STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CASE NOS. 92-3038 92-3039 SUGAR CANE GROWERS COOPERATIVE 92-3040 OF FLORIDA, a Florida agricultural cooperative marketing association, ROTH FARMS, INC., and WEDGWORTH FARMS, INC., -and- FLORIDA SUGAR CANE LEAGUE, INC., and UNITED STATES SUGAR CORPORATION, -and- FLORIDA FRUIT AND VEGETABLE VOLUME I ASSOCIATION, LEWIS POPE FARMS, Page 1 through 149 W.E. SCHLECHTER & SONS, INC., and HUNDLEY FARMS, INC., Petitioners, vs. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, an agency of the State of Florida, Respondent, MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, THE UNITED STATES OF AMERICA, and the FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, the FLORIDA WILDLIFE FEDERATION, the FLORIDA AUDUBON SOCIETY, and the SIERRA CLUB, Intervenors. _______________________________/ DEPOSITION OF: EARL SHANNON, Ph.D. TAKEN AT THE INSTANCE OF Attorneys for United States DATE: March 3, 1994 TIME: Commenced at 9:00 a.m. Adjourned at 4:00 p.m. ACCURATE STENOTYPE REPORTERS, INC. 100 Salem Court Tallahassee, Florida 32301 (904) 878-2221 (800) 934-9090 ACCURATE STENOTYPE REPORTERS, INC. 2 LOCATION: 315 South Calhoun Street 4th Floor Tallahassee, Florida REPORTED BY: Carolyn L. Rankine Notary Public in and for the State of Florida at Large * * * APPEARANCES: REPRESENTING THE PETITIONERS SUGAR, ROTH & WEDGWORTH: GARY PERKO, ESQUIRE Hopping Boyd Green & Sams 123 South Calhoun Street Tallahassee, Florida 32301 REPRESENTING THE INTERVENOR UNITED STATES: SUZAN H. PONZOLI, ESQUIRE, and LISA HOGAN, ESQUIRE Assistant United States Attorneys Southern District of Florida 99 Northeast 4th Street, 3rd Floor Miami, Florida 33132 REPRESENTING THE INTERVENOR DEP: DONNA LAPLANTE, ESQUIRE, and ED STEINMEYER, ESQUIRE Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 ALSO PRESENT: RONALD D. JONES, Ph.D. ACCURATE STENOTYPE REPORTERS, INC. 3 I N D E X WITNESS PAGE EARL SHANNON, Ph.D. Direct Examination by Ms. Ponzoli 4 EXHIBITS: Number 1 Notice of deposition, duces tecum 14 2 Letter dated February 9, 1994 14 3 1993 SFWMD monitoring data 97 4 Proposal for microfiltration pilot 106 5 Result report on pilot microfiltration 106 6 Concept design - Flor-Ag site 106 7 Technical memo 106 8 Proposal for pilot - Flor-Ag site 106 9 Sign-up sheet for April 29 meeting 108 ACCURATE STENOTYPE REPORTERS, INC. 4 1 PROCEEDINGS 2 The following deposition of 3 EARL SHANNON, Ph.D., was taken on oral examination, 4 pursuant to notice, for purposes of discovery, and for 5 use as evidence, and for other uses and purposes as may 6 be permitted by the applicable and governing rules. 7 Reading and signing is not waived. 8 * * * 9 Thereupon, 10 EARL SHANNON, Ph.D., 11 was called as a witness, having been first duly sworn, 12 was examined and testified as follows: 13 DIRECT EXAMINATION 14 BY MS. PONZOLI: 15 Q Dr. Shannon, I'm Suzan Ponzoli and I represent 16 the United States in these proceedings. And I'll be 17 taking your deposition in order to determine what your 18 testimony is expected to be in the DOAH proceeding. 19 I assume you've had your deposition taken 20 before, is that accurate? 21 A Yes, two or three times. 22 Q Is that precise or has it been more than two or 23 three times? 24 A It's probably somewhere in the order of five 25 times. ACCURATE STENOTYPE REPORTERS, INC. 5 1 Q Have you testified on behalf of the cooperative 2 in court before, Dr. Shannon? 3 A No; I haven't. 4 Q And in whose behalf have you testified those 5 five times? 6 A Some of these were a while ago, but I believe 7 the one situation was Beardsley Farms. 8 Q Was that a 120 DOAH hearing also? 9 A I'm not sure. 10 Q Was it in state court? 11 A I'm not sure of that either. 12 Q How long ago was it? 13 A It was probably around '77, '78, in there 14 somewhere. 15 Q And the issue at that time? 16 A Was water quality standards in canals. At 17 least that's what I was speaking to. 18 Q Right. And the precise issue about the water 19 quality standards was what? 20 MR. PERKO: Object to form. 21 Q You can answer. 22 A Could you ask the question again. 23 Q What was the precise issue regarding the water 24 quality standards in that case? 25 A To the best of my recollection -- and I haven't ACCURATE STENOTYPE REPORTERS, INC. 6 1 reviewed my testimony in that particular situation -- I 2 was commenting on the classification proposed for the 3 canals which I believe was Class III Waters, and that the 4 canals could not meet those -- some of those standards 5 consistently, particularly, dissolved oxygen. 6 Q How about phosphorus or other nutrients, did 7 you comment on their ability to meet -- 8 A May have commented on those, but there was no 9 particular standards for nutrients, numerical standards, 10 so I think it was mainly focused on dissolved oxygen. 11 Q And the other times you've testified, 12 Dr. Shannon? 13 A I appeared as a witness in the -- involving the 14 Deseret Ranch. And, again, that would have been around 15 1978. 16 Q And in the Deseret case, what was the heart of 17 your testimony? 18 A We collected some water quality samples in the 19 ranch and compared our results to the water quality 20 standards. 21 Q That the state had in place? 22 A Yes. 23 Q That involved nutrients, though, did it not? 24 A I believe we included nitrogen and phosphorus 25 in our monitoring program and made comments on the ACCURATE STENOTYPE REPORTERS, INC. 7 1 relevance of that information. And, again, I haven't 2 reviewed the court records of my testimony there. 3 Q Were both of these through CH2M Hill? 4 A Yes. I was with CH2M Hill at the time, 5 although it may still have been called Black Crow & 6 Eidsness, which was a predecessor company acquired by 7 CH2M Hill in 1978. 8 Q Black, Crow, and what was that other? 9 A Eidsness, E-I-D-S-N-E-S-S. 10 Q And your other testimony. I guess that's about 11 three of them. Dr. Shannon, the other times you've 12 testified was when? 13 A The other times I've testified were in Ontario, 14 Province of Ontario, as an expert witness. Two of them 15 related to -- two related to a hearing, and an appeal 16 hearing on a water quality issue, and the third one was 17 on a water quality issue. 18 Q Were these, again, nutrient water quality 19 issues? 20 MR. PERKO: Object to the form. 21 A Nutrients were involved in both situations. 22 Q Nitrogen and phosphorus? 23 A Yes. 24 Q And what type of party -- on whose behalf were 25 you testifying? ACCURATE STENOTYPE REPORTERS, INC. 8 1 A In the first -- well, actually in both cases 2 our client was Maple Leaf Foods. 3 Q Were they processing something that discharged 4 into a water stream? 5 A Yes, in one situation. The first situation 6 that I referred to. It was a discharge of a treated 7 effluent to a receiving stream. 8 Q Now, Dr. Shannon, as you will recall from those 9 times, if you don't understand my question, which you've 10 already demonstrated, if you don't, you let me know, and 11 I'll try to rephrase it so that it is understood. 12 Because the record is to reflect that if you answer my 13 question, it's presumed you understood it and that's your 14 answer. I'm sure you've been advised of all of that. 15 A Yes. 16 Q You received a notice of taking deposition, 17 duces tecum, in association with this deposition, did you 18 not? 19 A Yes, I did. 20 Q I'd like to just briefly go through that and 21 make sure that -- 22 A Do you have a copy of that? 23 Q Yes, sir, I do. I certainly do. 24 A Okay. 25 Q That you believe that you responded to all of ACCURATE STENOTYPE REPORTERS, INC. 9 1 our requests. I'm just going to call out the categories, 2 Dr. Shannon, without reading them into the record so we 3 can go faster. Your CV, I believe Mr. Perko has 4 indicated will be sent on over. I, supposedly, had 5 received one earlier with your designation, but I don't 6 have it, so he's going to send a new one over. Is that 7 CV that will be coming an updated one? 8 A The CV is relevant to '93. I haven't updated 9 it for '94, but there would be very little change in it. 10 Q Second category. Would you just look at that 11 and make sure that you have produced all documents that 12 I've requested? 13 A Item B? 14 Q I'm on page 7. Documents include all 15 documents, and your attorney went over that with you, did 16 he not? 17 A Yes. 18 Q Category 2. 