1


1 STATE OF FLORIDA

2 DIVISION OF ADMINISTRATIVE HEARINGS

3

4 AUTHORIZATION NO. 10988

5

6 Case Nos. 92-3038, 92-3039, 92-3040

7

8 SUGAR CANE GROWERS COOPERATIVE )
OF FLORIDA, a Florida Agricultural )
9 Cooperative Marketing Association, )
ROTH FARMS, INC., AND )
10 WEDGWORTH FARMS, INC., )
)
11 and )
)
12 FLORIDA SUGAR CANE LEAGUE, INC., )
UNITED STATES SUGAR CORPORATION; )
13 and NEW HOPE SOUTH, INC., )
)
14 and )
)
15 FLORIDA FRUIT AND VEGETABLE )
ASSOCIATION, LEWIS POPE FARMS, )
16 W.E. SCHLECHTER & SONS, INC., and )
HUNDLEY FARMS, INC., )
17 Petitioners, )
vs. )
18 )
SOUTH FLORIDA WATER MANAGEMENT )
19 DISTRICT, an Agency of the State )
of Florida. )
20 Respondent, )
and )
21 )
MICCOSUKEE TRIBE OF INDIANS OF )
22 FLORIDA, the UNITED STATES OF )
AMERICA, and FLORIDA DEPARTMENT OF )
23 ENVIRONMENTAL REGULATION, and the )
FLORIDA WILDLIFE FEDERATION, and )
24 the FLORIDA AUDUBON SOCIETY, and )
SIERRA CLUB, )
25 Intervenors. )





2


1

2
A P P E A R A N C E S
3

4 KEITH C. HETRICK, Esquire
Assistant General Counsel
5 Department of Environmental Regulation
State of Florida
6 Twin Towers Office Building
2600 Blair Stone Road
7 Tallahassee, FL 32399-2400

8
WILLIAM S. HYDE, Equire
9 Peeples, Earl & Blank, P.A.
One Biscayne Tower, Suite 3636
10 Two South Biscayne Boulevard
Miami, Florida 33131
11

12 PAUL L. NETTLETON, Esquire
Popham, Haik, Schnobrich & Kaufman, Ltd.
13 4100 One Centrust Financial Center
100 S.E. Second Street
14 Miami, Florida 33131

15
RONALD D. JONES, Ph.D.
16 Associate Professor, Biological Sciences
Florida International University
17 University Park,
Miami, Florida 33139
18

19
DEPOSITION OF JAMES R. PRATT, taken on
20 behalf of the Intervenors, on the 11th day of
March, 1993, pursuant to the Federal Rules of
21 Civil Procedure, in the offices of the U.S.
Attorney, 155 S. Miami Avenue, 6th Floor,
22 Miami, Florida, 33130, before me, Phil
Berglan, a Shorthand Reporter and Notary
23 Public in and for the State of Florida.

24

25





3


1 JAMES R. PRATT, Ph.D.,

2 a witness being produced, sworn and examined

3 on behalf of the Intervenors does hereby

4 deposeth and saith as follows:

5 DIRECT EXAMINATION

6 BY MR. HETRICK:

7 Q. Mr. Pratt, my name is Keith

8 Hetrick. I represent the Department of

9 Environmental Regulation in this lawsuit. I

10 am going to be taking your deposition today.

11 Have you ever had your deposition taken

12 before?

13 A. No.

14 Q. What I am going to do is ask you a

15 series of questions, basically just to find

16 out what you know and find out what your

17 opinions are in this case.

18 When I ask you the question, you

19 need to answer the question. Your attorney

20 may object to some of the questions, but you

21 still need to answer the question unless he

22 instructs you not to answer. If you don't

23 understand my question, stop me, and I will

24 rephrase it. We will go slow.

25 If you want to take a break, if you





4


1 need -- if you are tired, just let me know, we

2 will stop the depo and take a five-minute or

3 whatever, 15-minute break. If you are tired

4 and you need to break, we will take a break.

5 When I ask you questions, you know,

6 like I said, if you do not understand the

7 question, let me know, because I will assume

8 otherwise that you understood the question

9 and the answer is as you have given it. From

10 that point, are you okay with this?

11 A. Sure.

12 MR. HYDE: By the way, it's Doctor

13 Pratt.

14 MR. HETRICK: Okay.

15 Q. (BY MR. HETRICK) Doctor Pratt,

16 Let's start out basically with the document

17 production. Your attorney and I have kind of

18 gone through this.

19 I issued a cross notice of

20 deposition yesterday since I am the one

21 actually taking the deposition, but it's a

22 reiteration of what the United States issued

23 in terms of documents produced. Have you

24 reviewed that notice?

25 A. Yes, we spoke about this last





5


1 night.

2 Q. Are there any specific documents

3 which you will rely on at the hearing in

4 forming your opinions that you have not

5 produced in this case?

6 A. No, I don't believe so.

7 Q. I am going to start out with what I

8 have as Exhibit 1, and this is your curriculum

9 vitae that was supplied to me by your

10 attorney. Let's start -- I want to start with

11 your education on your resume'. It says in

12 1971, you received a BA in Biology.

13 A. Right.

14 Q. Did you have a particular area of

15 concentration?

16 A. No.

17 Q. Did you have any particular course

18 work emphasis in that degree?

19 A. No, it's a fairly general biology

20 degree.

21 Q. It says a Bachelor of Arts; it was

22 not a Bachelor of Science?

23 A. Right.

24 Q. Your resume' says you obtained a

25 Master's Degree in 1981.





6


1 A. Right.

2 Q. Was there a thesis connected to that

3 degree?

4 A. Yes.

5 Q. Of what did that thesis consist?

6 A. It's listed in the publication list

7 in -- I worked on protozoa and some -- I think

8 it should be No. 1 on the publication list.

9 Q. Can you tell me what page.

10 A. Page 5. I worked on protozoan

11 communities in a pond on a wildlife refuge.

12 Q. Can you explain to me on your

13 resume', it says, "Graduate Theses," on Page

14 5; are these a series of papers?

15 A. Right. Those are my current and

16 former graduate students and the topics of

17 their theses.

18 Q. And your thesis though is referred

19 to --

20 A. It's listed in the publications.

21 Q. Under No. 1?

22 A. Yes.

23 Q. And that's the one you did in

24 connection with your Master's thesis?

25 A. Correct.





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1 Q. Can you tell me what your hypothesis

2 was in that thesis and what you studied, more

3 specifically?

4 A. We were -- I was examining seasonal

5 differences in communities as driven by just

6 seasonal cycles in looking at the structure of

7 protozoans that existed on surfaces in this

8 pond.

9 Q. What was the hypothesis?

10 A. I guess the hypothesis would be that

11 there were seasonal differences.

12 Q. What was your conclusions that you

13 reached in that?

14 A. We found that the communities were

15 driven strongly by -- changes in the

16 communities were driven strongly by rainfall,

17 and that those seemed -- those types of events

18 seemed to have a marked influence on the

19 community structure.

20 Q. Was there any conclusions reached,

21 and this may be a compound question, but were

22 there any conclusions that you reached that

23 had to do with any kind of water quantity flow

24 distribution as affecting those species?

25 A. Do you mean in terms of hydrological





8


1 variables?

2 Q. Exactly.

3 A. No, we didn't measure any

4 hydrological variables.

5 Q. Tell me about your Ph.D. in zoology

6 which, according to your resume', was in 1984;

7 was there a specialization involved in that?

8 A. Well, there is no technical

9 specialization involved in that in terms of

10 the degree title.

11 The work I did was, again,

12 principally on protozoa and the dissertation

13 research was basically a laboratory variation

14 of a biogeographical problem.

15 We were using protozoa on artificial

16 substrates, in this case polyurethane foam, as

17 models of organisms immigrating to islands.

18 Q. What was the hypothesis that you

19 were working in connection with?

20 A. Our hypothesis was that the

21 colonization of islands was limited by the

22 availability of propagules, meaning organisms

23 that could colonize those islands, and what we

24 did essentially was remove sources of species

25 at various times to see what the effect was on





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1 the colonization of islands in a laboratory

2 situation.

3 Q. What kinds of systems were you

4 trying to, if you were trying to, make

5 inferences on?

6 A. I think it's a fairly basic question

7 about the way species arrive on islands

8 unrelated in any necessary way to particular

9 types of organisms.

10 Q. What kinds of islands?

11 A. Well, again, in a theoretical sense,

12 we were using artificial substrates as

13 targets, essentially, and testing the idea

14 that islands are basically targets in that

15 depending on what the flow of things to the

16 islands was that influenced the success of

17 colonization.

18 As part of that dissertation, we

19 applied this idea of laboratory manipulated

20 colonization type dynamics through examining

21 the effects of toxic chemicals on the eventual

22 colonization of islands.

23 Q. What did you find with respect to

24 the toxic effect of chemicals on colonization

25 of islands?





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1 A. What we found was that there was a

2 very significant and very sensitive effect of

3 toxic chemicals on the model organisms that we

4 were using, on their ability to colonize

5 islands.

6 Q. What kinds of toxic chemicals are

7 you referring to?

8 A. The work that is in the dissertation

9 just reports the results of experiments on

10 cadmium, which is a heavy metal toxic.

11 Q. Did you have to defend that thesis?

12 A. Yes.

13 Q. Is that referenced here in your --

14 A. I think it's, again, on the

15 publication list.

16 Q. Can you point out where.

17 A. It's Item 3 on the publication list.

18 Q. Was that the only published work in

19 connection with your Ph.D. --

20 A. No.

21 Q. -- thesis?

22 A. No.

23 Q. What other --

24 A. There is a series of papers -- well,

25 maybe a series is generous, but there are at





11


1 least two papers that represent work that are

2 chapters in the thesis. They are numbered

3 five and six on the publication list.

4 Q. These were in relation to your

5 thesis?

6 A. Right, migration of species during

7 early colonization, export of species. There

8 was a related paper that --

9 Q. Are these -- excuse me -- but these

10 two papers, for example, five and six, were

11 subparts of the dissertation which is

12 identified in Publication 3?

13 A. Right.

14 Q. You said there were others?

15 A. There is another paper here that

16 contains parts, at least partially contains

17 work that was done in relation to the

18 dissertation. That is publication

19 No. 8, "Laboratory tests evaluating the

20 effects of cadmium on freshwater protozoan

21 communities."

22 Q. What is cadmium?

23 A. It's a heavy metal.

24 Q. What kinds of systems did you

25 identify?





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1 A. Well, it's found in industrial

2 discharges and makes its way to both

3 freshwater and marine systems from industrial

4 discharges. Cadmium is used as a pigment and

5 has been used as a pigment base in paints and

6 a variety of other things.

7 Q. If we go to your employment, what I

8 would most like to focus on right now is your

9 present employment; and if you could describe

10 for me your work situation right now, what it

11 is you do, where you work, what it involves.

12 A. I have two responsibilities that are

13 defined in terms of my letter of appointment.

14 One is to teach senior level courses in a

15 program called, "Undergraduate Degree Granting

16 Program," called, "Environmental Resource

17 Management."

18 My contracted time there is 60

19 percent of my effort and the other 40 percent

20 of my effort is research. And my letter of

21 appointment indicates that I am supposed to

22 spend my research or spend my time doing

23 research on ecology. It's fairly broadly

24 defined.

25 Q. That was going to be my next





13


1 question.

2 A. Well, I mean, that's the extent of

3 the written appointment.

4 Q. What does your research on ecology

5 actually entail? Have you focused it a bit

6 more?

