did not have the
5 opportunity to present these data.
6 Q. Can you tell me the source of the data that's been
7 plotted?
8 A. Yes. The source of the data is the South Florida
9 Water Management District.
10 Q. Going to the -- beginning on the third page --
11 fourth page, I'm sorry, of Exhibit 67, on the keys along the
12 bottom, what does limit refer to?
13 A. The limit would refer to the limit that is imposed
14 by the BMP rule.
15 Q. And the next dashed line, is that predicted?
16 A. Yes.
17 Q. And how was the predicted line plotted? What was
18 that based upon?
19 A. The predicted line was based upon the model that
20 was presented in the BMP rule.
21 Q. The model that is part of the BMP rule itself?
22 A. Yes.
23 Q. Can you tell me what the units -- I'm sorry, what
24 the X axis -- I'm sorry, that's adjusted rainfall; is that
25 correct?
435
1 A. Yes, that's correct.
2 Q. I didn't see it.
3 Am I correct the units along the X axis are parts
4 per billion?
5 A. No.
6 Q. What are those units?
7 A. The units would be inches.
8 Q. I'm sorry. And what assumption was made as far as
9 phosphorus content in the rainfall for presentation in this
10 data?
11 A. There is no assumption regarding the concentration
12 of phosphorus in rainfall in this particular model. The
13 model is strictly an empirical relationship that was
14 developed by Dr. Walker between a parameter that he calls
15 adjusted rainfall and loadings of phosphorus out of the
16 EAA.
17 Q. The last two pages of the exhibit, someone has
18 handwritten "no" on both of those. Do you know whether that
19 was a reference to not using those particular data
20 presentations or that something was wrong with them, or what
21 that means?
22 A. I believe that the reason that "no" was written on
23 these plots is that the way the data are presented and that
24 it is so difficult for anyone in the audience viewing this
25 plot to discern what is going on that it would render these
436
1 values -- these plots, rather, of little visual
2 significance.
3 (Thereupon, Respondent's Exhibit No. 68 was marked
4 for identification.)
5 Q. Showing you what has been marked as Exhibit 68, a
6 letter dated September 30, 1993, to Mr. Perko from Ms.
7 Hewitt, copy to you, --
8 A. Right.
9 Q. -- can you tell me why the data referenced in this
10 letter was being requested?
11 A. Well, there are two items that are being requested
12 in this particular letter. The first item is monthly EAA
13 load flow and rainfall data for the months of April 1980 --
14 excuse me, 1993 to current.
15 The reason those data were requested was to
16 examine loadings out of the EAA in conjunction with the BMP
17 rule to see how those loadings compare with target values.
18 The second item, rainfall data referred to in
19 Walker's FORTRAN programs used to generate his 1990 trend
20 report, as I mentioned yesterday, Tetra Tech has been trying
21 to develop -- excuse me, Info Tech has been trying to
22 develop a data set that we believe is consistent with what
23 Dr. Walker used in his trend analysis before proceeding with
24 any reanalysis of his results.
25 (Thereupon, Respondent's Exhibit No. 69 was marked
437
1 for identification.)
2 Q. Showing you what has been marked as Exhibit Number
3 69, can you identify this document?
4 A. Yes. This is a letter from Cindy Hewitt to myself
5 dated October 13, 1993.
6 Q. It makes reference to a meeting on October 11,
7 1993. Did you attend a meeting on that day?
8 A. I'd have to go back and look at my calendar, but I
9 believe so.
10 Q. Can you tell me who was at the meeting?
11 A. I would believe that Cindy Hewitt, myself, and
12 possibly John Good.
13 Q. Any attorneys present?
14 A. No. At least not that I recall.
15 Q. Am I correct that Miss Hewitt here lists certain
16 tasks that Info Tech was to be working on as a result of
17 that meeting?
18 A. Yes, that's correct.
19 Q. The first item, estimate of regression -- excuse
20 me, "Estimate by regression EAA subbasin rainfall from
21 structure data," has that been done?
22 A. It may have been done. That I don't know.
23 Q. Have you seen any reports or draft reports or
24 memos showing any work on this issue?
25 A. Not that I recall.
438
1 Q. Does that item include looking at phosphorus
2 content of rainfall?
3 A. No.
4 Q. Okay. Second item, "Examine the Loxahatchee data
5 received June 2, 1993, and September 8, 1993," what data is
6 being referred to?
7 A. I believe that's the entry data that have been
8 collected over the past year or so.
9 Q. That was the data collected by the League's
10 consultants in their entry to the Loxahatchee?
11 A. Yes. It may also include data collected by the
12 Department of Justice and their consultants.
13 Q. And has the analysis under 2 (a) been completed
14 which looks for -- tries to answer the question, "Is
15 phosphorus related to the output from the S-5 and S-6
16 structures?"
17 A. No. I don't believe that analysis has been
18 completed.
19 Q. Do you have any idea when that analysis will be
20 completed?
21 A. I believe it will be completed in the very near
22 future.
23 Q. Is that something you will be relying upon for the
24 opinions you'll be expressing in this case?
25 A. It could have some bearing on my opinions, yes.
439
1 Q. Item (b), the question being, "Is conductivity
2 related to the output from the S-5 and S-6 structures," has
3 that analysis been completed?
4 A. Not that I'm aware of.
5 Q. And would that be something that you may be
6 relying upon as a basis for the opinions you're expressing
7 in this case?
8 A. It also has some bearing on my opinions.
9 Q. The next question is, "Is the data representative
10 of the original period of record?" Do you know if that
11 analysis has been completed to date?
12 A. I do not know.
13 Q. Have you seen any reports or draft of reports on
14 that issue?
15 A. No.
16 Q. Is that something that you may be relying upon for
17 purposes of your opinions in this case?
18 A. I don't believe so.
19 Q. What is the original period of record being
20 referred to?
21 A. I believe the original period of record referred
22 to here would be the time period for the data set that was
23 used to derive the criteria for the Loxahatchee National
24 Wildlife Refuge and, roughly speaking, that would be 1979
25 through 1983.
440
1 Q. And Item 2 (d), the issue being, "Is the data
2 collected by Ron Jones representative of these samples," has
3 that analysis been completed to date?
4 A. Not that I'm aware of.
5 Q. Is that something you would be relying upon as a
6 basis for any opinions you intend to express in this case?
7 A. Not that I can foresee.
8 Q. Can you tell me what the purpose of analyzing that
9 particular issue is?
10 A. I believe it's just a -- would be a check of one
11 data source versus the other.
12 Q. A sort of verification-type exercise?
13 A. Yes.
14 Q. Would that also be true for the issue under 2 (c)
15 with regard to the original period of record?
16 A. It could have some bearing on 2 (c).
17 Q. Okay. What's the purpose of determining whether
18 the data is representative of the original period of
19 record?
20 A. Well, if the data that were just recently gathered
21 are fundamentally different then the original period of
22 record and, in particular, if there is no causal hydrologic
23 link between, say, the S-5 and the S-6 structures and the
24 interior marsh concentrations, then I would -- I personally
25 would have some real problems with the use of that original
441
1 data for the purpose of formulating criteria.
2 Q. I'm sorry. Did you say that you would have
3 problems using the original data if the current -- the data
4 being referred to in here as collected by the League is
5 representative of the original period of record?
6 A. No, if the data are fundamentally different.
7 Q. And what is the purpose of determining the
8 conductivity related to the output from the S-5 and S-6
9 structures?
10 A. I believe that conductivity is perhaps the best
11 tracer that we could use for determining whether or not
12 there is a hydrologic and geochemical link between what
13 comes through the S-5 and S-6 structures and what is
14 measured at interior stations within the marsh.
15 Q. And with regard to each of these issues, do you
16 know when the analysis is expected to be completed?
17 A. Well, I believe that Dr. McClave has received some
18 more data within the past month or so, so I know that all --
19 all these items are on a fast track, but -- and I can only
20 speculate as to when these things might be done, but I would
21 presume sometime in the very near future.