19 A The question is? 20 Q Have you produced all documents. 21 A Yes, I have. 22 Q You've produced a list of your technical 23 publications? 24 A I don't believe we did develop a list, but we 25 provided the publications, reports, articles, and ACCURATE STENOTYPE REPORTERS, INC. 10 1 anything that we thought was relevant. We also included 2 a list of primarily documents that had been distributed 3 at SAGE meetings that I referred to in some of my work. 4 Q Let me just show you a letter and make sure 5 that is in fact that list. This is a letter of February 6 the 9th from Bill Green signed by his secretary. If 7 you'd look at the list on the second and third page. 8 A This is the list that I referred to that was a 9 list of other documents that we had in our files, but 10 they were available publicly. 11 Q Category 3. You responded to 3 as your 12 response to 2, is that accurate? 13 A Yes. 14 Q Number 4. Have you responded to number 4? 15 A Yes, I have. 16 Q Did you withhold any documents in category 4? 17 A No. 18 Q Have you withheld documents from your 19 production, Dr. Shannon? 20 A Not to my knowledge. We gave you everything we 21 had in our file. 22 MR. PERKO: Counsel, I'll provide a privilege 23 list after lunch break. There are some documents. 24 It's mainly correspondence from counsel. 25 Q And then category 5. ACCURATE STENOTYPE REPORTERS, INC. 11 1 A Category 5. I believe we've provided 2 everything requested there except for maybe some 3 photographs that were taken from the microfiltration 4 studies that we did. I would have to check to see 5 whether we provided those photographs or not. 6 Q Are you able to provide those photographs while 7 we're here these two days? 8 A We could -- I could call the office and request 9 that they courier down, and we may get them tomorrow. 10 It's not guaranteed. 11 Q These are photographs of how the 12 microfiltration works and what it looks like? 13 A Really, they're photographs of the site, the 14 equipment setup, pictures of the microfiltration unit 15 itself. Some of the photographs are included in the 16 report, or the technical memorandum that we prepared on 17 the microfiltration. 18 Q If you have them couriered down, is that like 19 Federal Express or something? 20 MS. PONZOLI: Would you have a problem with 21 that, Mr. Perko? 22 MR. PERKO: No. 23 MS. PONZOLI: It might help me to understand 24 it, if you could. When we take a break this 25 morning, if you could call and ask them if they ACCURATE STENOTYPE REPORTERS, INC. 12 1 would Fed Ex them down. 2 BY MS. PONZOLI: 3 Q Do you have any idea if you intend to use those 4 at the time of trial, Dr. Shannon to explain to the court 5 how the microfiltration would work? 6 A If we did use any photographs, they would be 7 the same photographs that are already in the report. 8 Q I recall that there was, at one time, a 9 designated person to demonstrate the microfiltration. Do 10 you remember that? Were you a part of that decision that 11 there would be someone to demonstrate the 12 microfiltration? 13 A At the trial? 14 Q Yes, sir. 15 A Yes, we had some discussions about that. I 16 believe the individuals that will be demonstrating the 17 microfiltration would be myself and Kevin Boehmer, who is 18 on your list of people to be deposed. 19 Q Certainly. And that's why you pulled the 20 person, the other, the demonstration person will be you 21 or Mr. Boehmer? 22 A Yes. 23 MR. PERKO: Dr. Shannon, just so the record is 24 clearer, you should wait until Ms. Ponzoli has 25 finished her question before you answer it. Makes ACCURATE STENOTYPE REPORTERS, INC. 13 1 better reading. 2 MS. PONZOLI: I try to remember that, too, 3 Dr. Shannon. 4 THE WITNESS: I'm just trying to be too 5 helpful, that's all. 6 MS. PONZOLI: I need all the help I can get, 7 Dr. Shannon. 8 BY MS. PONZOLI: 9 Q So the only documents left from -- we were at 10 5, Dr. Shannon, I believe, relating to research? 11 A Yes. 12 Q The only documents were those photographs that 13 we're going to have Fed Ex'd down tomorrow? 14 A Yes. 15 Q In category 6, it's a pretty broad category. 16 Have you reread that and feel comfortable that you have 17 produced everything in category 6? 18 A Yes, I do feel comfortable that we've covered 19 that area. 20 Q Is a lot of category 6 -- just so I'm clear. 21 Is that covered by these publicly available documents 22 that you've listed? 23 MR. PERKO: Object to form. 24 A I believe that's a fair assessment of the 25 situation, yes. ACCURATE STENOTYPE REPORTERS, INC. 14 1 Q Category 7. Again, you've produced all 2 documents in category 7? 3 A Yes. 4 Q And, again, category 7 is covered, in some 5 large part, by the list of documents in the publicly 6 available documents? 7 A Yes. 8 MS. PONZOLI: Ms. Court Reporter, do you have 9 stickers to mark the exhibits? 10 THE COURT REPORTER: Yes. 11 MS. PONZOLI: I think we might -- should 12 include -- I guess at this point, I would like to 13 just go ahead and be sure that we attach his notice 14 of taking deposition, duces tecum, and the letter 15 with the list of documents. 16 (Deposition Exhibits 1 and 2 marked for 17 identification.) 18 Q Dr. Shannon, I'm returning to you EES Number 1, 19 which was your notice, duces tecum, and I think I'm going 20 to hold on for a minute, EES Number 2, which is the 21 letter with the publicly available documents that we have 22 been discussing. Had you told me whether you had 23 produced all documents in 7? 24 A Yes, I have. 25 Q And then as to number 8, have you produced all ACCURATE STENOTYPE REPORTERS, INC. 15 1 documents? 2 A Yes. 3 Q And number 9. I think some of these are 4 duplicative, if you've answered another one, you've 5 answered these, but in an abundance of caution, I think 6 we may get carried away asking for the same thing three 7 different ways. 8 Number 10. All laboratory notes, hard copies 9 of computer disks, et cetera. Those have been produced? 10 A Yes, they have. If I could just add, on some 11 of the work that was done in '77-78 in the nitrogen and 12 phosphorus water balance studies, some of the original 13 data, and so on, I have not been able to relocate, so I 14 couldn't produce it. 15 Q So it appears in the reports in a summarized 16 form? 17 A Yes, it's summarized in the report. 18 Q Let me ask you, while I'm thinking of it, 19 Dr. Shannon, you produced disks of data in response to 20 this request, did you not? 21 A Yes, we did. 22 Q We have not had easy access. Would you explain 23 to me how to access the data? It may just be something 24 simple that we didn't do appropriately, but we were not 25 able to access it. Can you tell us how to access it on ACCURATE STENOTYPE REPORTERS, INC. 16 1 the disks? 2 A I can talk to Kevin Boehmer who set up the 3 disks and worked with them, and get that information, or 4 I could have him talk directly to whoever you have trying 5 to do that. 6 MS. PONZOLI: What we will actually have, 7 during the course of this deposition, is someone 8 from DEP has the disks presently and is trying -- we 9 had tried to access it and had not been successful, 10 and so we turned it over to DEP who had several 11 people and they were going to try today. Is there a 12 phone number? Could that person call Boehmer 13 directly? How do you want to handle that, 14 Mr. Perko? 15 MR. PERKO: I don't have a problem with that. 16 THE WITNESS: I would like some clarification 17 on what disks we're talking about. 18 MS. PONZOLI: These are the disks that you 19 produced in response to the notice, duces tecum. 20 MR. PERKO: It's my understanding we produced 21 three disks, is that right? 22 DR. JONES: They might be duplicated. There's 23 three or six. 24 MS. PONZOLI: Frequently, when something comes 25 in my office, they will automatically make a second ACCURATE STENOTYPE REPORTERS, INC. 17 1 set. 2 MR. PERKO: It's my understanding they have 3 three disks, and I don't want to testify on the 4 record, but it's my understanding that was the early 5 base-line data that we received from the South 6 Florida Water Management District. 7 MS. PONZOLI: Is that all that's on there, is 8 the early base-line data? 9 MR. PERKO: That's my understanding. 