1
1 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
2
SUGAR CANE GROWERS COOPERATIVE )
3 OF FLORIDA; ROTH FARMS, INC.; and)
WEDGWORTH FARMS, INC., )
4 Petitioners, ) DOAH Case No.
vs. ) 92-3038
5 )
SOUTH FLORIDA WATER MANAGEMENT )
6 DISTRICT, an agency of the State )
of Florida; et al., )
7 Respondents. )
_________________________________
8 FLORIDA SUGAR CANE LEAGUE, INC..;)
UNITED STATES SUGAR CORPORATION; )
9 and NEW HOPE SOUTH, INC., )
Petitioners, ) DOAH Case No.
10 ) 92-3039
vs. )
11 )
SOUTH FLORIDA WATER MANAGEMENT )
12 DISTRICT, an agency of the State )
of Florida; et al., )
13 Respondents. )
_________________________________
14 FLORIDA FRUIT AND VEGETABLE )
ASSOCIATION; LEWIS POPE FARMS; )
15 W.E. SCHLECHTER & SONS, INC., )
and HUNDLEY FARMS, INC., )
16 Petitioners, ) DOAH Case No.
) 92-3040
17 vs. )
)
18 SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an agency of the State )
19 of Florida; et al., )
Respondents. )
20 _________________________________
DEPOSITION OF MORRIS ROSEN
21 Taken before Barbara Bolton,
Registered Professional Reporter and Notary
22 Public in and for the State of Florida at large,
pursuant to Notice of Taking Deposition filed in
23 the above cause.
- - -
24 Thursday, March 4, 1993
319 Clematis Street
25 West Palm Beach, Florida
9:10 A.M. - 5:35 P.M.
2
1 - - -
APPEARANCES:
2
3 ON BEHALF OF THE SUGAR CANE GROWERS COOPERATIVE
OF FLORIDA, ROTH FARMS, INC., and WEDGWORTH
4 FARMS, INC.:
5 HOPPING, BOYD, GREEN & SAMS, ESQUIRES
123 S. CALHOUN STREET
6 TALLAHASSEE, FLORIDA 32314
BY: GARY V. PERKO, ESQUIRE
7
8 ON BEHALF OF THE RESPONDENT
SOUTH FLORIDA WATER MANAGEMENT DISTRICT:
9
POPHAM, HAIK, SCHNOBRICH & KAUFMAN, LTD.
10 4100 ONE CENTRUST FINANCIAL CENTER
100 S.E. SECOND STREET
11 MIAMI, FLORIDA 33131
BY: PAUL L. NETTLETON, ESQUIRE
12
13 ON BEHALF OF THE INTERVENOR, UNITED STATES OF
AMERICA, DEPARTMENT OF JUSTICE
14
DEPARTMENT OF JUSTICE
15 155 SOUTH MIAMI AVENUE
SUITE 700
16 MIAMI, FLORIDA 33130
BY: MAUREEN DONLAN, ESQUIRE
17
Also present: Curtis D. Pollman, Vice President
18 KBN Engineering and Applied
Sciences, Inc.
19
20 I N D E X
21 WITNESS DIRECT CROSS REDIRECT RECROSS
22 MORRIS ROSEN
23 BY MR. PERKO 4
24
25
3
1 E X H I B I T S
2 PLAINTIFF'S
NUMBER DESCRIPTION PAGE
3
1 SYNOPSIS OF RESUME OF MORRIS ROSEN 5
4
2 NOTICE OF TAKING DEPOSITION 72
5
3 LAB MANUAL 76
6
4 SEMI-ANNUAL LABORATORY STATUS
7 REPORT DATED 8/20/82 125
8 5 SEMI-ANNUAL LABORATORY STATUS REPORT
DATED JANUARY 1, 1983 TO JUNE 30,
9 1983 129
10 6 MEMORANDUM DATED NOVEMBER 18, 1983
TO MORRIS ROSEN FROM LOUIS A. TOTH 139
11
7 PRELIMINARY REPORT ON THE EFFECT OF
12 AGRICULTURAL RUNOFF ON THE PERIPHYTIC
ALGAE OF CONSERVATION AREA 1 143
13
8 THE ORIGIN AND CHARACTERISTICS OF
14 GYTTJA IN CONSERVATION AREA 2A 152
15 9 MARSH PHOSPHORUS CONCENTRATIONS,
PHOSPHORUS CONTENT AND SPECIES
16 COMPOSITION OF EVERGLADES PERIPHYTON
COMMUNITIES 154
17
10 MEMORANDUM DATED AUGUST 4, 1978 TO
18 MORRIS ROSEN FROM DAVID R. SWIFT 162
19 11 MEMORANDUM DATED MARCH 27, 1975 TO
DIRECTOR, ENVIRONMENTAL SCIENCES
20 FROM MORRIS ROSEN 164
21 12 MEMORANDUM DATED APRIL 3, 1979 TO
FRED DAVIS FROM MORRIS ROSEN 166
22
13 SEMI-ANNUAL LABORATORY STATUS REPORT
23 DATED JULY-DECEMBER 1982 176
24 14 SAMPLING PROGRAM FOR USING UPLAND
MARSH TO CONTROL WATER QUALITY 181
25
4
1 - - -
2 P R O C E E D I N G S
3 - - -
4 THEREUPON,
5 MORRIS ROSEN,
6 being by the undersigned Notary Public first duly
7 sworn, was examined and testified as follows:
8 THE WITNESS: I do.
9 DIRECT EXAMINATION
10 BY MR. PERKO:
11 Q. Would you please state your name for
12 the record, sir?
13 A. Morris Rosen.
14 Q. And where are you currently
15 employed, Mr. Rosen?
16 A. At the South Florida Water
17 Management District.
18 Q. And what is your current position?
19 A. Staff Planner.
20 Q. And what division do you work in?
21 A. Well, currently I'm on temporary
22 assignment to the Office of Counsel.
23 Q. Okay.
24 A. My regular assignment is Lower
25 District Planning.
5
1 Q. Who do you report to?
2 A. Abe Cooper and Jackie Birch.
3 Q. Okay. Mr. Rosen, have you ever been
4 deposed before?
5 A. No.
6 Q. Okay. My name is Gary Perko. I'm
7 an attorney for the Sugar Cane Growers
8 Cooperative of Florida, Roth Farms and Wedgworth
9 Farms who are petitioners in the administrative
10 challenge of the Everglades SWIM Plan. I'm going
11 to be asking you a few questions about your
12 anticipated testimony in this proceeding as well
13 as other knowledge you may have that is relevant
14 to the issues in the case. If you don't
15 understand my question, please tell me and I'll
16 try to rephrase it. If you ever feel like you
17 need to have a break, just let me know and we'll
18 take a break, get a drink of water, whatever you
19 need.
20 MR. PERKO: First of all, I'd like
21 to have the court reporter mark this as Exhibit
22 Number 1.
23 (Plaintiff's Exhibit Rosen-1 is
24 marked for identification.)
25 BY MR. PERKO:
6
1 Q. Mr. Rosen, I show you what's been
2 marked as Exhibit Number 1. Are you familiar
3 with this document?
4 A. Yes, it's my resume or curriculum
5 vitae.
6 Q. Is that a current resume?
7 A. Yes.
8 Q. Is it complete to your knowledge?
9 A. Yes.
10 Q. When did you prepare this resume?
11 A. Several months ago.
12 Q. I see on your resume here that you
13 graduated from the University of Connecticut in
14 1963. Is that correct?
15 A. That's correct.
16 Q. And your major was in Botany?
17 A. That's correct.
18 Q. With a minor in Chemistry?
19 A. Yes.
20 Q. What particular aspects of botany
21 did you concentrate on?
22 A. Plant physiology.
23 Q. What type of plants?
24 A. Well, just general plant
25 physiology. I was not a specialist in any
7
1 particular taxonomic category.
2 Q. Once you left the University of
3 Connecticut you moved on to the Peace Corps. Is
4 that correct?
5 A. Yes.
6 Q. And you were there from 1963 to
7 1965?
8 A. That's correct.
9 Q. What did you do after you left the
10 Peace Corps?
11 A. I spent some time in the Air Force.
12 Q. And in what capacity?
13 A. I was a photo lab technician.
14 Q. What were your responsibilities as a
15 photo lab technician?
16 A. We did several things. Worked in a
17 photo aerial reconnaissance lab.
18 Q. Did you actually develop
19 photography?
20 A. To some extent, yes. A good part of
21 that time I spent ordering supplies, but I did do
22 some photographic developing, printing and
23 enlarging, running the developing machines. It's
24 been quite a while. I don't remember all the
25 details.
8
1 Q. Do you ever find the experience that
2 you had as a photo lab technician helpful in your
3 current position?
4 A. To a limited extent, yes.
5 Q. In what way?
6 A. Well, let's rephrase that question.
7 When you say current position, what I'm doing for
8 the District now or what I --
9 Q. In your work for the District.
10 A. When I worked for the District? To
11 a very limited extent I provided some laboratory
12 background.
13 Q. Have you done any work for the
14 District with aerial photography?
15 A. I've used the GIS system to some
16 extent.
17 Q. For what purpose?
18 A. For planning purposes.
19 Q. Have you ever examined aerial
20 photography to identify types of vegetation?
21 A. No.
22 Q. You left the Air Force in 1968. Is
23 that correct?
24 A. That's correct.
25 Q. What did you do after that?
9
1 A. I went to work for the General Cigar
2 Corporation in their agricultural lab.
3 Q. And what did you do for the General
4 Cigar Corporation?
5 A. I was a laboratory technician.
6 Q. When you say laboratory technician,
7 what were your responsibilities?
8 A. I did some soil analysis.
9 Q. For what purpose?
10 A. Calibrated soil testing for cigar --
11 or tobacco crops.
12 Q. When you say you did soil analysis,
13 what did you analyze the soils for?
14 A. Phosphorus, potassium, calcium and
15 magnesium.
16 Q. What techniques did you use?
17 A. We used extractions that were
18 locally deemed suitable for determining
19 fertilizer -- extracting available phosphorus
20 from the soils, and we used predetermined data to
21 make a fertilizer recommendation. It's the same
22 processes that they're using, what they call
23 calibrated soil analysis for the BMP's.
24 Q. For the best management practices?
25 A. Yes.
10
1 Q. In the Everglades?
2 A. Right.
3 Q. Or rule 40E63?
4 A. Whatever the rule is.
5 Q. What phosphorus concentrations did
6 you typically see in your work for General Cigar
7 Corporation?
8 A. I don't remember.
9 Q. What did you do after you left the
10 General Cigar Corporation?
11 A. I went back to graduate school.
12 Q. And where was that?
13 A. West Virginia University.
14 Q. And what did you -- what was the
15 purpose of your matriculation at West Virginia
16 University?
17 A. I went there to earn a Master's
18 degree in Agronomy.
19 Q. Did you have any specialty in
20 agronomy? Why did you go back to school?
21 A. I decided that if I wanted to
22 advance my career, I'd need more education than
23 just a Bachelor's degree.
24 Q. Did you focus on any particular
25 aspect of agronomy?
11
1 A. Well, my major professor was a
2 forage crops major, but I did have some soils
3 courses and I also minored in chemistry in my
4 Master's degree.
5 Q. Did you have any courses on water
6 quality or water quality sampling?
7 A. No.
8 Q. Did you have any courses on soil
9 sampling?
10 A. I did have some courses on soil
11 morphology where we looked at the soils. I had
12 courses on soil fertility, and in those courses
13 they dealt marginally with how to -- well, in the
14 soil fertility course a soil sampling for
15 purposes of making fertilizer recommendation was
16 discussed.
17 Q. Was the focus of your education to
18 assist farmers in developing fertilizer
19 recommendations for purposes of advising
20 agricultural interests?
21 A. It was more strongly in that
22 direction. It was not an environmental emphasis.
23 Q. Did you do any laboratory analysis
24 while at the West Virginia University?
25 A. Yes, I did.
12
1 Q. What type of analysis did you
2 perform?
3 A. Well, other than the course work
4 that I took which was fairly varied, I worked as
5 a research technician for approximately a year,
6 maybe a little longer, and we analyzed what was
7 called total non-structural carbohydrates in
8 forage samples, grasses and clovers, legumes, and
9 afalfa, that type of sampling.
10 Q. What was the purpose of that work?
11 A. Well, total non-structural
12 carbohydrates are a measure that is useful in
13 determining the quality of the forage with
14 respect to animal feeds, you know, how good a
15 quality animal feed it is so it was a fairly
16 useful test for that purpose.
17 Q. Did you have any experience with
18 analyzing nutrients while at the West Virginia
19 University?
20 A. No. But I did analyze nutrients --
21 well, no. Well, let me back up on that. I'm
22 just thinking about my thesis research. We did
23 do some nutrient analysis on the samples that I
24 worked with. We did total -- kjeldahl nitrogen
25 analysis on those samples.
13
1 Q. Did you actually prepare a thesis
2 for your Master's?
3 A. Yes, I did.
4 Q. What was the title of that thesis?
5 A. I don't remember the exact title.
6 Is it listed here?
7 Q. Well, what was the general subject
8 matter?
9 A. I don't remember the exact title but
10 it had to do with intra-specific competition of a
11 forage grass, Timothy.
12 Q. What was the purpose of your thesis?
13 A. To learn how this grass reacted at
14 different planting densities and different
15 fertilizer regimes.
16 Q. Did you do any independent research
17 for your thesis, field work?
18 A. We did have -- well, we had some
19 greenhouse trials where we planted the plants at
20 different spacings and different -- with
21 different amounts of fertilizers. We had a
22 growth chamber study where we did the same thing
23 and we also did a field block study.
24 Q. Was your thesis ever published?
25 A. No, just in thesis form.
14
1 Q. And when did you receive your
2 Master's degree?
3 A. In 1973.
4 Q. What did you do after receipt of
5 your Master's?
6 A. Came to work for the District.
7 Q. And when was that?
8 A. In 1973.
9 Q. What was your first position with
10 the District?
11 A. I don't remember the exact title.
12 The title has changed several times. But I was
13 the soil chemist for the District.
14 Q. Did you have any specific
15 responsibilities as a soil chemist?
16 A. It was to provide analytical
17 services for all the environmental projects that
18 were going on or being started at the District
19 for the non-water samples, for the soil, sediment
20 and plant tissue samples that were coming in.
21 Q. Did you work on specific projects,
22 were you assigned to specific projects or did you
23 receive requests from different project managers?
24 A. I received requests from different
25 project managers and --
15
1 Q. Could you provide me an example of
2 how you would receive a request, what the request
3 would ask you to do?
4 A. Well, they would collect samples in
5 the field, do the early preparations, the drying
6 and bring the samples to the lab. We'd log them
7 in, grind them and do the appropriate analyses on
8 the samples, after some discussion with the
9 project managers to determine what they needed.
10 Q. Do you have any idea of the
11 approximate number of projects you worked on, say
12 in a typical year?
13 A. Well, probably somewhere between a
14 half dozen and a dozen.
15 Q. When you say you took soil samples,
16 in what geographical areas did you take those
17 samples?
18 A. In the -- well, I didn't always
19 collect the sample. I sometimes made
20 recommendations to the project manager on how
21 they should collect their samples and they did
22 the sampling but in water conservation areas, in
23 the bony marsh and a few samples in Okeechobee
24 and the Taylor Creek and Nub and Slough area.
25 Q. How long did you serve as a soil
16
1 chemist for the District?
2 A. Until December of 1986.
3 Q. Approximately thirteen years?
4 A. Yes.
5 Q. What did you analyze soils for?
6 A. Nitrogen, phosphorus, potassium,
7 magnesium, calcium, organic matter, particle size
8 analysis, inorganic carbon, and those were the
9 principal ones. There were probably some others
10 that we did occasionally on request. I don't
11 remember all the details.
12 Q. Do you remember any specific
13 projects that you provided soil analysis for?
14 A. Dave Swift's periphyton study, Steve
15 Davis' various projects.
16 Q. Let's take them one by one. When
17 you say Dave Swift's periphyton study, did that
18 result in a technical publication?
19 A. There is one in the process of being
20 published now.
21 Q. Do you remember the title of that
22 work?
23 A. No, I do not.
24 Q. Where was the -- what was the focus
25 of that study?
17
1 A. To the best of my understanding, Mr.
2 Swift was looking at relationships between
3 periphyton and nutrient levels in the water.
4 Q. And what did your involvement in
5 that study consist of?
6 A. I did the -- provided the analysis
7 of the periphyton samples and soil samples that
8 Mr. Swift collected.
9 Q. Did you actually collect the samples
10 yourself?
11 A. No, I didn't do any of the field
12 work.
13 Q. Do you know where these samples were
14 collected, what geographic area?
15 A. From the three water conservation
16 areas.
17 Q. WCA --
18 A. WCA-1, WCA-2 and WCA-3.
19 Q. Over what period of time?
20 A. I'm not sure. I don't remember
21 exact dates.
22 Q. Could you give me a general idea?
23 Was it in the late seventies?
24 A. It started in the late seventies and
25 I believe it went through 1983.
18
1 Q. You said that data was collected
2 from approximately late seventies until 1983. Is
3 that correct?
4 A. I believe so.
5 Q. Why has it taken so long for the
6 report to be processed?
7 A. Well, there was a technical
8 publication put out after -- shortly after the
9 date it was first collected, but in light of some
10 of the new understanding of the metabolism of
11 periphyton, it was decided to reanalyze the data.
12 Q. When you say new understanding of
13 the metabolism of periphyton, what do you mean?
14 A. I believe that some things have been
15 learned since the original work was done about
16 the relationship of hardness and water pH to the
17 metabolism, so this factor was added to the
18 analysis to see if -- how it affected the
19 relationships.
20 Q. And how did it affect the
21 relationships?
22 A. I believe when areas were segregated
23 according to hardness of the water and pH that
24 some very good correlations that didn't
25 previously show up appeared.
19
1 Q. Correlations between what?
2 A. Statistical correlations between the
3 water chemistry or the water -- the phosphorus
4 levels in the water and the phosphorus levels in
5 the periphyton.
6 Q. Just let me make sure I understand
7 you correctly. When areas were isolated with
8 certain characteristics of hardness or pH, there
9 was a higher correlation between phosphorus
10 content in the water and phosphorus content in
11 the periphyton. Is that correct?
12 MR. NETTLETON: I'm going to object
13 to the form in that just for the record that he's
14 not here to testify about this particular study,
15 and I just want it understood that he's relaying
16 his understanding of someone else's study, so
17 that understood he can go ahead and answer it to
18 the best of his understanding.
19 A. Well, I believe they were not
20 necessarily physically segregated but eliminated
21 from the data set and the statistical analysis
22 was a little better focused.
23 Q. Besides phosphorus, what other water
24 chemistry variables were exumed?
25 A. As I remember, we also did total
20
1 nitrogen and calcium. I don't remember whether
2 we did other analyses or not for that particular
3 set.
4 Q. Who collected the water samples?
5 A. Dave Swift or his technicians.
6 Q. Do you recall who his technicians
7 were?
8 A. At various times he had -- Robert
9 Startzman as a technician, a woman by the name of
10 Suzette Green who is no longer with the District,
11 Dennis Cook who is no longer with the District
12 and one other gentleman who is still with the
13 District, but I can't think of his last name
14 right now.
15 Q. Were water samples for these various
16 parameters collected over the same time period as
17 the soil samples?
18 A. Yes.
19 Q. At the same time as the soil
20 samples?
21 A. I don't know the exact sampling
22 regime but generally in the same time frame.
23 Q. Were the water samples collected in
24 each of the water conservation areas?
25 A. I am not sure of the exact sampling
21
1 setup, but I believe that's true.
2 Q. Did you participate in the analysis
3 of the water samples?
4 A. No.
5 Q. Have you done any other work with
6 Dave Swift?
7 A. No.
8 MR. NETTLETON: Let's go off the
9 record.
10 (A discussion takes place off the
11 record.)
12 BY MR. PERKO:
13 Q. What other projects have you worked
14 on or did you work on between -- or during your
15 tenure as a soil chemist between 1973 and 1986?
16 A. I did the soil and plant tissue
17 analysis for the bony marsh study, for --
18 Q. Let's take that one. The bony marsh
19 study, who was the project manager for that
20 study?
21 A. I believe Steve Davis. At one time
22 Steve Davis was the manager. I'm not sure who
23 the current manager is.