22 Q. When you say the very near future, would you
23 expect within the coming weeks, one to two, three weeks?
24 A. Yes. Well, again, I can only speculate. I would
25 hope that they would be done in the next couple of weeks.
442
1 Q. The letter goes on to reference the fact that
2 there are ongoing tasks regarding the ENP and EAA data
3 collection and compilation. What data collection and
4 compilation are being referred to there?
5 A. I'm not sure what's being referred to as far as
6 the EAA data collection are concerned. I believe that
7 insofar as ENP data compilation is concerned, Info Tech is
8 in the process of trying to generate rainfall data for the
9 park so that, again, Dr. Walker's analysis could be
10 revisited, and that was not a very straightforward exercise
11 because there are rainfall data missing.
12 We are finding incomplete records and we don't
13 have access, or if the data do exist in our files, we
14 certainly don't know where they are, but at any rate, at
15 this point it's not clear what rainfall data Dr. Walker
16 actually used in the course of his analysis, so we're in the
17 process of having to synthesize that information, and I
18 think there are ongoing activities, again, in terms of
19 trying to make sure that we have a data set that faithfully
20 matches to the best of our abilities what Dr. Walker used in
21 his analysis of trends at the S-10 structures.
22 Q. And when you say collection of data for rainfall
23 from the park, are you referring to collection of samples or
24 collection of data as previously processed?
25 A. Collection of data as previously processed by
443
1 other entities.
2 Q. And you don't recall what the EAA data collection
3 compilation involves?
4 A. It may be that what was envisioned here is trying
5 to develop, again, the most up-to-date loading estimates
6 that we could possibly generate for loads exiting the EAA,
7 so any data related to those needs I believe are what are
8 referred to by that particular statement.
9 Q. And who are the members of the project team as
10 referenced in the letter?
11 A. Several individuals that I can think of. John
12 Good, probably Ron Munson, to a lesser extent, Fay Baird and
13 Andrew MacNeill.
14 Q. To your knowledge, is Info Tech involved in
15 collecting, compiling, or analyzing any mercury data?
16 A. No.
17 MR. GREEN: Off the record.
18 (Thereupon, Respondent's Exhibit No. 70 was marked
19 for identification.)
20 Q. I'm showing you what has been marked as Exhibit
21 Number 70. Can you identify this document?
22 A. Yes, I can. It's a fax transmittal to Cindy
23 Hewitt to myself and also to John Good. It's dated October
24 13, 1993.
25 Q. The draft letter that's attached to that, the
444
1 information that's suggested as being requested from the
2 District, do you know what that's being requested for?
3 A. Yes, two things. First of all, the first two
4 items which referred to the location and source of rainfall
5 gauges south of Lake Okeechobee and then EAA rainfall data,
6 including estimation of missing values, those data were
7 requested so that we could develop as best we can loading
8 estimates out of the EAA and then compare those with the BMP
9 rule.
10 Q. And what about the third item?
11 A. Third item was requested in or as a response to
12 our continuing effort to try and develop a complete data set
13 with which we could use to reanalyze Dr. Walker's S-10 trend
14 analysis.
15 Q. Do you know if it was common practice for Info
16 Tech to request information directly from the District as
17 opposed to through counsel?
18 A. How would you define common practice?
19 Q. Commonly, more than a few times.
20 A. I believe that there were numerous direct
21 requests. Maybe numerous is not the correct word to use,
22 but on a number of occasions Info Tech would call the
23 District for points of clarification regarding data and I
24 imagine that there were several direct requests for data
25 with the District.
445
1 (Thereupon, Respondent's Exhibit No. 71 was marked
2 for identification.)
3 Q. Showing you what has been marked as Exhibit Number
4 71, Dr. Pollman, can you tell me who created this particular
5 document?
6 A. Yes, I can.
7 Q. And who is that?
8 A. Well, it was a document that was produced by KBN,
9 but the text actually was developed by Tetra Tech.
10 Q. Who at Tetra Tech developed the text?
11 A. I don't know.
12 Q. Do you agree with the statements contained in this
13 document?
14 A. I'll have to read it.
15 MR. GREEN: Object to the form. Let him read it.
16 I know --
17 MR. NETTLETON: Well, that's not a form
18 objection.
19 MR. GREEN: No, it's not a form, but please let
20 him, though, or either be more specific. Either way.
21 MR. NETTLETON: It's a page and a half. I'll just
22 let him read it.
23 MR. GREEN: May I read, too? Do you have a copy
24 that I could read, too?
25 MR. NETTLETON: No.
446
1 MR. GREEN: Well, I'd like to read it, too.
2 MR. NETTLETON: That's fine. Off the record.
3 (Thereupon, a brief discussion was held off the
4 record.)
5 THE WITNESS: Okay. I guess I'm ready.
6 MR. GREEN: Just one second.
7 THE WITNESS: Maybe I should focus on the
8 highlighted items there.
9 MR. GREEN: Would you like to -- I don't think
10 that's what Mr. Nettleton had in mind.
11 Thank you. Go ahead.
12 BY THE WITNESS:
13 A. There are a lot of issues raised in this rather
14 brief message here, and I guess I have some opinions about
15 some of these items and no opinions about others. Maybe you
16 would want to go through them point by point.
17 MR. NETTLETON: Okay. You may want to make a copy,
18 then, for Bill.
19 (Thereupon, a brief recess was taken.)
20 BY MR. NETTLETON:
21 Q. Rather than me reading and then doing questions,
22 let me ask the questions this way. With regard to the first
23 paragraph in Exhibit Number 71, do you have any opinions
24 concerning the statements made or the conclusion made in
25 that paragraph?
447
1 A. I have no opinion.
2 Q. The report that's referred to in that first
3 paragraph identified as Appendix IV, it's Roman Numeral IV,
4 Page B-129, would that be making reference to a draft of the
5 SWIM Plan?
6 A. Yes, I believe so.
7 Q. Okay. And with regard to the second paragraph of
8 Exhibit 71, do you have any opinions or conclusions
9 concerning the statements made in that paragraph?
10 A. I believe that the concerns that they raised in
11 this particular paragraph are legitimate concerns.
12 Q. Do you agree that the procedure described would
13 not provide loadings representative of seasonal
14 differences?
15 A. Yes.
16 Q. Referring to the third paragraph on Exhibit 71, do
17 you have any opinions or conclusions concerning the
18 statements made in that paragraph?
19 A. Well, there are no conclusions, I guess, that were
20 reached in that paragraph. I guess I don't understand your
21 question.
22 Q. Okay. The paragraph concerns contamination of
23 rainfall samples. Can you translate the unit up there
24 that's referenced as .32 into parts per billion for me?
25 A. I believe that's a typo. It says .32 micrograms
448
1 per liter, but I believe that the intent was to refer to the
2 units as milligrams per liter.
3 Q. And that would be 32 parts per billion, then?
4 A. Yes, that's correct.
5 Q. With regard to the last paragraph in the document,
6 going from the first to second page, do you agree with the
7 statements made in that paragraph?
8 A. I agree with the basic concerns that are presented
9 in the paragraph.
10 Q. Do you agree it would be more appropriate to
11 calculate annual budgets than to use averaged values as
12 apparently is represented as currently done in that draft of
13 the SWIM Plan?
14 A. Yes.
15 MR. GREEN: Excuse me. You have to wait.
16 I object to the form, but since he's already
17 answered, I guess I'd move to strike. Object to form, move
18 to strike, and you can decide whether you want to ask it
19 again or leave it.
20 Q. I wasn't purporting to directly quote from the
21 document. I don't think I represented that.
22 And would you agree that there is a high degree of
23 decade-to-decade variability as well as year-to-year
24 variability in rainfall budgets for the EAA?
25 A. Yes. I would agree to that.
449
1 MR. NETTLETON: Off the record a second.
2 (Thereupon, a brief discussion was held off the
3 record.)