7 A. Yes, we work exclusively with

8 microorganisms. And my definition of

9 microorganisms is not exclusively bacteria,

10 but includes, I guess, what I say to people is

11 things that you can't see unless you look at

12 them through a microscope.

13 Q. How would you describe those

14 microbes? How would you describe those

15 things?

16 A. Well, hypothetically, it involves a

17 large number of organisms ranging from some of

18 the worms and things like that down to

19 protozoa and algae and bacteria and some

20 fungi.

21 Q. Is there a focus on any particular

22 aspect or any particular organism in your

23 research or study more than the others or do

24 you concentrate in any one area?

25 A. I have done most of the taxonomic





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1 work, meaning work where we actually put names

2 on organisms with protozoa. I have done some

3 taxonomic work with algae, but our work on

4 model communities really involves a large

5 diversity of organisms.

6 We have worked with organisms that

7 -- basically organisms that colonize surfaces,

8 and that includes essentially everything from

9 bacteria to fungi, to worms, including

10 protozoa and algae and a variety of things.

11 So our test systems that we have

12 developed for a variety of investigations have

13 involved all of those arenas.

14 Q. Do you do any consulting work?

15 A. Yes.

16 Q. Is that outside the scope of your

17 contract with the university, or is it in

18 connection with your work with the

19 university?

20 A. What do you mean by that?

21 Q. Well, do you have any contracts

22 outside with private parties, outside the

23 scope of your employment with the university?

24 A. No.

25 Q. Let me be more specific: Do you





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1 have any contracts to conduct research outside

2 the scope of your work with the university?

3 A. No.

4 MR. HYDE: Just to be sure that you

5 understand what the answer means --

6 THE WITNESS: Yes, I am not sure.

7 MR. HYDE: You are talking about

8 research and certainly Doctor Pratt is doing

9 some work for the League. I don't know that

10 he necessarily considers that to be, quote,

11 "research," in the sense that many scientists

12 do in doing original fieldwork and the like.

13 Would that be a fair characterization?

14 THE WITNESS: Well, I guess --

15 Q. (BY MR. HETRICK) Let me ask you

16 this: Do you have a contract with the League

17 to serve as an expert in this case on their

18 behalf, a written contract?

19 A. I am not sure I have an answer for

20 that.

21 MR. HYDE: There is a letter of

22 agreement.

23 THE WITNESS: Yes, I guess that is

24 right.

25 MR. HYDE: I think the term is used.





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1 There is an agreement whereby Doctor Pratt is

2 to provide services to our law firm on behalf

3 of the League, United States Sugar

4 Corporation, and New Hope South, Inc.

5 The contract is one of the listed

6 documents for which we have claimed

7 privilege. You are free to inquire into the

8 general terms of that relationship, the amount

9 reimbursed, et cetera.

10 MR. HETRICK: In a general sense,

11 before I get to that, would you consider it --

12 let's go off the record for a second.

13 (A brief off-the-record discussion

14 was here had).

15 Q. (BY MR. HETRICK) It's my

16 understanding, Doctor Pratt, that you have a

17 letter of agreement to work with the League.

18 You have been hired by the League in this

19 case; is that correct?

20 A. That's correct.

21 Q. Do you have any similar other types

22 of arrangements, similar to this type of

23 agreement, with any other entity or party?

24 A. No.

25 Q. Have you ever had any type of





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1 agreement similar to what you have right now

2 with the League where you are hired to

3 provide, in effect, consulting services?

4 A. Yes.

5 Q. How many occasions?

6 A. I guess, in round numbers, I would

7 say probably a half dozen times.

8 Q. Over what span of time?

9 A. Let's say the last seven or eight

10 years.

11 Q. What types of cases did those

12 include?

13 A. I provided some services similar to

14 what I have provided here in terms of document

15 review and opinions in a Toxic Clean Water Act

16 case a few years ago.

17 Q. Well, let me just stop you right

18 here. It's about a half dozen maybe -- do you

19 have a recollection of those cases?

20 A. Well, I think that's the only other

21 thing that I guess would reasonably be called

22 a case in the sense of we --

23 Q. Were they legal cases?

24 A. There was litigation either in place

25 or pending. All of the other times that I





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1 have done consulting for people, it's largely

2 been related to either -- well, sometimes

3 collecting organisms and identifying them,

4 evaluating cases of potential impact.

5 Sometimes some of the work that we

6 have done has strictly been background data

7 collection for people around landfill sites

8 and those types of things.

9 Q. Can you go back and talk to me or

10 tell me about the gist of each of the

11 litigation matters that you were involved in,

12 the substance of the case, what the issues

13 were, starting with maybe the first one and

14 give me an approximate time.

15 A. There is only one other where

16 litigation was involved. And that was -- I

17 don't know how specific you want me to be.

18 Q. What state was it in?

19 A. Pennsylvania.

20 Q. What were the issues involved in the

21 case?

22 A. It was a case where an advocacy

23 group had sued an industry over waste

24 discharge into a stream. And I was asked to

25 evaluate discharge, monitoring reports as well





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1 as stream biology data, basically data that

2 had been collected by a consulting firm or

3 individual private consultants, to essentially

4 comment on the possibility of there having

5 been adverse impacts to the stream from this

6 waste discharge.

7 Q. Who were you hired by, the advocacy

8 group or the industry?

9 A. Yes, the advocacy group.

10 Q. What year was that?

11 A. 1988.

12 Q. Did that case go to trial?

13 A. No.

14 Q. Did it settle, do you know?

15 A. Yes.

16 Q. And you were not deposed in that

17 case?

18 A. No.

19 Q. Is that the only other litigation

20 matter you have been involved in?

21 A. Yes.

22 Q. Were you paid by the advocacy group

23 in that case?

24 A. Yes.

25 Q. A fee?





20


1 A. Yes.

2 Q. At that time, did you also work for

3 the Pennsylvania State University?

4 A. Yes.

5 Q. Did you consider that employment on

6 behalf of the advocacy group to be outside the

7 scope of your work with the university, in

8 other words, not connected to the university?

9 A. Yes.

10 Q. Have you had any other employment

11 relationships with private entities, outside

12 the scope of your work with Pennsylvania State

13 University, besides the one with the advocacy

14 group even if it was not a litigation matter?

15 A. Do you mean in relation to

16 consulting-type work?

17 Q. Yes.

18 A. Yes.

19 Q. How many instances?

20 A. I would say there probably have been

21 four or five times when I have been asked to

22 collect organisms and identify them and

23 provide a background data set for somebody to

24 store for future reference.

25 Q. What kinds of groups asked you to do





21


1 that?

2 A. I have done most of this work

3 through intermediaries, typically consulting

4 engineers who are, for one reason or another,

5 not qualified to collect organisms and

6 identify them.

7 Q. In connection with their business?

8 A. Right. In connection with

9 developing site data for permits. Almost all

10 of that work has been in relation to landfill

11 permits in roughly the same time, maybe a

12 little later.

13 Q. Toxic hazardous waste cleanup

14 type?

15 A. No, no, these are strictly -- well,

16 I won't stay strictly, because in many cases I

17 don't believe I know. But I would say, in

18 general, that they are municipal landfills.

19 In the late 1980s, there was a surge

20 of repermitting of landfills, and some of the

21 information that was asked for was basic

22 biological data from streams in the vicinity

23 of these landfills.

24 Q. Were all of those groups, those four

25 or five groups that hired you, located in





22


1 Pennsylvania?

2 A. Yes.

3 Q. Have you done any work in that

4 sense, in the sense of consulting work,

5 outside the scope of the university and not

6 including the litigation matters outside of

7 Pennsylvania?

8 A. That's a good question....not that I

9 recall.

10 Q. One last question on this point: In

11 regard to the work that you have done with

12 these various entities as a consultant, as a

13 paid consultant, whether it be the four or

14 five groups or the two litigation matters you

15 said that's been done in the past several

16 years, in general; is that the time frame?

17 A. It's been basically since the time I

18 got my Ph.D., yes.

19 Q. What percent of your time do you

20 spend outside the scope of your university

21 work handling these matters versus handling

22 all of your university duties, would you say,

23 if you had to allocate time?

24 A. That's a good question. I would say

25 something on the order of one to five percent,





23


1 somewhere in there.

2 Q. One being the outside?

3 A. Well --

4 Q. Twenty percent of your time maybe

5 handling outside matters?

6 A. I guess -- do you mean in terms of

7 how many hours I actually work, or how many

8 hours I get paid for?

9 Q. Well, if you are like me, it's how

10 many hours you get paid for. I mean --

11 A. That's why I say sort of one to five

12 percent. I am not sure I could be more

13 specific than that.

14 Q. I want to go back to your education

15 and I am wondering if you could tell me, in

16 any of your degrees, what your training has

17 been in the area of microbial ecology.

18 A. Well, we could start with my

19 Bachelor's Degree.

20 Q. Let's start with your Bachelor's

21 Degree.

22 A. I had this sort of standard

23 microbiology, introduction to general

24 microbiology course for that through a

25 lecture/lab type course, typically five-credit





24


1 type introductory course. That probably is

2 the extent of my background in microbial work

3 at the Bachelor's level.

4 At the Master's level, there would

5 -- well, there would effectively be none. I

6 can say that I took a course that was called,

7 "Experimental Ecology." It was a full summer,

8 a 40-hour a week course where we worked on

9 the, quote, "lakes," which were really ponds,

10 one of which I eventually did my Master's

11 thesis research on.

12 And, in that regard, we did quite a

13 bit of plankton type work in all of these

14 systems looking at the microbes in the

15 plankton.

16 At the Ph.D. level, I took a senior

17 level course in aquatic microbiology and a

18 graduate level course entitled, "Advanced

19 Aquatic Microbiology."

20 Those were both microbial ecology

21 courses in the sense of dealing with

22 environmental organisms, meaning organisms

23 that were found, essentially, in fresh water.

24 In addition, I have taken two

25 courses, a protozoology course which focused





25


1 on freshwater protozoa and a course on

2 freshwater diatoms. All of those happened at

3 the Ph.D. level. I guess I don't believe, if

4 you looked at my transcript, that you would

5 find additional specific course work that said

6 microbial ecology.

7 Since that time, I was involved in a

8 training workshop, and I believe that actually

9 appears on the curriculum vitae, in applying

10 gene probe techniques to the study of

11 microbial ecology. I guess probably because I

12 just did that last summer, and the copy of my

13 CV is dated December, 1991. So that would

14 have been July of 1992, that I did that.

15 Q. I am going to ask you a couple of

16 other areas and if these terms are

17 interchangeable, let me know, because we don't

18 need to keep rehashing these over and over

19 again. If you could tell me what kind of

20 course work you have had, starting from your

21 Bachelor's Degree on up in bacteriology.

22 A. I haven't had any specific course

23 work in bacteriology other than the courses I

24 have just described to you.

25 Q. Did the course that you just





26


1 described to me relate to bacteriology?

2 A. Yes, they were certainly all focused

3 on bacteria, as the definition of

4 microorganisms, with the exception of the two

5 courses that I just mentioned or the two

6 courses I mentioned, the course on freshwater

7 diatoms and the course on protozoa.

8 Q. What about course work in mineral

9 cycling?

10 A. Well, the advanced aquatic

11 microbiology course that I took focused on

12 mineral cycling. That was the interest of the

13 person who taught it.

14 Q. What about specific course work on

15 -- well, how about chemistry, any course work

16 in chemistry along the way?