10 THE WITNESS: I believe there may also be the 11 early base-line data, the co-op farms early 12 base-line data in another disk. And there also may 13 be another disk that has the spread sheet 14 information that we developed, spread sheets that we 15 developed from that sugar cane growers' data. 16 That's why I needed some clarification of what disk 17 you were referring to, or what data set you were 18 referring to. 19 BY MS. PONZOLI: 20 Q Of course, our problem we haven't seen what's 21 on the disk so we don't know what we're referring to. 22 Can you give us Mr. Boehmer's number and we'll phone it 23 over to DEP and let someone -- do you have it? 24 A Yes, it's a 519 area code. 25 Q Is that Canada? ACCURATE STENOTYPE REPORTERS, INC. 18 1 A 579-3500. 2 Q 579-3900? 3 A 3500. 4 Q I'm sorry. (519)579-3500. And you think he'll 5 be there today? 6 A I believe he is, yes. 7 MR. PERKO: I don't have a problem with DEP 8 calling Mr. Boehmer as long as there are no 9 attorneys involved. If there is an attorney, I 10 would like to have one of our attorneys on the line. 11 MS. PONZOLI: We'll take a break in a little 12 while and we'll relay that information. 13 BY MS. PONZOLI: 14 Q Now, you said that you thought what appears on 15 those disks, to the best of your recollection, 16 Dr. Shannon, is early base-line data from the South 17 Florida Water Management District, this is for the BMP 18 Rule? 19 A Yes. 20 Q And the early base-line data from the co-op 21 farm for that same purpose? 22 A Co-op farms. 23 Q Farms. I'm sorry, yes, sir. And then spread 24 sheet information, and I didn't understand what it meant 25 by the co-op's data? ACCURATE STENOTYPE REPORTERS, INC. 19 1 A That would be the co-op's farms' data that I 2 referred to. 3 Q It's the same. There's not three different 4 categories. It's really only the two. 5 A Yes. 6 Q Is there anything else that you believe is 7 there? 8 A No. I think that covers it. 9 Q There's no data from your microfiltration -- 10 A Not in a computer data base. 11 Q That's on the hard sheets that you gave us? 12 A The data from the microfiltration is in the 13 report. 14 Q Then we have all the proposals in category 11? 15 A Again, on the proposals, I wasn't able to 16 locate the proposal for our original study that we did on 17 nitrogen, phosphorus, and water balances in the EAA. 18 Q This was '78? 19 A Yes. The proposal would have been made in '77 20 or late '76. 21 Q But all others were provided? 22 A Yes. 23 Q And then your field notes in number 12. And I 24 assume those were all provided. 25 A Yes. We provided the field notes from the ACCURATE STENOTYPE REPORTERS, INC. 20 1 microfiltration work that we had done recently. And, 2 again, I don't have the field notes for the '77-78 3 studies in the EAA. 4 Q Number 13. 13 would appear to have a word 5 processing typo in it. I think they cannibalize these 6 from one expert to the next. You're not Dr. Davis. But 7 assuming it's written to apply to Dr. Shannon. 8 A Yes, I would say that I had provided that 9 information. 10 Q And number 14. 11 A Yes. 12 Q Number 15. 13 A Yes. 14 Q Number 16. 15 A Yes. 16 Q And number 17. 17 A Yes. 18 Q 18. 19 A Yes. 20 Q 19. 21 A Yes. 22 Q 20. 23 A I'm not sure I had anything in that regard in 24 my files, but if there was, we would certainly provide 25 it. ACCURATE STENOTYPE REPORTERS, INC. 21 1 Q And how about 21? 2 A Yes. 3 Q To your knowledge, was it documents from 21 4 that were withheld or not? 5 A Documents from number 21? 6 Q Well, documents that would fit into the 7 category of number 21, were those the kinds of documents 8 that you believe were withheld? 9 A I'm not sure of the question. I'm sorry. 10 MR. PERKO: Counsel, I'll provide a privilege 11 list after lunch break. I think you'll see there 12 were no documents in that category. 13 Q Dr. Shannon, let me -- on the privilege, then, 14 we can look at the list and talk about it then. Did you 15 make the decision or did your attorney make the decision 16 what was appropriate to pull back? 17 A We gave our attorney everything. 18 Q And the attorney made the decision? 19 A Made the decision, yes. 20 Q Number 22. 21 A I must have skipped a page here. Again, on 22, 22 some of the earlier correspondence files and so on 23 relating to the '77-78 study, I couldn't produce those, 24 because I didn't have them, and couldn't locate them. 25 Q How long, Dr. Shannon, have you done work on ACCURATE STENOTYPE REPORTERS, INC. 22 1 behalf of the Florida Sugar Cane League or the Sugar Cane 2 Growers Cooperative? 3 A Started -- initial work with Florida Sugar Cane 4 League started in 1975. 5 Q And when they began, you began to be a 6 consultant for them? 7 A Yes. 8 Q Were you hired, originally, or contracted by 9 Mr. Wedgworth? 10 A No; I was not. I was hired by the Florida 11 Sugar Cane League, and the executive director at the time 12 was Nelson Fairbanks. 13 Q So your initial contact with them was through 14 Mr. Fairbanks? 15 A The best that I can recollect, it was with 16 Nelson Fairbanks. 17 Q Do you continue to work on behalf of 18 Mr. Fairbanks, or U.S. Sugar, or the league at present? 19 A I'm working for the Sugar Cane Growers 20 Cooperative at present. 21 Q So the answer to my other question is really 22 no; you're not presently working? 23 A No. 24 Q When was the last time that you were under a 25 contract with Mr. Fairbanks, U.S. Sugar, or the league? ACCURATE STENOTYPE REPORTERS, INC. 23 1 A Last involvement with the Florida Sugar Cane 2 League was probably around 1989. 3 Q And do you recall what that contract was? 4 A I worked on an as-needed basis for the league 5 from the period of 1975 to 1989. There were some periods 6 of time that there wasn't a lot of activity, and then 7 there were other periods of time that there was. 8 Q Were these frequently with Lake 9 Okeechobee-related issues? 10 A Yes. 11 Q Did you serve on LOTC on behalf of the league? 12 A Yes, I was on LOTC water quality subcommittee. 13 Q Were all of your efforts between '75 and '89 14 water quality efforts on behalf of the league? 15 MR. PERKO: Object to the form. 16 A In a broad sense, they were all related to 17 water quality. 18 Q Were there any that you would prefer to 19 categorize as a different area of consultation for them? 20 A No. I would stick with the water quality 21 designation. 22 Q Were they nutrient or dissolved oxygen related? 23 A Primarily nutrient related. 24 Q Category 23, Dr. Shannon. 25 A Yes. ACCURATE STENOTYPE REPORTERS, INC. 24 1 Q You've produced all of those? 2 A Yes, I have. 3 Q And category 24. 4 A Yes. 5 Q And 25. 6 A Yes. 7 Q To the best of your recollection, Dr. Shannon, 8 whose work have you reviewed, either of witnesses on 9 behalf of the petitioners, or witnesses on behalf of the 10 respondents -- or respondent and intervenors? Do you 11 want me to break those into two separate categories? 12 A Yes. 13 Q On behalf of the petitioners, either the co-op, 14 the league, or the fruit and vegetable association, whose 15 work do you recall having reviewed? 16 MR. PERKO: Object to the form. 17 A You're referring to actual records of 18 depositions? 19 Q No, sir. I'm referring to any reports, data, 20 any work, either in the large or the smaller sense. 21 A Would you -- 22 Q If it's everyone I'll get you a list and we can 23 tick them off. 24 A Well, maybe you should get me a list, because 25 there certainly was a preponderance of information ACCURATE STENOTYPE REPORTERS, INC. 25 1 presented through the SAGE deliberations and -- I could 2 go from memory, but I'm certain that I would miss some of 3 it. 4 Q Putting aside what was reviewed through SAGE, 5 have you done other evaluations on behalf of the co-op of 6 the petitioners' work? 7 MR. PERKO: Object to form. 8 Q Do you understand the question, Dr. Shannon? 9 A Yes, I understand the question. I'm just 10 trying to think if I have. There may have been some -- 11 one or two instances. 12 Q Who do you think those might have been? 13 A I have commented on some of the progress 14 reports that Dr. Richardson's group has produced. 15 Q Anything else? 16 A Through my comments -- or my summaries of SAGE 17 meetings, I've commented on information that's been 18 presented at SAGE, but I think your question excluded 19 that information. 