24 Q. Where is the bony marsh?
25 A. It's on the Kissimmee River.
22
1 Q. What was the purpose of that study?
2 A. To learn the effects of nutrients on
3 a wetland.
4 Q. What type of wetland is the bony
5 marsh?
6 A. It's outside of the area of my
7 expertise.
8 Q. You said you did the analysis on I
9 believe you said the soil and leaf samples?
10 A. Plants, fish and leaf samples, yes.
11 Q. What parameters did you analyze
12 these samples for?
13 A. Nitrogen, phosphorus, potassium,
14 calcium and magnesium.
15 Q. Do you recall generally what
16 concentrations of phosphorus you typically
17 observed?
18 A. No.
19 Q. If I could step back just for a
20 moment and talk about the work you did with Dave
21 Swift, do you know if the water quality data
22 collected as a part of that project is in the
23 current data -- in the District's current data
24 management system?
25 A. I believe it is.
23
1 Q. Do you happen to know the code name
2 for that data?
3 A. Not offhand. I'd have to refer to
4 index of project codes to determine that.
5 Q. Who would you -- if you wanted to
6 get ahold of that data, who would you ask?
7 A. Well, I could go directly to Dave
8 Swift and ask for his paper copy of the data or I
9 could go to one of the data managers. I believe
10 Tom Raishe is in charge of that database.
11 Q. When you say that database, what do
12 you mean?
13 A. The chemistry database.
14 Q. Do you know how to spell Tom
15 Raishe's last name?
16 A. R-a-i-s-h-e, I believe.
17 Q. Back to the bony marsh project, did
18 that result in a technical publication of any
19 sort?
20 A. I believe there were several
21 District tech pubs, technical publications --
22 Q. And over what -- I'm sorry. Go
23 ahead.
24 A. -- put out on the results. I wasn't
25 involved in their preparations.
24
1 Q. Over what period of time did that
2 project last?
3 A. I'm not sure of the exact
4 termination date. It was still going on in 1986
5 when I left the laboratory.
6 Q. What other projects did you work on
7 in your tenure as a soil chemist?
8 A. The cattail and sawgrass studies
9 that were performed by various people in the
10 water conservation areas.
11 Q. When you say various people, who do
12 you mean?
13 A. Steve Davis was involved in those,
14 Lou Toth did some of them, and I believe Nancy
15 Urban also did some of them.
16 Q. What time period did these studies
17 cover?
18 A. Oh, let's see. Steve Davis was
19 involved for the entire thirteen years. I
20 believe Lou Toth came to work for the District in
21 the early eighties and his project went -- well,
22 the heavy sampling loads that he submitted to the
23 lab went through '89 -- excuse me -- '85.
24 Q. And what about Nancy Urban?
25 A. Her stuff went through the mid
25
1 eighties through '86, and I'm not sure how much
2 longer they went after '86.
3 Q. What was the general purpose of
4 these studies?
5 A. That's somewhat outside of the area
6 of my expertise. I wasn't involved in the
7 planning or the design of the studies, but I
8 believe generally it was to learn about nutrient
9 dynamics in the Everglades and in the Kissimmee
10 River Basin.
11 Q. What was the extent of your
12 involvement in these studies?
13 A. I provided the analytical services.
14 Q. What sort of analytical services did
15 you provide?
16 A. The analysis for the parameters that
17 we have mentioned.
18 Q. Just to make sure, what parameters
19 did you look at in these cattail and sawgrass
20 studies?
21 A. Nitrogen, phosphorus, potassium,
22 magnesium. Did I mention calcium? And calcium.
23 Q. Any others?
24 A. I believe we may have done some
25 organic matter analysis and possibly some
26
1 particle size analysis on some of the soil
2 samples. I don't remember the details.
3 Q. When you say you provided analytical
4 services for these parameters, in what context?
5 Did you look at soils, plant tissue, water?
6 A. Soils and plant tissue.
7 Q. Did you perform or do any analysis
8 on water samples?
9 A. No.
10 Q. Did you actually collect the soil
11 and plant samples that you analyzed?
12 A. Occasionally. Most of the time, no.
13 Q. What was the -- what geographic
14 areas were the samples taken?
15 A. Well, we'll go back to the previous
16 answer, in the water conservation areas.
17 Q. All three?
18 A. For one project or another, yes, all
19 three, the bony marsh and there were some samples
20 that were collected in Taylor Creek Nub and
21 Slough.
22 MR. PERKO: Would you like to take a
23 break, Mr. Rosen?
24 THE WITNESS: That would be fine.
25 (A brief recess is taken.)
27
1 BY MR. PERKO:
2 Q. Mr. Rosen, we were talking about
3 several projects that you've worked on during
4 your tenure as a soil chemist at the District
5 between 1973 and 1986. Did you participate in
6 the -- or did you interpret the results of any of
7 your analyses?
8 A. Exactly what do you mean by
9 interpret the results?
10 Q. Well, did you prepare any reports
11 that describe the significance of any of the
12 results of your analysis?
13 A. No.
14 Q. Did you contribute to any reports,
15 interpreting them?
16 A. Only the methods sections that
17 describe the analytical procedures.
18 Q. Going back to the cattail and
19 sawgrass studies, if you wanted to get your hands
20 on the soil and water quality data resulting from
21 those projects, who would you ask?
22 A. Probably -- well, I'd ask Steve
23 Davis for the paper copies of the work that he
24 did, Lou Toth for his work, reports from the work
25 that he did.
28
1 Q. Does all or do all the data from
2 these various projects eventually go to the
3 District's overall database? Is there one master
4 database containing all --
5 A. For the water data there is.
6 Q. So if someone was to request all
7 water quality data for the Loxahatchee National
8 Wildlife Refuge, the District could compile all
9 that information from one database?
10 A. Well, that's not my area of
11 expertise but I believe so.
12 Q. If you wanted to get your hands on
13 that water quality data, who would you ask?
14 A. I would probably ask Tom Raishe for
15 starters.
16 Q. Are there any other projects that
17 you provided analyses for during your tenure as a
18 soil chemist?
19 A. I did a little bit of work on the
20 dairy phosphorus studies in Okeechobee County.
21 Q. Who was the project manager for
22 that?
23 A. I don't remember exactly, but I
24 believe it was Gary Ritter.
25 Q. Over what period of time did that
29
1 study encompass?
2 A. Well, I don't remember the starting
3 dates, but the sample collections I believe were
4 ongoing through the end of 1986, although they
5 were not very intensive.
6 Q. Did you actually collect samples?
7 A. I did collect some of the soil
8 samples.
9 Q. Was your involvement limited to soil
10 samples or did you work with other media?
11 A. It was limited to soil and sediment
12 samples.
13 Q. What parameters did you analyze
14 those samples for?
15 A. I don't remember all of the
16 parameters that we did on those, but we did do
17 phosphorus.
18 Q. Do you recall generally what
19 phosphorus concentrations you observed?
20 A. No.
21 Q. Did you work on any other projects
22 during your tenure as a soil chemist?
23 A. I did some analyses for Dr. Shih of
24 the University of Florida.
25 Q. What's his first name?
30
1 A. Sun-Fu but he goes by the name of
2 Tony.
3 Q. I just didn't want to get confused
4 with George. What type of analysis did you
5 provide Dr. Shih?
6 A. Nutrients, nitrogen -- well, it was
7 primarily plant tissue analysis.
8 Q. What was the purpose of that study?
9 A. I didn't have a hand in designing
10 the study and I'm not fully cognizant of all the
11 purposes, but I believe it was to learn about
12 water relations and water use in certain crops
13 that are growing in the Everglades ag area. I
14 also did some sampling in Chandler Slough in --
15 let's see, I believe that would have been in the
16 seventies. I'm just looking to see what the date
17 is on the -- okay. The work that I'm talking
18 about now was a publication or the technical
19 report by Federico, Milleson, Millar and Rosen,
20 Chandler Slough.
21 Q. That's a separate project from the
22 work you did with Dr. Shih. Correct?
23 A. Yes. Although early on when Dr.
24 Shih was a District employee he did have some
25 involvement in that, but I collected soil samples
31
1 and analyzed them principally for phosphorus,
2 although I did also analyze for some other
3 parameters and I wrote the soil section of that
4 report.
5 Q. Did you interpret the results of
6 your analyses?
7 A. As best I could.
8 Q. And what was your conclusion?
9 A. With the data that we had
10 collected -- as I remember, all we did was learn
11 what the phosphorus levels were in different
12 areas in the slough and the different types of
13 soils, and it was fairly preliminary work so --
14 Q. Did you attach any significance to
15 the levels that you observed?
16 A. I didn't carry the studies far
17 enough to -- either in time or do a detailed
18 enough -- collected an extensive enough data set
19 to make definitive determinations of the
20 phosphorus dynamics.
21 Q. Did you perform any estimates of
22 phosphorus retention?
23 A. No, I did not.
24 Q. Did anyone who participated in that
25 study perform estimates of P retention?
32
1 A. I'm not aware of that.
2 Q. What was the purpose of the Chandler
3 Slough study?
4 A. I'm not fully aware of all the
5 purposes. I was asked to collect data or collect
6 samples and analyze them, make some
7 determinations of what the chemical composition
8 of the soils were.
9 Q. Did that result in a -- did that
10 project result in a technical publication of any
11 sort? I'm sorry.
12 A. Well --
13 Q. 78-2?
14 A. That's correct.
15 Q. Was there any water quality sampling
16 performed in connection with that study?
17 A. I believe there was, but I was not
18 involved in that section of the publication.
19 Q. If I could back up if I could to the
20 work you did with Dr. Shih at the University of
21 Florida. You said the purpose of that study was
22 to learn about the water relationships and use in
23 the ag area. Is that correct?
24 A. Right.
25 Q. Did you perform any analysis on
33
1 water samples in connection with that study?
2 A. No, I did not.
3 Q. Did anyone else?
4 A. I'm not sure and I do not know where
5 the water samples were analyzed.
6 Q. Did that study result in a
7 publication of any sort?
8 A. Yes, it did. Shih and Rosen, 1985.
9 Q. Okay. Do you recall any other
10 projects that you worked on during your tenure as
11 a soil chemist?
12 A. Well, there were a lot of
13 miscellaneous samples that were brought into the
14 lab at various times for one reason or another.
15 I don't remember all the details.
16 Q. Would they be from any specific
17 geographical areas or --
18 A. I believe I've already covered the
19 major -- you know, told you all the major
20 projects. There was -- well, one other project
21 that comes to mind was some well coring samples
22 that I did physical characterization of and I
23 believe also phosphorus analysis in the Kissimmee
24 River. The samples were in connection with some
25 litigation that I don't completely understand
34
1 that was going on at the time, and as a result we
2 worked up some chain of custody documents on
3 these particular samples which was not something
4 that we normally did in the lab.
5 Q. Is that the only project that you
6 recall preparing chain of custody documents for?
7 A. Yes.
8 Q. I'd like to refer you to Exhibit
9 Number 1, the list of publications. The third
10 publication is Shih, Federico, Milleson and Rosen
11 entitled, "Sampling Programs for Using Upland
12 Marsh to Improve Water Quality." What was the
13 purpose of that study?
14 A. I believe that was to get the data
15 from Technical Publication 78-2 into the
16 literature. As I've already said, Dr. Shih had
17 some involvement in the early planning of the
18 Chandler Slough study so --
19 Q. So this was an outgrowth of the
20 Chandler Slough study?
21 A. Yes, it was. I believe it's really
22 the same data being written up for general
23 publication. I haven't looked at that in a while
24 so --
25 Q. You mean the same data as that in
35
1 78-2?
2 A. In Tech Pub 78-2, yes.
3 Q. Did you do any estimates of P
4 retention in connection with this paper,
5 phosphorus retention that is?
6 A. No.
7 Q. Did anyone else to your knowledge?
8 A. I'm not aware of whether anybody
9 else tried to do that.
10 Q. What was the extent of your
11 involvement in preparing this publication? Did
12 you draft any of the publications?
13 A. You're talking about Shih, Federico,
14 et al.?
15 Q. Right, 1979.
16 A. Other than the fact that I believe
17 it was drawn from -- the data for this
18 publication was drawn from 78-2, virtually none.
19 Q. So your name appears as a co-author
20 because you participated in the original
21 collection and analysis of the data?
22 A. That's correct.
23 Q. What about the first publication
24 listed in your resume Federico, Milleson, Millar
25 and Rosen? What was the extent of your --
36
1 A. I wrote up the soils section.
2 Q. Did you review any other portions of
3 the paper?
4 A. I don't remember, but I did not have
5 any editorial authority over other sections.
6 Q. What about the second publication,
7 Gleason, Stone, Rosen, 1974?
8 A. I prepared -- well, I did the
9 analysis for that project and I believe I may
10 have written up the methods section for the
11 chemical analysis or written up notes which Dr.
12 Gleason incorporated into the methods section.
13 Q. What was the purpose of this study?
14 A. I believe Dr. Gleason was trying to
15 learn about nutrient uptake, the rates.
16 Q. Do you remember what the results of
17 this study were?
18 A. No, I have looked at the paper but
19 no.
20 Q. Do you recall if the paper included
21 any estimates of nutrient uptake rates?
22 A. I believe it did. I don't remember
23 what the rates were.
24 Q. Do you know why the study was never
25 published?
37
1 A. No.
2 Q. Do you know if it was submitted for
3 publication?
4 A. No, I don't know what the problems
5 with it were.
6 Q. Do you know if it was ever peer
7 reviewed?
8 A. No.
9 Q. When you say no, do you mean that --
10 do you mean to say that you don't recall if it
11 was ever peer reviewed or that it was not ever
12 peer reviewed?
13 A. I do not recall or I do not know.
14 Q. I draw your attention to the final
15 publication listed in your resume, Shih and
16 Rosen, 1985.
17 A. All right.
18 Q. Was that an outgrowth of the work
19 that you did for Dr. Shih in the University of
20 Florida?
21 A. Yes, that is -- that's where I did
22 the work.
23 Q. What was your involvement in the
24 preparation of this paper?
25 A. I wrote up the methods section or
38
1 notes describing the methods section, and I
2 believe I did some editing to polish up the
3 English grammar a little bit.
4 Q. Did you interpret your results or
5 attach any significance to them?
6 A. No, I did not.
7 Q. Are there any other publications for
8 which you have appeared as a co-author or author
9 other than those listed in your resume?
10 A. Except for the current one, the
11 periphyton study by Grimshaw, Swift and Rosen, I
12 don't believe there are any others.
13 Q. What's the current status of the
14 periphyton study you just mentioned?
15 A. It's been accepted for publication.
16 Q. By whom?
17 A. I believe it's the Archives Fur
18 Biologie. I'm not sure the exact title but I
19 believe that's it.
20 Q. Did you actually draft any of that
21 paper?
22 A. I wrote up some notes on the
23 analytical methodologies for the periphyton and
24 the water chemistry. I reviewed the old
25 procedures that were performed in the water lab.
39
1 Q. When you say you reviewed the old
2 procedures in the water lab, what do you mean by
3 old?
4 A. The procedures that were being used
5 at the time that the analyses were done.
6 Q. And over what period of time were
7 those analyses done?
8 A. Well, for this particular paper it
9 was from the late seventies I believe through
10 1983.
11 Q. What procedures were used for
12 phosphorus water samples over that period of
13 time?
14 A. For water samples.
15 Q. Yes.
16 A. Well, they did orthophosphate and
17 they did total phosphate.
18 Q. What were the actual analytical
19 procedures used for those parameters?
20 A. I don't remember all of the details,
21 but it was a phosphomolybdic acid colorimetric
22 test.
23 Q. Phosphomolyb --
24 A. Molybdic acid, and it was the
25 ascorbic acid variation.
40
1 Q. What geographical areas were the
2 water samples taken from that you reviewed the
3 procedures for?
4 A. The procedures were not
5 geographically -- you know, not unique to the
6 geographic area.
7 Q. I'm sorry. You said that you
8 reviewed the procedures for the water samples
9 that were done from the late seventies through
10 1983, and I'm trying to figure out what
11 geographical areas those water samples came
12 from.
13 A. Wherever the sampling sites are that
14 are defined in the project.
15 Q. When you say you reviewed the
16 procedures, were there records kept of the
17 procedures utilized or did you actually perform
18 the sampling?
19 MR. NETTLETON: I object to the
20 form.
21 A. No, I didn't. No, I did not perform
22 the sampling. I went back to the laboratory and
23 pulled out the notes and the procedural -- the
24 references to different laboratory procedures and
25 laid those out so that the methods procedure for
41
1 the report could be written up with accurate
2 information.
3 Q. You previously characterized these
4 procedures as the old procedures. Is that
5 correct?
6 A. I did use that word.
7 Q. How have they changed?
8 A. I am not aware of how they changed
9 or whether they have changed. What I meant by
10 that was the procedures that were in use at the
11 time that those analyses were done as opposed to
12 what they're currently doing in the lab.
13 Q. Did you review the quality control
14 procedures taken in connection with the water
15 quality sampling?
16 A. Yes.
17 Q. And what quality control measures
18 were taken?
19 A. For water samples?
20 Q. Yes.
21 A. Well, they used a series of four
22 standards plus a blank to calibrate the
23 instrument. They used a couple of internal QC
24 samples, I believe they were called QC-1 and
25 QC-2, to determine how well or how close -- what
42
1 the accuracy of the analysis was, how close they
2 could come to a known value. They used standard
3 additions to look for interferences and they used
4 repeated samples to determine precision.
5 Q. These standard additions to -- I'm
6 sorry?
7 A. Look for interferences.
8 Q. What were the standards?
9 A. I don't remember the details of
10 standard preparation, but generally or in a
11 general way they were chemical solutions that
12 contained a known concentration of the analyte,
13 if you're looking at phosphorus it contained a
14 known concentration.
15 Q. Do you know what the known
16 concentration was for phosphorus?
17 A. I don't understand your question.
18 Q. What were the actual concentrations
19 used for the standards for total phosphorus?
20 A. I don't remember.
21 Q. Is that data still on record at the
22 District?
23 A. I believe it should be available.
24 Q. And by that data I mean the quality
25 control data.
43
1 A. Yes.
2 Q. Were the standard samples and blank
3 samples identified to the -- or I'm sorry, strike
4 that. Let me start over. Were the lab
5 technicians that actually performed the analysis
6 aware that the standard samples or blank samples
7 were not taken from the field?
8 A. Yes.
9 Q. Do you recall the concentration
10 range of the QC samples for total phosphorus?
11 A. For water samples?
12 Q. Right.
13 A. No.
14 Q. What about soil samples?
15 A. I have some vague recollections of
16 what they were, but I'd have to look at my notes
17 to --
18 Q. Mr. Rosen, if you were to the
19 laboratory's performance at low concentration
20 levels for total phosphorus, what quality control
21 measures would you use?
22 MR. NETTLETON: I object to form.
23 A. I don't understand the question.
24 Q. For example, if you were concerned
25 about the quality of the data at concentrations
44
1 as low as twenty parts per billion, what
2 concentration ranges would you introduce in the
3 QC samples?
4 MR. NETTLETON: I object to form.
5 A. May I ask a further question?
6 Q. Do you know the answer to the
7 question I just asked?
8 A. There's not enough information in
9 that question to give a good answer.
10 MR. PERKO: I'm going to let him ask
11 the question.
12 MR. NETTLETON: I don't want to
13 start that precedent so if you want to just ask
14 him.
15 BY MR. PERKO:
16 Q. You can go ahead and ask your
17 question.
18 A. May I ask?
19 MR. NETTLETON: Go ahead.
20 A. You've told me the lower limit of
21 your samples. You haven't told me anything about
22 what range of how far above the lower limit or
23 how wide a range of samples we're looking at.
24 Q. Would you like to take a break?
25 A. I'm okay but if you'd like to,
45
1 that's fine.
2 Q. While I'm waiting for inspiration on
3 that last question, to the best of your
4 recollection does that -- our previous discussion
5 cover the projects that you worked on during your
6 tenure as a soil chemist?
7 A. The major or significant projects
8 are covered.
9 Q. In your -- go ahead.
10 A. There were some other samples that
11 were submitted by other parts of the District on
12 occasion, you know, other than environmental
13 sciences.
14 Q. Did you spend most of your time in
15 the lab actually performing analysis of the
16 samples?
17 A. Yes, with the assistance of one
18 technician.