17 A. Yes, I have the usual sweep of

18 undergraduate inorganic and organic chemistry

19 courses. I have not taken any specific course

20 work other than a course in molecular biology

21 that I think could reasonably be called a

22 chemistry course at the graduate level.

23 Q. In the courses that you have

24 described to me so far pertaining to microbial

25 ecology, what training have you had in





27


1 microbial ecology in the area of bacteria and

2 fungi?

3 A. Are you asking something that's

4 different from what you have already asked?

5 Q. If it's not different from what you

6 have already answered, just tell me the

7 courses that -- which courses you have taken

8 that had to do specifically with bacteria and

9 fungi.

10 A. Well, the introductory course I had

11 as an undergraduate and the two courses

12 identified as microbiology that I took as a

13 graduate student dealt very nearly completely

14 with bacteria.

15 There was some course work on fungi,

16 but in terms of culturing, in terms of actual

17 manipulation of fungi, that wouldn't have

18 happened in the laboratory sections of those

19 courses that I described.

20 We certainly worked exclusively with

21 bacteria except when we got fungi growing in

22 our cultures.

23 Q. We talked about your education

24 experience in these various areas, what

25 courses have you taught and we can go through





28


1 them again, these areas, if you want, but

2 dealing with bacteriology, mineral cycling,


3 microbial ecology --

4 A. I have not ever taught a course in

5 bacteriology. The courses that I have taught

6 are in relation to -- let me just see if I

7 have a list here.

8 THE WITNESS: Is there a list of

9 courses taught in this? There is a page in

10 this --

11 MR. HYDE: Courses taught, Page 3.

12 THE WITNESS: I don't have Page 3.

13 MR. HETRICK: You don't have Page

14 3?

15 THE WITNESS: No.

16 MR. HETRICK: Do you have Page 3?

17 MR. NETTLETON: I don't have Page 3

18 either.

19 MR. HETRICK: Off the record.

20 (A brief off-the-record discussion

21 was here had).

22 A. If we want to run through the

23 list --

24 Q. (BY MR. HETRICK) Yes, let's run

25 through the list.





29


1 A. -- of courses that are on my --

2 Q. Of these courses taught, on your

3 list here, which deals specifically with

4 bacteriology?

5 A. Well, there is a coverage of

6 bacteria in introductory biology and the

7 principles of biology courses. Those are

8 basic courses. As I said, I have not ever

9 taught a course that specifically deals with

10 just the biology of bacteria.

11 Q. What about mineral cycling?

12 A. Well, again, I will say mineral

13 cycling is taught in introductory biology and

14 the principles of biology course. It's also

15 taught in advanced ecology courses and we

16 cover that in a course I teach now on the

17 effect of pollutants on aquatic systems in

18 relation to disruption of mineral cycles by

19 pollution.

20 Q. You may have covered it, I know some

21 of this overlaps, but what aspects of

22 microbial ecology do you consider to be

23 included in any of these courses?

24 A. Well, there is microbial ecology,

25 again, taught in the introductory courses, and





30


1 I also teach aspects of the microbial ecology

2 in an ecotoxicology course that I teach.

3 That's basically an environmental toxicolocy

4 course.

5 Q. Which one is that?

6 A. It's the one entitled,

7 "Ecotoxicology," because that is the kind of

8 work that I have, you know, I have worked

9 with, microorganisms, and so I teach aspects

10 of microbial ecology in that protozoology --

11 well, let me back up -- in the course,

12 Effects of Pollutants on Aquatic Ecosystems,

13 we teach mineral cycling in that course.

14 I have taught the role of protozoa

15 in nutrient and mineral cycles in the

16 protozoology course.

17 Q. Do any of those courses deal with

18 cycling of phosphatase -- I am sorry,

19 phosphates?

20 A. Phosphates, yes.

21 Q. Which ones?

22 A. Well, probably the same courses I

23 have just listed for you. Certainly the two

24 introductory courses in "The Effects of

25 Pollutants on Aquatic Ecosystems" certainly





31


1 dealt with it, since that is a major concern

2 in pollution of aquatic systems.

3 Q. Do you consider the term, "microbial

4 ecology," to be a broad term which encompasses

5 the study of bacteria and fungi?

6 A. No, I wouldn't restrict it to the

7 definition that you just gave.

8 Q. Would it include bacteria and fungi?

9 A. Yes.

10 Q. What else would it include besides

11 bacteria and fungi?

12 A. Well, I believe it includes the

13 activities in ecology of things that might

14 reasonably be called microorganisms, meaning

15 things that interact with bacteria and fungi

16 including algae and protozoa, worms, rotifers,

17 and those types of things.

18 Q. Would the term, "geochemical

19 ecology" -- do you recognize that term?

20 A. I can interpret that term. I am not

21 sure that I have heard that.

22 Q. Would your interpretation be such

23 that you would view geochemical ecology to be

24 interchangeable with the term, "microbial

25 ecology"?





32


1 A. No.

2 Q. Could you tell me what your

3 interpretation of that term is, first of all,

4 and then how it differs from microbial

5 ecology?

6 A. I would say that geochemical ecology

7 would be a subset of microbial ecology. And I

8 think what you are saying is that geochemical

9 ecology would basically be the study of

10 mineral cycles.

11 I would agree that that is a

12 component of microbial ecology, but it's not

13 -- I don't see that as the -- I guess I don't

14 see those two terms as being synonyms for each

15 other.

16 Q. Which courses here, if any -- I

17 guess the same courses that you have described

18 dealing with microbial ecology would also

19 apply to geochemical ecology being a

20 subcomponent?

21 A. I think that's a fair statement

22 since we cover geochemical cycles in many of

23 these courses.

24 Q. Have you ever had any specific

25 courses, yourself, on geochemical ecology?





33


1 A. Yes, in the context of an advanced

2 graduate level course in aquatic microbiology,

3 where virtually all of the content of the

4 course was on geochemical cycles.

5 Q. Doctor Pratt, is it your

6 understanding that you have been designated as

7 an expert in this case by the Sugar League in

8 your area of expertise?

9 A. Yes.

10 MR. HETRICK: I am not going to

11 offer this as an exhibit unless you want to.

12 This is his area of designation that you have

13 stated.

14 Q. (BY MR. HETRICK) I am going to get

15 into this, but I would have one quick question

16 or one fundamental question, I guess, and that

17 is: What do you consider yourself to be an

18 expert in in this case, what area or what

19 would you consider your title to be as far as

20 your expert item? Do you consider yourself,

21 for example, as a microbial ecologist, a

22 geochemical ecologist, a bacteriologist, what

23 is your title in this case?

24 MR. HYDE: I am just going to make a

25 general objection. You asked about five





34


1 different questions.

2 MR. HETRICK: That's true.

3 MR. HYDE: Maybe you can do one at a

4 time. You may go ahead and answer if you

5 can.

6 A. You want me to put a title on my

7 expertise?

8 Q. (BY MR. HETRICK) Area of expertise

9 yes.

10 A. I guess I would have no trouble

11 saying that my expertise is in microbial

12 ecology.

13 Q. That will save me some time. If you

14 could take a look at your CV and the

15 publications on that, there are a few areas I

16 am specifically interested in.

17 The first one is, if you glance

18 through your publications, and there are quite

19 a few here, there is, beginning on Page 5, are

20 45 publications and you get into book

21 chapters, and on and on.

22 If we could thumb through this,

23 starting at Page 5, and maybe you could point

24 out to me which specific publications might

25 refer to microbial ecology.





35


1 A. It might be easier to --

2 Q. Say which ones don't?

3 A. Yes. Would that be easier?

4 Q. That would be fine.

5 A. According to the definition, I

6 guess, that I have already given you, which

7 may be a little broader than some, I would say

8 No. 4 does not. That's a paper on snails,

9 basically.

10 Seventeen, which is on Page 6, is a

11 fairly general paper. Then I guess I should

12 call your attention to -- there is a sequence

13 of papers here, and I am not sure how you

14 would like to deal with these, but starting

15 with 19, there is a paper called, "Substrate

16 Associated Microfauna."

17 There actually are several of those

18 with titles similar throughout the list that

19 are literature reviews that I wrote for the

20 Water Pollution Control Federation. So I am

21 not sure that they could really be called

22 research.

23 What you would see in a CV that was

24 sorted slightly differently was that those

25 papers were pulled out because they are simply





36


1 literature reviews, but that's one. I guess

2 paper No. 21 is one that is sort of a

3 borderline paper.

4 That paper is about rotifers. To my

5 mind, rotifers are microorganisms, but they

6 are bicellular and they are only

7 microorganisms in the sense that you can't see

8 them without a microscope.

9 Paper 22, again, is a more general

10 paper, as is paper 25. And then, again, 31 is

11 a literature review paper as is 34. Paper

12 No. 33 is a description of a new species of

13 aquatic organisms so I guess technically

14 that's not exactly ecology.

15 Again, papers No. 42 and No. 44,

16 those are literature review papers. Do you

17 want to go through the book chapters as well?

18 I think that the book chapters are largely

19 similar to the open literature papers.

20 Q. If we could go through those --

21 A. Okay. I will just say paper 15 on

22 wetlands. That's a more general paper on the

23 use of wetlands for treatment and it doesn't

24 really -- it is not exclusively microbial

25 ecology. Paper 16 there, that's on Page 9,





37


1 is, again, a somewhat more general paper, as

2 is paper 17.

3 Paper No. 19 is also a paper that is

4 more general than simply microbial work and

5 then clearly paper No. 21 focuses on, mostly

6 on, invertebrates, somewhat broadly defined.

7 I think that's about it unless you want to get

8 into the sponsored reports.

9 Q. Yes, I would like to go through --

10 A. You would to go through all of

11 them?

12 Q. Yes, and, again, we are talking

13 about which ones do not have to do with --

14 A. Right. Well, let's just go through

15 them then. The book that John Cairns and I

16 published has quite a bit more in it than

17 simply microbial ecology, and I am the editor

18 of that.

19 Q. Is there a chapter in that book on

20 microbial ecology?

21 A. I have a chapter published in that

22 book that's listed in the book chapters that

23 we have just been through. In the book

24 reviews, the second and third reviews have

25 really nothing to do with microbial ecology in





38


1 terms of modeling.

2 Software package one is a more

3 general book on river pollution. Then the

4 distribution, the limited distribution reports

5 go --

6 Q. Before you get to that, let me ask

7 you: No. One, under book and software, says,

8 "Review of a Functional Biology of the

9 Protozoa"?

10 A. Yes.

11 Q. How does that have to do with

12 microbial ecology?

13 A. This was a book basically on

14 functional biology including the ecology of

15 protozoa, protozoa and microorganisms.

16 Q. Okay.

17 A. I think the only two papers in the

18 limited distribution reports that are not --

19 that would be No. 7, a thing I wrote on how to

20 manage small streams, and No. 9, which is a

21 basic standard toxicological study involving

22 fish and invertebrates.

23 Q. Keep going.

24 A. There are a couple of things here,

25 this artificial -- do you want to go down -- I





39


1 mean, there isn't anything until we get into

2 the "In Preparation" things.

3 Q. Tell me where you are picking up.

4 A. Well, I am on the middle of Page

5 11. At the bottom of that list of -- well, at

6 the top of that list, these are things that

7 are -- I don't believe any of which have

8 appeared.

9 Q. What does it mean by "In

10 Preparation"?

11 A. Meaning just that, at the time that

12 I wrote this, they were being prepared.

13 Q. Are they still being prepared?

14 A. Yes. Let me just look real quickly

15 and see -- I guess this paper, the fourth

16 paper in that list, "The ecological

17 consequences of species loss" has actually

18 been submitted and published. The final paper

19 there was not ever submitted and so it really

20 shouldn't even be on the list.