20 Q Well, you pretty much provided those working 21 reports, and they frequently refer to whose work you were 22 reporting on, and maybe there's a little capsule of what 23 you thought, or attached to the reports. At least, for 24 the present, I have a pretty good record of whose work 25 you've looked at. I may want to take you through some of ACCURATE STENOTYPE REPORTERS, INC. 26 1 that in a little more detail later, if we have time, but 2 my question had gone, really, at that point to the 3 petitioners. So to the best of your recollection, you 4 looked at experts from the petitioners whose work was 5 presented to SAGE and to some progress reports of 6 Dr. Richardson's, is that accurate? 7 A That is accurate. 8 Q Have you ever reviewed, on behalf of the 9 cooperative, mercury data, for example? 10 A I have seen one set of mercury data, but I have 11 not reviewed it or commented on it. 12 Q Whose mercury data was that? 13 A There was mercury data collected as part of the 14 microfiltration study. 15 Q You have not really reviewed that data, is that 16 what you're telling me? 17 A I have seen the data, but I have not been asked 18 or did not volunteer any comments on the interpretation 19 of the data. 20 Q Is it your understanding that someone else will 21 interpret that data? 22 A Yes, it is. 23 Q Who will that be? 24 A My understanding was that it would have been 25 Dr. Pollman, KBN. ACCURATE STENOTYPE REPORTERS, INC. 27 1 Q You must be aware that Dr. Pollman is not going 2 to testify on mercury. Do you have any idea -- 3 MS. PONZOLI: That's accurate, Mr. Perko, is 4 that right? Well, I mean in the sense of -- how do 5 we say this -- a voluntary witness. 6 MR. PERKO: I think that's accurate that 7 Dr. Pollman will not voluntarily testify regarding 8 mercury. 9 MS. PONZOLI: And the cooperative has reserved 10 its right to solicit his involuntary testimony? 11 MR. PERKO: Right. 12 BY MS. PONZOLI: 13 Q So we're safe in assuming that Dr. Pollman will 14 continue to interpret the mercury data, is that accurate? 15 MR. PERKO: Object to form. 16 A I don't think we are -- speaking from my 17 knowledge of the situation, I'm not sure that is a safe 18 assumption. 19 Q Do you have any idea who else will interpret 20 the data? 21 A I have no idea. 22 Q Do you think it's possible that in the end you 23 might be asked to interpret the data? 24 A No; I would not even attempt to delve into the 25 mercury area. It's outside of my area of expertise. ACCURATE STENOTYPE REPORTERS, INC. 28 1 Q So you do not consider yourself an expert on 2 that? 3 A No. Definitely not; definitely not. 4 Q Have you heard expressed, Dr. Shannon, what any 5 of the opinions on the mercury issue are? 6 A Yes, I have. 7 Q What have you heard? 8 A And these have been discussions primarily with 9 Dr. Pollman. 10 Q Right. 11 A And what I've heard is that there is potential 12 for STAs to release methyl mercury. 13 Q Did he express anything else in regard to that 14 potential for STAs to release methyl mercury? 15 A No. Our discussions on mercury were -- 16 probably encompassed no more than five minutes of 17 discussion. 18 Q Did Dr. Pollman express any opinion on water 19 conservation areas releasing methyl mercury? 20 A Not to my knowledge. Our discussion was 21 focused on what might happen in a STA. 22 Q From your knowledge of the STAs and the water 23 conservation areas, do you see a distinction between them 24 that would affect -- 25 MR. PERKO: I'm going to object to the ACCURATE STENOTYPE REPORTERS, INC. 29 1 question. Dr. Shannon said he's not an expert in 2 mercury. 3 MS. PONZOLI: That's all right. He can answer 4 my question. 5 BY MS. PONZOLI: 6 Q Dr. Shannon, from your knowledge of the STAs 7 and the water conservation areas, do you see a 8 distinction between them in regard to the release of 9 methyl mercury? 10 MR. PERKO: Object to form. 11 A I see some differences between STAs and 12 conservation areas. Whether these differences are 13 relevant to mercury or not, I just don't feel comfortable 14 commenting on mercury issues. 15 Q What are the differences you see between them? 16 Between the STAs and the water conversation areas. 17 A Well, the obvious difference is that the STAs 18 would be constructed primarily on farm or agricultural 19 land; whereas, the conservation areas have been vegetated 20 for a long period of time. 21 Q And you see that as the primary difference 22 between the two? 23 A I see that as probably the most -- or to me 24 that's the most obvious difference between a STA and a 25 conservation area. ACCURATE STENOTYPE REPORTERS, INC. 30 1 Q And how will that affect their functioning, in 2 the broadest sense? 3 MR. PERKO: Object to form. 4 A Again, I'm -- I feel my area of expertise is in 5 the area of water quality, nutrient problems, primarily 6 as related to lakes. I feel that I'm not particularly 7 qualified to comment on what happens in STAs from a 8 biological or nutrient standpoint, or conservation areas. 9 Wetlands is definitely not an area of expertise for me. 10 Q I had started down this road asking if you had 11 reviewed work of other experts for the petitioners, so 12 I'd like to return to the cross in the road where I'll 13 ask you if you have reviewed the work of experts for the 14 respondent or the intervenors. 15 A In answer to that question, I believe almost 16 exclusively any reviews I've done have been within the 17 context of SAGE, either sitting around the table at SAGE 18 meetings or follow-up comments that I made to the co-op 19 through my SAGE meeting summaries. I'm having difficulty 20 trying to remember if there's anything at all that fell 21 outside that general -- 22 Q So the best of your recollection is that you 23 reviewed what was presented at SAGE, reported on it, but 24 you haven't, to the best of your recollection, been asked 25 to review any other work of the respondent/intervenors' ACCURATE STENOTYPE REPORTERS, INC. 31 1 experts? 2 A You may find something. To the best of my 3 recollection, I don't think I have. 4 Q If you had, I wanted to know what you said and 5 what you thought. 6 Number 26. 7 A Yes, I did provide. 8 Q And then number 27, I think -- I somehow think 9 that was covered by another question, but I assume you've 10 produced everything in 27? 11 A Yes. 12 Q Number 28 is -- you produced those, right? 13 A Yes. 14 Q And number 29. 15 A Yes. 16 Q These look awfully the same to me. 17 A Yes. 18 Q Number 30. 19 A Yes. 20 (Brief recess.) 21 Q Dr. Shannon, I would like to go over -- you've 22 been designated as an expert witness for the cooperative, 23 and I'm going to tell you what the cooperative has 24 designated you as testifying. 25 A Do you have an extra copy of that, or could I ACCURATE STENOTYPE REPORTERS, INC. 32 1 look at yours? 2 Q You can look at mine. You're certainly welcome 3 to. That you are expected to testify on analysis of EAA 4 nutrient run-off data, and I guess fitting with that 5 would be evaluation of historical and recent trends in 6 EAA phosphorus discharges, is that accurate? 7 A Yes. 8 Q And then a second area of testimony is 9 evaluation of phosphorus treatment alternatives. 10 A Yes. 11 Q Is that also accurate that you will be 12 testifying on that? 13 A Yes. 14 Q And I guess, in a substance of expected 15 testimony, that you're going to give testimony on a 16 comparison of proposed STAs and potentially viable 17 phosphorus treatment alternatives including but not 18 limited to microfiltration prototype testing and EAA, is 19 that accurate? 20 A Yes. 21 Q Are there any other areas that you intend or 22 believe that you will be asked to testify on, 23 Dr. Shannon, at the time of trial? 24 A I believe those are the three main areas. 25 Q I had broken them really into two, so you -- ACCURATE STENOTYPE REPORTERS, INC. 33 1 how are you breaking them into three? 2 A Well, just subject matter of expected 3 testimony: analysis of EAA nutrient run-off data, 4 evaluation of phosphorus treatment alternatives, and 5 generally accepted engineering practices. 6 Q That's right. I had not read the last one, 7 generally accepted engineering practices. 8 A I was being helpful again. 