4 (Thereupon, Respondent's Exhibit No. 72 was marked
5 for identification.)
6 BY MR. NETTLETON:
7 Q. Showing you what has been marked as Exhibit 72,
8 can you identify this document?
9 A. Yes. This is a letter to me by Agustin Maristany
10 with CH2M Hill. The letter is dated January 3, 1991, and
11 the document provides or transmits annual rainfall data for
12 the EAA to me from the files of CH2M Hill.
13 Q. Can you tell me if any of the data included within
14 this exhibit contains any information on phosphorus
15 concentrations?
16 A. No, it does not.
17 Q. Do you know whether phosphorus data was collected
18 with regard to the collection of any of these rainfall
19 samples?
20 A. I have no idea.
21 Q. Have you ever seen any data concerning phosphorus
22 concentration which would relate to this data collection
23 activity?
24 A. Not that I'm aware of.
25 Q. Do you know who maintains the rainfall stations
450
1 identified in the exhibit?
2 A. No, I do not.
3 Q. Do you know who is responsible for collection of
4 the rainfall samples?
5 A. No.
6 Q. How has this data been used by KBN or any of the
7 other consultants for the Cooperative, to your knowledge?
8 A. I don't believe the data have been used at all, at
9 least not explicitly in the form of what's embodied in this
10 particular exhibit.
11 Q. Has the rainfall data collected pursuant to the
12 rainfall -- at the rainfall stations identified in this
13 exhibit been used in any way in developing the EPH model, to
14 your knowledge?
15 A. That I don't know.
16 Q. Was this provided to Tetra Tech, this
17 information?
18 A. I believe so, but this is from several years ago
19 and I can't recall.
20 Q. Dr. Pollman, in your previous deposition you made
21 reference to a letter report that you had prepared on the
22 background concentrations of phosphorus in the Big Cypress
23 Swamp. Do you recall preparing such a letter report?
24 A. Yes.
25 Q. Okay. Do you know if that was produced with your
451
1 documents?
2 A. Yes, it was.
3 Q. Do you recall what the background concentrations
4 of phosphorus were as reported in that letter report?
5 MR. GREEN: Object to the form. In what? Just
6 for clarity.
7 Q. I assume that we're talking about surface water
8 concentration; is that correct?
9 A. That's my understanding of what your question is
10 driving at.
11 Q. Is that what was reported in your letter report?
12 A. Yes, that's correct.
13 Q. And do you recall what those levels were?
14 A. Not off the top of my head. I believe that the
15 concentrations were above 30 parts per billion.
16 Q. And how did you determine that the particular site
17 was a background site?
18 A. It was based on my reading of the documentation,
19 of the reports from which the data were extracted from.
20 Q. What reports were those?
21 A. I'd have to go back and look at that letter
22 report, if you will. I believe one report was prepared by
23 Michael Duever, D-u-e-v-e-r, on the Big Cypress. There
24 might have been another report. It's been several years
25 since I have looked at that.
452
1 Q. Are you relying on anything in that report, letter
2 report, or the data discussed in it to support any of the
3 opinions you'll be expressing in this case?
4 A. Not that I can foresee.
5 Q. Can you tell me if Mr. Gherini or anyone at Tetra
6 Tech is currently doing any analysis concerning Dr. Walker's
7 settling velocities?
8 A. I believe that Mr. Gherini may be engaged in doing
9 such analyses.
10 Q. And would that be directly evaluating the settling
11 velocities as calculated by Dr. Walker?
12 A. I don't understand what you mean by directly
13 evaluating.
14 Q. Similar to the types of critiques being -- that
15 we've seen that Dr. McClave prepared.
16 A. You mean --
17 MR. GREEN: Object to the form.
18 A. I do not know what shape or form any critique that
19 Mr. Gherini might be preparing, whether it's going to be in
20 the form of a report or what have you.
21 Q. And to your knowledge, is Mr. Gherini preparing
22 some type of report or analysis of Dr. Walker's settling
23 rate calculations?
24 A. Again, I don't know if he's preparing a report. I
25 believe that he may be engaged in an analysis of those
453
1 calculations that Dr. Walker conducted.
2 Q. Is he coordinating in any way with Dr. McClave in
3 his analysis?
4 A. My suspicion is that he is not. I may be wrong on
5 that, on that particular point, but I don't believe that
6 they're collaborating.
7 Q. Since your last deposition, have you done any
8 analysis of data to determine if the nutrient front in area
9 2A is in stasis or expanding?
10 A. The only analysis that I have done that would have
11 any bearing on that question would be to look at soil
12 accumulation rates as a function of time.
13 Q. And has that led you to reach any conclusion as to
14 whether the nutrient front in area 2A is in stasis or
15 expanding?
16 A. It has led me to the conclusion that use of soil
17 data to try and resolve that question is inappropriate.
18 Q. Do you have any opinion as to whether or not the
19 nutrient front in area 2A is in stasis or expanding?
20 A. I believe that the nutrient front is in stasis.
21 Q. And what do you base that on?
22 A. Base that on analyses that Dr. Michael Maceina has
23 been conducting.
24 Q. And has -- I'm sorry, was it Dr. or Mr.?
25 A. Doctor.
454
1 Q. Has Dr. Maceina prepared any reports or draft
2 reports or memoranda which contain his analysis or
3 conclusions?
4 A. Yes, he was.
5 Q. Have you reviewed those reports?
6 A. I have not reviewed his most recent report. I
7 believe he's prepared at least two reports on the topic, and
8 I think I scanned through the first one.
9 Q. Can you give me the approximate dates the reports
10 were prepared?
11 A. Most recent report was received by us late last
12 week or the middle of last week, I believe. The earlier
13 report -- I don't know if I could get it within a month, but
14 it's sometime within the past four months, I believe, is
15 when that report was developed. Maybe a little bit longer.
16 Q. Was the earlier report a draft of what came out
17 last week, or is it a different report?
18 A. I would characterize it as an earlier analysis.
19 Q. Both reports are an analysis of the same issue; is
20 that correct?
21 A. Well, I believe so.
22 Q. Well, --
23 A. Again, I have not reviewed the recent report and I
24 only scanned the initial report. I don't remember fully
25 what the contents were of that first report.
455
1 Q. Can you tell me what the first report, what the
2 subject matter of the first report was?
3 A. I believe the first report examined whether or not
4 there were any statistical changes in water column
5 concentrations of phosphorus as a function of time within
6 Water Conservation Area 2A.
7 Q. And what did Dr. Maceina conclude in that regard?
8 A. That, roughly speaking, that current
9 concentrations show absolutely no indication of having
10 increased progressively as a function of time, and that
11 there may even be a decrease in concentration relative to
12 concentrations that were observed at some point within the
13 mid to late '80s.
14 Q. And is this based solely on surface water
15 analysis?
16 A. Yes.
17 Q. And did Dr. Maceina conclude at what particular
18 point in time the nutrient front entered into stasis, if
19 that's a correct use of the term?
20 A. No.
21 MR. GREEN: Excuse me. I'll object to the form,
22 but you may answer.
23 A. No. I don't believe so.
24 Q. Can you tell me what the subject matter of the
25 last report was that was received within the last week?
456
1 A. Well, again, I believe I stated that I have not
2 reviewed it. I believe that the report reflects a
3 reanalysis of this issue and would include more data.
4 Q. Okay. And with regard to the reanalysis, has Dr.
5 Maceina changed his conclusions in any regard?
6 A. I don't believe that he has.
7 Q. So the conclusions in the last report are the same
8 as in the earlier report?
9 A. Well, I would like to read the report before I
10 answer that question, but I believe that his conclusions
11 have been reinforced by his new analysis.
12 Q. Do you know whether the reports you're making
13 reference to were provided with your documents?
14 A. I believe that the earlier reports and materials
15 that I received with -- excuse me, from Dr. Maceina were
16 provided with my documents.
17 MR. NETTLETON: Off the record.
18 (Thereupon, a brief discussion was held off the
19 record.)