21 Q. Are there any other papers in

22 general, whether or not they deal with

23 microbial ecology, that are in preparation?

24 A. I don't think I have them with me

25 but there are certainly -- well, yes, I have a





40


1 current CV. The one you have is basically a

2 year and a half old or very nearly that. So

3 there are additional papers here that are not

4 listed.

5 Q. Do any of those papers have to do

6 with microbial ecology?

7 A. Essentially all of them.

8 Q. Do any of those papers specifically

9 focus on the Everglades?

10 A. No.

11 MR. NETTLETON: Just for the record

12 for clarification, I was looking at two

13 different things here, but the one that you

14 have marked as Exhibit 1 is December, 1991. I

15 have in my file and what we made a copy of

16 Page 3 from is dated June, 1992.

17 MR. HETRICK: That's not correct.

18 What we want to do for the record is, I will

19 make a copy of Page 3 on mine, since this is

20 the one we are attaching for the record. You

21 will still supply us with an updated CV?

22 THE WITNESS: Sure.

23 MR. HYDE: Do you have one with

24 you?

25 THE WITNESS: Probably not.





41


1 MR. HYDE: No problem with that.

2 THE WITNESS: I think, in general,

3 the only differences would be some additions

4 to the publication list and potentially some

5 differences in the grant and contract list.

6 MR. NETTLETON: Doctor, I don't want

7 to get out of turn, but what is your most

8 recent CV dated, do you know?

9 THE WITNESS: I have one dated -- I

10 mean, it's sort of updated monthly. So I mean

11 I have one that could conceivably be dated

12 March of this year.

13 Q. (BY MR. HETRICK) Do any of the "In

14 Preparation" reports focus on any water body

15 in Florida?

16 A. No.

17 Q. Okay. If we can continue going

18 down, we are at abstracts right now, and tell

19 me which ones do not have to do with microbial

20 ecology.

21 A. Well, I suppose No. 10, "New species

22 of peritrich ciliates from Australia." That's

23 a strictly a taxonomy paper. And, again, I

24 will say -- let's see where is this -- No. 22

25 which is on Page 13, "Testing changes in the





42


1 community structure." That's a general

2 statistical treatment. Other than that, there

3 are none.

4 Q. If you take a look back to the CV

5 under the publications, if you glance through

6 it starting with Page 5, you will see in the

7 right and left-hand margins, I guess, the

8 first appearing on Page 8, an asterisk by

9 No. 5 at the bottom of the page and then on

10 Page 9, 15 is circled, and asterisks on the

11 right margin. Page 10, there are numerous

12 asterisks.

13 A. Yes.

14 Q. Page 11 there is an asterisk, Page

15 12 there is an asterisk, and Page 13 there is

16 an asterisk. Do you know why those asterisks

17 appear?

18 A. No.

19 Q. Have you ever seen those asterisks

20 on any --

21 A. Not until today.

22 Q. Not until today?

23 A. No.

24 Q. Do you know what they might mean?

25 A. No.





43


1 Q. Would you know who put them there?

2 A. No.

3 Q. Let me go back to your witness

4 designation. I don't have another copy, but

5 have you seen this designation?

6 A. Yes.

7 Q. When did you first see this

8 designation?

9 A. Earlier this morning.

10 Q. You have not seen it before today?

11 A. No.

12 Q. Did you help draft that designation

13 at any time?

14 A. Not directly.

15 Q. How about indirectly?

16 A. I mean -- I am sure that I was asked

17 to say what my areas of expertise might be.

18 That would be the extent of it.

19 Q. Do you agree with what --

20 MR. HETRICK: Do you want to offer

21 that as an exhibit?

22 MR. HYDE: If you want to, it's your

23 deposition. I just would note for the record

24 that this is something that was prepared some

25 time ago. I don't think it was prepared by





44


1 the attorneys. I think that --

2 MR. HETRICK? This is part of a

3 pleading. It's basically Peeples, Earl &

4 Blank's witness designation, if we can note

5 that for the record. I think that's clear

6 enough and that is what we have in our files.

7 Q. (BY MR. HETRICK) Do you agree with

8 what is stated on that designation?

9 A. Yes.

10 Q. Have you discussed testifying on any

11 other areas other than what is listed on that

12 designation with anyone?

13 A. No.

14 Q. Let me get into a few preliminary

15 questions. Can you tell me when your first

16 contact with the League was about this case?

17 A. I would say my first contact would

18 have been -- I will say sometime in the winter

19 of 1992. I am not certain about that. I

20 really need to look at my --

21 Q. Approximately?

22 A. Yes, I believe I was called on the

23 phone and I don't remember if it would have

24 been late 1991, or early 1992.

25 Judging from the date on the CV, I





45


1 would assume that is something that I probably

2 sent to somebody, you know, in that time

3 period, late 1991, early 1992.

4 Q. So they contacted you?

5 A. Yes.

6 Q. Can you tell me who the contact

7 person was.

8 A. Dennis Stotts.

9 Q. And it was by phone?

10 A. The initial contact was by phone.

11 Q. Who is Dennis Stotts?

12 A. He is an attorney at Peeples, Earl &

13 Blank.

14 Q. Did you have any contact with Dennis

15 Stotts after that?

16 A. Yes.

17 Q. About how many times?

18 A. Well, probably three or four times

19 by telephone.

20 Q. Was anyone else present -- well,

21 first of all, was it a conference call?

22 A. No.

23 Q. Was your testimony concerning this

24 case discussed throughout those meetings or

25 any particular meeting?





46


1 A. When you say testimony --

2 Q. Anticipated testimony at the

3 hearing.

4 A. I will have to think -- I have to

5 think if I have an answer to that.

6 Q. Let me ask you another question:

7 Did they ask you or tell you that you might be

8 testifying at the hearing?

9 A. Yes.

10 Q. Have you had any contact with anyone

11 else besides Dennis Stotts concerning this

12 case?

13 A. Yes.

14 Q. Who might that be?

15 A. Well, in addition to Mr. Hyde, I

16 spoke on the phone one day with someone from a

17 consulting firm, I believe.

18 Q. Who might that have been?

19 A. I don't think I can tell you that

20 person's name. It's possible -- well, I might

21 be able to get it from my phone log, but it

22 was what I would call an inconsequential

23 conversation in the sense that a person mostly

24 called to introduce himself and said he might

25 be calling me back for some additional





47


1 questions that he might have. That was about

2 it.

3 Q. Do you recall what group that person

4 might have worked for?

5 A. No, I probably would really have to

6 see a list of -- I have never seen any

7 paperwork from him or anything else. I

8 probably have it in a phone log somewhere.

9 Q. Is it accessible to you?

10 A. Like today?

11 Q. Maybe not today --

12 A. Yes. If I wrote it down, it's in my

13 phone log in my office.

14 Q. Is that the only conversation you

15 might have had with that person?

16 A. Yes.

17 MR. HETRICK: Off the record for a

18 minute.

19 (A brief pause was here had).

20 Q. (BY MR. HETRICK) Does the name

21 Hutcheon Engineers sound familiar to you?

22 A. No.

23 Q. Will you try to get us that name?

24 A. (No response).

25 MR. HYDE: If he has it, if he will





48


1 provide me with it, I will get it to you. We

2 are not sure it's going to produce anything

3 relevant to this proceeding, but we will try

4 to do so.

5 Q. (BY MR. HETRICK) Have you ever been

6 contacted by any other party besides the

7 League in this case?

8 MR. HYDE: Perhaps you should

9 specify --

10 Q. (BY MR. HETRICK) Have you ever been

11 contacted by anyone else in this case besides

12 the League or someone working with the League

13 as a consulting --

14 A. No.

15 Q. Have you ever been contacted by the

16 Florida Sugar Cane Cooperative?

17 A. No.

18 MR. HYDE: Actually it's the Florida

19 Sugar Cane Growers Cooperative.

20 MR. NETTLETON: Actually it's the

21 Sugar Cane Growers Cooperative of Florida.

22 MR. HYDE: You are right.

23 Q. (BY MR. HETRICK) Do you have any

24 other letter of agreement with anyone else

25 concerning this case besides the League?





49


1 A. No.

2 Q. Have you ever spoken with anyone in

3 the League besides the League's attorneys and

4 the one individual that you mentioned that was

5 a consultant?

6 A. No.

7 Q. Were you ever given any written

8 information about this case by the League or

9 their attorneys?

10 A. Yes.

11 Q. Can you tell me what you were

12 given.

13 A. I was given a huge pile of stuff to

14 read.

15 Q. If you can try to recall what you

16 might have been given.

17 A. I can summarize for you. I was

18 given a copy of the settlement, something

19 called the "Settlement Agreement," which you

20 probably have a much better idea what it is

21 than what I do.

22 Mine has a little yellow tag on the

23 front that says, "Settlement Agreement." I

24 was given two copies of a report by Frank

25 Nearhoof.





50


1 Q. Two copies?

2 A. Two copies, an early draft and a

3 later draft.

4 I have received, in addition, a

5 variety of copies of other reports and papers,

6 some of which I have requested and some of

7 which were given to me initially. It was a

8 pretty good-sized stack.

9 Q. Is that it?

10 A. Yes, everything I was given was

11 basically -- well, most of what I was given

12 was either referenced in the Nearhoof report

13 or was in some way related information to

14 that.

15 There is, I mean, there is more to

16 the stack of things that I have than simply

17 references in that report.

18 Q. So references in the Nearhoof

19 report --

20 A. You shouldn't mistake that I have

21 them all. I don't. I have some.

22 Q. But you mentioned some other

23 references not having to do -- or outside the

24 scope of the Nearhoof report?

25 A. Well, yes, I have been given -- I





51


1 was given, initially, other documents. Some

2 of them were drafts of papers or reports, a

3 couple of things by Doctor Jones. I think

4 there is a couple of published papers by

5 Doctor Jones.

6 Most of the other information that I

7 have been given is, with the exception of

8 those things, are reports that are not in open

9 literature.

10 Q. What do you mean by "reports not in

11 open literature"?

12 A. Well, meaning things like reports to

13 the National Park Service, South Florida Water

14 Management District reports, things that I

15 couldn't just go to my library and copy.

16 Q. You mentioned that there were a

17 variety of reports that were given to you and

18 you have talked about the Nearhoof report,

19 drafts of -- documents and drafts of papers by

20 Doctor Jones, maybe some published papers and

21 reports not in the open literature; can you

22 recall for me specifically what kinds of

23 information that you specifically requested?

24 A. Some of those reports, the Park

25 Service reports and South Florida Water





52


1 Management District reports, are things that I

2 requested. I believe that all of the things

3 that I requested are things cited in the

4 Nearhoof report that I asked to have copies of

5 because I couldn't obtain them in some other

6 way.

7 Q. Do you intend to rely on these

8 documents in forming opinions that you have

9 with regard to this case?

10 A. Yes.

11 Q. Doctor Pratt, I am going to show you

12 our production request, which is also the

13 United States production request, and your

14 attorney has told me -- and correct me if I am

15 wrong, Bill -- but that there is a four-page

16 summary which we are going to get into and

17 identify as an exhibit here shortly, which

18 states the essence of his opinion and that's

19 all the documents that he has:

20 But on Item 6, it requested all

21 documents that you might rely upon in

22 formulating your opinion, and it was

23 represented to me that pretty much it was, in

24 general, the publications stated in this paper

25 and I am just --





53


1 What I would like to know is where

2 the other documents are referred to, six, that

3 he specifically identified here that he is

4 relying on in formulating his opinion to

5 analyze Frank Nearhoof's papers.