19 Q. And who was that?
20 A. For the major part of the time, for
21 most of the thirteen years was Ann Marie Superchi
22 who is currently working in the Regulation
23 Department.
24 Q. Did anyone else assist you?
25 A. Pedro Rodriguez Vasquez who is still
46
1 in the lab. And in the seventies there was a
2 succession of technicians who worked for me for
3 short periods of times. I don't remember the
4 dates and I'm not sure that I can remember all of
5 the names.
6 Q. I may have already asked you this
7 question, but did you perform any analysis of
8 water samples?
9 A. Occasionally I would assist in the
10 water lab, you know, do some technical work when
11 things were slow in the soils lab to help them
12 out, but generally, no, I did not.
13 Q. Back to my previous line of
14 questioning regarding QC samples. Let's say that
15 you're -- assume that you're concerned about the
16 quality of total phosphorus, analytical results
17 for samples that have total phosphorus
18 concentrations of less than twenty ppb.
19 A. You're talking about less than
20 twenty ppb?
21 Q. Less than twenty ppb?
22 A. Or twenty ppb as the minimum.
23 Q. Less than twenty ppb.
24 A. Okay.
25 Q. What would you use as the range of
47
1 standard concentrations to develop your standard
2 curve?
3 A. Are there any samples higher than
4 twenty ppb in this data set?
5 Q. No.
6 A. All right. I would try to --
7 MR. NETTLETON: I'm going to object
8 to the form but you can go ahead and answer.
9 A. Try to develop -- well, I would set
10 twenty ppb as the high standard and work down I
11 believe geometrically. I would have the next
12 standard at half of that and the next one at
13 roughly half of that.
14 Q. How would you -- what would you use
15 as the concentration of reference samples or QC
16 check samples to evaluate lab performance for
17 concentrations within this range, i.e. less than
18 twenty ppb?
19 MR. NETTLETON: I object to the
20 form.
21 A. It wasn't in my area to devise water
22 QC samples so --
23 Q. Who would be responsible for
24 developing water QC samples?
25 A. Well, who -- are you talking
48
1 about --
2 Q. With the District.
3 A. Position wise or historical record
4 of the people who actually did it?
5 Q. If you recall the names.
6 A. I do recall some of the names.
7 Q. Who might that be?
8 A. Towards the end of the time that I
9 was in the lab a chemist by the name of Leslie
10 Teets was the quality control director.
11 Q. Does the District have any quality
12 control manuals?
13 MR. NETTLETON: I object to form.
14 BY MR. PERKO:
15 Q. That are used as a reference guide?
16 A. Currently?
17 Q. Currently.
18 A. I'm not really sure what their
19 current procedures are. I've had no involvement
20 with the lab since the end of 1986, but --
21 Q. What about prior to 1986?
22 A. I believe they used the EPA manual
23 on quality control, although this was -- I wasn't
24 directly involved in the decisions on devising
25 procedures for the water lab or determining the
49
1 quality control. All I know is what I've seen in
2 the record, but I believe they use the EPA manual
3 for quality control procedures, and I believe
4 they use AWA manual for selecting the actual
5 analytical procedures that they used.
6 Q. If you wanted to determine what QC
7 procedures were actually used prior to 1986, how
8 would you go about doing that?
9 MR. NETTLETON: I object to form.
10 THE WITNESS: Is it all right if I
11 answer?
12 MR. NETTLETON: Sure.
13 A. I'd go back to the laboratory
14 records and find out what documents they had that
15 describe their procedures.
16 Q. I believe you previously stated that
17 you served as a staff chemist or soil chemist
18 from 1973 to 1986. Is that correct?
19 A. Yes.
20 Q. What position did you have after
21 you -- after 1986?
22 A. Well, it had various titles, but I
23 was involved in water conservation programs for,
24 if I remember the correct name of the division,
25 it was Water Supply Planning and Management, and
50
1 I don't remember if that's the exact title but
2 Carl Woehlcke was the division director.
3 Q. How long did you serve in that
4 position?
5 A. Well, until the reorganization of
6 the District where the Planning Department was
7 formed, the job responsibilities sort of evolved
8 from one division to another, and it was not
9 really that much of a change in responsibilities.
10 Q. Okay.
11 A. You know, it was a gradual evolution
12 to planning, and it was more planning oriented
13 tasks all along.
14 Q. Let me back up a little bit. When
15 you left the chemistry lab in 1986, you went to
16 what was to become the Planning Department.
17 Right?
18 A. Well, it was -- all of these, at
19 that time all of these divisions, the Chemistry
20 Lab and the Water Quality and the Environmental
21 Science Division were in one large department
22 called Resource Planning which has since been
23 split up into Research, Planning and Evaluation,
24 and I went from one of the more research oriented
25 sections to a planning oriented section.
51
1 Q. When you say you went from a
2 research oriented --
3 A. Well, the chemistry lab.
4 Q. So you consider the chemistry lab to
5 be a more research organization.
6 A. Yes. I believe -- well, I'm not
7 sure where it is in the current structure of
8 things, but it's definitely not in planning.
9 Q. What were your new responsibilities
10 in your new job?
11 A. We worked on various water
12 conservation programs. The Xeriscape project was
13 a big part of it. We put together materials to
14 be used in the Xeriscape project such as the
15 Xeriscape Plant Guide and some of the other
16 pamphlets that the District distributes.
17 Q. What was the Xeriscape project?
18 A. It was a project to encourage sound
19 landscaping practices in South Florida so that
20 water used for landscaping purposes could be
21 minimized.
22 Q. What other type of programs did you
23 work on?
24 A. Well, the techniques and procedures
25 that we learned in working on these programs were
52
1 carried over and we started working on
2 irrigation -- or I started working on irrigation
3 demands for water supply plans in the lower east
4 coast which is my current position. That's my
5 official title.
6 Q. What is your official title now?
7 A. Staff Planner.
8 Q. Do you have any role in evaluating
9 the water supply demands for the lower east
10 coast?
11 A. Yes. Well, up till November of '92
12 I was quite heavily involved in that.
13 Q. What were your responsibilities in
14 that regard?
15 A. We collected data on crop acreage
16 for different crops and different types of
17 agriculture in the lower east coast, Dade County,
18 Broward County and the eastern and western
19 sections of Palm Beach County, the eastern
20 section of Hendry County, and we took this data
21 and tried to develop estimates of water -- future
22 water needs in an average and in a two in ten --
23 a statistical two in ten drought year using the
24 Blaney-Criddle evapotransforation equations that
25 the Regulation Department uses in permitting.
53
1 Q. Do you utilize any hydrologic
2 modeling, computer modeling in that capacity?
3 A. Not hydrologic modeling. No, we
4 were just trying to develop demand estimates, and
5 this data was turned over to somebody else for
6 hydrologic modeling purposes.
7 Q. Did you also look at the water
8 supply demands of the urban areas of the lower
9 east coast?
10 A. We have looked at that to a limited
11 extent, but I did not have any involvement in the
12 estimates that went into any of the water supply
13 plans. It was decided that other methodologies
14 would be more appropriate than the methodologies
15 that we were developing with the exception of
16 golf courses. We did look at golf course
17 estimates because that was a water -- or a land
18 use type that lent itself to the same
19 methodologies that we used for agriculture.
20 Q. Are you aware of any analysis
21 performed to estimate the effects of SWIM Plan
22 implementation on water supply in the lower east
23 coast?
24 A. I have not been involved in natural
25 systems analysis.
54
1 Q. You would consider --
2 A. I am aware that this is going on,
3 but I'm not involved in it. I don't know
4 anything about their methodologies.
5 Q. Who is involved in it?
6 A. I'm not really sure who all the
7 players are.
8 Q. Do you recall any names?
9 A. I believe Dave Black is marginally
10 involved.
11 Q. Cal Neidrauer?
12 A. Cal Neidrauer is involved in over-
13 all modeling. I don't know -- since I'm not
14 involved in this project directly, I don't know
15 the limits of the role of each person.
16 Q. Is Paul Trimble involved in that
17 analysis?
18 A. I believe so.
19 Q. Ron Santee?
20 A. I would say that he probably is,
21 too.
22 Q. Do you recall any others that might
23 be involved in that?
24 A. I believe at one time Dewey Worth
25 had some involvement in this.
55
1 Q. Anyone else?
2 A. Some of the GI -- the people who
3 work on the GIS system have some involvement.
4 Q. Who might that be?
5 A. Brent Moll was involved, I believe.
6 Q. Anyone else?
7 A. Some of the technicians who actually
8 operate the computers and do the work. Jimmy
9 Cramp comes to mind. And I'm not sure just how
10 heavily some of the other technicians in the
11 Lower District Planning are involved in that.
12 Q. Okay. Are you familiar with the
13 results of that analysis thus far?
14 A. No.
15 Q. Who at the District would you ask to
16 find out the results of that analysis?
17 MR. NETTLETON: I object to form.
18 A. Probably the first person that I
19 would go to is Cal Neidrauer. I'm not sure
20 whether he would give me the answers that I would
21 be asking, if I was asking these questions, or
22 whether he would direct me to somebody else. As
23 I said before, I have no --
24 Q. I understand --
25 A. -- direct involvement in this
56
1 project.
2 Q. I'd like to back up just for one
3 second. We talked about the periphyton study
4 that you participated in with Jim Grimshaw and
5 others.
6 A. Yes.
7 Q. You mentioned that you looked at the
8 procedures utilized collecting water samples or
9 analyzing water samples of the data in the late
10 1970's through 1983. Correct?
11 A. Right.
12 Q. Is that the same data that Millar
13 published in the early 1980's?
14 A. I'm not positive, but I believe Dave
15 Swift collected his own water samples for that
16 project.
17 Q. Are you familiar with the technical
18 publication authored by Paul Millar regarding
19 water sampling that he performed in the
20 Loxahatchee National Wildlife Refuge?
21 A. No.
22 Q. Do you know if the data that you
23 looked at in connection with your work with
24 Grimshaw and others was the same data utilized to
25 develop the phosphorus limits for Loxahatchee
57
1 that are included in the Everglades SWIM Plan?
2 A. No, I do not. I've had no
3 involvement in developing those limits.
4 MR. PERKO: Why don't we take a
5 five-minute break.
6 (A brief recess is taken.)
7 BY MR. PERKO:
8 Q. Mr. Rosen, I'd like to go back to
9 our discussion of the Gleason, Stone and Rosen
10 study in 1974, Nutrient Uptake and Rates of
11 Nutrient Deposition in Conservation Area 2A. Are
12 you aware of any concerns expressed regarding the
13 technical credibility of this study?
14 A. No.
15 Q. Would you have any reason to doubt
16 the veracity of the data in the study?
17 A. No.
18 Q. Or the quality of the data?
19 A. No.
20 Q. Before we took a break we talked
21 about your responsibilities as a staff planner.
22 A. Yes.
23 Q. Do you recall any other
24 responsibilities that you haven't discussed
25 previously?
58
1 A. No. I think we've pretty generally
2 covered the major areas of responsibility.
3 Q. Okay. And you are currently not
4 assigned to the Planning Department. Is that
5 correct?
6 A. Well, my -- for payroll purposes my
7 position is still in the Planning Department, but
8 I'm currently not doing any work for them.
9 Q. Okay. And you're currently assigned
10 to the Office of General Counsel. Is that
11 correct?
12 A. That's correct.
13 Q. When were you reassigned to the
14 General Counsel's Office?
15 A. In November of 1972.
16 Q. '92?
17 MR. NETTLETON: '72?
18 A. I'm sorry.
19 Q. The case isn't that old.
20 A. In November of '92. I'm sorry.
21 Q. How did your responsibilities change
22 when you were reassigned to the Office of General
23 Counsel?
24 A. Well, I stopped doing water supply
25 planning work and started doing tasks that were
59
1 assigned to me by the Office of Counsel.
2 Q. What type of tasks?
3 A. Well, in a general way I was asked
4 to provide technical assistance to the Office of
5 Counsel for the Everglades lawsuit.
6 Q. What type of technical assistance?
7 A. Well, I have been assigned to
8 provide technical assistance for the remedy part
9 of the lawsuit.
10 Q. When you say the remedy part of the
11 lawsuit, what do you mean?
12 A. Well, it's my understanding that the
13 lawsuit has been broken up into two sections,
14 and, you know, I'm not an attorney so I don't
15 understand all the legal ramifications, but it's
16 been broken up into the harm and the remedy.
17 Q. What remedies have you looked at?
18 A. I've looked at STA's, best
19 management practices and alternatives --
20 alternative methods of eliminating phosphorus
21 from the water.
22 Q. What alternatives have you looked
23 at?
24 A. Well, I haven't had a chance to read
25 all the literature on this yet, but I have looked
60
1 at chemical -- various versions of chemical
2 precipitation and coagulation.
3 Q. What about direct filtration?
4 A. That falls into that category. It's
5 one of the variations of that.
6 Q. When you say you provide technical
7 assistance, what do you mean?
8 A. Well, I'm still learning the job,
9 but it's my understanding that I'm supposed to be
10 a go-between from the scientists and engineers to
11 the attorneys to explain these various proposals
12 that come along to them in terms that they can
13 understand.
14 Q. Does your technical assistance
15 involve any critique or evaluation of the
16 different alternatives?
17 A. Yes, it does.
18 Q. To what extent? Do you provide
19 Office of Counsel with recommendations as to the
20 different alternatives?
21 MR. NETTLETON: I'm going to object
22 at this point. He's been listed to testify in
23 the area of QA/QC and I don't have any problem
24 asking anything about that. With regard to other
25 areas I also don't have a problem with you asking
61
1 his opinions even though he's not designated in
2 those areas and he can answer to the extent he
3 can. But when you're asking what his opinions
4 are in the Office of Counsel for purposes of
5 litigation, I think that's too specific and
6 regard that to be work product.
7 MR. PERKO: Let me rephrase it then.
8 BY MR. PERKO:
9 Q. Do you have an opinion as to the
10 most feasible phosphorus treatment alternative?
11 A. As I have said, I haven't read all
12 of the literature yet. It's quite extensive and
13 some of it is engineering and I'm having to learn
14 the engineering aspects, so I have not yet formed
15 an opinion.
16 Q. You said that you essentially act as
17 a go-between between the scientists and the
18 attorneys. What scientists have you worked -- do
19 you work with?
20 A. Well, I'm reviewing the papers by
21 the scientists for the various interests. Duke
22 Wetlands Center work, the work by the
23 representatives of the Federal Government and the
24 work by in-house scientists and engineers at the
25 District as well as the ones that we have
62
1 contracted with.
2 Q. What work of the scientists of the
3 Federal Government have you reviewed?
4 A. Well, I haven't actually read any of
5 their work yet. I have on my agenda to read some
6 of William Walker's papers on STA sizing.
7 Q. What other papers are on your
8 agenda?
9 MR. NETTLETON: Again, I'm going to
10 object at this point. Anything that's on his
11 agenda would be there at the direction of counsel
12 from my understanding of how he's testified so
13 far, and I think that's clear of record so I
14 think that would constitute work product. If you
15 want to ask him specifically about anything, if
16 you want to raise something and ask him if he's
17 reviewed it and whether he has opinions or
18 anything about it, I don't have a problem with
19 that, but asking him -- what you're doing now is
20 asking him what he's been asked to do by Office
21 of Counsel and what he's assisting Office of
22 Counsel with, and I think that constitutes work
23 product.
24 MR. PERKO: Are you instructing him
25 not to answer?
63
1 MR. NETTLETON: Yes.
2 BY MR. EARL:
3 Q. Have you reviewed any of Ron Jones'
4 work?
5 A. No.
6 Q. Do you plan to?
7 A. I'm not sure.
8 Q. Have you reviewed the reports of
9 Brown and Caldwell?
10 A. Yes, some of them.
11 Q. Which ones?
12 A. I've read the executive summary of
13 the BMP report, the best management practices
14 study. I've in a very cursory manner read their
15 report on alternatives.
16 Q. Is that the report that was released
17 in mid February?
18 A. Yes.
19 Q. Do you recall the conclusions of
20 that report?
21 A. No, I do not.
22 Q. Do you recall the critique of the
23 STA's included in that report?
24 A. No.
25 Q. What is your overall impression of
64
1 the Brown and Caldwell report released in mid
2 February?
3 MR. NETTLETON: I object to form.
4 A. Could you clarify what you're
5 looking for?
6 Q. Do you think it was a thorough
7 analysis? Do you think --
8 A. Yes.
9 Q. Do you believe it included a
10 competent analysis of the alternatives?
11 A. I haven't formed an opinion on that
12 yet.
13 Q. Do you have an opinion as to whether
14 the alternatives discussed in that report merit
15 further consideration?
16 A. I would say yes, they do merit
17 further consideration.
18 Q. You're smiling.
19 A. But that's all I would say about
20 that.
21 Q. Is there a reason why you're
22 reluctant to say anything else?
23 A. I haven't done enough, you know,
24 enough reading or any independent research to
25 form an independent opinion that will either
65
1 agree with or contradict what is in the report.
2 Q. Have you reviewed the reports
3 submitted by Burns and McDonald?
4 A. Some of them. I don't remember
5 exactly which ones I've looked at.
6 Q. Have you reviewed the conceptual
7 design memorandum dated March 31st, 1992?
8 A. I looked very briefly at some of the
9 conceptual design documents and decided that I'd
10 put those aside and look at them again at a later
11 date.
12 Q. Why did you put them aside?
13 A. They were quite extensive and I
14 decided that I needed to look at some other
15 things before I got into those.
16 Q. Okay. Have you reviewed the work of
17 Robert Kadlec regarding phosphorus uptake rates?
18 A. I have read the District report by
19 Kadlec and Sue Newman on that and I'm just now
20 starting to get an understanding of the
21 engineering aspects of that project. I have not
22 yet formed an opinion.
23 Q. Are you familiar with the eight
24 meters per year settling rate constant?
25 A. Yes. To a limited degree.
66
1 Q. Do you have an opinion as to the
2 validity of that constant?
3 A. No. Well, the validity of eight
4 meters per year being the correct number or the
5 concept of that?
6 Q. The reliability of that estimate.
7 A. No.
8 Q. Do you have an opinion as to how
9 certain that estimate might be?
10 A. No.
11 Q. What would it take to develop an
12 opinion as to the uncertainty of that settling
13 rate?
14 MR. NETTLETON: I object to the
15 form. Again you're going way outside his
16 designated area of expert testimony. If you're
17 asking for his personal opinion I'll allow him to
18 answer but --
19 MR. PERKO: Just his personal
20 opinion.
21 A. Given unlimited time and resources
22 or within practical constraints given the legal
23 and political climate?
24 Q. Given the practical constraints.
25 A. I'm not sure that I could set up a
67
1 study to do that and come up with data that's any
2 better than what other people have already come
3 up with.
4 Q. What about the ideal situation if
5 you had unlimited time and resources?
6 A. I'd probably set up some sort of a
7 sampling program where we would look at
8 sedimentation.
9 THE WITNESS: Do you have a problem
10 with this, Paul?
11 MR. NETTLETON: It's your personal
12 opinion and as long as the record is clear that
13 this is not your area of testimony.
14 A. And do some direct measurements of
15 soil accumulation and phosphorus accumulation and
16 cycling in the samples for a period of ten or
17 twenty years.
18 Q. Where would be the appropriate place
19 to do that?
20 A. I guess the ideal place would be in
21 a small or in a study area, and I haven't formed
22 an opinion on what size that study area should
23 be, that mimics the management or the design and
24 management alternatives of an STA.
25 Q. Could it be done with the ENR
68
1 project?
2 A. Probably. I'm not that familiar
3 with the ENR project yet so I don't know
4 whether -- I can't say what differences there are
5 in the design of the ENR project from the
6 conceptual designs of the STA's.
7 Q. Do you believe that such a study
8 should be performed before the STA's are actually
9 constructed?
10 MR. NETTLETON: Same objection to
11 the form. You can answer of your personal
12 opinion.
13 A. Ideally that would be nice, but I'm
14 not fully cognizant of all the political and
15 legal ramifications of doing that so I can't say
16 for sure.
17 Q. You stated previously that you
18 reviewed papers submitted by the scientists for
19 the Duke Wetlands Center. Is that correct?
20 A. Yes.
21 Q. What papers have you reviewed?
22 A. Some of the annual reports, and I
23 don't have a list of the particular chapters and
24 report numbers that I looked at.