9 Q I'd like to know what the heart of your 10 analysis of EAA nutrient run-off data testimony will be. 11 A I've looked at that aspect on two different 12 levels. One is the overall loadings from the EAA from 13 the major pumping stations. 14 Q Yes. 15 A And then the trends that have occurred in that 16 period of record. I think from 19 -- I'm not sure of the 17 period of the record, but it's back into the '70s to 18 date. And then the second level that I've looked at -- 19 looked at that area from is the mass balance, material 20 balance data from our 1977-78 studies, IFAS, BMP study 21 data, and other sources. 22 Q In regard to anything else? 23 A This is in regard to the first area. 24 Q In regard to the first area, analysis of EAA 25 nutrient run-off data. ACCURATE STENOTYPE REPORTERS, INC. 34 1 A Should be phosphorus data, not nutrient. 2 Q And what will you be testifying, Dr. Shannon? 3 What opinions do you have? 4 A Looking at the historical data, the overall 5 phosphorus loading data from the EAA, it appears to be 6 in, recently, decline in the overall phosphorus loadings. 7 Q Have you quantified the decline, Dr. Shannon? 8 A I've relied primarily on other experts or 9 consultants' analysis of that information, and the 10 decline appears to be in the order somewhere around 30 11 percent. 12 Q And on whose work have you relied? 13 A Can I just ask Gary a question here? 14 Q You have to ask it on the record. 15 A Well, it's Info Tech. 16 Q Info Tech? 17 A Yes. 18 Q And who has done this work for Info Tech? 19 A I'm not exactly sure who did the work. 20 Q Have you looked at any other analysis of the 21 data that reflected a decline? 22 A No; I haven't. 23 Q So you are -- 24 A I believe in the Info Tech information, and it 25 also has a comparison to the water management district's ACCURATE STENOTYPE REPORTERS, INC. 35 1 data also, South Florida Water Management District's 2 data. 3 Q Did Info Tech come to this conclusion of the 4 30-percent decline, and so you're simply accepting their 5 analysis? 6 MR. PERKO: Object to form. 7 A Could you -- because of the interruption there, 8 I lost the train of the question. 9 Q In regard to the decline of 30 percent, where 10 you relied upon Info Tech, did you rely upon their 11 analysis that there has been a 30-percent decline? 12 A I relied on their analysis, and also the water 13 management district data showed the same sort of trend, 14 and should establish to what extent I used this 15 information, it really was an overall look at what's 16 happening from an EAA phosphorus loadings. And then once 17 it was apparent that there was something happening, then 18 I focused in on the second level of analysis. 19 Q The trends in the period, is that what you 20 mean? 21 A No. The second -- this is part of point 1, and 22 the second one was looking at other information as to try 23 to explain why that was happening. More on a smaller 24 scale basis of what's happening on individual farms. 25 Q Let me return for a moment to the phosphorus ACCURATE STENOTYPE REPORTERS, INC. 36 1 loading from the EAA. The period of decline dates from 2 when to when, Dr. Shannon? 3 A It would be helpful if I could have that 4 particular material in front of me, because I'm going 5 from memory -- 6 Q Do you know which -- 7 A The Info Tech. I know your number, it's number 8 30 -- 9 Q Well, I don't have them numbered that way. 10 A -- and it's been produced. 11 Q Well, the Info Tech information is in a large 12 box. I mean, I would have to have you go through the box 13 to find it, if you could put your hands on it faster? 14 A I can give you my -- 15 Q To the best of your recollection at the time 16 frame. 17 A I can give you the best recollection of what 18 the time frames are. The time frame that the 19 comparisons, the recent trends are being made to is the 20 time frame -- the same time frame that was used by Burns 21 and McDonnell, in their established historical phosphorus 22 loads for the area. So I believe they went from '77 to 23 '91. And then the 30-percent reduction, or the apparent 24 30-percent reduction, or the reduction has been evidenced 25 in that period after 1991. And I haven't seen '93 data. ACCURATE STENOTYPE REPORTERS, INC. 37 1 Q So the trend is a trend that covers two years 2 of data, to the best of your recollection? 3 A Yes. There may even be part of '93 data in 4 there, but I haven't seen the complete record for '93. 5 Q Had there been an increase over time up to '91, 6 Dr. Shannon, an increasing trend prior to '91? 7 MR. PERKO: You mean in phosphorus loading? 8 MS. PONZOLI: In phosphorus loading. 9 A There was -- again, my recollection, there was 10 one unusually high loading year, but the other -- and I 11 believe that was '83. It stood out as a high loading 12 amongst the other years, and then there wasn't any 13 apparent trend in the data, either upward or downward, 14 other than that blip that stood out on the chart. 15 BY MS. PONZOLI: 16 Q So other than -- if you were to remove the year 17 '83, pull that year's data out of from '77-78 through 18 '91, you believe there was no apparent trend in the data? 19 In the phosphorus loading data. 20 A Yes, there was. There did not appear to be any 21 trend. 22 Q And do you recall what particularly happened in 23 '83 that would cause '83 to be unusually high -- 24 MR. PERKO: Object to form. 25 Q -- in phosphorus loading? ACCURATE STENOTYPE REPORTERS, INC. 38 1 A I didn't actually look at a comparison of 2 rainfall for those periods, but I would expect it was 3 probably a fairly wet year. 4 Q Do you have any particular knowledge of '91 and 5 '92 in regard to the weather that would cause '91 and '92 6 to produce a reduced phosphorus loading? 7 A I have some rainfall data for '92. I believe 8 '92 was a wet year. '91, I'm not sure whether the 9 weather was above normal or below normal rainfall in that 10 period. 11 Q So a wet year doesn't necessarily make it a 12 higher loading or a lower loading, is that accurate? 13 A Amount of rainfall is certainly a factor in 14 loading, observed loadings, but the degree of wetness is 15 also a factor of how much is it above a normal year, how 16 much is it below a normal year. 17 Q But in the '83 instance, you believe that a wet 18 year produced unusually high loading, but in '92, we're 19 seeing a trend downward, even though it's a wet year, is 20 that accurate? 21 A Before I'd comment on how wet '93 was compared 22 to '83, I would like to refer to the actual rainfall 23 numbers. But the degree of rainfall is certainly a 24 factor in the loadings. 25 Q Do you have any way of knowing, Dr. Shannon, if ACCURATE STENOTYPE REPORTERS, INC. 39 1 this two-year downward trend that you're referring to in 2 phosphorus loading into the EPA will continue? 3 A I have no way of knowing at present whether 4 this will continue. 5 Q Do you have an opinion as to what has caused 6 the two-year downward trend? 7 A Yes, I do. 8 Q What is your opinion on what has caused the 9 two-year downward trend? 10 A My opinion is that at least some of this 11 reduction is due to implementation of best management 12 practices within the EAA. 13 Q Can you tell me any other causes that you 14 believe have contributed to the 30-percent downward 15 trend? 16 A Again, referring to the degree of rainfall in 17 comparison to the normal or average rainfall, it could be 18 a factor either causing a downward trend or upward trend. 19 Q Have you done any of that comparison? 20 A No; I haven't. 21 Q Do you intend to? 22 A As I mentioned, there was -- I was satisfied, 23 in my analysis, looking at the data, that there was a 24 downward trend, and that it didn't appear to be due to -- 25 entirely due to rainfall factors, so then I started ACCURATE STENOTYPE REPORTERS, INC. 40 1 looking at the BMP factor. 2 Q If you were to assign some range of the 30 3 percent that might be due to rainfall, do you have an 4 opinion as to what that range might be? Do you 5 understand my question? 6 A Yes, I understand your question. I really 7 didn't attempt that sort of analysis. But rainfall 8 certainly does enter into the trend, but whether it's 9 five percent or -- 10 Q Ten percent -- 11 A -- 10 percent, I'm just speculating. 