6 MR. HYDE: Let me respond as

7 follows: First of all, we didn't receive your

8 request, that is the department's request,

9 until yesterday. So I presume we are looking

10 at simply the United States request, and I

11 think it's up to the United States to object

12 if they have any objections.

13 Secondly, I did talk with

14 Ms. Ponzoli, the United States Assistant

15 Attorney, regarding the provision of what

16 documents she needed because of all the things

17 that Doctor Pratt has done in the past and

18 that specifically related to his

19 publications. She said that if she needed any

20 specific documents listed on his CV that she

21 would later inquire of me. She never did so.

22 Third, I regard the seven and eight

23 to be in the nature of original documents that

24 are separate and apart from the documents that

25 we all have in this case. Certainly all of





54


1 the things that Doctor Pratt just mentioned

2 are within the possession of the Department of

3 Environmental Regulations and you are entitled

4 to inquire into them.

5 I see no reason to produce documents

6 in this proceeding or in this deposition that

7 you already have, in the past, for some time.

8 In fact, the Nearhoof documents almost all --

9 well, Mr. Nearhoof was a department witness

10 and he has all of those documents himself.

11 Certainly one could look at the

12 documents which we provided to you and see

13 that it is a critical review of Mr. Nearhoof's

14 paper, in which case I think all one has to do

15 is look at the referencing contained in

16 Mr. Nearhoof's paper. You are entitled to

17 inquire into them and to the extent that I

18 think that you want to inquire, but please

19 feel free to do so.

20 I just don't regard this request as

21 a need to produce documents that everybody

22 already has anyway.

23 MR. HETRICK: I don't disagree with

24 that. I am specifically interested in Item

25 No. 6.





55


1 MR. HYDE: Excuse me, No. 6?

2 MR. NETTLETON: Let me just state

3 that I do agree with it to some extent and

4 that's certainly not the position when he was

5 taking another deposition, and I wish that at

6 some point everyone would agree on what

7 position that someone is going to take.

8 We also noticed Doctor Pratt's

9 deposition back in October. It certainly

10 wasn't my interpretation, my request for all

11 documents relied upon and that was not -- I

12 did not cross notice this particular

13 deposition. And I was not under the

14 impression that there was a need to do that in

15 order for all parties to obtain the benefits

16 of production. But I don't intend to present

17 any argument on the record, I just wanted to

18 state that.

19 MR. HETRICK: Let me also clarify.

20 My agreement is more or less as to the cross

21 notice because that cross notice came to you

22 yesterday and I was notified of the case. As

23 of Sunday, there was no time within the rules

24 that I had to file the cross notice. However,

25 as to, you know, what needs to be produced for





56


1 each witness, I think it's all documents

2 within his possession, at least that he has

3 access to:

4 You know, that we need to have, that

5 he has formulated an opinion on or relied in

6 formulating an opinion on so that we can ask

7 about those. I think the Nearhoof paper and

8 the SWIM Plan are probably documents that

9 still need to be produced if he specifically

10 relied upon those. However, you know, we can

11 take care of some of that by phone but No. 6

12 is specifically documents that he has relied

13 upon in formulating his opinion, and we don't

14 have this.

15 MR. HYDE: Well, you do have them.

16 You don't have a list of them. We didn't

17 produce them a second or third time because

18 they are in fact documents that were produced

19 by the respondent in this case including the

20 United States and the South Florida Water

21 Management District and the Department of

22 Environmental Regulations.

23 MR. HETRICK: But don't they go

24 beyond the publications in this paper?

25 MR. HYDE: Well, they go beyond the





57


1 publications in the paper but they are in

2 effect, your, that is, the respondent's,

3 publications.

4 I think that, for example, when we

5 deposed Steve Davis, he had or listed at the

6 beginning of his deposition a bunch of papers

7 that he might rely upon. And I think that we

8 didn't necessarily have them with us.

9 They certainly were within our

10 possession, as these documents are certainly

11 within your possession, and if you want to ask

12 any questions about them, as I said earlier,

13 you are entitled to do so. But I don't regard

14 this as being a duty to produce for the third,

15 fourth, four, fifth or tenth time documents

16 that were in fact produced for us from the

17 respondent's files.

18 MR. HETRICK: I think at the very

19 least we are entitled to know what documents

20 he has relied upon or given a list of

21 something so we can go and explore -- at the

22 very least.

23 MR. HYDE: I think he has identified

24 them generally. If you want a specific list

25 of all the documents in his file, I guess we





58


1 would be glad to provide them to you.

2 I think that the sum and substance

3 of his testimony is contained in papers that I

4 did provide to you called the "Critical

5 Review," and I think it fairly and completely

6 covers the opinions which we intend to offer

7 him for.

8 MR. HETRICK: I understand. I

9 appreciate that. I am not disagreeing with

10 that. I do think I still disagree with your

11 characterization of what needs to be produced

12 in this case. I think the documents that he

13 specifically relies on need to be produced. I

14 am not going to waive that argument, but I

15 think --

16 MR. HYDE: Why don't you ask him

17 more specific questions. I think he has

18 talked about the documents that he has looked

19 at and certainly know about his review of the

20 Nearhoof report. You can inquire into which

21 of those documents which he references in the

22 Nearhoof report and to the extent he is able

23 to identify any other documents, he can do so,

24 and if you still feel the need to have another

25 list, we can prepare a list subsequent to this





59


1 deposition and cover that area.

2 MR. HETRICK: Well, why don't we

3 take a five-minute break.

4 (A brief recess was here had).

5 MR. HYDE: I would just like to

6 state a clarification for the record. I think

7 there may have been some confusion earlier as

8 to the documents that Doctor Pratt may have

9 relied upon and those that he is relying upon

10 for purposes of his expert testimony and

11 documents that he may have reviewed in

12 conjunction with this case.

13 It had been my position that these

14 documents were already in the possession of

15 the respondent and henceforth did not need to

16 be produced yet again.

17 However, in the interest of

18 accommodating other aims, we will be glad to

19 make available to the respondent, specifically

20 the District and DER, documents that Doctor

21 Pratt has in fact reviewed so they can

22 determine whether there is anything in those

23 documents that they would like to copy and

24 utilize for their own purposes, and if need

25 be, arrange for a follow-up deposition to deal





60


1 with new areas of inquiry that aren't

2 otherwise covered in this particular

3 deposition. Is that satisfactory?

4 MR. HETRICK: I will state for the

5 record that my main concern, again, has to do

6 with Paragraph 6 of our cross notice of taking

7 of deposition, which is essentially the same

8 as the United States, and has to do with any

9 and all documents relied upon in preparing,

10 forming an opinion including reviewing and/or

11 organizing anticipated expert testimony.

12 And Doctor Pratt has stated that he

13 has both received copies of reports from the

14 League and requested certain reports be given

15 to him and that many of those reports

16 consisted of documents and cites referenced in

17 the Nearhoof paper which were many and

18 numerous drafts of papers and reports by

19 Doctor Jones published.

20 And then he also stated that his

21 review also consisted of reports not in open

22 literature, such as the National Park Service

23 reports. We have not had a chance to

24 specifically review the specific documents

25 that Doctor Pratt stated he has looked at or





61


1 reviewed and that's, in our viewpoint,

2 critical to Section 6 of our request of the

3 cross notice, and we would reserve the right

4 to recall him and question him as to those

5 documents which Mr. Hyde has said he will

6 produce. I believe that's it.

7 MR. HYDE: Just one final comment is

8 that I think we did provide you with the

9 documents which did indicate that he conducted

10 a review of that Nearhoof paper. I think one

11 could reasonably anticipate that if one has

12 reviewed the Nearhoof paper, one might also be

13 looking to the references cited therein. But,

14 be that as it may, we will do what I outlined

15 we would do on my earlier statement.

16 MR. NETTLETON: I would like to

17 state for the record I agree with DER and also

18 on behalf of the District the only documents

19 that I know of that were produced were the CV

20 and a four-page document entitled, "Critical

21 Review."

22 MR. HYDE: I provided a second

23 document or a third document this morning

24 which Doctor Pratt brought to my attention

25 last night for the first time.





62


1 MR. HETRICK: Do you want --

2 MR. NETTLETON: I have not seen that

3 yet.

4 MR. HYDE: It's a letter dated

5 December 10th, 1992, from Maureen Donlan, to

6 William Green, and Dennis Stotts which has a

7 couple of attachments to it but what it was

8 provided for was not for the attachments so

9 much as for the text of the cover letter, in

10 particular, Paragraph 3 which is on Pages 1

11 and 2.

12 MR. HETRICK: Off the record.

13 (A brief off-the-record discussion

14 was here had).

15 Q. (BY MR. HETRICK) Doctor Pratt, can

16 you tell me any reports you might have looked

17 at which were not in open literature other

18 than the National Park Service reports that

19 you stated earlier that you had reviewed?

20 A. Do you mean other than the sort of

21 not well-defined list I gave you to begin

22 with?

23 Q. You stated not in open literature

24 and then you cited the National Park Service

25 reports; are there any other reports?





63


1 A. There are one or two reports from

2 the South Florida Water Management District.

3 Q. Did you request those reports?

4 A. Yes.

5 Q. Why did you request those reports?

6 A. Because they were cited in the

7 Nearhoof report and I wanted to see the

8 original information on which his statements

9 were based.

10 Q. Did you find that information useful

11 in your evaluation of the Nearhoof report?

12 A. Yes.

13 Q. In what respect?

14 A. Well, it provided me with the

15 original author's statements for comparison to

16 what Mr. Nearhoof said the author said. In

17 addition, I was -- I mean there is some

18 selfishness in here in that I was interested

19 in seeing what the real information was.

20 Q. Did you find the information

21 supplied to you in the National Park Service

22 report consistent with Frank Nearhoof's cite?

23 A. I actually don't recall. I would

24 actually like -- you know, I would like to --

25 I would have to put those things on the table.





64


1 Q. And we will.

2 A. Fine.

3 Q. I tell you what, when you reviewed

4 all of the various documents that you reviewed

5 in this case that were either papers that you

6 requested or papers that were supplied to you

7 by the League, what was the general purpose of

8 the review of those documents?

9 A. Well, I was asked to prepare a

10 review of the Nearhoof report, and the

11 additional papers were either supplied to me

12 or I asked for them just to obtain some more

13 extensive information than was cited in the

14 report.

15 Q. Were you ever asked to review any

16 documents other than the Nearhoof report?

17 A. Yes.

18 Q. What documents might that contain?

19 A. The other thing I was asked to

20 review was a letter from Maureen Donlan to

21 Mr. Green and Mr. Stotts containing the

22 description of the alkaline phosphatase

23 methodology, and I was asked to comment on

24 that.

25 Q. Where is that document?





65


1 A. That's --

2 Q. This December 10th, 1992?

3 A. Right.

4 Q. When were you asked to review that

5 document?

6 A. The letter to me would have been

7 sometime in late January, I believe.

8 Q. Of this year?

9 A. Yes, that's right.

10 MR. HETRICK: Let's go ahead and

11 mark this as Exhibit No. 2.

12 (Deposition Exhibit No. 2 was here

13 marked for identification purposes by the

14 court reporter).

15 Q. (BY MR. HETRICK) Was it your

16 understanding that you would be primarily

17 offering opinions with respect to the Nearhoof

18 paper?