25 Q. Have you focused on any particular
69
1 aspects of those reports?
2 A. I was interested in learning how Dr.
3 Richardson came up with his estimate of the
4 settling rate constant and in comparing his work
5 with the work of Kadlec and -- well, I haven't
6 yet looked at any of Walker's papers directly but
7 what I would -- comparing Richardson's work with
8 the work of Kadlec -- Walker which as far as I
9 understand right now although there are some
10 minor differences are pretty similar.
11 Q. You're talking about a comparison of
12 Dr. Richardson's work with that of Kadlec/Walker?
13 A. Yes.
14 Q. How did Dr. Richardson's estimates
15 compare with Dr. Kadlec's?
16 A. As I recall, his estimates were
17 subject to change over time, but when I -- prior
18 to the January SAGE meeting I believe his
19 estimates were roughly half of what Kadlec/Walker
20 were recommending or predicting.
21 Q. Do you have an estimate as to the
22 reliability of Dr. Richardson's estimates?
23 A. Well, there were several areas that
24 Walker and Kadlec criticized his work on and I
25 really haven't gone far enough in my readings or
70
1 understanding of the process to form opinions on
2 the validity of -- you know, personal opinions on
3 the validity of the work. All I know is what the
4 SAGE committee finally adopted as a recommended
5 value.
6 Q. Have you also reviewed work of
7 District in-house scientists?
8 A. To a limited extent.
9 Q. Whose work have you taken a look at?
10 A. I have briefly looked at some of the
11 work of Marguerite Cook.
12 Q. Anyone else?
13 A. Not that I know that I can remember
14 right now.
15 Q. Why did you look at Marguerite
16 Cook's work?
17 A. I was curious about the work that
18 was done on soils.
19 Q. Why were you curious?
20 A. I'm interested in soil science.
21 Q. Did you believe it was relevant to
22 the settling rate controversy?
23 A. I haven't formed an opinion on that.
24 Q. Are you aware of any criticisms of
25 Dr. Cook's work?
71
1 A. No.
2 Q. Was there a particular aspect of Dr.
3 Cook's work that you looked at?
4 A. Not that I can remember.
5 Q. Mr. Rosen, you previously in
6 connection with our discussion of Dr.
7 Richardson's settling rate estimates, I believe
8 you said that you were aware of some criticisms
9 that Drs. Walker and Kadlec had raised. Are you
10 aware of any documents that discuss those
11 criticisms?
12 A. I am aware of documents that discuss
13 it.
14 Q. Could you describe those documents?
15 A. I haven't put together a
16 bibliography on this so I can't --
17 Q. Do you remember any in particular?
18 A. No, I can't remember the titles.
19 Q. Were they memoranda?
20 A. I don't remember.
21 Q. Were the documents submitted to
22 SAGE?
23 A. I believe that may have been where
24 some of the documents appeared.
25 Q. Are you aware of any that were not
72
1 submitted to SAGE?
2 A. No.
3 Q. Do you attend all the SAGE meetings?
4 A. I have been since January.
5 Q. Mr. Rosen, I'd like to show you what
6 I'll ask the court reporter to mark as Exhibit
7 Number 2.
8 (Plaintiff's Exhibit Rosen-2 is
9 marked for identification.)
10 BY MR. PERKO:
11 Q. Do you recognize what's been marked
12 as Exhibit Number 2?
13 MR. NETTLETON: Just for the record
14 I note that this is the notice that was sent out
15 by Peeples, Earl which was subsequently cancelled
16 and I understood that you guys may have renoticed
17 it or something. Is there a separate notice?
18 Because I've been out of the office since then.
19 MR. PERKO: There is a separate
20 notice, but we did not attach any duces tecum.
21 MR. NETTLETON: Okay.
22 A. Well, I don't understand all of the
23 legal ramifications of this, but as I understand
24 it this is a notice to produce documents for this
25 deposition.
73
1 Q. Did you review it with the
2 District's attorneys?
3 A. With the paraprofessionals who were
4 responsible for collecting the documents and
5 reproducing them, yes.
6 Q. Who would that be?
7 A. Charron.
8 Q. Follins?
9 A. Follins.
10 Q. Did you assist Miss Follins in
11 identifying responsive documents?
12 A. Yes, I did.
13 Q. Approximately how many documents did
14 you identify?
15 A. Well, there was a laboratory
16 procedures book that was used in the soils lab
17 and there were several references that I had used
18 over the years as a source of information on
19 performing different types of laboratory analysis
20 on soil and plant tissue samples which I produced
21 references for. Because they were hard bound and
22 copyrighted books I did not produce actual
23 copies.
24 Q. Did you identify any other
25 responsive documents?
74
1 A. I don't remember. I think that is
2 pretty much it. I believe I identified the
3 current locations of data that was generated by
4 the lab in the thirteen years that it was in
5 operation.
6 Q. When you say the thirteen years that
7 it was in operation, do you mean the thirteen
8 years that you worked at the lab or has the lab
9 ceased operation?
10 A. The soil section of the lab has
11 ceased operation.
12 Q. You say this document showed the
13 current locations of the data. What type of
14 data?
15 A. The results that were generated.
16 Q. For what analyses?
17 A. Phosphorus and the other parameters
18 that were analyzed.
19 Q. And what materials were analyzed?
20 Did that include soils?
21 A. The plant tissue samples and the
22 soil samples.
23 Q. What about water samples?
24 A. No. I'm talking about the soils
25 section of the lab and not the water chemistry
75
1 lab which is still in operation.
2 Q. Why did the soils lab stop
3 operation?
4 A. I am not fully aware of all of the
5 reasons but an administrative decision was made
6 that for one reason or another that these
7 services were no longer needed.
8 Q. Do you know if there are any
9 concerns about the quality of the data being
10 produced by the lab?
11 A. No, there were never any concerns
12 about the quality of the data.
13 Q. How were the soils -- how are soil
14 samples processed by the District currently?
15 A. They are contracted out.
16 Q. To whom?
17 A. I'm not directly involved in the
18 contracting procedure so I don't know where they
19 are contracted -- where they are being contracted
20 currently. In the years immediately after the
21 lab was shut down I did sit on a couple of the
22 contract review committees that selected a
23 vendor. I believe I did that in 1987 and again
24 in 1988.
25 Q. Do you recall any of the vendors
76
1 that are currently being used?
2 A. Would you rephrase the question?
3 Q. Do you recall the names of any of
4 the vendors that are currently being used to
5 process soil samples by the District?
6 A. No.
7 MR. PERKO: Can I have this marked
8 number three.
9 (Plaintiff's Exhibit Rosen-3 is
10 marked for identification.)
11 BY MR. PERKO:
12 Q. Mr. Rosen, if you could please look
13 at what has been marked as Exhibit Number 3 and
14 tell me if you recognize this document.
15 A. Well, it says lab manual. I will
16 have to look inside to see if I do recognize it
17 or not.
18 Q. Take your time.
19 A. All right. This is the laboratory
20 procedures manual that was used in the soils lab
21 to perform the different analytical procedures
22 that were used.
23 Q. Is this the lab procedures manual
24 that you identified?
25 A. Yes, it is.
77
1 Q. Does it include the several
2 references that you identified?
3 A. The next page includes the
4 references. The next page after contents, the
5 one that has the title references at the top.
6 Q. Okay. Does this include the
7 document revealing the current locations of data
8 generated by the lab over the thirteen years that
9 it was in operation?
10 MR. NETTLETON: I object to form. I
11 don't know that he testified there was a document
12 identified as that but maybe you want to clarify
13 that.
14 A. I believe that it does not include
15 that.
16 MR. PERKO: We haven't received
17 that. Just for the record this lab manual along
18 with Mr. Rosen's resume were the only two
19 documents that were received, and if there's
20 additional responsive documents we'd like a copy
21 of it.
22 MR. NETTLETON: If there are, I'm
23 not aware of them. That's why I was saying I'm
24 not sure that his testimony was correctly
25 understood but --
78
1 BY MR. PERKO:
2 Q. Well, let me ask you was there
3 another document that you identified as
4 responsive to the notice duces tecum?
5 A. There may not have been a formal
6 document. I'm not sure exactly what you're
7 getting at. Could you --
8 Q. You previously testified that you
9 had identified some locations of data.
10 A. Are you looking for the locations of
11 those data?
12 Q. No, I'm trying to find out what you
13 identified.
14 MR. NETTLETON: Maybe I can clear it
15 up. I think what he's asking is is there a
16 document that --
17 MR. PERKO: Right.
18 MR. NETTLETON: -- that identifies
19 the location of the data as opposed to just you
20 knowing or identifying it through your own mental
21 processes.
22 A. Apparently there is not. I didn't
23 remember whether I'd written a list of locations
24 for Charron or not, but apparently since I don't
25 see it in here, there is not a written list of
79
1 locations.
2 Q. Why did you identify those locations
3 as responsive to this notice duces tecum?
4 MR. NETTLETON: I object to the
5 form.
6 BY MR. PERKO:
7 Q. Well, let me just take you through
8 the notice duces tecum. If you would I'd like to
9 refer your attention to page seven of Exhibit
10 Number 2.
11 A. What is Exhibit Number 2?
12 MR. NETTLETON: That's the notice.
13 BY MR. PERKO:
14 Q. That's the notice duces tecum.
15 A. Oh, okay. Page seven.
16 Q. Under the heading documents to be
17 produced. Number one requests, "Any and all
18 documents relied upon in preparing, formulating,
19 developing, authoring, co-authoring, reviewing
20 and/or organizing anticipated expert testimony
21 related to the subject matter of this action.
22 A. You said item number two?
23 Q. Number one.
24 A. Number one.
25 Q. Are you aware of any other documents
80
1 that are responsive to this request other than
2 the lab manual that's identified as Exhibit
3 Number 3?
4 A. I gave Charron Follins a verbal
5 explanation of where the data is currently
6 stored.
7 Q. Do you --
8 A. Apparently it was not written down
9 and formalized as a document.
10 Q. Okay. Do you intend to rely upon
11 that data in developing any expert testimony in
12 this case?
13 A. Not on any data that hasn't already
14 been produced by other witnesses.
15 Q. Do you intend to rely upon any data
16 in developing or in support of expert testimony
17 in this case?
18 A. No.
19 Q. Do you intend to rely upon any
20 documents other than Exhibit 3 in support of
21 opinions, expert opinions in this case?
22 A. No. I don't believe that I do.
23 Q. Mr. Rosen, what is your
24 understanding of the testimony that you're
25 expected to provide in these proceedings?
81
1 A. It's my understanding that it's
2 supposed to be related to quality control in the
3 lab and the applicability of the methods that
4 were used.
5 Q. Quality control in the lab and --
6 I'm sorry?
7 A. The applicability of the methods
8 that were used for analyzing the samples that
9 were presented to the lab.
10 Q. Do you intend to testify as to the
11 quality control for both water and soil samples?
12 A. Prior to 1986? Yes.
13 Q. What, if any, data will you rely
14 upon in formulating your testimony?
15 A. No specific data set, just my
16 knowledge of the procedures that were used.
17 Q. Do you anticipate giving any
18 specific opinions regarding the quality control
19 procedures and methods of analyzing samples?
20 A. Yes.
21 Q. And what are those opinions?
22 A. My opinion is that with respect to
23 phosphorus analysis the quality control
24 procedures were more than adequate for the
25 samples that were submitted to the lab.
82
1 MR. PERKO: Could you read that
2 back, please?
3 (The reporter reads the pending
4 question.)
5 BY MR. PERKO:
6 Q. And when you say the samples
7 submitted to the lab, over what period of time
8 were you referring to?
9 A. For the period up to or through
10 1986.
11 Q. How far back does that period
12 extend?
13 A. Well, in the case of the soil
14 samples to about 1974 when I started actually
15 analyzing samples and in the case of water
16 samples I would say around 1977 or '78 when Dave
17 Swift started to do his research.
18 Q. What quality control procedures were
19 utilized for the samples submitted by Dave Swift
20 from 1977 or 1978 on?
21 A. Are you talking about water or
22 soil?
23 Q. Water samples.
24 A. Water samples. Well, they're the
25 same procedures that I mentioned earlier for the
83
1 water lab, the four standards plus a blank in
2 calibrating the instrument, the QC-1 and QC-2
3 samples for accuracy. There were round robin
4 samples that were submitted to the lab as an
5 overall estimate of the quality of the work done
6 by the lab, although these samples were not tied
7 to any one specific project, and I don't remember
8 the exact dates when these were processed by the
9 lab, the fact that there was a fifteen percent
10 threshold on the various quality control measures
11 of the lab for water samples.
12 Q. Could you explain what do you mean
13 by fifteen percent threshold?
14 A. Well, if the reported results for an
15 accuracy sample was outside of a fifteen percent
16 plus or minus range for the expected value of
17 that sample or the known value, the results of
18 the run could be accepted or rejected.
19 Q. What was the procedure established
20 for determining whether the results would be
21 accepted or rejected on the basis of the fifteen
22 percent threshold?
23 A. That the known or the value for that
24 sample in the particular analytical run fall
25 within that fifteen percent plus or minus range.
84
1 Q. So would you automatically reject
2 all samples submitted at the same time as that?
3 A. Yes.
4 Q. So if, for example, the QC sample
5 was twenty percent above the known value, you
6 would reject all the samples that were submitted
7 with the QC sample?
8 A. All of the samples that were
9 processed with that particular analytical run or
10 batch of samples that were being analyzed at the
11 same time on that particular day.
12 Q. How did you determine how many
13 samples to include within a batch?
14 A. Are you talking about water samples
15 or soil samples?
16 Q. I guess I'm trying to determine how
17 many --
18 A. All right. There are two different
19 answers for the two different parts of the lab.
20 I need to know which --
21 Q. Well, for water samples.
22 A. For water samples. I was not
23 directly involved in that procedure, but I
24 believe their policy was to try to analyze all of
25 the samples that had been submitted to the lab
85
1 the previous week.
2 Q. So --
3 A. For each parameter.
4 Q. When you say that you weren't
5 directly involved, what assurance do you have
6 that this fifteen percent threshold requirement
7 was actually observed?
8 A. I don't know firsthand.
9 Q. How would you determine if it was?
10 A. I guess, well, to determine for any
11 particular set of samples, one would have to go
12 back to the actual laboratory raw data sheets
13 that are currently being stored off site which
14 comprises about thirty boxes of materials and
15 look for the actual results of the quality
16 control samples.
17 Q. Do you intend to do that for
18 specific sets of data?
19 A. Not unless I'm asked by somebody to
20 do it for a particular reason.
21 Q. So at this time you expect that your
22 testimony would be a general opinion that the
23 QA/QC procedures followed between 1977 or '78
24 through 1986 for water samples was appropriate.
25 A. Yes.
86
1 Q. Are you aware of any instances in
2 which water samples submitted for total
3 phosphorus were not submitted with QC samples?
4 A. No. The QC samples were not
5 submitted by the project managers.
6 Q. Is it possible that the lab could
7 have processed total phosphorus samples without
8 including QC samples?
9 MR. NETTLETON: I object to form.
10 A. To the best of my knowledge, no.
11 Q. When you say to the best of my
12 knowledge, what do you mean?
13 A. Well, it was a laboratory policy
14 that the QC samples and the standards be included
15 in every analytical run, and I cannot think of a
16 reason why exceptions would have been made to
17 this rule, although I'm not going to say that if
18 you dig into the record that you absolutely will
19 not find a sample that violated this general
20 rule. I don't know that for a fact, but it was a
21 laboratory procedure that was to the best of my
22 knowledge followed all the time.
23 Q. Was that procedure written in any
24 formal -- or any manual?
25 A. I believe there is a memorandum in
87
1 Exhibit 3 that describes water quality
2 procedures.
3 Q. Could you point that out to me,
4 please?
5 A. Let's see if I can find it. It's
6 toward the back of the thing. This was not
7 published. It was a working document and it was
8 out of a notebook that contains several -- the
9 beginning of the section is this page, quality
10 control summary for week of blank slash blank
11 slash '78, and it continues through several
12 worksheets that were used by the technicians for
13 quality control purposes and it continues on to a
14 memorandum dated July 23rd, 1976 from Lloyd
15 Chesney who at the time was supervisor of the
16 lab, although I don't remember his actual title.
17 Q. You referenced the document entitled
18 Quality Control Summary for the week of blank
19 slash blank slash '78. Were forms like this
20 routinely completed by lab technicians?
21 A. Yes.
22 Q. Are these records kept in a
23 particular place at the District?
24 A. I believe they should be in some of
25 the off-site storage boxes that the District has
88
1 containing laboratory records. The records
2 management division has a list of box numbers
3 that contain these -- contain laboratory records
4 as opposed to records that came from other parts
5 of the District, and there are brief descriptions
6 of the contents of each box on the listing.
7 Q. If you wanted to obtain those files,
8 who would you ask at the District?
9 A. I would go to Marlene Fink, the
10 records management clerk, although I'm not sure
11 that that's her exact title but she is involved
12 in records management, and ask for -- ask to look
13 at her list of District records and select the
14 appropriate box numbers.
15 MR. PERKO: Why don't we take a
16 break. You want to take a break for lunch?
17 MR. NETTLETON: Okay.
18 (A luncheon recess is taken.)
19 BY MR. PERKO:
20 Q. Mr. Rosen, I meant to ask you this
21 question earlier, but have you reviewed any
22 documents in preparation for this deposition?
23 A. This lab manual.
24 Q. Exhibit Number 3?
25 A. Yes.
89
1 Q. Any other documents?
2 A. Only the references. I just checked
3 those out to make sure that I had the correct
4 citations.
5 Q. The references contained in Exhibit
6 3?
7 A. Yes. And on the list on page three
8 of Exhibit 3.
9 Q. I'd like to go back to our
10 discussion of quality control measures at low
11 phosphorus concentrations, and again I'd like you
12 to assume that you're concerned about the quality
13 of total phosphorus, analytical results for
14 samples that have total phosphorus concentrations
15 less than twenty ppb. What would you use as the
16 concentration of reference samples or QC check
17 samples to evaluate lab performance for
18 concentrations within this range?
19 MR. NETTLETON: I object to form.
20 A. Would you clarify a little on
21 exactly what measures -- what you're looking for.
22 Q. I'm looking for reference samples,
23 what concentration of reference samples or QC
24 check samples would you use to evaluate the lab's
25 performance at phosphorus concentrations of less
90
1 than twenty ppb.
2 MR. NETTLETON: Same objection.
3 A. Other than the calibration standards
4 and the internal standard which would be
5 developed for that range, I don't know.
6 Q. Do you know if the District or what
7 concentration of reference samples or QC check
8 samples the District uses --
9 A. No.
10 Q. -- to check the performance at those
11 low concentrations?
12 A. No.
13 Q. Who would know that?
14 A. Whoever is the quality control
15 officer for the lab at present.
16 Q. And who is that?
17 A. I don't know currently.
18 Q. I'd like to go back to your opinion
19 that with respect to phosphorus analysis the
20 quality control procedures used for water quality
21 samples during the period 1977 or '78 to 1986
22 were more than adequate for the samples submitted
23 to the lab, and my question is what were the
24 sample holding times for total phosphorus during
25 that time period?
91
1 MR. NETTLETON: I object to form.
2 A. I believe I already stated that they
3 were analyzed the following week after delivery
4 to the lab.
5 Q. How were those holding times
6 maintained? Was there any internal check on
7 holding times?
8 A. Well, yes.
9 Q. And what was that check?
10 A. The samples were tagged and logged
11 in.
12 Q. By the lab personnel?
13 A. By the lab personnel.
14 Q. Once the samples were tagged and
15 logged in, what happened to them after that?
16 A. They were assigned a laboratory
17 number and stored in a refrigerator with the
18 other samples that were scheduled for analysis.
19 Q. At what temperature were they
20 refrigerated at?
21 A. I don't know.
22 Q. What would happen to the samples
23 after they were put into the refrigerator? What
24 would be the next step in the process?
25 A. They were taken out by a technician
92
1 for analysis, allowed to come up to room
2 temperature, an aliquot was taken out of the jar
3 and the digestions and analytical procedures were
4 performed, and they were returned to the
5 refrigerator after sampling was completed.
6 Q. How long would they stay in the
7 refrigerator once they were returned?
8 A. Until the results were calculated
9 and it was determined that no further analysis
10 had to be performed on the samples.