12 Q In regard to the BMPs, tell me the BMPs that 13 you believe have been implemented during this two-year 14 period -- or maybe even prior to the two-year period. I 15 don't want to be so precise that you say, well, they 16 started on this date -- but the BMPs that had been 17 implemented in the recent time in the EAA that you 18 believe have contributed to this 30 percent. 19 A Well, I think the main BMP that has been 20 implemented is that -- is the so-called pump BMP, where 21 individual operations make a concerted effort to reduce 22 the amount of water that's pumped off their farms. 23 Q Do you have an opinion as to what part of the 24 30 percent could be attributable to just the reduced 25 pumping? ACCURATE STENOTYPE REPORTERS, INC. 41 1 A I can express an opinion. I think it could 2 vary as low as -- and let me establish the base would be, 3 say, some condition where there is no BMPs. That's what 4 I'm going to be comparing to. A pump BMP could reduce 5 phosphorus loadings by as much as 40 percent, or as 6 little as five or 10 percent. Depends on what the farm 7 was doing under the base-line condition. 8 Q Just so I'm completely clear, in order to 9 obtain something like the 40-percent reduction, you might 10 have had a farm that was exercising very little 11 discretion on its pumping, just really pumping pretty 12 much at will, in order to obtain the 40 percent, is that 13 what you're implying? 14 MR. PERKO: Object to form. 15 Q I can ask it a different way. I mean, what are 16 you talking about what the farm was doing under the base 17 line? What do you mean? What are the factors that a 18 farm might be doing under the base line that, in order to 19 change, then it could go to the maximum? 20 A Well, that's a difficult question to answer. 21 But I would say that the real base-line conditions in the 22 EAA probably go back to the period when we were doing our 23 initial studies maybe '77, '78, when there was -- really, 24 there was no focus on BMPs. Probably most farmers hadn't 25 even heard the words "best management practices." So in ACCURATE STENOTYPE REPORTERS, INC. 42 1 our analysis, we tried to do some of those kinds of 2 comparisons. So I think a real, true base-line condition 3 probably goes back a long ways. And if you take the 4 base-line conditions that existed, say, before 1980, and 5 you compare present pump BMPs to those, you probably 6 would achieve a 40-percent reduction in phosphorus 7 loading. 8 Q But the base line would have to go back to the 9 phosphorus loading that was at that frame of the late 10 '70s, early '80s? 11 A And, again, it depends on the individual 12 operation. It's very site specific? 13 Q And that -- 14 A Some farmers may have been a lot more concerned 15 about the amount of water pumped than others. It's 16 really impossible for me to determine when their attitude 17 changed about that. 18 Q What would cause some of the farmers to pump 19 more than others? 20 A I would say, in general, the more sensitive 21 agricultural operations such as vegetables would tend to 22 pump more water than the other major land use in the 23 area, sugar cane, because their crops are more sensitive 24 to water damage. I've seen instances on vegetable farms 25 where they pump in anticipation of rain back in our early ACCURATE STENOTYPE REPORTERS, INC. 43 1 studies. 2 Q I remember our griping about that. Just so I'm 3 understanding this in the kind of broad-brush fashion 4 that you and I are doing this, you had noticed no upward 5 trend in phosphorus loading into the EAA over that same 6 time frame, so we've got pretty much a constant in 7 phosphorus loading, by your belief, into the EAA from the 8 late '70s through the early '90s, but for the one year 9 you would like to exclude? 10 A Uh-huh, uh-huh. Well, I didn't say I would 11 like to exclude it. I just said it was obviously a very 12 large loading. It was apparent to me. 13 Q And on an average that loading was how much per 14 year in phosphorus tons? 15 A On average from -- and I would be referring to 16 probably the most detailed analysis of the loading, and 17 that's in the Burns and McDonnell report for the '77 18 through '91 record. The actual loading from the EAA, 19 discounting for pass throughs from the lake, that would 20 be water that's released from the lake and passed through 21 the area, I think around 205 or 206 tons a year, metric 22 tons. 23 Q And the lake would contribute an additional 24 amount of how much? 25 A I believe it's around nine or 10 tons, the ACCURATE STENOTYPE REPORTERS, INC. 44 1 pass-through water from the lake. 2 Q I'm confused, Dr. Shannon, because, if the 3 tonnage is pretty much the same over time from the late 4 '70s to the early '90s, in order to see the 30-percent 5 decline, why would you need to go back so far in time, I 6 mean, if it's the same over time, in order to get an 7 appropriate base line? 8 A Well, I didn't say that it has been the same 9 over time, that 205-tons-per-year, 206-tons-a-year number 10 that I gave you is the average annual loading over that 11 period, and there certainly was fluctuation around that 12 average. 13 Q But largely -- I mean, we're looking at an 14 average, over time, and we're looking at a 30-percent 15 reduction, why do you need to go so far back for the base 16 line? That's the part that's confusing me. 17 A Well, maybe what you're having difficulty with 18 is that I'm trying to establish a base line condition for 19 an individual farm. 20 Q Right. 21 A And individual farming operations have become 22 aware of BMPs over a number of years. I would say when 23 most farmers had to actually apply for their permits, 24 then they become particularly aware of BMPs, and it might 25 explain an additional awareness into BMP practices. ACCURATE STENOTYPE REPORTERS, INC. 45 1 Q Let's go to other BMPs. Do you believe there 2 are other BMPs that contribute significantly to the 3 phosphorus load reduction? 4 MR. PERKO: Object to form. 5 A Yes, I do. 6 Q Which are those? 7 A Well, based on some of the presentations that 8 were made at SAGE by IFAS, and by U.S. Sugar, and I 9 believe there are other presentations on BMPs, Brown and 10 Caldwell summarized BMP information and made some 11 projections on the degree of BMP implementation. Things 12 like banning, fertilizer banning; in general, water table 13 control, retention of water on farm, transferring from 14 one field to another in a way to avoid pumping -- 15 Q You don't -- 16 A -- cleaning canals on a regular basis so that 17 you get that material that could be resuspended by the 18 pump or by flows in the canal, soil testing in applying 19 fertilizer according to the soil test results. I think 20 that's probably covered. 21 Q Water table control and the movement of water 22 on a farm, or retention on a farm, you don't place with 23 the pumping practice as in the same basic category? 24 A No. But they are related, yes. 25 Q I think I asked you this before, but I honestly ACCURATE STENOTYPE REPORTERS, INC. 46 1 can't recall if I got the answer, and I apologize. The 2 percentage of the reduction that you can attribute to 3 water control, are you able to say that 90 percent of 4 your reduction will be in your water control? 5 A In water table control? 6 Q Well, in pumping and in water table control. 7 A Ninety percent of reduction from any BMPs, 8 total BMPs? 9 Q Yes, sir. 10 A No; I don't think so. 11 Q You don't think it's that high? 12 A I don't think that pump control would 13 contribute across the board, 90 percent of the potential 14 BMP reduction. 15 Q It's the primary way you can reduce your 16 phosphorus export, right? 17 A It's probably the -- on a broad generalization 18 basis across the EAA, it's probably the most easily 19 implementable practice, and it's probably the one that's 20 going to give you the most immediate impact. 21 Q Not too expensive either, is it? 22 A No; it's not. 23 Q But you don't want to assign some percentage of 24 the estimated reduction that farmers can achieve to that 25 particular primary way? ACCURATE STENOTYPE REPORTERS, INC. 47 1 A No; I don't. 2 Q Do you think that these others combined: soil 3 testing, cleaning canals, and banning arguably could 4 equal water control? 5 A In my opinion, BMPs, combining a suite of BMPs 6 across the EAA, across land uses, and so on could reduce 7 loadings by as much as 50 percent. 