19 A. Yes. I mean, that's what I was

20 asked to comment on.

21 Q. And all of the support information

22 was in support of your review of the Nearhoof

23 paper?

24 A. Yes.

25 Q. Was there any other primary focus of





66


1 your testimony that the League had

2 conversations with you about that you might be

3 testifying to, other than the Nearhoof paper?

4 A. No, not until I received this other

5 letter to read.

6 Q. You say you were contracted by the

7 League in the winter of 1992?

8 A. Yes, it was either late 1991, or

9 early 1992.

10 Q. Do you regularly speak with them?

11 A. No.

12 Q. About how often would you say, on

13 the average, and I will let you pick out an

14 average, that you might speak with them?

15 MR. HYDE: You are getting

16 perilously close, Counselor, to privileged

17 communications.

18 MR. HETRICK: I haven't asked the

19 substance to anything.

20 MR. HYDE: Just as a warning.

21 A. I would say that I have, in total,

22 over the time of -- since my first contact

23 that I have probably spoken to someone four or

24 five times.

25 Q. (BY MR. HETRICK) Was the





67


1 information that you reviewed, any of the

2 information that you reviewed, discussed with

3 your attorneys?

4 A. (No response).

5 MR. HYDE: Object to the form of the

6 question. I think it's rather vague.

7 Q. (BY MR. HETRICK) Was any of the

8 information that you requested, or were given,

9 supplied to you by the League, was any of that

10 information discussed specifically with the

11 League?

12 A. No -- do you mean --

13 Q. Was it simply just used in your

14 analysis or did you ever have any

15 conversations with your attorney about the

16 information that was supplied to you?

17 A. No.

18 Q. You say you have a letter, an

19 agreement, with the League for your services;

20 is that correct?

21 A. Yes.

22 Q. And you are being paid by the League

23 in this case; is that correct?

24 A. Yes.

25 Q. Can you tell me what your





68


1 arrangements for payment are for services? Is

2 it an hourly rate, is it a monthly rate, is it

3 a one-time fee?

4 A. It's an hourly rate.

5 Q. Do you receive the same hourly rate

6 for testifying as for document review?

7 A. That's a good question. I don't

8 know if I know the answer to that.

9 Q. Is it just an hourly rate for any

10 activity you spend on this case?

11 A. Yes.

12 Q. Are you paid by the League or the

13 League's attorneys?

14 A. I have only been paid by the

15 League's attorneys.

16 Q. So would you consider yourself to be

17 a consultant retained by the law firm of

18 Peeples, Earl & Blank?

19 A. Yes.

20 Q. Are there any other sources of

21 income that you have that are related to this

22 case or Everglades issues?

23 A. No.

24 Q. Have you ever been hired by the

25 Florida Department of Environmental





69


1 Regulations to do any work for the department?

2 A. I don't know -- can I ask you a

3 question about that?

4 Q. Sure.

5 A. Several years ago we did some work

6 for the Florida Institute of Phosphate

7 Research. They are independent; is that

8 right?

9 Q. Yes.

10 A. So then the answer is no.

11 Q. You mentioned the Florida Institute

12 of Phosphate Research, what did that consist

13 of?

14 A. Several years ago we had a contract

15 with them to look at recovery of lakes in the

16 phosphate mining region.

17 Q. Where, in Florida, were you looking?

18 A. Polk County. I believe all of the

19 work took place in Polk County.

20 Q. Who were you hired by in that case?

21 A. When I was a student and then after

22 I received my Ph.D., we, meaning John Cairns,

23 who was my major professor at Virginia Tech,

24 had a contract with the institute for the

25 research project.





70


1 Q. Did you reach conclusions in your

2 research?

3 A. Yes.

4 Q. What were your conclusions, do you

5 recall?

6 A. We were asked to evaluate the

7 recovery of lakes that were reclaimed under

8 the rules in place at the time and really

9 asked to determine how rapidly the lakes

10 recovered, based on the water chemistry and

11 looking at biological communities. We

12 concluded that the lakes could not be

13 distinguished from natural and old previously

14 mined lakes in the region within approximately

15 two years of the time they were reclaimed.

16 Q. What was the significance of that?

17 A. I think the institute was interested

18 in knowing just how quickly those lakes could

19 be expected to support something like a

20 natural community after they had been

21 manipulated. They are basically old mine pits

22 that been regraded, hydrologically filled from

23 rainfall and groundwater.

24 Q. What was your conclusions with

25 respect to the timing involved in restoration





71


1 of those lakes?

2 A. Well, as I said, we concluded that

3 within approximately two years of the time

4 that we defined the age of the lake, based on

5 the completion of the earthmoving activities,

6 that the lakes could not be distinguished from

7 other lakes in the region.

8 Q. What was the process involved in

9 restoring the lakes, do you know?

10 A. Well, it's presently an earthmoving

11 process. In other words, it's a matter of

12 taking a mine pit and regrading it so that it

13 looks like a lake, planting the upland areas

14 with grass. I mean, there is a plan for

15 planting around the upland areas to stabilize

16 the soil.

17 Q. What kinds of plants?

18 A. It's mostly grass. I mean,

19 typically what happens is that fertilizer and

20 grass seed and straw are placed on the

21 regraded lake margins, and then there is some

22 erosion work that's done on a perpetual basis

23 if there is heavy rainfall, but mostly it's

24 just regrading to get the lakes within some

25 depth criteria.





72


1 There are sloped criteria for the

2 shoreline area and out into the lake, and

3 essentially the restoration process is one of

4 physically manipulating the shoreline of these

5 former mine pits.

6 Q. Is that the only work you have done

7 in Florida until now?

8 A. Yes -- well, no, that's not true.

9 We -- it's the only time I have actually had

10 my feet in the state for a research project.

11 We did some laboratory toxicity testing on a

12 contract with the Environmental Protection

13 Agency for the pulp mill discharge into the --

14 Amelia River, I believe that's right -- at the

15 same time they were doing some other testing.

16 Q. When did that occur?

17 A. It would have been 1986, I believe.

18 Q. This was after the Institute of

19 Phosphate?

20 A. Right.

21 Q. And where was that location, what

22 county?

23 A. Amelia River, Amelia Island -- it's

24 -- I don't know. It's within a stone's throw

25 of Jacksonville.





73


1 Q. I think I might have asked you this

2 before: You said you have not been deposed

3 before as an expert witness?

4 A. Correct.

5 Q. Have you ever been involved in

6 litigation where you have been deposed as a

7 fact witness?

8 A. No.

9 Q. Have you ever been involved in any

10 litigation matter in which you served as a

11 witness against the Florida State Department

12 of Environmental Regulations?

13 A. No.

14 Q. Or the South Florida Water

15 Management District?

16 A. No.

17 Q. Or the United States Government?

18 A. No.

19 Q. Doctor Pratt, I am going to ask you

20 some general questions about the Everglades.

21 Are you familiar with the Everglades?

22 A. Yes, at least in a general way.

23 Q. You say in a general way, maybe you

24 can explain to me how you might be familiar

25 with the Everglades.





74


1 A. Well, I mean, from reading about

2 them, my reading in association with reading

3 the reports. And from, I guess, the -- just

4 general knowledge.

5 Q. Are you familiar with the Everglades

6 or were you familiar with the Everglades

7 before you were employed by the League?

8 A. Yes.

9 Q. In what way?

10 A. Well, I think in a general

11 understanding of the Everglades ecosystem in

12 terms of where does -- you know, how extensive

13 it is.

14 Q. Had you read articles on it?

15 A. Probably, but I couldn't quote you a

16 specific article.

17 Q. Had you done any research on the

18 Everglades prior to your employment with the

19 League?

20 A. No.

21 Q. Have you ever set foot in the

22 Everglades?

23 A. No.

24 Q. Let me make this clear: Are you

25 familiar with the term, "Everglades Protection





75


1 Area," consisting of Water Conservation Area

2 1, Water Conservation Area 2, 3 and the

3 Everglades National Park?

4 A. Yes.

5 Q. Have you ever set foot in any of

6 those areas or been in them?

7 A. No.

8 Q. Have you ever spent any time in

9 those areas doing any research?

10 A. No.

11 Q. Have you ever -- I might have asked

12 you this: Have you ever conducted any

13 research on the Everglades?

14 A. No.

15 Q. Are you familiar with the adopted

16 SWIM Plan of the South Florida Water

17 Management District?

18 A. I do not believe that I have read

19 that document.

20 Q. Have you ever seen that document?

21 A. Not to my knowledge. Although --

22 unless I have -- unless it's one of the

23 thousands of things that I seem to have read.

24 Everything I have read is pretty relevant.

25 Q. I am not going to offer this as an





76


1 exhibit, but the document is entitled,

2 "Surface Water Improvement Management Plan for

3 the Everglades, Planning Document, March 13th,

4 1992." Have you ever looked at that document

5 at all or seen that document?

6 A. No.

7 Q. This is entitled, "Surface Water

8 Improvement and Management Plan for the

9 Everglades, Supporting Information Document,"

10 dated March 13th, 1992. Have you ever seen

11 this document?

12 A. No.

13 Q. So you have conducted no review of

14 either of these previous two documents?

15 A. No. I haven't looked at anything

16 that's been that attractive. The fourth

17 generation Xeroxes are not always the easiest

18 things to read.

19 Q. Have you ever reviewed any drafts of

20 what, to your understanding, might have been

21 the SWIM Plan? Have you ever reviewed any

22 drafts of the SWIM Plan?

23 A. No.

24 Q. Do you intend to review the SWIM

25 Plan or any drafts of the SWIM Plan prior to





77


1 the hearing in this case?

2 A. That's a good question.

3 MR. HYDE: I don't intend to ask him

4 to do so. That's not his charge.

5 MR. HETRICK: Then I assume that if

6 he does and states any opinions different --

7 MR. HYDE: Certainly if he does

8 review any documents and develops any

9 additional opinions or testimony, you will be

10 apprised of that fact.

11 MR. HETRICK: Far in advance of the

12 hearing, I presume.

13 Q. (BY MR. HETRICK) Have you ever

14 attended any meetings in Florida associated

15 with the development of the adopted SWIM Plan?

16 A. By that do you mean --

17 Q. I mean --

18 A. -- public hearings?

19 Q. -- public hearings.

20 A. No.

21 Q. Meetings with department staff?

22 A. No.

23 Q. Meetings with South Florida Water

24 Management District staff?

25 A. No.





78


1 Q. Meetings with other scientists?

2 A. No.

3 Q. Conferences you might have attended

4 specifically on the Everglades?

5 A. No.

6 Q. I know we have covered this,

7 generally, but I don't think I have actually

8 asked you this specific question, but it's

9 your understanding that your expertise in this

10 case as a microbial ecologist, are there

11 specialties in your area of designation from

12 an academic standpoint?

13 A. I am not sure I understand what you

14 are saying.

15 Q. Well, are there specialties from an

16 academic standpoint that might apply to your

17 testimony in this case? Microbial ecology is,

18 from what I understand, has various subsets

19 including geochemical facets of it, are there

20 other facets of it --

21 Well, first of all, let me ask: Can

22 you describe to me what other emphasis or

23 subsets of microbial ecology that exist

24 besides geochemical?

25 A. Well, I think there is a spectrum of





79


1 scientific interests that fall under this

2 broad beam of microbial ecology. People who

3 work on feeding interactions, who eats whom,

4 for example, at the microbe level, would

5 certainly be a microbial ecologist.

6 In a broad sense, they might be

7 interested in or can produce information that

8 has meaning in geochemistry in terms of things

9 like carbon cycling.