20 MR. GREEN: Why don't we go on the record. I'll
21 make a statement.
22 Mr. Nettleton asked me about the Maceina documents
23 that Dr. Pollman relied on with regard to an opinion he gave
24 a few moments ago, and my response is, if it has not been
25 provided, we will provide it certainly no later than the
457
1 document production time for Dr. Maceina, but my preference
2 would be to provide it today if I could find it so that Mr.
3 Nettleton can ask questions about it or Mr. Reed, if they
4 wish, so we will attempt to do that. Thank you.
5 MR. NETTLETON: Well, again, just for the record,
6 I guess I'm a little concerned in the fact that on this
7 privileged list here, apparently, if you're listing items,
8 Mr. Green, that are not necessarily privileged but you felt
9 were not responsive to the request or the duces tecum, and I
10 think that our duces tecum was a bit broader than simply
11 those particular documents that Dr. Pollman is relying upon
12 for his opinions.
13 So, I mean, if you're telling me that you haven't
14 produced documents other than those which he was purportedly
15 relying on, is that --
16 MR. GREEN: No. I'm saying that that document is
17 either included or we listed on the privilege list or we
18 determined that your request did not call for it, and I
19 don't know which.
20 Now, we found one document on the privileged list,
21 and that may be the document, and if it is --
22 MR. NETTLETON: Well, my comment is I can't
23 imagine that it's not included within my request.
24 MR. GREEN: Well, I would not concede that that is
25 unimaginable, but I will say that whatever it is, I will
458
1 attempt to find that document.
2 BY MR. NETTLETON:
3 Q. Okay. Dr. Pollman, has Dr. Maceina reached any
4 conclusion in his reports concerning how long the system may
5 stay in stasis if the current loads continue, current loads
6 and concentrations of phosphorus continue to enter the EPA?
7 MR. GREEN: Object to the form.
8 A. I don't believe he's been asked to look at that
9 question.
10 Q. Do you have any opinion, based upon the
11 information or data that you have reviewed, as to how long
12 the system would stay in stasis assuming current loads and
13 concentrations of phosphorus continue through the structures
14 into the EPA?
15 MR. GREEN: Object to the form.
16 A. I believe that question is unanswerable at this
17 point.
18 Q. Would you expect the nutrient front to begin
19 expanding if the loads and concentrations of phosphorus
20 entering area 2A through the S-10 structures are not
21 reduced?
22 MR. GREEN: Object to the form.
23 A. Again, I believe that's unanswerable at this
24 point. I don't believe we have sufficient geochemical
25 evidence or information to properly resolve that issue.
459
1 Q. In your previous deposition you indicated that you
2 suspected for purposes of phosphorus removal aerial contact
3 was more important than depth. Do you recall that
4 testimony?
5 A. Dimly.
6 Q. Okay. Since your previous deposition, have you
7 reviewed or seen any data or information which would either
8 support or not support your suspicion at that time?
9 A. Let me just step back one step. When you said
10 depth, did you mean depth of the water or depth of the
11 sediment?
12 MR. NETTLETON: I suspect I meant depth of water,
13 but let me check the deposition.
14 Let's go off a minute.
15 (Thereupon, a brief recess was taken.)
16 BY MR. NETTLETON:
17 Q. Dr. Pollman, since your previous deposition, have
18 you seen any information or data which would support or
19 undercut, I suppose, your suspicion you previously expressed
20 that aerial contact would be more important than water depth
21 for purposes of phosphorus removal?
22 A. Well, theoretically, I guess, because of the
23 mathematics involved, both processes, both are important.
24 The reality of the situation is that phosphorus is typically
25 perceived as a settling -- the phosphorus loss, rather, is
460
1 typically viewed as a settling process and so depth can be
2 important, but it's typically modeled as an output across
3 the sediment-water interface, so it's viewed as an aerial
4 process, but when you start writing out the mathematics, the
5 variables are interchangeable, so to speak, through
6 mathematical manipulation, so they're both important.
7 Q. Okay. Do you intend to offer any opinions or
8 testimony at the final hearing on the Nearhoof report?
9 A. No.
10 Q. Do you intend to offer any opinions or testimony
11 at the final hearing on the Newman-Kadlec report on
12 phosphorus removal in wetlands?
13 A. Not that I envision.
14 MR. NETTLETON: Why don't we go ahead and break
15 now.
16 (Thereupon, a luncheon recess was taken.)
17 BY MR. NETTLETON:
18 Q. Dr. Pollman, other than the opinions you expressed
19 earlier concerning the quality of the data, do you intend to
20 offer any other opinions concerning Dr. Walker's trend
21 analysis in relation to the park?
22 A. No.
23 Q. Have you seen any data which would allow you to
24 specifically quantify the front edge of the so-called
25 nutrient front in area 2A?
461
1 MR. GREEN: Object to the form.
2 Q. As to the location of that edge?
3 MR. GREEN: Same objection.
4 A. I guess the question I would have is how do you
5 define the front end of the nutrient front?
6 Q. Well, let me ask you how you would define the
7 front edge of the nutrient front.
8 A. I believe we went through this actually at my last
9 deposition.
10 Q. I believe we did.
11 A. I would define the front edge of the nutrient
12 front by examining the concentration distribution as a
13 function of distance and then basically looking at the shape
14 of the profile, and where the slope basically changes, where
15 there is an inflection point, if you will, in the slope,
16 that would indicate to me where the front edge is.
17 Q. Okay. And based upon that definition of the front
18 edge, have you seen data which would allow you to reach a
19 conclusion or an opinion as to where that front edge is
20 located in area 2A?
21 A. I've not examined the data with that in mind. I'm
22 sure it could be done or I believe that it could be done,
23 but I have not done that analysis.
24 Q. At your last deposition you had indicated that a
25 Miss Duever formerly of KBN, I believe, was doing some work
462
1 on vegetative changes in the Everglades over time. Have you
2 seen any of the work that she has done in that area?
3 A. I haven't seen any final work products that she
4 may have produced.
5 Q. Have you seen any drafts?
6 A. No. I think the only thing that I may have seen
7 might have been a memo or two regarding some progress that
8 she was making on the project very early on and maybe some
9 needs that she had, but beyond that I have not seen anything
10 that I can recall.
11 Q. Okay. Can you tell me what specific areas she is
12 working in?
13 A. That she is working in?
14 Q. Working with geographic areas that she's looking
15 at with regard to vegetative changes?
16 A. I don't believe that she's still working on the
17 issue.
18 Q. Okay. When she was working on the issue, do you
19 know what geographic areas she was looking at?
20 A. I was not engaged in reviewing her work or
21 whatnot. I really was engaged in terms of being a conduit
22 for contracting relationships, if you will. I can only
23 speculate in terms of what she actually was working on.
24 Q. Are you familiar with any other consultants
25 retained by the Cooperative to address the issue of
463
1 vegetative change in the EPA over time?
2 A. Yes.
3 Q. And who would those be?
4 A. Law Environmental Engineering.
5 Q. All right. And have you seen any reports issued
6 by Law Environmental regarding this issue, draft or
7 otherwise?
8 A. No reports on their results, no.
9 Q. Okay. Have you seen any vegetative maps produced
10 by Environmental Law?
11 A. Yes, I have.
12 Q. Okay. What areas are they mapping?
13 A. They are mapping Water Conservation Area 2A. They
14 have prepared maps for the Loxahatchee, and they've also
15 prepared maps for Water Conservation Area 3A.
16 Q. Are they preparing maps for the park?
17 A. Not that I know of.
18 Q. Are they preparing maps for areas 2B or 3B?
19 A. They may be preparing maps for Water Conservation
20 Area 3B, and they may also be looking at Water Conservation
21 Area 2B. That I don't know.
22 Q. And what is the period of time that the vegetative
23 maps are created for?
24 A. The maps I have seen Law Engineering produce are
25 based on data that were collected very recently, in other
464
1 words, within the past several months, I believe.