11 Q. How would the determination be made
12 that no further results from the analysis were
13 needed?
14 MR. NETTLETON: I object to the
15 form.
16 BY MR. PERKO:
17 Q. No further analysis of the samples
18 was needed.
19 A. The project manager reviewed the
20 data and certified that no additional -- that the
21 results appeared acceptable, and I probably
22 should back up and say that technicians ran
23 the -- the technicians and the QC officer ran the
24 QC checks.
25 Q. Along with the --
93
1 A. On the samples, some of the -- while
2 the performance of the colorimeter was done as
3 the analysis was being performed, the first
4 samples to go through the analytical instrument
5 were the four calibration standards, and the
6 linearity of the curve could be checked with a
7 hand-held calculator using a linear regression
8 program to determine whether the samples were
9 prepared properly and whether the instrument was
10 performing as --
11 Q. How long -- go ahead.
12 A. -- as expected.
13 Q. How often would that exercise be
14 performed?
15 A. For every analytical run that was
16 performed in the lab.
17 Q. How did the lab technicians assure
18 that logged in samples were analyzed within
19 prescribed holding times?
20 A. They had to submit a list of the
21 samples that they completed with every run to the
22 laboratory supervisor which was compared to the
23 master list of samples which were in the lab so
24 that it could be determined that every sample
25 that was scheduled be run was actually run
94
1 and --
2 Q. Was there a prescribed holding time
3 after which the samples would be thrown out if
4 they were not analyzed?
5 A. There was some prescribed -- there
6 are prescribed holding times, and at some point
7 in time in the lab, I don't remember exact the
8 date the procedures for water chemistry were
9 changed from a weekly cycle to a twice a week
10 cycle to observe these holding times.
11 Q. Did samples ever exceed the holding
12 times before they were analyzed?
13 A. I don't know.
14 Q. Wouldn't you want to know the answer
15 to that question before you could speak to the
16 integrity of the data?
17 MR. NETTLETON: I object to the
18 form.
19 A. For some parameters and some studies
20 that is more important than for others. I
21 believe for studies such as the periphyton study
22 and the phosphorus parameters that is not the
23 biggest source -- that is not a significant
24 source of error.
25 Q. Why not?
95
1 A. Well, the fact that the correlations
2 between water chemistry and periphyton chemistry
3 are so high and the fact that --
4 Q. But how can you determine those
5 correlations without first knowing the phosphorus
6 concentrations?
7 A. You don't determine those
8 correlations without first knowing the phosphorus
9 correlations.
10 Q. Would holding times be a significant
11 concern when the project purpose is to analyze
12 historical trends in phosphorus concentrations?
13 A. Yes.
14 Q. Why?
15 A. It would be important in a study of
16 that nature to know that you were analyzing the
17 same parameters under the same conditions at all
18 times in a long-term historical study.
19 Q. Is there any form that the lab
20 technicians filled out to assure -- to verify
21 that the holding times were in fact observed?
22 A. I don't know.
23 Q. Who would know?
24 A. Either the laboratory supervisor or
25 the quality control officer for the time of
96
1 interest.
2 Q. Who was the laboratory supervisor
3 from 1977 to 1986?
4 A. Well, there were two supervisors
5 from that time.
6 Q. And who were they?
7 A. Would you repeat the time frame?
8 Q. '77 through '86.
9 A. Okay. There were two supervisors.
10 Q. And who were they?
11 A. Lloyd Chesney who wrote the quality
12 control memorandum, and that was the first, and
13 Mary Lou Daniel was the second.
14 Q. Who were the quality control
15 officers during that time period?
16 A. Well, for the first part of that
17 period there was nobody who held a formal title
18 of quality control officer. That was one of the
19 responsibilities of the supervisor, and at some
20 time in the early eighties, I don't remember the
21 exact date, Leslie Teets became quality control
22 officer.
23 Q. Were QC audits performed during this
24 time period?
25 A. Yes.
97
1 Q. By whom?
2 A. Well, there were various programs
3 that the District was involved in throughout this
4 time period. I don't know the exact dates and
5 times of the different ones. One was a -- that
6 started fairly on was the round robin samples
7 that I believe were performed by the U.S.
8 Geological Survey or supervised by the U.S.
9 Geological Survey.
10 Q. When was that?
11 A. I don't remember the exact dates.
12 Q. Do you have a -- give me an
13 approximation. Late seventies?
14 A. Probably late seventies and very
15 early eighties.
16 Q. Are the results of those round robin
17 samples reflected in a report?
18 A. I believe that a memorandum was
19 written to describe the results and a report from
20 the USGS was sent to the participants.
21 Q. Who at the District would have a
22 copy of those documents?
23 A. I don't know.
24 Q. Do you have a copy of those
25 documents?
98
1 A. No, I do not.
2 Q. Are you aware of any other QA or QC
3 audits performed during that time period?
4 A. No.
5 Q. Who at the District would be
6 responsible or who at the District at that time
7 period was responsible for assuring that QC
8 samples were analyzed, with water samples
9 analyzed for total phosphorus with every sample
10 batch analyzed?
11 A. The laboratory supervisor.
12 Q. Mr. Chesney and Ms. Daniel?
13 A. Yes.
14 Q. Are you satisfied that Mr. Chesney
15 verified that QC samples were included for each
16 sampling run for total phosphorus?
17 A. Yes.
18 Q. Why?
19 A. I believe he instructed the
20 technicians that this was the way runs were
21 supposed to be made and he did have an
22 instructional meeting which I attended around the
23 time of that memo where he explained the
24 procedures.
25 Q. You're speaking of the July 23rd,
99
1 1976 memo that's included in Exhibit Number 3?
2 A. Yes, that's correct.
3 Q. Any other reason to believe that Mr.
4 Chesney did in fact assure that QC samples were
5 included in each sampling run for total
6 phosphorus?
7 A. No.
8 Q. Were there any in-house training
9 programs for lab technicians to discuss QC
10 measures?
11 A. This meeting that I described was an
12 in-house training meeting, and I believe there
13 was ongoing in-house training of technicians,
14 informal training.
15 Q. Was there any formal program?
16 MR. NETTLETON: I object to form.
17 A. I'm not sure. I had my own separate
18 laboratory and I wasn't that closely involved
19 with the day-to-day workings of the water lab.
20 Q. Mr. Rosen, how quickly after a
21 sample batch run would a QC sample -- would QC
22 check violations be identified?
23 A. I don't know.
24 Q. Who would know that?
25 A. The laboratory supervisors and/or
100
1 the QC officer during the period when the QC
2 officer was managing the program.
3 Q. If the QC check sample was
4 determined to be unacceptable, how quickly was
5 the batch rerun?
6 A. I don't know.
7 Q. What assurances do you have that the
8 reruns were done within prescribed holding
9 times?
10 MR. NETTLETON: I object to form.
11 A. I'm not that familiar with the
12 procedures to speculate on that.
13 Q. What assurance do you have that
14 during this time period low levels of
15 contamination were not introduced in the water
16 samples collected from natural waters with
17 naturally low concentrations of total
18 phosphorus?
19 MR. NETTLETON: I object to form.
20 BY MR. PERKO:
21 Q. Do you understand the question?
22 A. Yes, I do.
23 Q. What assurance do you have?
24 A. The samples were collected in the
25 field and put in screw top -- sealed screw top
101
1 containers, and, therefore, the chances of
2 contamination from outside sources are negligible
3 with respect to phosphorus.
4 Q. Was there any other procedure
5 followed to assure or to check whether low levels
6 of contamination were introduced?
7 A. I don't know.
8 Q. How do you know that the sample
9 bottles weren't contaminated?
10 A. There were cleaning procedures.
11 They were acid washed and triple rinsed before
12 they went back out into the field.
13 Q. Were blank samples ever collected?
14 A. Blank samples were run with the lab
15 samples. What do you mean by collected?
16 Q. For example, equipment blanks.
17 A. Clarify that a little more.
18 Q. Were equipment blanks ever run with
19 sample batches for total phosphorus?
20 A. What equipment blanks, for what
21 equipment?
22 Q. Field sampling equipment.
23 A. I don't know.
24 Q. Were field blanks ever sampled with
25 sampling runs?
102
1 A. I don't know. That -- I don't know.
2 Q. What about trip blanks? Were they
3 ever run with samples for total phosphorus?
4 A. What do you mean by a trip blank?
5 Q. You're not familiar with the term
6 trip blank?
7 A. No, I am not.
8 Q. Okay. Mr. Rosen, I'd like to refer
9 your attention to the memorandum dated July 23,
10 1976 from Lloyd Chesney to All Lab Personnel
11 regarding Quality Control Program. It's part of
12 Exhibit Number 3. In particular I turn your
13 attention to the third page after the front page
14 of that memorandum. It's not clear if it's the
15 same memorandum. It should be a Roman numeral
16 two, Auto Analyzer above --
17 A. Roman numeral one, and Roman numeral
18 two Atomic Absorption.
19 MR. NETTLETON: You're talking about
20 the cover page that's dated July 23. Right?
21 MR. PERKO: No. Three pages later.
22 A. This page?
23 Q. The next page.
24 A. The page after that.
25 Q. Right. The top is Roman numeral one
103
1 Auto Analyzer?
2 A. I've got that but the Roman numerals
3 are a little bit obliterated on my copy.
4 Q. I want to refer your attention to
5 paragraph B, Total Phosphate Digestion. Could
6 you read that section for me?
7 A. This digestion procedure --
8 Q. You don't have to read it out loud.
9 I want you to review it.
10 A. Okay.
11 Q. What is this section about?
12 A. Digestion of water samples for total
13 phosphorus analysis.
14 Q. I refer you to number three. It
15 says, "External-known samples will be run when
16 available." Does that suggest to you that water
17 samples were run without external-known samples?
18 MR. NETTLETON: I object to the
19 form.
20 A. I don't know.
21 Q. What assurances do you have that
22 water sample runs were not -- or water samples
23 were not run without external known samples?
24 A. This statement doesn't tell me
25 anything about how often they would be available.
104
1 Q. What would tell you how often
2 external-known samples were available?
3 A. Or whether alternative methods of
4 verification were used when samples were not
5 available.
6 Q. How would you know whether external
7 known samples were available?
8 MR. NETTLETON: I object to form.
9 A. One would have to go back to the
10 data records and see whether they were available
11 or not.
12 Q. What other methods of verifying --
13 of verification would there be?
14 A. Standard additions could also be
15 used.
16 Q. What assurance do you have that
17 standard additions were indeed used?
18 A. I know standard additions were part
19 of the general protocol.
20 Q. How were the standard additions
21 performed?
22 A. It's been a while since I've been
23 involved in laboratory work and I don't remember
24 the details, but I believe there is a citation in
25 the list that describes the methods that were
105
1 used.
2 Q. So you would rely on the lab manual
3 for that information. Is that correct?
4 A. Yes. There was in the water lab
5 manual a copy of the procedure, and as best I
6 recall, the procedure was explained in some of
7 the documentation that came with the Perkin-Elmer
8 Atomic Absorption Spectrophotometer. However,
9 those methods could be adapted to other
10 instrumentation also.
11 Q. Is that documentation included in
12 Exhibit Number 3?
13 A. No. This is a soil lab manual
14 rather than a --
15 Q. Is there a separate manual for
16 water?
17 A. I was not responsible for putting
18 that together so I don't know how concise or the
19 exact locations of all the documentation, but
20 there were notebooks containing the information
21 at one time.
22 Q. Let me make sure that I understand
23 your previous testimony. I believe you stated
24 that you were of the opinion that the -- that
25 with respect to phosphorus analysis the quality
106
1 control procedures were more than adequate for
2 samples submitted to the lab including water
3 samples collected or submitted to the lab between
4 1977 or '78 and 1986. Is that correct?
5 A. Yes.
6 Q. Would you be relying on the water
7 manual in support of that opinion?
8 A. Not directly.
9 Q. Indirectly?
10 A. Yes.
11 Q. Would you be relying on any other
12 documentation?
13 A. No.
14 Q. What is the basis for your opinion
15 that with respect to phosphorus samples analyzed
16 between 1977 or '78 and 1986 the quality control
17 procedures were more than adequate?
18 A. They produced or gave consistent
19 results on statistical analysis and generally
20 produced results that were within the range or
21 the results were -- of most of the samples were
22 in the range of analysis.
23 Q. Is the statistical analysis that
24 you're referring to included in any report or
25 document that you're aware of?
107
1 A. In the periphyton study.
2 Q. Which periphyton study are you
3 referring to?
4 A. The publication by Grimshaw, Swift
5 and Rosen.
6 Q. Is that June, 1992?
7 A. I believe there was one draft
8 version that was dated June, 1992.
9 Q. Are you aware of any other
10 statistical analyses --
11 A. No.
12 Q. -- that support your opinion?
13 A. No.
14 Q. What is the basis for the statement
15 that the QC procedures produced results that were
16 generally within the range of analysis?
17 A. Most of the results were within the
18 range of detection rather than less than the
19 range of detection for phosphorus.
20 Q. What is the range of detection for
21 phosphorus?
22 A. I don't remember the exact range
23 that was used for water samples.
24 Q. Could it have been two parts per
25 billion?
108
1 A. Yes, it could have.
2 Q. Does that seem like a reasonable
3 detection limit to you?
4 A. Detection limit is not a hard and
5 fast thing. The way detection limit was
6 determined in the lab was that it was two percent
7 of the high standard for the run, and by changing
8 the values of the calibration standards you could
9 manipulate detection limit.
10 Q. What assurance did you have that you
11 could actually detect concentrations that low?
12 A. I don't remember exactly where that
13 two percent rule came from.
14 Q. Did you run known standards at that
15 level?
16 A. I don't know what the actual levels
17 of the knowns were for the water.
18 Q. Who would know that?
19 A. Samples. It would either be the lab
20 supervisor or the QC officer.
21 Q. So for the period 1977 through '86
22 it would be either Mr. Chesney, Miss Daniels or
23 Mr. Teets?
24 A. Mrs. Teets.
25 Q. Mrs. Teets. What in your opinion is
109
1 the acceptable accuracy for total phosphorus in
2 water samples?
3 A. I object to form.
4 A. Explain the question.
5 Q. What's an acceptable percent
6 recovery for total phosphorus?
7 A. I believe the laboratory used the
8 fifteen percent band as an acceptable recovery
9 range.
10 Q. Do you know how well the lab
11 performed historically regarding accuracy for
12 samples with total phosphorus below twenty parts
13 per billion?
14 A. No.
15 Q. Do you care to speculate?
16 A. No.
17 Q. I didn't think so. You just
18 referred to the fifteen percent threshold
19 requirement. Was the standard additions
20 procedure adequate for verifying the accuracy
21 within fifteen percent of the sample with total
22 phosphorus concentrations in the range of five to
23 ten ppb?
24 A. I don't know.
25 Q. Who would know the answer to that
110
1 question?
2 A. I don't know that either.
3 Q. Will anyone to your knowledge be
4 testifying at the hearing on that question?
5 A. I don't know that either.
6 Q. Do you anticipate providing any
7 other expert opinions, any expert opinions other
8 than with respect to phosphorus analysis, the
9 quality control procedures were more than
10 adequate for the sample submitted to the lab?
11 A. No.
12 Q. Are you aware of anyone else that's
13 expected to testify regarding laboratory QA/QC?
14 A. Dr. Jose Vidal will testify on that.
15 Q. Anyone else?
16 A. Not that I know of.
17 MR. NETTLETON: I'd state in the
18 spirit of cooperation here, Gary, for the record
19 if you notice on our witness list we had I
20 believe it was Dr. Keith listed as QA/QC, and as
21 we've advised all the parties, he has cancelled
22 his contract due to a conflict of interest and
23 there is a potential that there will be a
24 replacement, but I don't have a name for you
25 right now.
111
1 MR. PERKO: Thank you. I appreciate
2 it.
3 THE WITNESS: Thank you.
4 BY MR. PERKO:
5 Q. Are you doing any work at this time
6 that may lead to additional expert opinions in
7 this proceeding?
8 A. No.
9 Q. Are you doing any additional work to
10 support or verify the expert opinions that we've
11 discussed previously?
12 A. No.
13 Q. Do you plan to?
14 A. Could you define what you mean by
15 additional work?
16 Q. For example, do you plan on
17 reviewing any additional documents that might
18 support your opinions?
19 A. Other than the documents that I've
20 listed here, I would not think I would.
21 Q. What do you mean by listed here?
22 A. Listed in this reference section.
23 Q. In Exhibit 3.
24 A. In Exhibit 3 on page three. Other
25 than those documents.
112
1 Q. Are you familiar with the methods of
2 collecting water samples during the period 1977,
3 '78 through 1986?
4 A. No.
5 Q. If you wanted to learn how water
6 samples were collected at that time, who would
7 you ask?
8 A. Are you talking about samples for a
9 specific project?
10 Q. Were there not District wide
11 procedures for collecting water samples? In
12 other words, did collection procedures vary by
13 project?
14 A. I am not that familiar with the
15 procedures that were used, although what I meant
16 was that if you were interested in a specific
17 project, I would talk to the project manager. If
18 you're interested in sample collection in
19 general, I would probably talk to the individuals
20 who had the broad scope of responsibilities of
21 collecting samples in general, and Larry Grosser
22 would be the person that I'd talk to in that
23 situation.
24 Q. Were field replicates obtained for
25 water samples during that period?
113
1 A. I don't know.
2 Q. What about sediment samples?
3 A. I don't know about sampling
4 procedures for individual projects, and I did not
5 attempt to learn what the -- or I tried to avoid
6 learning what the sampling procedures are so that
7 I could maintain a certain degree of blindness
8 about it so that I wouldn't -- as a way of
9 avoiding biasing the results.
10 Q. Let me ask you this. Is your -- are
11 your -- is your testimony about QA/QC limited to
12 the laboratory?
13 A. Yes.
14 Q. As opposed to field?
15 A. Yes.
16 Q. Okay. Is there a formal chain of
17 custody procedure for sediment in water samples
18 at the District?
19 A. Not normally.
20 Q. Other than the one instance that you
21 previously testified about, are you aware of
22 projects that have followed a chain of custody
23 procedure?
24 MR. NETTLETON: I object to the
25 form.
114
1 A. No, I am not.
2 Q. How are sample holding times and
3 sample identities maintained from the field
4 through the sampling process?
5 A. A waterproof paper label was
6 attached to each sample bottle and there were
7 different bottles that contained samples that
8 were designated to go to -- to be analyzed for
9 different parameters, and these labels were color
10 coded as well as having a printed list of
11 parameters to be analyzed on them.
12 Q. What rate of sample duplication or
13 replication was conducted in the laboratory?
14 A. For water or for soil?
15 Q. Water.
16 A. I'm not that familiar with the
17 actual procedures that were used to give you a
18 calculation of rate.
19 Q. Do you have a general sense of what
20 that rate might be?
21 A. I would say that repeated samples
22 were run with every group of samples that were
23 analyzed. Whether that sample consisted of
24 twenty-five or less or a hundred and fifty or
25 more, it was dependent on -- the size of the
115
1 batch that came in was dependent on the number of
2 samples that were awaiting analysis at the end of
3 a week. In the early days and then at some later
4 date the frequency of analysis was increased to
5 twice a week in an attempt to better observe EPA
6 holding times.
7 Q. When did that change occur?
8 A. I don't remember the exact date.
9 Q. Do you have a rough approximation of
10 when that might be?
11 A. I wouldn't care to speculate on
12 that.
13 Q. Was there a QA/QC plan for water
14 sampling during the period in which you were --
15 during the period 1977 through 1986?
16 A. The July 23rd, l976 memo from Lloyd
17 Chesney describes the plan.
18 Q. Are you aware of any other written
19 document entitled QA/QC plan or something to that
20 effect?
21 A. It seems to me in the early eighties
22 there were some further attempts to do that, but
23 I'm not that familiar with the documents.
24 Q. Were there any QA/QC plans for soil
25 samples?
116
1 MR. NETTLETON: I object to form.
2 BY MR. PERKO:
3 Q. Soil sampling.
4 A. You're interested in sampling? That
5 would be outside the responsibility of the
6 laboratory most of the time.
7 Q. I mean analysis.
8 A. Analysis. Well, there wasn't a
9 formal written document, but there were some
10 policies that I strictly adhered to with every
11 batch of samples that went through the lab for
12 that period.