8 Q Combining all that you had mentioned: the 9 water control, the banning, the cleaning the canals, the 10 soil testing, all of those together? 11 A Yes. 12 Q Do you believe that you will testify to that at 13 the time of trial? 14 A To the 50 percent? 15 Q Yes, sir. 16 A As high as 50 percent? 17 Q Yes, sir. 18 A Yes. 19 Q How long do you think it would take us before 20 we could know that we could achieve 50-percent reduction 21 by BMPs? 22 MR. PERKO: Object to form. 23 A In terms of overall, the overall EAA? 24 Q Yes, sir. 25 A Or have it demonstrated at an individual site? ACCURATE STENOTYPE REPORTERS, INC. 48 1 Q In terms of certainty -- there are two kinds of 2 certainty. Maybe certainty for the farmer so that he 3 would be willing to be committed to that type of 4 reduction, and maybe certainty as to the governmental 5 regulatory agency so they could reasonably expect that 6 kind of reduction. Let's take it first as to the farmer. 7 When do you think we would be able to know so the farmer 8 would be comfortable with that type of obligation? 9 MR. PERKO: Object to form. 10 A I would say that the farmer would -- in order 11 for them to be comfortable that they can consistently 12 achieve these kinds of reductions, they're probably going 13 to need probably two or three years of data. 14 Q From now, from the present time, or from the 15 beginning of their base line? 16 A From the period that they actually implemented 17 the BMPs. 18 Q And you're speaking theoretically, not 19 specifically? 20 MR. PERKO: Object to the form. 21 Q Do you understand what I mean? We've got a BMP 22 program out there, and we've got a 25-percent reduction 23 going on out there. Are you saying that from the time a 24 farmer began collecting the data for that period, he 25 would be able to commit to whether he could be ACCURATE STENOTYPE REPORTERS, INC. 49 1 comfortable with being obligated to reach 50 percent? 2 MR. PERKO: Object to form. 3 A I feel that the two-year period is reasonable. 4 The farmers are going to rely a lot on the results of the 5 IFAS program. They're going to want to see what the 6 program showed for their particular type of operation. 7 Q Is it also safe for me to assume that there 8 will be some farmers who theoretically will be 9 comfortable committing to that type of reduction and 10 other farmers who won't -- 11 MR. PERKO: Object to form. 12 Q -- even if they had applied the same degree of 13 effort to achieving BMPs? 14 MR. PERKO: Object to the form. 15 A Farmers being farmers, and people being people, 16 I'm sure you'll find some that won't be comfortable with 17 that and some that will. 18 Q Putting aside their comfort and just looking at 19 objective ability to achieve, will there still be 20 differences? 21 A Differences between individual farmers? 22 Q Yes, sir. 23 A Oh, I think there will be. 24 Q And will that go to things such as vegetable 25 farmers versus sugar farmers? ACCURATE STENOTYPE REPORTERS, INC. 50 1 MR. PERKO: Object to form. 2 A Well, I think the vegetable farmers have a lot 3 more -- their zone of improvement is considerably wider 4 than sugar cane. 5 Q Oh. They can improve, tremendously, but still 6 be exporting more phosphorus than a sugar cane farmer? 7 A Yes. 8 Q Do you think that the regulatory agencies 9 within that same two-year period could be comfortable 10 that farmers could achieve a 50-percent reduction? 11 MR. PERKO: Objection; speculation and/or legal 12 conclusion. 13 A I wouldn't want to comment on how comfortable 14 the regulators might be with this. 15 Q I could suggest regulators could get real 16 comfortable real fast. I thought the first group would 17 be the hard ones. Do you have an intention to testify, 18 additionally, on loading from the EAA other than what 19 we've been discussing? 20 A No; not as far as the overall EAA loads go. 21 Q Do you intend to testify as to other sources of 22 loading into the EAA? 23 A Other sources? Such as? 24 Q Of phosphorus loading. 25 A Such as -- you mean nonagricultural sources? ACCURATE STENOTYPE REPORTERS, INC. 51 1 Q Yes, sir. 2 A No. 3 Q You wouldn't be testifying as to rainfall, or 4 urban discharge, or -- 5 A Well, I've certainly done some -- made some 6 estimates of rainfall contributions, but as far as the 7 urban and point sources, I have no intent to talk about 8 those. 9 Q What are your estimates as to rainfall? 10 A As a loading? 11 MR. PERKO: Object to form. 12 Q Yes, sir. 13 MR. PERKO: Object to form. 14 A We did some calculations as on rainfall, and 15 using some fairly conservative numbers like 29 parts per 16 billion in phosphorus. And a typical rainfall year, I 17 think the average is 48 inches, between 48 and 49 inches 18 a year. The aerial loading is actually in one of our 19 reports, and I think we estimated it at -- I'd really 20 feel comfortable if I could look at the number in the 21 report. 22 Q Can you tell me what -- 23 A I think it's 0.3 pounds -- 0.2 pounds per acre 24 per year. It's in one of the microfiltration technical 25 memoranda. Probably the third memorandum. ACCURATE STENOTYPE REPORTERS, INC. 52 1 Q Are you comfortable with that, 29 parts per 2 billion of phosphorus in the rainfall number? 3 MR. PERKO: Object to form. 4 A I think it's conservative -- a very 5 conservative number, on the low side. 6 Q What do you mean by conservative? 7 A Conservatively low. The number could in 8 fact -- the average number could in fact be higher. The 9 rainfall sampling we did as part of our '77-78 water 10 balance/nutrient balance studies, we found higher levels 11 than that. And I believe Burns and McDonnell in some of 12 their analysis have used the number of 50 parts per 13 billion. So I think the 29 bounds rainfall on the low 14 end. 15 Q Are you going to testify, Dr. Shannon, in 16 regard to the EAA being a sink for phosphorus? Do you 17 understand my question? 18 A I'm not going to testify on the EAA as a whole 19 being a sink for phosphorus; no. 20 Q Do you know if anyone on behalf of the 21 cooperative will do that? 22 A I don't have any specific witness names with 23 respect to that. 24 Q Do you believe that's a commonly held belief? 25 A On an individual farm basis, we've certainly ACCURATE STENOTYPE REPORTERS, INC. 53 1 analyzed a lot of information, and from our studies, and 2 other studies that would show that many sugar cane 3 operations are sinks for phosphorus. 4 Q Now, just so -- because I'm not a chemist and 5 I'm not an expert in this area, that means that the 6 phosphorus coming onto that sugar cane operation, 7 actually exceeds the amount that leaves? 8 A Yes, that's correct. 9 Q Now, does that include application of 10 fertilizer or just natural sources of phosphorus? 11 A You can do the analysis with fertilizer 12 applications in or out, you can do it with just 13 considering rainfall and irrigation water that is coming 14 into the site, and backpump water that is going out of 15 the site. In answer to your question, fertilizer can be 16 in or out. 17 Q And you would still come to the same conclusion 18 that it was reduced what was going off? 19 A Yes. 20 Q Putting aside whether you will testify to it or 21 not, do you believe that the EAA, as a whole, is a sink 22 for phosphorus? 23 A It could be. Again, I focused more on 24 individual farming operations, and I haven't really seen 25 any data that has shown me that the EAA, as a whole, is a ACCURATE STENOTYPE REPORTERS, INC. 54 1 sink. But extrapolating individual farming or individual 2 farm results to the EAA as a whole, it's conceivable that 3 it could be a sink. 4 Q But you see no data that indicates to you 5 that's true? 6 A No. 7 Q How does it happen that an individual farm 8 becomes a sink for phosphorus, Dr. Shannon? I don't 9 understand -- 10 MR. PERKO: Object to farm. 11 Q I mean, how do you believe that phenomenon 12 occurs? 