10 And the same would be true for

11 people who are biologists, people who study

12 algae, since algae take up nutrients. I guess

13 those people who are interested in algal

14 ecology would be a subdiscipline within this

15 broad topic of microbial ecology.

16 There are also people who use

17 microorganisms as indicators of pollutant

18 stresses, fairly broadly defined ranging from

19 nutrients to toxic contents. I think those

20 people think they are microbial ecologists and

21 I would agree with them.

22 Q. Stop right there.

23 MR. HETRICK: Can you repeat that

24 last question.

25 (The requested material was here





80


1 read as recorded by the court reporter).

2 Q. (BY MR. HETRICK) For those

3 individuals who study microorganisms as an

4 indicator of pollutant stresses, they would in

5 general call themselves microbial ecologists?

6 A. I think some of them do.

7 Q. Is there anything else that they

8 would consider themselves to be?

9 A. They might call themselves applied

10 ecologists. They might call themselves

11 ecotoxicologists.

12 Q. Is that about all you can think of

13 as to various subsets or specialties within

14 the broad, broad spectrum of interests of

15 microbial ecology?

16 A. Well, I mean, there are people who

17 work on the systematics of these organisms,

18 the taxonomists, who may consider themselves

19 to have an ecological interest, meaning they

20 are interested in the distribution variability

21 of those organisms.

22 There is also a number of people who

23 work in a general area that has become known

24 as bioremediationists meaning the use of

25 microorganisms to degrade foreign materials in





81


1 soils and water, to some extent, and waste

2 streams.

3 Q. What did you consider to be your

4 focus in this case with respect to microbial

5 ecology?

6 A. My research interest in my

7 background is -- focuses on the effects of

8 pollutants on microbial communities.

9 Q. What pollutants might you be

10 referring to?

11 A. Well, I have done a predominant

12 amount of my work with toxic chemicals but in

13 our laboratory, we have also worked with

14 things that are not overtly toxic meaning

15 complex waste streams from industries that

16 have everything from nutrients to toxicants in

17 them.

18 But if you look at most of my

19 published papers, you will see that most of

20 them are focused on the effects of compounds

21 that, I guess, would generally be considered

22 to be potentially toxic in the environment.

23 Q. What kinds of pollutants might you

24 be referring to in the context of your

25 testimony in this case?





82


1 A. That's a good question. I am not

2 sure that I would necessarily be -- well, be

3 referring to specific pollutants although --

4 well, I am not sure.

5 Q. Just to the best of your ability.

6 A. I am not sure that there are things

7 -- are you asking what have I worked with

8 before that I might draw on in terms of

9 experience?

10 Q. No, what I am asking is you

11 mentioned that your research interests or

12 focus in this case would probably be on the

13 area of the effects of pollutants on microbial

14 communities, and so what I am interested in

15 finding out is what kinds of pollutants might

16 you be looking at or have you identified as

17 having an effect on microbial communities in

18 the Everglades?

19 A. Well, the pollutant of choice here

20 is phosphorus. If there are other compounds

21 that might enter into the picture in terms of

22 pesticides or chemicals of industrial origin,

23 they haven't appeared anywhere in any of the

24 documents that I have read, at least not in

25 any significant -- there has been no





83


1 significant mention of those.

2 Q. So your focus has been mostly on

3 phosphorus as a pollutant?

4 A. As a potential pollutant.

5 Q. Have you reached any conclusions

6 with respect to what effect phosphorus as a

7 pollutant might have on microbial communities

8 in the Everglades?

9 A. Well, I have certainly -- I

10 certainly know what the potential effect of

11 the phosphorus might be if it were a

12 pollutant, in the fact that it happens to be

13 the Everglades is to some extent a specific

14 question related to a more general pattern.

15 So, you know, the answer would be yes, at

16 least in a general way.

17 Q. What effect -- well, first of all,

18 do you consider phosphorus to be a pollutant?

19 A. When it's present in excess of --

20 great excess of natural background. It's a

21 classical freshwater pollutant.

22 Q. Have you looked at any specific area

23 of the Everglades to determine whether or not

24 phosphorus is excessive with respect to any

25 natural background in that area?





84


1 A. In the Everglades, yes. I am not

2 sure I can answer that.

3 Q. Well, have you looked at water

4 Conservation Area 1 and made any

5 determinations as to whether or not phosphorus

6 exists in excess of what the natural

7 background is in that area, or have you looked

8 at Water Conservation Area 2 or 3 or the

9 Everglades National Park or have you --

10 A. I have looked at those data, yes.

11 Q. Have you reached any conclusions?

12 A. There are -- I guess my conclusions

13 are that there are sampling sites that clearly

14 show elevated phosphorus levels in the water

15 column, at least at some times.

16 Q. Can you tell me where the location

17 of these sampling sites are?

18 A. I could if I had a map.

19 Q. Do you recall where these sampling

20 locations are specifically in the --

21 A. I recall from some of the graphical

22 representations that -- I sort of remember

23 this by sampling station numbers from some of

24 the reports that show, at least graphically

25 show, what I would consider to be obviously





85


1 high phosphorus concentrations.

2 I want to say that it was Area 2.

3 If there is a map of the Water Conservation

4 Areas, I could probably point them out to you.

5 There was some figure like that in the

6 original Nearhoof report.

7 Q. I have this figure and we can Xerox

8 this. I will offer this as an exhibit or we

9 can refer to it. Does this help or not and

10 then I will identify it?

11 A. Yes, I think the place I recall was

12 from Water Conservation Area 2. I would have

13 to look at the other documents, you know, to

14 really give you an answer about the other

15 areas.

16 MR. HYDE: I think that Doctor Pratt

17 just indicated that he has seen such a

18 document attached to the Nearhoof report. Do

19 you have that available?

20 MR. HETRICK: Yes, I just haven't

21 offered it yet.

22 THE WITNESS: If you have the old

23 version, there are no figures in the new

24 versions, I think.

25 MR. HETRICK: I don't have the old





86


1 version. For the record, what Doctor Pratt

2 was just looking at is Page 7 of the

3 Everglades SWIM Plan Planning Document dated

4 March 13th, 1992. He was looking at a map.

5 Q. (BY MR. HETRICK) And you pointed

6 out in general the area of that map which

7 is -- let me see, I can't see.

8 A. That is Conservation Area 2-A.

9 Q. Along the eastern perimeter?

10 A. I am actually not pointing to any

11 particular place in this. My recollection is

12 that there was a series of sampling stations.

13 I will say roughly running northeast to

14 southwest in that conservation area, some of

15 which showed elevated phosphorus.

16 MR. HETRICK: All right. I am going

17 to go ahead and offer Frank Nearhoof's

18 document as exhibit -- is it 3? Three, which

19 this is the one dated September, 1992. It has

20 draft typed, then September, 1992, on it.

21 A. Well, I should not refer to this

22 first report.

23 Q. (BY MR. HETRICK) Look at Figure 1

24 on there. I believe that's a better map.

25 A. Well, this is basically the same





87


1 map, only different.

2 Q. So we are looking at Figure 1 on

3 what has been marked as Exhibit No. 3, and

4 what are the areas that --

5 A. Well, as I said before, still on

6 this figure labeled, "Water Conservation Area

7 2A," I believe, that's my immediate

8 recollection without referring to any other

9 documents.

10 Q. What kinds of problems can

11 phosphorus have on microbial communities with

12 respect to data that you have looked at and

13 what you have identified in the area of Water

14 Conservation 2A?

15 A. I am not sure I understand that.

16 Was that a general question about what

17 problems can phosphorus produce or --

18 Q. What have you found?

19 A. -- water conservation area?

20 Q. Well, let's relate it specifically

21 to this water quality conservation area that

22 you consider to contain the sampling station

23 which you have looked at data. What

24 conclusions have you reached with respect to

25 the effects of phosphorus on microbial





88


1 communities in that area?

2 A. I am not sure I have an answer for

3 that. I don't think I have reached any

4 conclusions about this particular area.

5 Q. Have you reached any conclusions

6 with regards to the Everglades, in general,

7 based upon specific data that you have

8 reviewed?

9 A. In terms of the observable effects

10 of phosphorus on those communities?

11 Q. Right, on microbial communities.

12 A. Yes.

13 Q. Can you tell me what those effects

14 are.

15 A. I guess my conclusions are that it's

16 difficult to observe the effects on those

17 communities based on the available data.

18 Q. Have you formulated any opinions on

19 the effects of phosphorus on microbial

20 communities in any of those areas or in any

21 area of the Everglades?

22 A. Again --

23 Q. I am not talking about causation, I

24 am just talking about the effects.

25 A. Can you state that again.





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1 Q. Well, you mentioned early on that

2 your research in this case focuses on the

3 effects of pollutants on microbial communities

4 in the Everglades?

5 A. Right.

6 Q. You mentioned that the kinds of

7 pollutants that you are looking at is

8 phosphorus, so what I am trying to find out is

9 if you reached any opinions with regard to the

10 effects of the phosphorus acting as a

11 pollutant on microbial communities in the

12 Everglades. You have stated in your review of

13 data that phosphorus is present?

14 A. Right.

15 Q. And so do you consider phosphorus as

16 having any impact at all whatsoever on

17 microbial communities in the Everglades?

18 MR. HYDE: I would object to the

19 form of the question. I think it assumes

20 facts that are not in evidence, for one. For

21 another, it is certainly beyond the designated

22 area of his testimony which I have attempted

23 to provide you through the copy of his

24 Critical Review of the Nearhoof report. I

25 don't even know that Doctor -- I think, in





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1 fact, Doctor Pratt has testified that he has

2 not looked at specific communities within the

3 Everglades.

4 So I would suggest that you tailor

5 your comments to what he did in response to

6 the Nearhoof report, and I think you will get

7 the answers to the questions that you want.

8 Q. Well, just one last question then.

9 Have you looked -- have you analyzed microbial

10 ecology in any specific area of the Everglades

11 or is it, your witness designation, that says

12 Everglades environment, what is meant by

13 Everglades and is that the entire -- what I

14 have identified to you earlier as the

15 Everglades Protection Area including Water

16 Conservation Area 1, 2 and 3, and Everglades

17 National Park, is that what you understand to

18 be the Everglades environment?

19 A. Yes.

20 Q. I am going to go ahead and offer as

21 Exhibit No. 4 what is entitled -- a document

22 -- "Critical Review." Are you familiar with

23 this document, Doctor Pratt?

24 A. Yes.

25 Q. Do you want to make sure? Take a





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1 look through the pages and make sure I haven't

2 missed any.

3 One thing, before I get into this, I

4 want to go back and ask you one question: Do

5 you anticipate or expect to be asked to review

6 any other documents in your anticipated

7 testimony in this case which are different

8 from what you have already looked at?

9 A. I don't anticipate that unless other

10 documents are produced.

11 Q. Let's go back to Exhibit No. 3. I

12 just want you to take a look at Mr. Nearhoof's

13 paper.

14 A. Okay.

15 Q. Are you familiar with Mr. Nearhoof's

16 paper, the paper -- this particular exhibit

17 dated September, 1992?

18 THE WITNESS: Do you know what the

19 date on my review is because it's actually

20 earlier? I think the date of my review is

21 actually earlier than this document.

22 MR. HYDE: I think the document that

23 was provided to Doctor Pratt was February of

24 1992. It's my understanding that the two

25 documents are not appreciably different.





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1 A. This looks very similar to the

2 document that I reviewed in terms of having

3 figurative tables attached to it, and so I

4 believe this is substantially the same

5 document.