13 Q. Is that document reflected in
14 Exhibit 3?
15 MR. NETTLETON: I object to form.
16 A. I don't know whether it's written in
17 Exhibit 3 or not. I'd have to go through it and
18 see if it's written there, but I can give you
19 the -- tell you what the policy was.
20 Q. What was the policy?
21 A. The policy was that any group of
22 samples that exceeded a ten percent limit for
23 accuracy and precision were re-analyzed.
24 Q. Were matrix blanks run with water
25 samples?
117
1 A. I don't know for sure.
2 Q. What about soil samples? Were
3 matrix blanks run?
4 A. Yes.
5 Q. What preservatives were used in the
6 collection of water samples taken for phosphorus?
7 A. I don't know.
8 Q. Do you think preservatives are
9 important for assuring the quality and integrity
10 of the resulting data?
11 A. Do you mean in general terms or with
12 respect to specific samples?
13 Q. For total phosphorus.
14 A. I said specific samples, not
15 specific analyses.
16 Q. In general for total phosphorus.
17 A. Yes.
18 Q. How so?
19 A. They prevent biological and chemical
20 transformations of phosphorus species in the
21 sample.
22 Q. Anything else?
23 A. Not that I'm aware of.
24 Q. How was water sampling data stored
25 and retrieved from 1977 through 1986?
118
1 A. Would you repeat the time frame?
2 Q. 1977 through 1986.
3 A. It was stored on tapes that could be
4 read by the main frame computer at first, and
5 then it was transferred from one system to -- one
6 computer system to another.
7 Q. Were any changes to approved data
8 ever made during that time frame?
9 A. I don't know. That's outside of my
10 area of expertise. That's a data processing
11 question.
12 Q. Who would I ask that question?
13 A. I don't know.
14 Q. Going back to my earlier questions
15 during sample preservation, what types of
16 projects would you not worry about proper sample
17 preservations for total phosphorus in the water
18 sample, if any?
19 A. I don't know. That's outside of
20 laboratory QC.
21 Q. What in your opinion does laboratory
22 QC encompass?
23 A. What happens to the sample from the
24 time that it comes into the laboratory door to
25 the time the results are sent out of the
119
1 laboratory.
2 Q. Are your expert opinions that we've
3 discussed previously limited to the time when a
4 water sample came in the lab door and left?
5 A. Yes.
6 Q. Who will testify as to QC before the
7 samples reach the laboratory door?
8 A. I don't know.
9 MR. NETTLETON: Gary, are you at a
10 good breaking spot?
11 MR. PERKO: If you want to take a
12 break, that's fine.
13 MR. NETTLETON: I do.
14 (A brief recess is taken.)
15 BY MR. PERKO:
16 Q. Are you familiar with the detection
17 limits for various parameters that the District
18 used between 1973 and 1986?
19 A. No.
20 Q. For example, are you aware that the
21 detection limit for total phosphorus changed from
22 two parts per billion to four parts per billion?
23 MR. NETTLETON: I object to form.
24 A. Yes.
25 Q. Do you know why the detection limit
120
1 changed?
2 A. Not all of the specific reasons.
3 Q. What is your understanding of the
4 reasons why the detection limit for total
5 phosphorus changed?
6 A. I believe it had to do with finding
7 optimum ranges for the majority of samples that
8 were being run through the lab.
9 Q. How would changing the detection
10 limit from two to four parts per billion further
11 that goal?
12 A. I'm not sure of the exact reasons
13 and I would have to speculate.
14 Q. Do you plan on giving any or
15 providing any testimony at the final hearing in
16 this case on detection limits for phosphorus?
17 A. Not for water.
18 Q. For soils?
19 A. I don't know.
20 Q. Who would provide testimony
21 regarding detection limits for phosphorus in
22 water, if you know?
23 A. I would imagine some of the current
24 laboratory staff.
25 Q. Do any particular names come to
121
1 mind?
2 A. Dr. Vidal.
3 Q. Anyone else?
4 A. Not that I'm aware of.
5 Q. Do you consider detection limits to
6 fall within the realm of laboratory QA/QC?
7 A. Yes.
8 Q. How so?
9 A. It's one of the things that you have
10 to look at when you're setting up laboratory
11 procedures.
12 Q. Do you have any opinion as to the
13 reliability of the detection limits for total
14 phosphorus for water sampling -- water sample
15 analysis between 1977 and 1986?
16 A. No.
17 Q. If you were to -- if you wanted to
18 analyze that question, how would you go about it?
19 A. I would have to do it
20 experimentally.
21 Q. Do you know if any experimental data
22 exists to verify the detection limits that were
23 used between 1977 and 1986 for water sampling
24 analysis?
25 A. No, I do not.
122
1 Q. What type of experimentation would
2 you perform to verify detection limits for total
3 phosphorus?
4 A. I don't know the exact design of the
5 experiment right now.
6 Q. Do you have anything in mind when
7 you said you would do it experimentally?
8 A. One would have to do some tests of
9 solutions at the range of the proposed experiment
10 or at the range of the proposed limit of
11 detection to see how well it actually -- the
12 instrumentation actually performed.
13 Q. Do you know if anyone at the
14 District is currently performing any such
15 experiment?
16 A. No.
17 Q. Do you know if any such experiment
18 has been done in the past?
19 A. No.
20 Q. Who would you ask to find out if
21 such an experiment has been done in the past?
22 A. Some of the laboratory personnel.
23 Q. Could you give me a name?
24 A. Dr. Vidal for starters.
25 Q. Anyone else?
123
1 A. Not that I can think of.
2 Q. Do you consider the cleaning of
3 sampling containers to fall within the realm of
4 laboratory QA/QC?
5 A. Yes.
6 Q. Do you know what detergent was used
7 to clean water sampling containers between 1977
8 and 1986?
9 A. I don't remember.
10 Q. What about soil sampling containers?
11 A. To the best of my recollection soils
12 were collected in disposable containers.
13 Q. What was the chemical composition of
14 the containers used to collect soil samples from
15 1974 to 1986?
16 A. It was cardboard.
17 Q. What was the chemical composition of
18 the container used to collect water samples
19 between 1977 and 1986?
20 A. They were plastic jars. I don't
21 know the exact chemical composition of the
22 plastic.
23 Q. Do you know if those sampling
24 containers were ever analyzed to determine
25 whether phosphorus was absorbed through the walls
124
1 of the containers -- to the walls?
2 A. I'm not aware of a specific
3 experiment that was performed to detect this --
4 to detect it. However, samples were acid washed
5 and I believe that phosphorus free laboratory
6 detergents were used for cleaning as well as
7 triple rinsing procedures after the --
8 Q. Is it possible that phosphorus from
9 some of the water samples could have absorbed to
10 the walls of the sampling container, thus
11 resulting in a lower phosphorus concentration?
12 MR. NETTLETON: I object to the
13 form.
14 BY MR. PERKO:
15 Q. After the analysis?
16 A. I don't know.
17 Q. Did the District subcontract out any
18 soil samples for analysis prior to 1986?
19 A. Not for phosphorus.
20 Q. For any other parameters?
21 A. Some of the organic pesticide work
22 was done by outside contractors.
23 Q. I believe you previously testified
24 that soil samples are currently subcontracted
25 out, is that correct, for analysis?
125
1 A. I'm not -- what is happening
2 currently I'm not very familiar with, but
3 subsequent to 1986 they were contracted out.
4 Whether there are any current contracts out
5 there, I'm not aware of them.
6 MR. PERKO: Would you mark this.
7 (Plaintiff's Exhibit Rosen-4 is
8 marked for identification.)
9 BY MR. PERKO:
10 Q. Mr. Rosen, I'd like you to take a
11 look at what's been marked as Exhibit Number 4.
12 Do you recognize this document?
13 A. I am familiar with what is in this
14 document. However, I don't believe I've ever
15 seen this particular document before.
16 Q. Okay. We may not need to spend much
17 time on it then. I'd like to refer your
18 attention to page number 0747586. Do you
19 recognize this document?
20 A. I would say no, I've never seen this
21 particular document before.
22 Q. Does it make sense to you?
23 A. Yes, I believe it does.
24 Q. What is it?
25 A. It is some sort of a quality control
126
1 summary for different laboratories.
2 Q. Let me refer your attention to the
3 column labeled SFWMD, the notation under the row
4 for PO4-P or orthophosphorus. It provides a
5 value of .22R. What would that R mean?
6 A. I see that it says R equals reject.
7 I'm not exactly sure why it is being rejected. I
8 would say that it --
9 Q. If you don't know, that's a valid
10 answer.
11 A. I don't know for sure. I'm not
12 familiar with this document.
13 Q. Let me refer you to Bates page
14 0747615.
15 A. 615?
16 Q. Right. It's a memorandum from Nora
17 Moore to M.L. Smith dated April 19th, 1992.
18 MR. NETTLETON: I'm sorry. What
19 page again?
20 MR. PERKO: 1982 rather. 747615.
21 BY MR. PERKO:
22 Q. Do you recognize this document?
23 A. I know of the people, a person who
24 wrote the document and I know who M.L. Smith
25 was. That M.L. Smith was Mrs. Daniels, that was
127
1 her maiden name. I have never seen the document
2 in question before.
3 Q. Let me refer your attention under
4 the heading nutrients, item TPO4 states that,
5 "The certified value is 5.7 ppm, target range is
6 5.2 to 6.2 ppm; the lab did not run an ERA sample
7 this week. What is meant by the term ERA sample?
8 A. Oh, TPO4. I believe that the ERA
9 was a company that produced standard samples to
10 be used by laboratories, and I don't remember
11 what the initials ERA stand for.
12 Q. In stating that the lab did not run
13 an ERA sample this week, does that mean that a
14 standard sample is not run?
15 A. It means that that particular sample
16 was not run. It does not mean that other QC
17 measures were not taken.
18 Q. Mr. Rosen, I believe you previously
19 testified that if you wanted to determine whether
20 QC samples were in fact run during a particular
21 time period you'd go back to the District
22 records. Is this the type of record that you
23 would look to?
24 A. Among others, yes.
25 Q. What other types of records would
128
1 you look to?
2 A. Bench sheets.
3 Q. What's a bench sheet?
4 A. Laboratory data sheets.
5 Q. Would they have a listing that a QC
6 sample was in fact run?
7 A. Yes.
8 Q. I refer you back to the page Bates
9 page 747615. What's the subject of this memo?
10 A. External quality control results
11 from week of March 29th, 1982.
12 Q. Was it standard practice at that
13 time for the lab to prepare weekly memoranda on
14 external quality control results?
15 A. I believe so.
16 Q. What is meant by external quality
17 control results?
18 A. It means a quality control sample
19 was prepared somewhere other than in the
20 laboratory.
21 Q. Is this external quality control
22 sample what you referred to when you previously
23 testified about QC check samples?
24 A. Yes.
25 Q. If the external quality control
129
1 result for this week was not published in this
2 memo, where else would it be published?
3 MR. NETTLETON: I object to form.
4 BY MR. PERKO:
5 Q. Or documented?
6 A. I don't know.
7 Q. If you wanted to determine whether
8 external quality control results were in fact
9 obtained for a particular week, what else would
10 you look to?
11 A. The bench sheets if there was not a
12 memo for the period in question.
13 MR. NETTLETON: Are you done with
14 that exhibit?
15 MR. PERKO: Not yet. Mark this,
16 please.
17 (Plaintiff's Exhibit Rosen-5 is
18 marked for identification.)
19 BY MR. PERKO:
20 Q. Going back to Exhibit Number 4, the
21 page numbered 0747540, directing your attention
22 to the first full paragraph.
23 A. Would you wait just a minute?
24 Q. Sure. The first full paragraph
25 states, "After using this system for six months
130
1 the procedures which give questionable values for
2 percent recovery are magnesium and sulfate which
3 both give consistently high values." My question
4 is what, if anything, was done to correct this
5 problem in the laboratory?
6 A. I am not aware of what was done.
7 Q. Do you know if the data were
8 adjusted to reflect the high numbers?
9 A. No, I do not.
10 Q. Okay. In the last complete or the
11 second to last paragraph, the middle sentence
12 says, "Since the certification list was published
13 the laboratory has analyzed two additional
14 samples for demand (TOC) and total nutrients (TKN
15 and T-PO4)." Does this mean that the laboratory
16 was not certified for TOC, TKN or T-P04 until
17 1982?
18 MR. NETTLETON: I object to the
19 form.
20 A. To the best of my knowledge that was
21 the time when the certification programs first
22 came into effect.
23 Q. Has the laboratory ever lost
24 certification of either TKN, total nitrogen, or
25 TP, total phosphorus?
131
1 A. I've never heard of -- I haven't
2 heard of anything to suggest that it has.
3 Q. What's the difference between TP and
4 T-P04?
5 A. PO4 is phosphate and TP would be
6 total P. I believe it's just different notations
7 for phosphorus.
8 Q. Let me direct your attention to
9 Bates page 747547.
10 A. Still in Exhibit 4?
11 Q. Yes. The paragraph labeled
12 phosphorus. Would you read that paragraph to
13 yourself, please. Do you know how the laboratory
14 achieved the twenty fold increase in the upper
15 limit referenced in this paragraph?
16 A. Not exactly but I --
17 Q. What's your understanding?
18 A. I can speculate.
19 Q. What's your understanding of how
20 that might have been achieved?
21 A. I would guess that they modified the
22 configuration of the auto analyzer by changing
23 diameters of tubes on the peristaltic pump and/or
24 changing dilution loops or sizes of dialysis
25 membranes on this instrument. It could have
132
1 been -- this change could have been performed in
2 any of a number of ways. Without looking at the
3 records and diagrams that were used to guide the
4 technicians, I couldn't tell you exactly.
5 Q. What records would you look to to
6 determine how that increase was achieved?
7 A. The instruction sheets that the
8 water chemistry technicians used as well as the
9 Technicon procedure pamphlets that the lab has
10 from the Technicon Company for --
11 Q. Where would those documents be
12 located for this time period?
13 A. In the laboratory.
14 Q. For this time period?
15 A. I believe they're still in the
16 laboratory. I'm not sure.
17 Q. In changing the standard or
18 increasing the standard by that twenty fold -- by
19 that factor of twenty, did the lab have to adjust
20 the sensitivity of the instrument response?
21 A. What part of the instrument?
22 Q. The response of the detector to the
23 signal.
24 A. I'm not aware of the exact changes
25 that the lab did to perform this change, but I
133
1 believe that in addition to the changes that I
2 mentioned earlier, change in the length of the
3 flow cell can also be done so that the
4 electronics or the detector do not have to be
5 altered.
6 Q. What would the change -- what effect
7 would the change in the flow cell have on the
8 sensitivity of the instrument to low level
9 concentrations?
10 MR. PERKO: Would you repeat that?
11 (The reporter reads the pending
12 question.)
13 A. There would be some decrease in the
14 sensitivity.
15 Q. Do you have any idea how much of a
16 decrease?
17 A. Not at this time.
18 Q. Mr. Rosen, Exhibit Number 4 is
19 labeled Semi-annual Laboratory Status Report. Do
20 you know when the lab or the water chemistry
21 division began preparing these status reports?
22 A. No.
23 Q. Do you generally know over what
24 period of time these status reports were
25 prepared?
134
1 A. Do you mean time of the year?
2 Q. No. No. No. No. Over what time
3 period, the 1970's through mid 1980's? Do they
4 still prepare these status reports?
5 A. I would say generally that these
6 reports were started some time after Mary Lou
7 Smith/Daniel became laboratory supervisor.
8 Q. When was that?
9 A. To the best of my recollection it
10 was either in 1980 or '81. I don't remember the
11 exact date.
12 Q. And are these status reports still
13 prepared by the water chemistry division?
14 A. I do not know.
15 Q. If you wanted to obtain copies of
16 all the status reports, who would you ask for
17 them?
18 A. I believe that would be the
19 laboratory director.
20 Q. Who would be Mary Lou Daniel?
21 A. It's now a woman by the name of
22 Maxine Cheeseman.
23 Q. I turn your attention to Exhibit
24 Number 5. Do you recognize this document?
25 A. Only in general terms that it's a
135
1 similar document to the previous document.
2 Q. I refer you to Table Number 5 on
3 Bates page 747665. Do you know what the upper
4 and lower control limits were for the parameters
5 TPO4 (2.0) and (0.2)?
6 A. No.
7 Q. Do you know what the sample sizes
8 were for the data reflected in this table?
9 A. No.
10 Q. I refer you to table six on the next
11 page. It's entitled Repeat Recovery Data. What
12 is meant by the term Repeat Recovery?
13 A. I don't know.
14 Q. Okay. For the parameters TP04 (2.0)
15 and TPO4 (0.2) could you explain the meaning of
16 the term mean as used in the last column?
17 A. I'm not sure. I haven't done the
18 calculations to see whether that number is what I
19 understand a mean to be or not, so I don't know
20 whether it is an arithmetical mean or whether it
21 represents something else.
22 Q. I refer your attention to a two-page
23 memoranda that's on Bates pages 747687 and 688
24 dated June 21, 1983.
25 A. 687 and 688?
136
1 Q. Right. Do you recognize this
2 memorandum?
3 A. Yes, I do.
4 Q. And what is it?
5 A. It's a soil chemistry lab progress
6 report for the -- what appears to be the period
7 from June 1st to June 15th, 1983.
8 Q. I refer you to the last paragraph on
9 the second page. You state that, "There were
10 some discrepancies in the Quality Control report
11 section of the last status report. The
12 coefficient of variability for samples
13 MZR958-1100 should have been reported as TKN 2.5
14 percent. The poor precision of the phosphorus
15 value was due to these samples being near the
16 lower limit of detection." Do you know what the
17 concentration was of these samples that you're
18 referring to?
19 A. I'd have to look at the last status
20 report. I'm looking at Bates pages 747685 and
21 686.
22 Q. The biweekly progress report for
23 June 3rd, 1983?
24 A. Right. Okay.
25 Q. What was the concentration of the
137
1 samples?
2 A. I would have to go back and look at
3 the laboratory procedures in the manual in, what
4 was it, Exhibit --
5 Q. Three.
6 A. Three, the soil lab manual, and see
7 what the range of instrument values were and then
8 back calculate to figure out what the actual
9 sample range is at this point.
10 Q. Do you know what the detection limit
11 was?
12 A. I'd have to look at my documentation
13 to give you an exact.
14 Q. What documentation would you look
15 at?
16 A. The laboratory procedures.
17 Q. Exhibit 3?
18 A. Yes.
19 Q. Let's move on. On Bates page 74703.
20 MR. NETTLETON: I'm sorry?
21 MR. PERKO: 747703.
22 BY MR. PERKO:
23 Q. Under the column nutrients, the last
24 entry TPO4 states that the lab value was not run
25 this week. What is meant by lab value?
138
1 A. I'm not sure.
2 Q. Do you have any idea what is meant?
3 A. No.
4 Q. Let me refer you to Bates page
5 747728. This is a memorandum from Leslie Teets
6 to M.L. Daniel regarding external quality control
7 results from May 18th, 1983. Do you know if the
8 QC samples reflected on this report were blind
9 samples or if they were known to the lab
10 technicians?
11 A. I'm not positive, but I believe they
12 were blind.
13 Q. Is that the -- was that the common
14 practice at that time period?
15 A. Here I'll give you the same answer
16 for that question.
17 Q. You believe that they were blind.
18 That the normal practice was --
19 A. I believe that was the normal
20 practice, but I'm not sure.
21 Q. I'd like to refer your attention to
22 Bates 747743. Do you recognize this document?
23 A. No.
24 Q. Do you know what the codes, for
25 example, what the code EL0001 refers to under the
139
1 column LABID?
2 A. No.
3 Q. Do you know if any of these LABID's
4 would refer to the District lab?
5 A. No.
6 MR. PERKO: Would you mark this,
7 please.
8 (Plaintiff's Exhibit Rosen-6 is
9 marked for identification.)
10 BY MR. PERKO:
11 Q. Mr. Rosen, I'd like you to take a
12 look at Exhibit Number 6. Do you recognize this
13 document?
14 A. Yes.
15 Q. And what is it?
16 A. It is a memorandum from Louis Toth
17 to me.
18 Q. What precipitated this memorandum?
19 Well, let me scratch that. What is this
20 memorandum about?
21 A. I don't remember exactly, but I have
22 some recollections on what led up to this.