2 Q. Am I correct --
3 A. Let me add to that question. I believe that they
4 may have produced two maps in time, but I'm not absolutely
5 clear on that. The second map would be roughly a year old,
6 but my recollection is not precise on that matter.
7 Q. The maps that you have seen from Law
8 Environmental, do they purport to represent the current
9 vegetative conditions in the areas being mapped?
10 A. That is their intent.
11 Q. All right. Have you seen any historical
12 vegetative maps being created by Law Environmental?
13 A. No, I haven't.
14 Q. Do you know whether they're working on that?
15 A. I believe that they're trying to reconstruct
16 historical maps.
17 Q. And do you know what they're using to reconstruct
18 historical maps?
19 A. They would be using remote sensing imagery.
20 Q. Have you been involved in that effort?
21 A. No, I have not.
22 Q. Do you know the source of the remote sensing
23 imagery that they're using?
24 A. What do you mean by source?
25 Q. Where they're getting the remote sensing images?
465
1 A. You mean from which satellite?
2 Q. Not which satellite, but who they're purchasing
3 the information from.
4 A. Okay. I understand the question. I believe that
5 they may be getting the information from the French, but I'm
6 not sure, and then I couldn't tell you which French agency
7 it would be.
8 (Thereupon, Respondent's Exhibit No. 73 was marked
9 for identification.)
10 Q. Dr. Pollman, showing you what's been marked as
11 Pollman Exhibit Number 73, which is an excerpt from a filing
12 in this case by the Cooperative which contains a description
13 of your expected testimony, we looked at this a little bit
14 earlier in the deposition, I think, the first day, and my
15 question without going through this point by point is if you
16 could please review it and my question is whether we have
17 covered in this deposition all the areas that you have been
18 asked to testify about at the final hearing.
19 A. Yes. I believe that we have.
20 MR. NETTLETON: Just for the record, I'd like to
21 mark as Exhibits 74 and 75 the two privileged lists that
22 have been provided by counsel for the Cooperative with
23 regard to Dr. Pollman's deposition.
24 (Thereupon, Respondent's Exhibits No. 74 and No.
25 75 were marked for identification.)
466
1 BY MR. NETTLETON:
2 Q. Dr. Pollman, since your retention on that fateful
3 day of February, 1990, can you tell me how much money the
4 Cooperative has paid to KBN for their services in this
5 litigation?
6 A. KBN and its subcontractors, I believe, have billed
7 something on the order of 1.4 to 1.5 million dollars.
8 Q. That figure includes the amounts billed by Tetra
9 Tech and Info Tech as well?
10 A. Yes, that's correct.
11 Q. Does it include any other subcontractors?
12 A. It would include consultants such as Dr. William
13 Landing, Dr. Gary Gill, Linda Duever, and I believe that's
14 it.
15 Q. Would not include any work that's been done by Law
16 Environmental?
17 A. No, it would not.
18 Oh, I need to add to that list. I believe Dr.
19 Maceina is currently billing his services through KBN.
20 Q. Of that amount, approximately how much has been
21 billed by Tetra Tech?
22 A. I really don't know.
23 Q. Do you have a rough estimate?
24 A. I would say certainly more than a third. I guess
25 off the top of my head maybe $600,000.
467
1 Q. All right. And same question with regard for
2 Info Tech.
3 A. Info Tech, perhaps on the order of three hundred
4 to three hundred and fifty thousand dollars.
5 MR. NETTLETON: That's all I have at this time.
6 CROSS-EXAMINATION
7 BY MR. REED:
8 Q. Dr. Pollman, I'm Mike Reed from the Justice
9 Department. I represent the federal participants in this
10 proceeding.
11 I have two or three general areas I would like to
12 go into with you and then pick up a few things from your
13 prior deposition and this one that I need to fill in for my
14 knowledge. I apologize if there may be some backtracking.
15 You and Mr. Nettleton talked at length Monday
16 about what Dr. Walker has done, particularly in the area of
17 STA sizing and settling rates or settling velocity, and
18 because of my recent entry into this thing, I could not put
19 that into context.
20 Could you tell me your understanding of what he
21 actually did do so that I can then go back and see the pros
22 and cons about it and understand what they referred to?
23 First with respect to settling rates or settling
24 velocity, please.
25 A. You're asking me essentially how Dr. Walker
468
1 conducted his analysis; is that correct?
2 Q. Yes.
3 A. Well, Dr. Walker has written two reports on the
4 topic. Essentially, his approach was to use soil
5 accumulation rates as a means of determining what the
6 settling velocity for phosphorus out of the water column
7 would be.
8 The problem with or, rather, I should state one of
9 the problems, because I believe that there are a number of
10 problems, one of the problems with using sediment
11 accumulation rates to determine settling velocity is that
12 you need an estimate of what the water column concentration
13 would be at that particular site from which then you can
14 infer a settling velocity.
15 Settling velocity, the product of the settling
16 velocity and the water column concentration would equate to
17 a net sedimentation rate. Dr. Walker used cores from Dr.
18 Reddy's data. I believe he may have also used cores from
19 the Duke data set, that I don't recall, and then he used
20 synthesized water column concentrations based on actual data
21 measured at some interior stations within the Water
22 Conservation Area 2A to develop his settling velocities.
23 Q. And your concern about that method was that you
24 need to establish water quality concentrations above those
25 same points?
469
1 A. Well, that's certainly --
2 MR. GREEN: Object. Excuse me. Object to the
3 form. You may go ahead.
4 A. Certainly that's one concern. That was not the
5 concern that I was discussing on Monday, but you would have
6 to have reliable estimates of what the water column
7 concentration was at the particular site where you acquired
8 the soil cores to ultimately infer what the settling
9 velocity is at that particular spatial point.
10 Q. Okay. What are the other concerns about his
11 analysis?
12 A. Well, as far as my testimony is concerned, my
13 envisioned testimony -- of course, I guess, as a point of
14 record, since I'm being conflicted out of the case, I don't
15 know what my role in testifying will be in the future, but
16 at any rate, what my envisioned testimony would concern is
17 principally conceptual difficulties that I have using soil
18 accumulation rates to infer a net settling velocity.
19 Q. And what are those conceptual difficulties?
20 A. Those conceptual difficulties relate to the
21 post-depositional mobility of phosphorus in sediments, and I
22 guess if you like, I can recount what those concerns are.
23 Q. I think you discussed all of those with Mr.
24 Nettleton; isn't that correct?
25 A. Yes.
470
1 Q. I do remember. I just didn't know then what it
2 related to.
3 A. I see.
4 Q. All right. Do you understand how Dr. Walker,
5 then, used this data, this conclusion, as to settling
6 rates? How does that work into it?
7 A. Are you talking about how he uses that data to
8 size STAs?
9 Q. Yes.
10 A. Yes. The settling velocity is used in a
11 mass-balance equation for a phosphorus budget for the STAs
12 to back out what the appropriate acreage would be to achieve
13 a certain target concentration.
14 Q. And do you have any concern about that? Once a
15 settling rate is derived, do you have any concern about that
16 being used that way?
17 A. I don't have a problem with the model itself. I
18 do have a problem with the applicability of a settling
19 velocity that is extracted from, say, one environment and
20 then transposed to another environment.
21 Q. And why is that, Doctor?
22 A. Because the settling velocities may be entirely
23 different for those two different systems.
24 Q. All right. And his was built in what environment
25 or based upon what environment?
471
1 A. His settling velocity was derived from a transect
2 in Water Conservation Area 2A. That included vegetation,
3 that included cattail, mixed cattail and sawgrass, and
4 sawgrass.
5 Q. And he would be using it to establish what kind of
6 an environment?
7 A. An environment that we envision that would be
8 dominated solely by cattail.
9 In addition, the data within the transect are
10 applied across a fairly broad continuum of phosphorus
11 concentrations that likely are not applicable to the range
12 of concentrations that the STAs are likely to perceive.