6 Q. (BY MR. HETRICK) Well, I am looking

7 at -- going to Exhibit No. 4 now, which is

8 your Critical Review, and at the top of the

9 document, on Page 1, it says, "Critical

10 Review," and underneath that it says,

11 "Nearhoof, F.L., Draft, 1992," and then

12 underneath that it says, "Technical Series,

13 Volume 3, No. 24"?

14 A. Right.

15 Q. Is that not the same document as you

16 have before you here in Exhibit 3?

17 A. No, I think the answer is no.

18 Q. So these comments that you have in

19 this document that's been supplied to me are

20 about a different document?

21 A. Well, my comments were written in --

22 I don't have the transmittal letter, but would

23 have been written in, I believe, June of last

24 year. So it would have been impossible for me

25 to have reviewed a document dated September of





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1 last year.

2 Q. So these comments were made in June

3 of last year?

4 A. I think that's right. And I am not

5 sure if the document that I reviewed had the

6 original -- had a draft date on it. I may

7 have it with me, I don't know.

8 Q. Well, I am going to show you a copy

9 of the privileged list that Mr. Hyde gave us

10 and this privileged list is dated March 3,

11 1993. If you look at No. 2, would that be the

12 date that you provided your comments?

13 A. June 13th, yes.

14 Q. Have you provided any comments

15 subsequent to that?

16 A. Of this document, no.

17 Q. Subsequent to the document I am

18 referring to, on that privileged list in Item

19 2?

20 A. I am sorry?

21 Q. Have you provided any comments

22 subsequent to that date, June 13th, 1992?

23 MR. HYDE: Written comments?

24 MR. HETRICK: Written comments, yes.

25 A. On anything?





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1 Q. (BY MR. HETRICK) Well, let me ask

2 it this way: Are these comments that we have

3 here in Exhibit No. 4 the same comments as --

4 A. Yes.

5 Q. -- identified in No. 2 of the

6 privileged list there?

7 A. Yes.

8 Q. Have you changed your comments since

9 then at all?

10 A. No.

11 Q. What I have marked as Exhibit

12 No. 4, are these the most recent comments that

13 we have?

14 A. Yes.

15 Q. Have you ever seen this document

16 marked as Exhibit 3, dated September, 1992?

17 A. No.

18 Q. Do you have a copy of the draft

19 document that you looked at with you today?

20 A. I think I might. This is the one

21 that I have; it's dated February, 1992.

22 MR. HETRICK: Let's go off the

23 record for a moment.

24 (A brief off-the-record discussion

25 was here had).





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1 Q. (BY MR. HETRICK) We will get you a

2 copy of this. We will mark this as Exhibit

3 No. 5. We will get you a copy of No. 5

4 because I only have this one.

5 MR. HETRICK: I guess this is a good

6 place to break for lunch.

7 (A luncheon recess was here had).

8 Q. (BY MR. HETRICK) You brought some

9 documents with you today; is that correct?

10 A. Yes.

11 Q. We are going to get copies of those

12 today, it's my understanding. The first one

13 there, if you look in your folder, can you

14 identify that document for me that is in your

15 file?

16 A. Yes, this is another draft of the

17 report by Frank Nearhoof.

18 Q. And the date on that?

19 A. September, 1992.

20 MR. HYDE: That is, in fact, your

21 Exhibit No. 3.

22 MR. HETRICK: That's correct.

23 Q. (BY MR. HETRICK) Did you ever have

24 occasion to review that particular document?

25 A. I have read through this document





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1 quickly when it was sent to me. But my

2 understanding was that it was substantially

3 the same document as the previous version.

4 Q. Is that still your understanding

5 after having reviewed it?

6 A. Yes, I think that there is nothing

7 more than a few small changes in here and I

8 couldn't identify those changes for you.

9 Q. So am I correct in understanding

10 that your comments that you made which went to

11 the February draft, it would be your

12 understanding that they would be also applied

13 to this draft?

14 A. Yes, I haven't checked this document

15 carefully to see if the sections that I was

16 especially concerned about had any significant

17 changes, but other than that, yes.

18 Q. What has been marked as Exhibit

19 No. 4, your comments, can you tell me in

20 general what this document represents or

21 addresses?

22 A. Let me just grab my copy.

23 Q. Before you answer that question, I

24 am going to go back. Do you have any other

25 documents with you besides these?





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1 A. With me, no.

2 Q. What are the documents that you just

3 pulled out?

4 A. These are the exhibits that you gave

5 us copies of this morning.

6 Q. Go ahead and tell me what this

7 document addresses that would be in Exhibit

8 No. 4.

9 A. I was asked to prepare a critical

10 review of the Nearhoof report with emphasis on

11 the microbial community impact's part of the

12 document. In addition, I think I made some

13 comments about the relationship of impacts to

14 the class three standards in this document,

15 but it focuses principally on the microbial

16 community impacts identified in the Nearhoof

17 report.

18 Q. When was this document prepared?

19 A. In June of 1992.

20 Q. Have you made any changes to this

21 document since then?

22 A. No.

23 Q. Are the views expressed in this

24 document views which you still hold today?

25 A. Yes.





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1 Q. At whose request was this document

2 prepared?

3 A. This document was prepared at the

4 request of Dennis Stotts.

5 Q. Is it your understanding that your

6 testimony in this case will only consist of

7 the topics covered in this document consisting

8 of your review of Frank Nearhoof's paper?

9 A. Could you restate that question. I

10 am not sure I understood it.

11 Q. I can restate it, if you would like.

12 Is it your understanding that your testimony

13 that you are going to give in this case will

14 only consist of the topics covered in Exhibit

15 4, which consists of your review of Frank

16 Nearhoof's paper?

17 MR. HYDE: We don't you anticipate

18 asking any other questions beyond the comments

19 that are contained in the Critical Review. I

20 would note, however, that we did provide to

21 you this morning the other documents, the

22 letter from Maureen Donlan which talks about

23 the alkaline phosphatase methodology being

24 employed, and there may be some brief inquiry

25 into that, but that would be the extent of the





99


1 additional inquiry beyond this Exhibit 4.

2 Q. (BY MR. HETRICK) Do you expect to

3 be offering any other testimony except

4 pertaining to the specific comments made

5 herein on any other aspect of Nearhoof's

6 paper?

7 A. I don't expect to, no.

8 Q. I recognize, Doctor Pratt, that

9 alkaline phosphatase is discussed in this

10 paper on Page 3, however, Page 3 discussing

11 alkaline phosphatase is critiqued, and correct

12 me if I am wrong, in the context of section

13 3.1.3 of Frank Nearhoof's paper; is that

14 correct?

15 A. Yes. I think that's right, yes.

16 Q. Do you expect to give any other

17 testimony pertaining to alkaline phosphatase

18 which, in essence, offers a critique of such a

19 theory outside the scope of what is contained

20 in Frank Nearhoof's paper?

21 MR. HYDE: I am going to object to

22 the form of that question. I think it could

23 be understood in a couple of different ways.

24 Did you intend your question to be

25 focused on just whether the testimony will be





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1 in response to the Frank Nearhoof paper

2 generally?

3 Q. (BY MR. HETRICK) Well, my question

4 is: Is your testimony on alkaline phosphatase

5 going to be limited to the context in which it

6 is discussed in Frank Nearhoof's paper?

7 A. (No response).

8 MR. HYDE: I am going to object to

9 the form of the question.

10 (A long pause was here had).

11 MR. NETTLETON: Is a question still

12 pending? He didn't instruct him not to

13 answer.

14 MR. HETRICK: The question is still

15 pending.

16 A. I guess I am trying to get a grasp

17 of what it is your asking.

18 MR. HETRICK: Will you read back the

19 question, please.

20 (The court reporter here read back

21 the requested material as recorded).

22 A. To the context of this, I would

23 probably say yes.

24 Q. (BY MR. HETRICK) I need to be real

25 clear about this. Are the opinions that you





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1 expect to give in your testimony in the future

2 going to be limited to your commentary within

3 the four corners of this document that we have

4 been provided which has been identified as

5 Exhibit 4?

6 A. (No response).

7 MR. HYDE: I think I stated

8 previously that that is the basis for his

9 testimony. I can say for the record that will

10 be the four corners, by your terminology, for

11 his expert testimony.

12 Q. (BY MR. HETRICK) Sir, am I correct

13 in understanding that your testimony will be

14 limited to critiquing Frank Nearhoof's report

15 based upon what has been presented in Exhibit

16 4?

17 MR. HYDE: Yes, it will be. Of

18 course, if you or anyone else at some later

19 date, like the final hearing, asks some

20 follow-up questions or anything like that, it

21 would be an attempt to impeach him, I guess he

22 could, you know, expand upon it, but that is

23 what we intend to offer as his opinion

24 testimony.

25 MR. HETRICK: You don't intend to





102


1 criticize any other --

2 MR. HYDE: No, I don't think so.

3 MR. HETRICK: -- individual reports

4 other than what you have stated here?

5 MR. HYDE: That's what the purpose

6 of this -- my submitting this Critical Review

7 to you is for, to hopefully narrow the focus

8 of your inquiry. I am trying to help you

9 along.

10 MR. NETTLETON: I understand.

11 MR. HETRICK: That's, in effect --

12 MR. HYDE: The reason I am

13 responding like this is I think that sometimes

14 we lawyers ask questions of witnesses that

15 mean a lot to us as lawyers but don't

16 necessarily mean much to them as witnesses. I

17 am just trying to give you the idea of what we

18 would be utilizing him for.

19 You certainly may, you know, follow

20 up and ask the same questions of him again but

21 I am trying to give you the context that he

22 would be testifying in regarding the Nearhoof

23 report.

24 The Nearhoof report, for example, is

25 a multi-faced document. It has scores of





103


1 observations and findings in it, and his

2 comments, as you can see from his critical

3 review, are only focused really specifically

4 on a relatively few of them.

5 MR. HETRICK: And No. 1, his

6 comments will be restricted to those few

7 sections of Nearhoof's report?

8 MR. HYDE: Yes.

9 MR. HETRICK: And No. 2, they will

10 be restricted to Frank Nearhoof's report?

11 MR. HYDE: Well, it's reflective of

12 the comments that are contained in his

13 Critical Review. That's what you should be

14 looking to as --

15 MR. HETRICK: We are not going to go

16 outside -- we can go on and on about this.

17 MR. NETTLETON: I think I

18 understand. Bill, if I am correct, you are

19 essentially stipulating on behalf of the

20 League and the other parties you are

21 representing that Doctor Pratt's testimony at

22 trial is limited to those opinions that are

23 contained within the Exhibit 4 and that's what

24 you intend to offer him for?

25 MR. HYDE: Correct. Off the record.





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1 (A brief off-the-record discussion

2 was here had).

3 Q. (BY MR. HETRICK) Doctor Pratt, can

4 you locate on your Critical View, Page 1,

5 underneath your general comments --

6 A. Okay.

7 Q. Will you review that for a moment,

8 please, both paragraphs.

9 (A brief pause was here had).

10 Have you reviewed that?

11 A. Yes.

12 Q. You referred to numerous studies

13 conducted by the South Florida Water

14 Management District and published as a

15 technical report and then is it a correct

16 characterization that you refer to those as,

17 quote, "gray literature," carrying less weight

18 than, quote, "open scientific literature"?

19 A. Yes.

20 Q. What is the basis for that

21 characterization?

22 A. I think I state in my opinion here

23 that there are varying degrees of scientific