23 Q. What is your recollection of what
24 led up to this?
25 A. During this time period Lou Toth was
140
1 collecting large quantities of samples, and we
2 had very long -- these are soil and plant tissue
3 samples that we're talking about. We had very
4 long holding times before we could complete the
5 analysis on these samples, and we had discussed
6 setting up a little experiment to determine
7 whether there were any adverse effects on the
8 samples from these holding times.
9 Q. Were the holding -- go ahead.
10 A. And I believe this memo was -- the
11 purpose of this memo was to formalize the request
12 on the analysis of these samples for this
13 specific study.
14 Q. Were the holding times you referred
15 to a function of work load?
16 A. Yes.
17 Q. And what were those holding times
18 generally?
19 A. Sometimes as much as eight months.
20 So we decided to do a study to determine first if
21 there were any measurable effects from these
22 holding times and if there were just how great
23 they were.
24 Q. Were any accuracy measurements for
25 plant nitrogen and phosphorus conducted prior to
141
1 this request?
2 MR. NETTLETON: I object to form.
3 A. Yes, there were the normal soil
4 quality control measures that have been
5 discussed. Well, that are outlined, I believe
6 are outlined in the lab. Well, maybe I should
7 quantify that. We did repeated samples with
8 every run as a measure of precision, and we used
9 National Bureau of Standards certified samples
10 for a measure of accuracy on the samples.
11 Q. What did your tests -- what were the
12 results of your tests?
13 MR. NETTLETON: I object to form.
14 BY MR. PERKO:
15 Q. Of the tests that were requested.
16 Did you actually perform the tests requested in
17 this memo?
18 THE WITNESS: May I answer that?
19 MR. NETTLETON: Yes.
20 A. Yes, I did.
21 Q. What were the results?
22 A. As I recall, phosphorus was not
23 affected and total nitrogen was only slightly
24 affected, but the effects on nitrogen were still
25 within the normal error range that the lab dealt
142
1 with.
2 Q. Did you determine if the error
3 suggested by the accuracy measurements was actual
4 or proportional to the nutrient content of the
5 sample?
6 MR. NETTLETON: I object to form.
7 A. No, I did not.
8 Q. So you did not fulfill the request
9 that Mr. Toth made of you.
10 MR. NETTLETON: I object to form.
11 BY MR. PERKO:
12 Q. I'm referring to the second sentence
13 in the first paragraph of this memo. It states,
14 "Further, if possible, please conduct appropriate
15 tests to determine if the error suggested by
16 these accuracy measurements is absolute or
17 proportional to nutrient content of the sample."
18 A. I don't remember how that particular
19 request was fulfilled.
20 Q. What was the laboratory accuracy and
21 precision of the plant material?
22 MR. NETTLETON: I object to form.
23 You can answer if you understand it.
24 A. It was plus or minus ten percent on
25 the known value and we did a coefficient of
143
1 variability of plus or minus ten percent on the
2 repeat.
3 Q. Did the accuracy and precision of
4 the plant material change over time?
5 A. Yes.
6 Q. How did it change?
7 A. As we became more experienced in
8 laboratory analysis, we got closer to the true
9 value and the precision range became narrower.
10 Q. Why did these changes occur?
11 A. Better instrumentation, more
12 experience on the part of the laboratory
13 technicians doing the work.
14 MR. PERKO: Let's mark this one.
15 (Plaintiff's Exhibit Rosen-7 is
16 marked for identification.)
17 BY MR. PERKO:
18 Q. Mr. Rosen, I'd like you to look at
19 Exhibit Number 7 and tell me if you recognize
20 this document.
21 A. I have never seen this document
22 before and I was not specifically aware of its
23 existence. I could tell you what my involvement
24 in this document was.
25 Q. Well, let me first -- could you
144
1 identify this document, please?
2 A. It's a Preliminary Report on the
3 Effect of Agricultural Runoff on the Periphytic
4 Algae of Conservation Area 1.
5 Q. And you're listed as a co-author on
6 the front page of this, are you not?
7 A. Yes, I am.
8 Q. Did you participate in the
9 preparation of this document?
10 A. No. Only in the laboratory
11 analysis.
12 Q. And you were not aware that this
13 document existed prior to this deposition?
14 A. That's correct.
15 Q. What laboratory analysis did you do
16 in connection with this document?
17 A. I'll have to look at the document
18 and see exactly.
19 A. I believe my involvement is
20 described on Bates page 603420.
21 Q. Could you point out for me where
22 your involvement is discussed on that page?
23 A. The last two -- well, the last two
24 paragraphs.
25 Q. Essentially you analyzed the total
145
1 phosphorus content of dried periphyton?
2 A. That's correct.
3 Q. And standard orchid leaves?
4 A. Orchard leaves.
5 A. That's the National Bureau of
6 Standards sample that I used for an accuracy
7 test.
8 Q. Okay. Did you interpret the results
9 of your analyses?
10 A. No, I just did the analyses and
11 passed them on to Dr. Gleason.
12 Q. Do you know why WCA-1 was the area
13 of concern for this study or was chosen as the
14 area of concern for the study?
15 A. No.
16 Q. Do you know if the water quality
17 data cited in this report still exists or is
18 still contained in the District's database?
19 A. No, I do not.
20 Q. Who would know the answer to that
21 question?
22 A. I think Tom Raishe would be the
23 person to ask.
24 Q. Do you know who conducted the water
25 sampling reflected in this report?
146
1 A. No.
2 Q. Do you know what the limits of
3 detection for phosphorus were for these water
4 samples?
5 A. No.
6 Q. Nitrate nitrogen, do you know what
7 the --
8 A. No.
9 Q. What about the detection limits for
10 chloride?
11 A. No.
12 Q. Did you have any involvement in the
13 water sampling reflected in this report?
14 A. No.
15 Q. Did you have any involvement in the
16 analysis of the water samples discussed in this
17 report?
18 A. No.
19 Q. But you did perform analysis on
20 periphyton samples. Is that correct?
21 A. Yes.
22 Q. How was periphyton separated from
23 angiosperms?
24 A. I don't know.
25 Q. Do you know what angiosperms were
147
1 examined?
2 A. No.
3 Q. Do you know what QA/QC protocols
4 were used for the periphyton sampling analysis?
5 A. The laboratory portion of the
6 analysis?
7 Q. Yes.
8 A. I believe it was the same sampling
9 protocols that we have used -- that I used in the
10 lab all along.
11 Q. That we've discussed previously?
12 A. Yes.
13 Q. Is Mr. Gleason still in the
14 District -- with the District?
15 A. No.
16 Q. Do you know where he's employed?
17 A. He is working for a consulting firm
18 in South Florida. I don't remember the name of
19 the firm.
20 Q. I'd like to refer your attention to
21 continuation of Table 5 on Bates page 0603433.
22 A. Exhibit 7?
23 Q. Well, Table 5 on -- yes, Exhibit 7,
24 Table 5 Bates page 603432 and 433. It's entitled
25 Diurnal Nutrient Concentrations at Five Stations
148
1 in Conservation Area 1, March 12th through 13th,
2 1974. The last column is labeled 0-P04-P. What
3 does that mean?
4 A. What does the title mean?
5 Q. Right. The title. Orthophosphorus?
6 A. I believe it stands for
7 orthophosphorus. It's probably just another
8 variation on notation.
9 Q. Do you know if total phosphorus was
10 analyzed at these stations?
11 A. No, I do not.
12 Q. Do you know of any reason why total
13 phosphorus may not have been reported?
14 A. No.
15 Q. Let me refer you to Table 8, Bates
16 page 603444.
17 A. 444?
18 Q. Yes. The periphyton data on this
19 table appear to be for one sample period. Is
20 that correct?
21 A. I don't know.
22 Q. Well, let me ask you this. How many
23 times were periphyton data collected in
24 connection with this study?
25 A. I haven't read this study. I don't
149
1 know anything about the sampling.
2 Q. You didn't actually perform the
3 sampling?
4 A. I did no field work on this study.
5 Q. No field work? So you would have to
6 refer to the body of the report for that
7 information?
8 A. I'd have to read it for that
9 information.
10 Q. Table 8 gives data for a station in
11 Conservation Area 2.
12 A. Are we still on 444?
13 Q. Yes. Referring to the data for the
14 station in Conservation Area 2, do you know where
15 that station was located?
16 A. No.
17 Q. Do you know who performed the
18 sampling?
19 A. No.
20 THE WITNESS: Could we take a
21 break?
22 MR. PERKO: Sure.
23 (A brief recess is taken.)
24 BY MR. PERKO:
25 Q. I'd like to refer you back to
150
1 Exhibit Number 7, Mr. Rosen, Bates page 603447,
2 Table 10. It lists data for Phosphorus Content
3 of Periphyton. When you performed the analysis
4 on the periphyton in connection with this study,
5 how did you know that the plant material was
6 digested and measured -- that the plant material
7 that was digested and measured was only
8 periphyton and not aquatic angiosperms as well?
9 A. I didn't. I took what was submitted
10 to the lab and ground it up and analyzed it and
11 said this is what you submitted to me. These are
12 the results that I found.
13 Q. Okay. Do you know why the data for
14 station one don't appear on Table 10?
15 A. No.
16 Q. I'd like to refer your attention to
17 page number 41, Bates 603448, the very next
18 page. Figure six, labeled Chloride Variations of
19 Surface Water in Conservation Area 1. Do you
20 know what the source of this data is?
21 A. No.
22 Q. Do you know if the District's
23 database currently includes chloride data for
24 Loxahatchee National Wildlife Refuge or WCA-1?
25 A. No.
151
1 Q. If you wanted to find that out, who
2 would you ask? Do you know whether it exists or
3 does it not exist?
4 A. I don't know.
5 Q. Okay. Who would you ask?
6 A. Tom Raishe.
7 Q. Okay. Let me refer your attention
8 to Figure Number 7, the very next page.
9 A. 449?
10 Q. Yes. What is the significance of
11 this figure?
12 A. I don't know.
13 Q. Would you expect there to be a close
14 relationship between sodium and chloride?
15 MR. NETTLETON: I object to form.
16 A. I don't know.
17 Q. Bates page 603459, Figure 23. Are
18 the dependent and independent variables reversed
19 on this table?
20 MR. NETTLETON: Which table are you
21 referring to?
22 Q. 23, Figure 23.
23 A. I don't know.
24 Q. I believe you previously testified
25 that you did not interpret the results of the
152
1 sampling analysis that you performed in
2 connection with this study. Is that correct?
3 A. That's correct.
4 (Plaintiff's Exhibit Rosen-8 is
5 marked for identification.)
6 BY MR. PERKO:
7 Q. I'd like to refer your attention to
8 Exhibit Number 8, Mr. Rosen. Do you recognize
9 this document?
10 A. I believe I have seen this document
11 before.
12 Q. And what is it?
13 A. It's a report on The Origin and
14 Characteristics of, I believe the word is Gyttja,
15 spelled G-y-t-t-j-a, in Conservation Area 2A.
16 Q. Were you an author of this report?
17 A. My involvement was the same in this
18 report as in previous reports. I provided
19 laboratory work on the sediment, soil, et cetera,
20 the solid materials that needed to be analyzed.
21 Q. Did you interpret the results of
22 your sampling analysis?
23 A. No.
24 Q. This report reflects the results of
25 two sampling events. Is that correct?
153
1 A. I'm not familiar with the
2 experimental design.
3 Q. Do you know where the sampling
4 occurred?
5 A. No.
6 Q. Who actually performed the sampling?
7 A. I don't know for certain. I would
8 guess that it was Gleason and Stone.
9 Q. Did you provide any input into the
10 conclusions stated in this study?
11 A. Not as far as I can remember.
12 Q. Feel free to look over the document
13 and see if --
14 A. Okay. And looking at the document I
15 can see that for this particular study there was
16 some outside analysis done on some of the
17 samples. This was -- this work was done during a
18 very early period in the soils lab and we at that
19 time, if I remember right, we didn't have our
20 full capability -- the full capabilities that we
21 did later on.
22 Q. And that's why you -- some of the
23 analysis was performed by an outside contractor?
24 A. Yes, I believe some of the work may
25 even have been done prior to my coming to work
154
1 for the District.
2 Q. Going back to my original question,
3 did you -- do you recall having any input into
4 the conclusions that are stated in this report?
5 A. No.
6 Q. I'm sorry. Once again, I caught
7 myself without Dr. Pollman's input. Does that
8 mean you don't recall that you had any input or
9 that you did not have any input?
10 A. I did not have any input.
11 MR. PERKO: Would you mark this.
12 (Plaintiff's Exhibit Rosen-9 is
13 marked for identification.)
14 BY MR. PERKO:
15 Q. Mr. Rosen, I'd like to refer your
16 attention to Exhibit Number 9. Do you recognize
17 this document?
18 A. Yes, I do.
19 Q. And what is it?
20 A. This is the Marsh Phosphorus
21 Concentrations, Phosphorus Content and Species
22 Composition of Everglades Periphyton Communities.
23 Q. Is this the paper we discussed
24 earlier that has been selected for publication?
25 A. This is --
155
1 Q. A draft of that paper?
2 A. A draft of it.
3 Q. You may have answered this question
4 already, but did you interpret the results of the
5 sampling analysis that you performed in
6 connection with this report?
7 A. No.
8 Q. Whose responsibility was it to
9 interpret that analysis, the results of your
10 analysis?
11 A. Primarily Herbert J. Grimshaw's
12 responsibility.
13 Q. Did you have any input into the
14 conclusions stated in this report?
15 A. No.
16 Q. Specifically I refer you to Bates
17 pages 952583 and 584.
18 A. 583?
19 Q. Right. You had no input into these
20 conclusions. Is that correct?
21 A. No.
22 Q. I believe you stated previously that
23 you reviewed the methods for water quality
24 analysis, is that correct, in connection with
25 this paper?
156
1 A. Yeah, I believe I did state that.
2 Q. Is that a correct statement?
3 A. Yes.
4 Q. Did you satisfy yourself that the
5 data within the report meet appropriate QA/QC
6 guidelines?
7 A. For this report?
8 Q. Why did you qualify your answer for
9 this report?
10 A. The data or the data that was used
11 in this report was coherent enough and the number
12 of outlyers that had to be rejected was a very
13 small percentage of the total number of
14 observations used and, therefore, the data was --
15 for phosphorus was adequate for the report.
16 Q. Did you review replicate performance
17 in connection with this report for water quality
18 analysis?
19 A. No, I did not.
20 Q. What about QC performance, QC sample
21 performance?
22 A. Not exhaustively.
23 Q. When you say not exhaustively, did
24 you look at QC performance at all?
25 A. I looked at the summaries that were
157
1 on the computer printouts.
2 Q. And what did those summaries reveal?
3 A. I don't remember.
4 Q. Were the concentrations for the QC
5 samples within the range of concentrations
6 observed in WCA-1?
7 A. I don't remember.
8 Q. Do you think that would be important
9 in terms of evaluating the integrity of the
10 Loxahatchee data?
11 A. This report didn't look at
12 Loxahatchee data.
13 Q. What geographic area did this report
14 look at?
15 A. Primarily Water Conservation Area
16 2A.
17 Q. Well, did you look to see whether
18 the QC sample, the concentrations for the QC
19 samples were within the range of concentrations
20 observed from the data collected for WCA-2A?
21 A. I looked at the printouts that Dave
22 Swift had received from the lab and I don't
23 recall what all of those printouts contained.
24 Q. Did you perform any other sort of
25 checks on the integrity of the data?
158
1 A. No.
2 Q. Did you -- what was the full range
3 of water quality parameters analyzed in
4 connection with this report?
5 A. I don't know.
6 Q. Were you involved in drafting any
7 portions of this report, of this paper?
8 A. I gave Dr. Grimshaw some notes
9 describing the water quality procedures or the
10 laboratory procedures for both water and
11 periphyton samples and he incorporated those
12 notes into the document.
13 Q. Okay. At the bottom of page four
14 Bates 952571 it talks about samples collected for
15 core compression.
16 MR. NETTLETON: Where are you at?
17 MR. PERKO: Bottom of page four.
18 A. I don't know.
19 Q. Was that outside your involvement?
20 A. Yes.
21 Q. On page five, the bottom paragraph,
22 the first sentence, you referred to a control
23 sample from the National Bureau of Standards or
24 the report does rather.
25 A. Yes.
159
1 Q. Do you know what that control sample
2 was?
3 A. Standard Reference Material 1571.
4 Q. Do you know what the concentration
5 was of that control sample?
6 A. No.
7 Q. How would you obtain that
8 information?
9 A. I'd obtain a copy of the certificate
10 of analysis for that sample.
11 Q. Did you obtain a certificate of
12 analysis?
13 A. Yes.
14 Q. And what did it say?
15 A. I don't remember.
16 Q. Is that certificate in your files?
17 A. Yes.
18 Q. Were the analytical methods for
19 water or periphyton changed or altered from the
20 initial years --
21 A. Yes.
22 Q. -- in the study period?
23 A. Well, I can't speak authoritatively
24 for water but for periphyton samples there were
25 some changes.
160
1 Q. What were the changes for
2 periphyton?
3 A. I would have to look at the
4 laboratory records to see what the exact changes
5 were, but when we did changes we did some checks
6 to see that the changes did not adversely affect
7 the quality.
8 Q. On page four of the report there's a
9 discussion of periphyton communities on glass
10 slides. Do you recall how long the slides were
11 incubated?
12 A. That was outside of my area of
13 involvement.
14 Q. Who was responsible for incubation
15 of the slides?
16 A. Dave Swift.
17 Q. Do you know what the detection
18 limits were for the periphyton samples?
19 MR. NETTLETON: I object to the
20 form.
21 A. No. I would have to go back and
22 look at the laboratory procedures and then back
23 calculate what the lower limit of detection was.
24 Q. Do you know if there was any attempt
25 made in connection with this study to look at any
161
1 statistical correlation between periphyton and
2 water quality parameters other than phosphorus?
3 A. Yes.
4 Q. What parameters?
5 A. I believe nitrogen was also
6 evaluated.
7 Q. Any other parameters?
8 A. I don't remember.
9 Q. What were the results?
10 A. They were more ambiguous.
11 Q. How so?
12 A. Correlations were not as high.
13 Q. As for phosphorus?
14 A. As for phosphorus.
15 Q. Do you believe that correlation
16 means cause and effect?
17 A. No.
18 Q. What could be done to determine the
19 cause and effect relationship?
20 A. Further experimentation would have
21 to be performed.
22 Q. What type of experimentation?
23 A. I haven't formed an opinion on that.
24 Q. Bates page 926840 -- I'm sorry -- we
25 were looking at two different copies. Bates page
162
1 952613, Table 7, the comparison of the angularly
2 transformed mean percentage of phosphorus in the
3 periphyton community. What is meant by the word
4 angularly?
5 A. I'm not sure.
6 Q. Do you have an idea of what it might
7 mean?
8 A. No.
9 MR. PERKO: Mark this one next,
10 please.
11 (Plaintiff's Exhibit Rosen-10 is
12 marked for identification.)
13 BY MR. PERKO:
14 Q. Mr. Rosen, I direct your attention
15 to Exhibit Number 10. Do you recognize this
16 document?
17 A. Yes, I do.
18 Q. And what is it?
19 A. It's a request for analyses.
20 Q. What type of analyses?
21 A. Nitrogen and phosphorus analyses on
22 algal or periphyton samples.
23 Q. What does program 8630 refer to?
24 A. I believe that is a program code
25 that was assigned or program or project code that
163
1 was assigned to Dave Swift's project for that
2 fiscal year.
3 Q. Did your laboratory actually conduct
4 the analysis requested in this memorandum?
5 A. I have no reason to believe that we
6 didn't.
7 Q. Do you have any reason to believe
8 that you did?
9 A. Yes. Do you want an explanation of
10 this memo?
11 Q. Yes, if you want to give it to me.
12 A. This is an administrative thing.
13 Q. Okay.
14 A. Every spring we requested from the
15 project managers their sampling load so that we
16 could make our equipment and supply purchases for
17 the next fiscal year, and I believe at the time
18 that Mr. Swift refers to he assumed that he
19 wouldn't need any services and he changed his
20 mind due to his ongoing research.
21 Q. Did your lab perform analyses for
22 Mr. Swift throughout this project?
23 A. Yes.
24 Q. Were you involved in the project in
25 any other way?