13 In other words, the range of concentrations that
14 Dr. Walker used in his analysis or had used in his analysis
15 because of the transects that he was working with encompass
16 a concentration range that was, I believe, a good bit
17 broader, included lower concentrations than the STAs are
18 likely to perceive as they treat water directly out of the
19 EAA.
20 Q. And what consequences does that have on his
21 analysis?
22 A. Well, it could be a biasing upwards in terms of
23 the apparent settling velocity and it could lead to an
24 underestimate of the actual acreage required to achieve the
25 treatment levels that he was trying to target.
472
1 Q. Is it accurate to paraphrase you by saying that he
2 did his study in an area which might absorb more phosphorus
3 than the area which you're actually hoping to build with an
4 STA?
5 A. No. I have a little problem with that. I would
6 prefer to paraphrase what I said in the following manner.
7 The area in which he performed his calculations to estimate
8 his settling velocity is an area which may give a higher
9 settling velocity than really would be applicable to the
10 areas where the STAs will be built and reflective of the
11 conditions at which they will be operating.
12 Q. Okay. Now, I understood that, but did you suggest
13 why?
14 A. Yes, I did suggest why. First of all, I believe
15 that there will be vegetation differences, and the second
16 reason is that I believe that the concentration range that
17 was implicit in the transect that he used to derive his
18 estimate of the settling velocity is a broader and extends
19 into lower concentrations than is appropriate for the
20 concentrations that the STAs will perceive.
21 Q. So some of his data was collected in an area in
22 which the water above the soil had lower concentrations than
23 the water coming into the STAs will have?
24 A. That's right.
25 Q. Okay. I'm just trying to understand. It doesn't
473
1 come to me quickly.
2 Can I conclude from what you're saying that
3 cattail areas will not absorb as much phosphorus as other
4 vegetation types, or you don't expect it to?
5 A. It's not as simple as that. The actual rate of
6 absorption is a product of two things. It's going to be a
7 product of, at least in this model paradigm that we're
8 working within, the notion of using a settling velocity in
9 conjunction with phosphorus concentrations to estimate what
10 the loss rate is going to be or the deposition rate is going
11 to be to the sediments.
12 The amount of phosphorus removed from the system
13 and the efficacy of cattails is a product of the
14 concentration that that system receives and the apparent
15 settling velocity. What is becoming apparent to me is that
16 under high nutrient regimes, at least based on the data of
17 Water Conservation Area 2A, you may have a low settling
18 velocity, but since you have high concentrations at that
19 point, you're still receiving a fairly high mass loss rate.
20 Now, when you get down into the lower end of the
21 system where you have much lower concentrations and a higher
22 settling velocity, the loss rate, the mass loss rate out of
23 the water column is less.
24 I don't know if that answers your question or
25 not.
474
1 Q. This, I think, is a separate question. I
2 understood you, in your discussion about the nutrient front,
3 to suggest that phosphorus will pass first over the cattail
4 area and then into areas of different vegetation, and that
5 the cattails may be, that area, for whatever reason, may be
6 less capable of absorbing high concentrations than the area
7 beyond.
8 Is that at all an accurate statement of what you
9 were discussing on Monday?
10 A. Yes. I believe so.
11 Q. Given that, would it be your opinion that this
12 front would be expected to move with a continuous level of
13 phosphorus input?
14 A. No. No, absolutely not. It all depends on the
15 mechanisms that are involved in phosphorus removal, and it's
16 very likely that the system could reach a steady state
17 that's described by different zones of differential settling
18 velocities. It doesn't -- the fact that different settling
19 velocities apply to different zones does not mean that a
20 system cannot reach a steady state and remain at that steady
21 state under a given load scenario.
22 Q. Okay. Do you have an opinion as to whether the
23 soil accumulation rate is a constant?
24 MR. GREEN: Object to the form.
25 A. I'm not sure what you mean by that question.
475
1 Q. Do you understand the term accumulation rate?
2 A. Yes.
3 Q. Okay. I don't, but I still want to ask the
4 question. It, I assume, has something to do with the
5 capacity for the soils to absorb something over time; is
6 that correct?
7 A. Soil accumulation rate simply refers to the amount
8 of material that's being removed from the system and being
9 deposited into the system as a function of time.
10 Q. Okay. Does that occur in this system, in the
11 Everglades?
12 A. Yes.
13 Q. Okay. Is it a constant rate, or would it vary
14 from area to area and year to year?
15 A. Yes. It could vary from area to area and from
16 year to year.
17 Q. Okay. That's all I was getting at. Can you tell
18 me what factors will affect that variation?
19 A. From area to area?
20 Q. Yes.
21 A. The geochemistry could affect the environment --
22 affect those characteristics. The hydrology could affect
23 those characteristics. Loading rates could affect those
24 characteristics. pH, redox, vegetation, hydroperiod, just a
25 number of factors could affect.
476
1 Q. And that's from area to area you said?
2 A. That's right.
3 Q. Would those things change also from year to year
4 or month to month or something?
5 A. At least a large number of those factors could,
6 could change at a particular location from, say, year to
7 year or even within a year.
8 Q. Do you have an opinion, Doctor, as to whether the
9 EAA is acting now as a phosphorus sink?
10 A. I don't have a definitive opinion on that topic.
11 I believe that the answer really lies in terms of what the
12 atmospheric load to the EAA is. We don't know what that
13 load is. So until we really know what the answer is to that
14 particular question, I can't state categorically whether the
15 EAA is a source or a sink.
16 Q. Do you know, do you have an opinion as to why
17 there are cattails presently in the EPA?
18 A. Yes. I'd like to caveat my opinion by saying that
19 I'm not an expert in macrophyte ecology, but I believe that
20 the occurrence of cattails is both a hydrologic phenomenon
21 and also related to nutrients.
22 Q. Do you have an opinion as to where the nutrients
23 come from?
24 A. Which area are you talking about?
25 Q. Where do you understand there are cattails?
477
1 A. Well, I understand that there are cattails
2 immediately below the S-10 structures in Water Conservation
3 Area 2A.
4 Q. And the nutrients encouraging those cattails are
5 coming from where?
6 A. The nutrients coming into Water Conservation Area
7 2A below the S-10 structures would be largely derived from
8 the EAA.
9 Q. So even if it's determined that the EAA is a
10 phosphorus sink, it is releasing nutrients downstream; is
11 that correct?
12 A. Yes.
13 Q. Which are at least in part responsible for the
14 cattail population in the area we're just talking about?
15 A. I believe that the nutrients would be partially
16 responsible, yes.
17 Q. Now, you mentioned hydrology is another potential
18 responsible factor.
19 A. That's correct.
20 Q. Assuming the same level of nutrient output from
21 the EAA, what does hydrology add? How is it affecting the
22 cattail population?
23 A. Well, again, because I'm not an expert in this
24 area, I know it is an area of considerable controvery as to
25 the relevant role of nutrient enrichment and the role of
478
1 hydroperiod on the relative balance between cattails and
2 sawgrass, and I don't know if anybody can state definitively
3 which phenomenon exerts a greater degree of control over the
4 relative dominance of one species over another.
5 At any rate, I do know from talking to people like
6 Dr. Richardson at Duke University that there is a strong
7 belief that hydroperiod does exert control and that higher
8 water levels would lead or at least would encourage the
9 proliferation of cattails.
10 Q. Higher water levels meaning deeper water?
11 A. Deeper water and perhaps also extended
12 hydroperiod.
13 Q. Did you give an opinion this morning as to whether
14 there's a hydrologic bypass in 2A? I remember you
15 discussing it, but I don't remember the outcome.
16 A. Yes. I did give an opinion. My opinion was that
17 the data are inconclusive at this point.
18 Q. Okay. Am I correct in my understanding that, if
19 there is hydrologic bypass, that would be another criticism
20 of the Walker analysis. Is that why that was relevant?
21 A. Yes, indeed. It could be tendered as a
22 criticism.
23 MR. REED: Do we still have Exhibit 29 available
24 in that package?
25 MR. REED:
479
1 Q. Looking at the table in 29, Dr. Pollman, can you
2 tell me what the component, principal component groupings
3 were?
4 A. Well, listed in this table are eight different
5 principal component groupings. There's a theoretical
6 possibility of fifteen.
7 Q. And can you tell what they are?
8 A. Would you like me -- well, I guess maybe you
9 should restate your question, please.
10 Q. The first column is labeled PRIN1, right?
11 A. Right.
12 Q. Does that refer to principal component grouping 1?
13 A. That's right.
14 Q. Can we tell from this what is included in that or
15 do you know from some other source?
16 A. Well, principal component 1 is, as are all the
17 other principal components, merely listings of correlations
18 of these various parameters with a so-called principal
19 component.
20 Q. Are there, Doctor, defining characteristics of
21 principal component 1 among the list on the far left
22 column?
23 A. Each principal component basically relates to some
24 underlying factor that may be used to try and explain the
25 variance in the data.
480
1 In this analysis, principal component 1 shows that
2 the factors or the variables that load most highly with this
3 particular principal component would be major ions, in
4 particular, calcium, magnesium, chloride, alkalinity, and so
5 on and so forth.
6 Q. Okay, thank you.
7 Do you happen to know, Doctor, whether the STAs
8 proposed in the SWIM Plan are unique among similar
9 constructions around the world?
10 A. Unique in what respect?
11 Q. In any respect.
12 A. Well, it's my understanding that they exceed in
13 size by far any reconstructive wetland that's been built to
14 date.
15 Q. Do you happen to know if the methods used by Dr.
16 Walker in proposing their size are consistent with methods
17 used to determine the size of others in other places?
18 A. No, I really don't.
19 Now, let me ask you a question, I guess. When you
20 say methods, do you mean the mathematical model that he used
21 to size the STAs, or do you mean the methods that he used to
22 derive the settling velocity?
23 Q. In the first instance I mean the latter, the
24 methods for determining settling velocity, but let me ask a
25 separate question and it may be easier to walk through
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1 this.
2 Is settling velocity a reasonable factor in
3 determining the size of an STA?
4 MR. GREEN: Object to the form.
5 A. I believe that the use of a net settling velocity
6 is a reasonable first-order approach to sizing STAs.
7 Q. And the second question becomes, do you know
8 whether the process that Dr. Walker used to arrive at
9 settling velocities either in collecting his data or in
10 processing it is consistent or inconsistent with how that
11 has been done for other engineered marshes?
12 A. I believe that it's inconsistent. I believe that
13 the traditional approach is to construct a mass-balance of
14 the system, look at inflow concentrations and outflow
15 concentrations, examine the hydraulics of the system as
16 well, look at changes in water column concentration, and
17 then based solely on those variables, then derive the
18 settling -- rather, the apparent settling velocity.
19 Q. Okay. I'd like to turn to the subject of mercury
20 and discuss first the history of through the last year or
21 slightly longer of your opinion on the relationship between
22 the SWIM Plan and the proposals under it and mercury.
23 I understand that about a year ago the co-op had
24 an opinion on that subject. I don't know if it was the same
25 as yours, but did you have an opinion about a year ago on
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1 the relation of mercury to this system?
2 MR. GREEN: Object to the form.
3 A. I certainly did not have any sort of definitive
4 conclusion regarding what the effects of the SWIM Plan would
5 be at that point in time on mercury concentrations in the
6 Everglades.
7 Q. No definitive conclusion, is that what you said?
8 A. That's right.
9 Q. Did you have any preliminary opinion at that
10 time?
11 A. Well, I recall being asked questions at my last
12 deposition regarding the possible relationship between
13 phosphorus and methylation.
14 Q. And what was your response?
15 A. My response was, is that it is a reasonable
16 hypothesis that increases in phosphorus in the water column
17 could lead to increases in rates of mercury methylation.
18 Q. Was there a time within the last two years when
19 you had reached either a definitive conclusion or a
20 preliminary conclusion that there was no relation between
21 what's being proposed here and mercury?
22 MR. GREEN: I'll object to the form just because
23 of the timing, but excuse me, go ahead.
24 A. I guess I really don't understand your question.
25 MR. GREEN: Let me just, in fairness, Mike, I'm
483
1 not trying to disrupt. When you said in the last two years,
2 that would include even yesterday and the day before, and I
3 don't think that's what you were trying to ask, but if it
4 was, that's fine. I mean, I --
5 MR. REED: Yeah. It isn't what I was trying to
6 ask.
7 MR. GREEN: I didn't think so.
8 MR. REED: Let me make a short statement and maybe
9 that will save a lot of time.
10 MR. GREEN: Yeah.
11 BY MR. REED:
12 Q. It's my understanding that your client within the
13 last year publicly took the position that there was probably
14 no relationship between the proposals here, the STAs, for
15 example, and mercury.
16 Do you recall whether that was your position,
17 whether or not you knew about it being your client's
18 position or whether or not it really was?
19 A. No. I don't believe I had any opinion in terms
20 -- again, I really have had no definitive conclusion
21 regarding either the relationship of the SWIM Plan to the
22 mercury cycle in the Everglades or, better yet, what are the
23 sources and what are the controlling factors of mercury
24 within the Everglades.
25 (Thereupon, Respondent's Exhibit No. 76 was marked
484
1 for identification.)
2 Q. Do you recognize that document, Doctor, or piece
3 of a document?
4 A. Dimly.
5 Q. Can you tell me what it comes from, other than
6 from your files, but it appears to be a small piece of
7 something else?
8 A. Well, it appears to be a letter written or part of
9 a letter or a document, rather, since it's a fairly lengthy
10 document, from South Florida Water Management District to
11 Barton Bibler, who was with the Department of Environmental
12 Regulation at the time.
13 Q. All right. Could you please look at the third
14 page of that document, four lines down, and I'd like to know
15 whether you agree with the sentence that starts on the line
16 beginning, "At the same time."
17 A. Yes, that is possible.
18 Q. Is that consistent with your statement a moment
19 ago that a year ago you had a preliminary opinion that
20 increases in phosphorus could lead to increased mercury?
21 A. No, I didn't say that. I said increases in
22 phosphorus could result in increases in the rate of mercury
23 methylation.
24 Q. Thank you.
25 If that were true, what would you expect to find
485
1 in the STAs once they're built with respect to mercury?
2 A. If what were true?
3 Q. If the thesis that increased phosphorus could lead
4 to increased rates of mercury methylation.
5 A. Well, the problem with that -- I have a hard time
6 answering that question because the cycling of mercury is a
7 complex process and I think it's inappropriate to look at
8 the effect of phosphorus on methylation in the abstract.
9 It may also be that phosphorus increases the rate
10 of demethylation. Those two effects may cancel each other
11 out. One of the two processes may predominate under such a
12 scenario. I don't know what the answer to that question
13 is.
14 Certainly, the relative contribution of either of
15 those two processes over the other is going to help dictate
16 ultimately what the concentration of methylmercury will be
17 in the water column, but it's still not as simple as that.
18 Total phosphorus also has a stimulatory effect on primary
19 production. By increasing algal productivity, you may
20 actually dilute the concentration of methylmercury that
21 would be produced in the water column in the absence of such
22 productivity, which may ultimately then result in a dilution
23 or a diminution, if you will, of fish tissue
24 concentrations. How all these processes work in the
25 aggregate, I can't say.
486
1 What we really need is a good mechanistic model
2 framework that puts all the processes or that considers all
3 the processes that control the cycling of mercury, puts all
4 those processes in context, and then by which, once we put
5 in the various parameters of interest, we can then predict
6 what the end result will be in terms of fish tissue
7 concentrations.
8 Q. Why do you emphasize fish tissue concentrations?
9 A. I emphasize fish tissue concentrations because
10 that's generally the variable of most interest. That's
11 really, I think, the issue of concern, is bioconcentrations.