164
1 A. No.
2 Q. Was your laboratory fully certified
3 for all the analyses you performed throughout the
4 duration of the study?
5 MR. NETTLETON: I object to form.
6 MR. PERKO: You can answer the
7 question.
8 A. There were no certification
9 procedures for the types of analyses that we were
10 doing at the time, that we were performing.
11 Q. What was the accuracy and precision
12 of the water analysis for phosphorus and nitrogen
13 species?
14 MR. NETTLETON: I object to form.
15 A. I'll have to fall back on the
16 previous answer that I gave you.
17 Q. I have nothing further on that.
18 MR. PERKO: Mark this, please.
19 (Plaintiff's Exhibit Rosen-11 is
20 marked for identification.)
21 BY MR. PERKO:
22 Q. Mr. Rosen, I refer your attention to
23 Exhibit 11. Do you recognize this document?
24 A. Yes.
25 Q. What is this document?
165
1 A. It's a report summary on some
2 results of analysis.
3 Q. What type of analysis?
4 A. Well, it appears to be for nitrogen,
5 phosphorus, potassium, calcium and magnesium,
6 organic matter and carbonate analysis as well as
7 dry weight.
8 Q. Where were the sample stations
9 located?
10 A. I don't know. I didn't collect the
11 samples.
12 Q. Do you know who collected the
13 samples?
14 A. I don't know.
15 Q. It was only 27 years ago or 17. Do
16 you know what methods were used to analyze ash
17 and sediment?
18 A. What do you mean? Explain that.
19 Q. What analytical methods were used to
20 analyze ash and sediment?
21 MR. NETTLETON: Are you saying ash
22 in sediment.
23 MR. PERKO: Ash and sediment. It
24 should be in sediment. I'm sorry.
25 A. The same procedures that were used
166
1 to analyze the soil samples.
2 Q. And what procedures were those?
3 A. I'd have to refer to the laboratory
4 book to give you a detailed description of the
5 procedures that were -- of the procedures that
6 were used.
7 Q. Exhibit Number 3?
8 A. Yes.
9 Q. What is meant by the term ash in
10 this memo?
11 A. I don't know.
12 Q. Do you know how many analyses were
13 conducted to arrive at the standard deviations
14 indicated?
15 A. No, I don't remember.
16 MR. PERKO: That's all for that.
17 Let's mark this.
18 (Plaintiff's Exhibit Rosen-12 is
19 marked for identification.)
20 BY MR. PERKO:
21 Q. I refer you to Exhibit Number 12.
22 Do you recognize this document?
23 A. Yes.
24 Q. And what is it?
25 A. It's a progress report on a sediment
167
1 study.
2 Q. What sediment study was it referring
3 to?
4 A. I don't remember the details of it
5 without reading the memo.
6 Q. Do you remember generally what the
7 purpose of the study was?
8 A. Let me read this first.
9 Q. Sure.
10 A. And then I'll answer.
11 Q. Take your time.
12 A. Okay. I do remember this. This was
13 a progress report on a study that I did on these
14 unconsolidated sediment samples.
15 Q. What do you mean by unconsolidated?
16 A. The colloidal flocculent material.
17 It's decomposing plant material and periphyton
18 that collects in the bottom of Water Conservation
19 Area 2 and has not yet consolidated into the
20 soil.
21 Q. In the middle of the first page
22 under the heading methods and materials the
23 memorandum notes that, "Site one was one mile
24 from the S-10 structures." Do you recall which
25 S-10 structure?
168
1 A. No, I do not.
2 Q. Do you recall in what direction it
3 was one mile from the S-10 structures?
4 A. No.
5 Q. Did you collect the samples that
6 were analyzed in connection with this progress
7 report?
8 A. Yes, I did.
9 Q. Again in the middle of the page you
10 state that, "Samples of unconsolidated sediment
11 were collected with a dip net from four sites in
12 various parts of Conservation Area 2." Is the
13 use of a dip net to collect sediment part of the
14 District's standard sampling procedure?
15 MR. NETTLETON: I object to form.
16 A. I don't know.
17 Q. Do you know what the District's
18 standard sampling procedure is for sediment?
19 MR. NETTLETON: I object to form.
20 A. No.
21 Q. How many samples were taken at each
22 of the sample areas or each of the four sites?
23 A. Again in the large sample at each
24 site, five gallons of material.
25 Q. How often?
169
1 A. Just once.
2 Q. There were three analyses reported
3 for each sample. Is that correct?
4 A. If that's what you see there, that
5 is correct.
6 Q. Well, I'm asking you to correct me
7 if I'm wrong.
8 A. To the best of my recollection you
9 are correct on that.
10 Q. Do you know if these reflect
11 laboratory replications or were these separate
12 samples?
13 A. They are laboratory replications of
14 the single sample.
15 Q. What were the limits of detection
16 for total phosphorus?
17 A. They were the same as the limits of
18 detection were generally at this time period.
19 Q. And what were those limitations?
20 A. I'd have to go back to my notes to
21 determine what they were.
22 Q. Do you still possess your notes?
23 A. I believe there is enough
24 information to determine that in Exhibit 3.
25 Q. Could you take a look at it and tell
170
1 me what it is. Also for total kjeldahl
2 nitrogen.
3 A. There are no Bates numbers on these
4 pages, on this copy.
5 MR. NETTLETON: There are on some of
6 them.
7 A. Of Exhibit 3.
8 Q. Can you determine from Exhibit 3
9 what the detection limits were?
10 A. You got a piece of paper that I can
11 do some calculating on?
12 Q. We've got a calculator if you want.
13 (A discussion takes place off the
14 record.)
15 BY MR. PERKO:
16 Q. I believe the pending question was
17 what were the detection limits for total
18 phosphorus and total kjeldahl nitrogen in
19 connection with this memorandum, Exhibit Number
20 12.
21 THE WITNESS: Can we go back off the
22 record for a minute?
23 MR. PERKO: Sure.
24 (A discussion takes place off the
25 record.)
171
1 A. The question is still standing?
2 Q. Yes.
3 A. I come up with 2.4 parts per million
4 for nitrogen and .04 parts per million for
5 phosphorus, and that is making the assumption
6 that the high standard for nitrogen was one
7 hundred twenty parts per million and the high
8 standard for phosphorus was -- wait a minute.
9 The high standard for phosphorus was twenty parts
10 per million. Did I say one hundred twenty for
11 nitrogen? The high standard for nitrogen is one
12 hundred twenty. The high standard for phosphorus
13 is twenty parts per million.
14 Q. Okay. How did you perform the
15 calculation that -- from which you derived those
16 numbers?
17 A. I used the sensitivity or I used the
18 information that two percent of the high standard
19 was the limit of sensitivity on the analytical
20 instrument, colorimeter.
21 Q. Were the results of the sampling
22 analysis reflected in Exhibit Number 12
23 statistically different among the sites?
24 A. I didn't -- I don't recall that I
25 specifically -- I don't remember.
172
1 Q. Do you know if anyone ever performed
2 a statistical analysis to determine that?
3 A. I don't remember.
4 Q. Just to make sure I understand your
5 previous testimony, when you said that you
6 arrived at the detection limits by calculating
7 two percent of the high standard, did you mean
8 the low standard?
9 A. No. I meant the high standard.
10 Q. What did you mean by high standard?
11 A. Well, for phosphorus, going back to
12 Exhibit 3, there were a series of standards. The
13 highest was twenty parts per million.
14 Q. I'd like to refer you back to
15 Exhibit Number --
16 THE WITNESS: Can we take a break
17 for a moment?
18 MR. PERKO: Sure.
19 BY MR. PERKO:
20 Q. Let me finish that thought. Exhibit
21 Number 4.
22 (A brief recess is taken.)
23 BY MR. PERKO:
24 Q. Mr. Rosen, I'd like to refer you to
25 Exhibit Number 4, Bates page 747547. We talked
173
1 about this a little bit previously. The
2 paragraph labeled phosphorus discusses a twenty
3 fold increase in the upper limit from .10
4 milligrams per liter to 2.0 milligrams per
5 liter. Assuming the calculation that you just
6 discussed, could you derive the detection limit
7 assuming that 2.0 milligram per liter upper
8 limit?
9 MR. PERKO: We can go off the
10 record.
11 (A discussion takes place off the
12 record.)
13 A. I come out with .04.
14 Q. What unit?
15 A. I believe it will have to be
16 milligrams per liter.
17 Q. Which would translate to how many
18 parts per billion?
19 A. I don't remember the exact
20 conversion factor.
21 Q. Okay. That's fine. Mr. Rosen, how
22 does the detection limit that you just calculated
23 compare to the detection limit referred to in the
24 paragraph that we just discussed?
25 A. It would have to be ten times
174
1 greater.
2 Q. Well, how is the lower number of
3 .004 referenced in the paragraph on Bates page
4 747547 calculated?
5 A. I don't know.
6 Q. Okay. Do you know how that number
7 could be justified based on your current
8 knowledge and experience?
9 A. No.
10 Q. Would you like to hazard a guess?
11 A. No.
12 Q. Enough you believe that's a reliable
13 number then, the 0.004?
14 A. I don't have an opinion on that.
15 Q. What would you need to do to develop
16 an opinion on that?
17 A. I'd have to go back through the
18 procedures that were used in the water chemistry
19 lab and --
20 Q. In deriving the .004 limit?
21 A. And see what they did to derive
22 that.
23 Q. Would simply rerunning the
24 calculations give you reasonable assurance that
25 the number is accurate?
175
1 A. I don't know.
2 Q. Do you intend to go back and look at
3 the -- how that 0.004 detection limit was derived
4 to verify it? Do you have any current plans to?
5 A. Currently I have no plans to do
6 that.
7 Q. Okay. Let me ask you another
8 question, Mr. Rosen. If the high standard for a
9 total phosphorus analytical run was twenty parts
10 per billion, what would the detection limit be?
11 A. I don't know.
12 Q. How would you calculate the
13 detection limit?
14 A. I don't know that either.
15 Q. Why wouldn't you just apply the two
16 percent rule that you discussed previously?
17 A. I don't know if that rule is valid
18 for that big a change in concentration.
19 Q. Why wouldn't it be valid?
20 A. I don't know whether the
21 instrumentation that that rule was applied to can
22 be used for such low levels of concentration.
23 Q. Do you have any experience in
24 evaluating the various methods for determining
25 method detection limits?
176
1 A. No.
2 Q. Who at the District would be most
3 knowledgeable in that regard?
4 A. I don't know.
5 Q. If you had a question about how a
6 detection limit was derived, who would you ask at
7 the District?
8 A. Dr. Vidal.
9 (Plaintiff's Exhibit Rosen-13 is
10 marked for identification.)
11 BY MR. PERKO:
12 Q. Mr. Rosen, if you could look at
13 Exhibit Number 13 and tell me if you recognize
14 it.
15 A. I've never seen this before.
16 Q. Could you identify it for me?
17 A. Semi-annual Laboratory Status Report
18 for July through December, 1982.
19 Q. I'd like to refer your attention to
20 Bates page 747806 which is Table 8 labeled
21 Percent Recovery Data. During this time period
22 of July through December, 1992 what were the
23 upper and lower control limits for --
24 A. Just a second.
25 Q. I'm sorry. What were the upper and
177
1 lower control limits for TPO4 high?
2 A. I don't know.
3 Q. If you wanted to find that out, how
4 would you go about it?
5 A. I'd have to go back to the
6 laboratory records and see where it was defined.
7 Q. Do you know what the upper and lower
8 control limits for TPO4 low were?
9 A. No.
10 Q. Do you know what the high
11 concentration was for TPO4 low?
12 A. No.
13 Q. TP04 high?
14 A. No.
15 Q. Do you know what the low
16 concentrations were for those parameters?
17 A. No.
18 Q. Do you know if the District
19 laboratory has ever lost certification for its
20 trace metals program?
21 A. No, I do not.
22 Q. Mr. Rosen, do you anticipate
23 providing any testimony at the final hearing
24 beyond what you've previously discussed in this
25 deposition?
178
1 A. No.
2 Q. Are you familiar with the settlement
3 agreement in the federal lawsuit brought by the
4 United States against the Water Management
5 District?
6 A. No.
7 Q. Do you know what I'm referring to?
8 A. Only in the broadest of terms. I
9 have purposely avoided reading the settlement
10 agreement.
11 Q. So you had no involvement in the --
12 A. I have no involvement in it at all.
13 Q. I believe you previously testified
14 that you had no involvement in the development of
15 the phosphorus levels for the Loxahatchee. Is
16 that correct?
17 A. That's correct.
18 Q. Did you have any involvement in
19 developing the phosphorus limits for the
20 Everglades National Park?
21 A. No.
22 Q. Did you have any involvement in
23 developing a sizing -- the sizes of the
24 stormwater treatment areas proposed in the
25 Everglades SWIM Plan?
179
1 A. No.
2 Q. Will you be reviewing the
3 calculations used to derive the phosphorus limits
4 for the Refuge or the phosphorus -- I'm sorry --
5 phosphorus levels for the Refuge or phosphorus
6 limits for the Everglades National Park?
7 THE WITNESS: Is that --
8 MR. NETTLETON: You can answer his
9 question.
10 A. Yes.
11 Q. You do?
12 A. I anticipate reviewing them.
13 Q. When do you anticipate completing
14 that review?
15 A. I don't know.
16 Q. Do you anticipate providing
17 testimony at the hearing in this matter regarding
18 the results of your review?
19 A. No.
20 Q. What's the purpose of your review?
21 A. For the Office of Counsel's
22 information.
23 Q. Are you familiar with the report
24 prepared by Frank Nearhoff of the Department of
25 Environmental Regulation concerning alleged water
180
1 quality violations in the Everglades Protection
2 Area?
3 A. No.
4 Q. Have you ever reviewed such a
5 document?
6 A. No.
7 Q. Do you anticipate providing any
8 testimony regarding alleged water quality
9 violations in the Everglades Protection Area in
10 the hearing in this matter?
11 A. No.
12 Q. Are you familiar with the District's
13 water quality database for the Loxahatchee
14 National Wildlife Refuge?
15 A. No.
16 Q. Have you ever had occasion to review
17 any water quality data for the Loxahatchee
18 National Wildlife Refuge?
19 A. No.
20 Q. Do you anticipate reviewing any
21 water quality data for the Loxahatchee National
22 Wildlife Refuge other than in connection with
23 your review of the derivation of the phosphorus
24 levels for the Refuge contained in the Everglades
25 SWIM Plan?
181
1 A. No.
2 (Plaintiff's Exhibit Rosen-14 is
3 marked for identification.)
4 BY MR. PERKO:
5 Q. Mr. Rosen, I'd like to refer you to
6 Exhibit Number 14. Are you familiar with this
7 document?
8 A. Yes.
9 Q. Is this the outgrowth of the work
10 that you did with Dr. Shih at the University of
11 Florida that we discussed earlier this morning?
12 A. I believe so.
13 Q. What was the purpose of this study?
14 A. Would you clarify that question?
15 Q. What was the objective of the
16 study? What did you set out to determine?
17 A. I believe it was to learn something
18 about the nutrient dynamics in the Chandler
19 Slough area.
20 Q. What aspect of the nutrient
21 dynamics?
22 MR. NETTLETON: I'd just like to
23 state for the record I don't know if Mr. Rosen
24 has looked at this document in some time and I've
25 just glanced at it and page three looks at the
182
1 objectives and it may help refresh his
2 recollection.
3 MR. PERKO: That's fine. Feel free
4 to review the document.
5 A. I had no input into the water
6 quality or vegetation characterization parts of
7 this document.
8 Q. What input did you have?
9 A. I collected soil samples and
10 analyzed them and if -- I don't remember whether
11 vegetation samples were analyzed, but if they
12 were I would have analyzed any vegetation
13 samples.
14 Q. I'd like to refer your attention to
15 page two, the last complete sentence and carrying
16 over to page three where it states, "The
17 performance of using the fresh water marsh for
18 controlling water quality can be directly
19 evaluated based on the intensive sampling
20 nutrient content differences between inflow and
21 outflow of entire marsh system. There are two
22 assumptions involved in this direct evaluation
23 method. The first is nutrient homogeneously
24 mixed in the water. The second is the sampling
25 interval is intensive enough to represent the
183
1 true nutrient content varying with time.
2 Unfortunately, the direct evaluation technique
3 seems very expensive to be executed in a natural
4 system. So an indirect method is needed to be
5 developed." What is meant by indirect method?
6 A. I don't know.
7 Q. Do you know if the District ever
8 analyzed such an indirect method?
9 A. No.
10 Q. I'd like to refer you to the very
11 first page, Bates number 0067361.
12 A. Repeat that number, please.
13 Q. The very first page.
14 A. Oh, okay.
15 Q. Going back to my previous question,
16 in saying no did you mean to say that the
17 District has not analyzed an indirect method?
18 A. I do not know whether or not they
19 have analyzed it.
20 Q. Okay. Referring your attention back
21 to the first page, the middle of the single
22 paragraph there states that, "The results
23 indicated that the retention rates for phosphorus
24 was about 2-9.8 milligrams per day per meter
25 squared, the release rate for nitrogen was about
184
1 0.7-5.9 milligrams per day per meter squared, the
2 nutrient uptake by vascular marsh vegetation were
3 0.031 and 0.007 per milligram per day per meter
4 squared for nitrogen and phosphorus,
5 respectively." Referring to the retention rates
6 for phosphorus of two to 9.8 milligrams per day
7 per meter squared, what's the significance of
8 this range?
9 MR. NETTLETON: I object to form.
10 A. I don't know.
11 Q. Given this range of retention rates,
12 do you have reason to question the eight meters
13 per year settling rate constant currently being
14 used to design the stormwater treatment areas?
15 A. I don't know how this range was
16 calculated.
17 Q. You were not involved in the
18 calculation of this range?
19 A. No.
20 Q. Do you know who was?
21 A. No.
22 Q. Going back to your expected
23 testimony in this case, I think you've already
24 answered this but I just want to make the record
25 clear, do you expect to give any testimony
185
1 regarding the water supply impact of the -- of
2 SWIM Plan implementation?
3 A. No.
4 Q. Do you anticipate giving any
5 testimony regarding alternative phosphorus
6 treatment systems?
7 A. No.
8 Q. Phosphorus reduction systems. Do
9 you anticipate giving any testimony whatsoever
10 beyond that which you've discussed in this
11 deposition?
12 A. No.
13 MR. PERKO: Okay. That's it.
14 MR. NETTLETON: He'll read.
15
16 (Witness excused.)
17
18 (Thereupon, at 5:35 P.M.,
19 the deposition was concluded.)
20
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4
5
6 I, MORRIS ROSEN, do hereby certify
7 that I have read the foregoing deposition and
8 that the same is a true and accurate transcript
9 of my testimony, except for attached amendments,
10 if any.
11
12
13
14 _________________________________
Witness
15
16 Sworn to and subscribed before
me this day of ,
17 1993 at
County of Palm Beach,
18 State of Florida.
19
20
------------------------------------
21 Notary Public
22
23
24
25
187
1 C E R T I F I C A T E
2 THE STATE OF FLORIDA, )
COUNTY OF PALM BEACH. )
3
I, Barbara Bolton, Registered
4 Professional Reporter and Notary Public, State of
Florida at large, do hereby certify that MORRIS
5 ROSEN was by me first duly sworn to testify the
whole truth; that I was authorized to and did
6 report said deposition in stenotype; and that the
foregoing pages, numbered from 1 to 185,
7 inclusive, are a true and correct transcription
of my shorthand notes of said deposition.
8
I further certify that the said
9 deposition was taken at the time and place
hereinabove set forth and that the taking of said
10 deposition was commenced and completed as
hereinabove set out.
11
I further certify that I am not
12 attorney or counsel of any of the parties, nor am
I a relative or employee of any attorney or
13 counsel or party connected with the action, nor
am I financially interested in the action.
14
The foregoing certification of this
15 transcript does not apply to any reproduction of
the same by any means unless under the direct
16 control and/or direction of the certifying
reporter.
17
In witness whereof I have hereunto
18 set my hand and seal this 10th day of March,
1993.
19
20 __________________________________
BARBARA BOLTON, RPR
21 NOTARY PUBLIC, STATE OF FLORIDA
AT LARGE, MY COMMISSION EXPIRES
22 SEPTEMBER 1, 1994.
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