12 It's not the concentrations that are in the water column per
13 se that are of particular interest. It's actually the
14 concentrations that are in tissues that are of particular
15 concern, and then, of course, the magnification of those
16 concentrations through the food chain.
17 Q. Are you working on such a model?
18 A. I am not.
19 Q. Do you know whether anyone is?
20 A. Yes. Tetra Tech has developed, perhaps, the
21 foremost mercury cycling model in the world. It's call the
22 MCM model.
23 Q. Did they develop it for purposes of this
24 litigation?
25 A. No.
487
1 Q. Do you know whether they will be using it in this
2 trial?
3 A. I believe that they will not be.
4 Q. Do you know why that is?
5 A. Yes. They will not be because they have been
6 conflicted out of the administrative hearing for any
7 mercury-related issues.
8 Q. It's not just you who conflicts on mercury,
9 apparently.
10 A. That's correct.
11 Q. Can you tell me how your opinions with respect to
12 mercury level a year or so ago have evolved since that
13 time? Have they changed since that time?
14 A. Well, my fundamental opinion has always been that
15 we have too little information at our disposal to really
16 resolve the question of mercury in the Everglades and how it
17 is that we're seeing such high concentrations of mercury in
18 fish and other organisms, and my opinion has not wavered on
19 that point.
20 In the past year or so I have had some concerns,
21 say, arise and then change as more and more data have been
22 collected.
23 Q. Could you describe each of those changes and the
24 basis for them, please?
25 A. Yes. When Dr. Landing collected or conducted his
488
1 survey in the EAA coincident with Dr. Jones' sampling in the
2 spring of 1993, Dr. Landing's results showed comparatively
3 high methylmercury concentrations relative to the total
4 concentration of mercury in the water column. This is an
5 issue of some concern to me because I felt the results were
6 unusual, and this is not a typical result.
7 It's difficult to try and put those results in any
8 sort of context because the data were not collected in such
9 a way that would allow us to actually examine and evaluate
10 how methylmercury and how total mercury was exported out of
11 the EAA. The study design clearly did not lend itself to
12 that, but, nonetheless, the data showed to me that there was
13 a possibility that there was a fair amount of methylmercury
14 that was being produced within the farms.
15 Again, the question was open as to whether or not
16 that material actually is exported out of the EAA.
17 Q. Where was that study done? Sorry to interrupt,
18 but --
19 A. A study was conducted at various farms throughout
20 the EAA.
21 Other information that has come to my attention is
22 Game and Freshwater Fish Commission data which show that the
23 occurrence of mercury in fish is widespread. It appears not
24 to be related to any hydrologic point source. It appears to
25 be more of a ubiquitous problem. That would suggest to me
489
1 that the problem of mercury in the Everglades in toto is not
2 related to the EAA, but, again, I don't feel that I have
3 sufficient information at my disposal to arrive at any
4 definitive conclusions on that matter.
5 Ultimately, what I feel that should be done is a
6 complete mass-balance model of the system looking at all the
7 sources and also examining the biogeochemical
8 transformations that mercury undergoes before we can start
9 figuring out exactly what are the controlling factors that
10 lead to the occurrence of high mercury concentrations in
11 fish.
12 I've also seen data that we have just developed
13 that suggest that within Water Conservation Area 2A that
14 there is an inverse relationship between total phosphorus
15 and methylmercury. That inverse relationship suggests to me
16 that the net effect of eutrophication may be actually a
17 mitigative one as far as the occurrence of mercury in fish
18 may be concerned.
19 Q. Is that a fairly substantial change in your view
20 of this subject from a year ago?
21 A. No, I don't think so.
22 Q. I did not mean to be argumentative. I just wanted
23 to make sure I understand it.
24 A. No. I think the important point to bear in mind
25 is that a year ago when the question was posed to me, does
490
1 total phosphorus affect the methylation of mercury, I
2 believed that it's theoretically possible that it could. I
3 still believe that it's theoretically possible that it
4 could.
5 I also believed at the time that it could also
6 lead to increases in demethylation rates, and I also
7 believed that it could lead to biodilution. The question
8 was never posed to me, so, ergo, the apparent difference,
9 but fundamentally my opinions have not changed.
10 Q. And what is your opinion today?
11 A. Regarding what specifically?
12 Q. The potential effect of the SWIM project,
13 specifically the STAs, on mercury.
14 A. I have a concern and that concern is based on
15 several lines of evidence that building the STAs could lead
16 to a widening of the sphere of influence of high
17 concentrations of mercury in fish, and those lines of
18 evidence are based upon our preliminary data from Water
19 Conservation Area 2A which shows this inverse relationship
20 between total phosphorus and methylmercury, the pilot EMAP
21 study which shows an inverse relationship between total
22 phosphorus and fish tissue concentrations of mercury in
23 Gambusia, and discussions with Tamar Barkay and her
24 correspondence I think that's dated early in 1993 which
25 indicates that total phosphorus additions can lead to both
491
1 increases in methylation and demethylation.
2 Q. You mentioned that the EMAP study led you to some
3 conclusion because of its evidence of mercury in fish. Did
4 it also analyze mercury in water or soil?
5 A. Yes, it did.
6 Q. And did those results also lead you to the same
7 conclusion?
8 A. Well, when you look at the water column
9 concentration data, the story is not clear-cut, and this is
10 one of the reasons why I would exercise any caution about
11 jumping to any definitive conclusions about any
12 interparameter relationship at this stage, and it's one of
13 the reasons why I feel that to be prudent about this issue
14 we need to be conducting more research.
15 Q. And soil?
16 A. The data that I recollect seeing were sediment
17 concentrations along the EAA, Water Conservation Area E and
18 P transect.
19 Would you like me to articulate what those results
20 were?
21 Q. Yes, please.
22 A. What I recollect was that concentrations of
23 mercury in the sediments were low in the EAA and graded to
24 very high concentrations or comparatively high
25 concentrations, rather, at the park.
492
1 Q. And was this total mercury?
2 A. I believe so.
3 Q. If there is, in fact, an inverse relationship, if
4 that's the term, between phosphorus and methylmercury, what
5 would you expect to find in STAs, in an operating STA with
6 respect to mercury?
7 MR. GREEN: Object to the form. Go ahead.
8 A. I guess at this stage I almost wouldn't be
9 surprised by anything, to be perfectly honest. It really
10 depends upon how the STA -- I think there are a number of
11 variables that are going to be important here. Hydraulic
12 residence time I think is going to be a factor. Perhaps the
13 structure of the ecosystem will be important, whether it's
14 phytoplankton dominated or macrophyte dominated. I don't
15 know at this stage what the relative role of either
16 community types would be in terms of this biodilution
17 mechanism. I believe that macrophytes may be less engaged
18 in biodilution than a phytoplankton-dominated system.
19 It's, again, as I said before, this is a very
20 complex issue, and it does not lend itself well to
21 definitive conclusions at this stage.
22 Q. Am I correct in assuming that we would expect an
23 STA to have a lot of phosphorus in it?
24 A. I think that would be a reasonable conclusion.
25 Q. And next, that if there is an inverse relationship
493
1 between phosphorus and mercury, that we wouldn't expect to
2 find much mercury in it; is that correct?
3 A. If that inverse relationship holds, yes, I think
4 that's a reasonable conclusion.
5 Q. All right.
6 MR. GREEN: Excuse me, Mike, can I clarify
7 something? I think it would help both of us. The
8 relationship -- there were two inverse relationships
9 discussed so far. You might want to ask him one at a time.
10 My recollection is, there was an inverse
11 relationship between phosphorus and mercury in fish in the
12 pilot study. There was an inverse relationship between
13 phosphorus and methylmercury in the transect, and then you
14 just discussed a third inverse relationship, which was
15 phosphorus and mercury, not specifying what kind of mercury,
16 and I just wanted to be clear that, whatever it is, we're
17 all on the same page.
18 Q.