13 A Well, going back to our earlier studies, where 14 our sugar cane -- the sugar cane operation that we 15 monitored on a continuous basis for a year, we monitor 16 irrigation water going in, we had rainfall collectors, 17 and we monitored rainfall quality, we monitored water 18 being pumped from the sugar cane operation, and we 19 monitored fertilizer applications, and we even monitored 20 the amount of phosphorus and nitrogen that was removed 21 from the site with the harvested cane. And when we 22 calculated loadings for irrigation water, and calculated 23 loadings for rainfall, phosphorus loadings, and 24 calculated the backpumped water loadings for phosphorus, 25 that the -- and some of the irrigation and the rainfall ACCURATE STENOTYPE REPORTERS, INC. 55 1 loadings, and subtracted the backpump loadings, it was 2 evident that the site was contributing less phosphorus 3 than it was receiving from those two sources. 4 Q And this was at a 29-parts-per-billion rainfall 5 number for phosphorus? 6 A No. Our rainfall numbers, I believe, for that 7 situation were somewhat higher than that. 8 Q Do you recall how high they were? 9 A I would have to look at the report. But I 10 think they were around 50 or 60 parts per billion. 11 Q Was this the report you did in '78-79 for CH2M 12 Hill? 13 A '77-78. 14 Q And do you feel that work is as valid today as 15 you thought it was at the time you produced it? 16 A Yes, I do. 17 Q You have no reason to doubt your methodology or 18 your numbers? 19 A No. 20 Q Have you repeated any of that work in the time 21 frame since then to check and see if you would obtain the 22 same results 15 years down the road? 23 A Well, we haven't repeated any actual -- we 24 haven't gone in and repeated any of the results. We did 25 follow up at the sugar cane plantation, we did another ACCURATE STENOTYPE REPORTERS, INC. 56 1 follow-up study which we called phase 3, which was for 2 another year after that, and we also did -- I believe we 3 had the East Shore Drainage District, and we did -- we 4 collected monitoring data on that. That was also another 5 sugar cane area. 6 Q When you said "the sugar cane plantation," 7 whose operation did you use? 8 A It was the Vaughn Plantation, was a U.S. Sugar 9 Company property. 10 Q Up around the lake? 11 A It was on the Miami Canal down from the lake a 12 few miles. 13 Q As you sit here, do you have -- I know we've 14 gone off in a lot of directions -- but do you have any 15 other opinions that you believe you will be offering at 16 the time of trial regarding historical and recent trends 17 in EAA phosphorus discharge or analysis of EAA phosphorus 18 data? 19 A Like we've discussed the limits of the analysis 20 with respect to the EAA as a whole, but individual farm 21 data, there are -- there are other data that were 22 included in that analysis. 23 Q So you will offer some more testimony on 24 individual farm data and how you've evaluated that? 25 A Yes. And those sources. We're hopeful that we ACCURATE STENOTYPE REPORTERS, INC. 57 1 will get some meaningful information out of the early 2 base-line monitoring program. We can take some of that 3 data and compare it back to our original site. 4 Q Is this work ongoing even through the present 5 time and up to the time of trial, Dr. Shannon? 6 A Yes. We received the data base from the water 7 management district I think about two weeks ago. 8 Q And so you're evaluating that presently? 9 A Let me comment it's in sorry shape. 10 Q What do you mean it's in sorry shape? 11 A Things like duplicate records in it, it has 12 some -- in identification of sites, zeros are O's, and 13 we -- it's like any large data base, it's got -- it 14 has -- there's been problems in consistency of format in 15 entering the data decimal place values, and so on. The 16 acreage records for the permit holders aren't in it. It 17 is apparent to us that the information was put together 18 pretty quickly. But it's also apparent to us that 19 there's a lot of valuable information in there once we 20 sort out the so-called data base glitches. 21 Q What type of valuable information do you 22 believe you're thinking you're seeing? 23 A Well, we believe that we will be able to 24 calculate loadings for the -- there's about 136 farms or 25 operations that are included in the data base, so we'll ACCURATE STENOTYPE REPORTERS, INC. 58 1 be able to calculate loadings. Be able to identify farms 2 that are contributing higher loadings; i.e., hot spots. 3 We should be able to see whether there's -- whether 4 there's certain types of land use that contribute higher 5 loadings than others. 6 Q It's commonly believed that certain land uses 7 do contribute higher loadings, the individual data bases 8 have just been lacking, is that accurate? 9 A Yes. It's -- particularly, in the comparison 10 between vegetables and sugar cane, I think it's common 11 knowledge, and it's pretty well documented that vegetable 12 farming operations contribute higher phosphorus loadings 13 per acre of land being farmed than sugar cane operations. 14 Q In addition to your ability to corroborate the 15 overall trend that you believe exists in phosphorus 16 loading from the EAA, will this data, in your opinion, 17 help you corroborate individual farm trends? 18 A We have some data for individual farms that 19 would show definite trends. 20 Q Downward or upward? 21 A Downward. 22 Q Are you comparing data from the U.S. Sugar -- 23 the Vaughn farm from your earlier work to present time? 24 A We're not making any comparisons for the Vaughn 25 Plantation until we get the early base-line data ACCURATE STENOTYPE REPORTERS, INC. 59 1 summarized, then we can make that comparison. 2 Q But you do intend to make that since you have 3 that data? 4 A Yes. 5 Q Is that the only one you have from a much 6 earlier time frame? 7 A No. We have -- in our earlier reports, we did 8 other sites. There was an improved pasture site which is 9 now in sugar cane, that we can make a comparison for 10 that. We had a number of checkpoint sites that we can 11 make comparisons for. We had data for the 298 districts 12 that we can make comparisons from. 13 Q Is it your intention to make these comparisons 14 between these areas for which you had a much earlier base 15 line -- 16 A Yes. 17 Q -- and the present data? 18 A Yes. 19 Q Okay. 20 A Like to make, you know, wherever we can make a 21 comparison, we would like to do that analysis. 22 Q Will that work be continuing up until you walk 23 in the courthouse, I mean? When do we meet again, 24 Dr. Shannon? 25 A Well, as I explained, we only received the ACCURATE STENOTYPE REPORTERS, INC. 60 1 early base-line data a couple of weeks ago, and we've got 2 two people working on it. I think we're getting to the 3 stage where we can start getting the loading information 4 out of it. We're going to need cooperation from the 5 water management district to get the acreages, because 6 it's -- you know, we can calculate loadings, but until 7 you relate them back to what the land use is, and how 8 much acreage is there, it's kind of stand-alone 9 information until you do that. So, you know, there's -- 10 I would say there's a couple -- maybe a month's of 11 intensive work that has to be done on this data base. 12 Q But you do intend to do that work? 13 A Yes. 14 Q You have been asked to do that? 15 A Yes, we have. 16 Q Is there more information that you believe that 17 comparison between the early base line and -- well, I'm 18 using early base line, meaning your original work. Maybe 19 I should be more careful. Can I call it your '78 work, 20 comparison between your '78 work and what's actually 21 called the early base-line information for the BMP rule? 22 A We have another data set from the vegetable 23 farming operation that we monitored in '77-78. We have 24 their 1992 data. They initiated a monitoring program on 25 their own in 1992. And then we have their '93 data. ACCURATE STENOTYPE REPORTERS, INC. 61 1 Q You're comparing those? 2 A Yes. 3 MR. PERKO: Counsel, if I could make sure I'm 4 clear, when you refer to the 1978 data, you mean 5 1977-78? 6 MS. PONZOLI: Right. That's exactly -- I'm 7 referring to the work he did for CH2M Hill. 8 BY MS. PONZOLI: 9 Q What's the name of that report, Dr. Shannon? I 10 have it, I've seen it over the year. 11 A Water quality studies in the Everglades 12 Agricultural Area, something like that. 13 Q Right. Other than corroborating the downward 14 trend, is there more information that you think that 15 you're going to obtain from this comparison of the data? 16 A We may get further information on the impacts 17 of certain BMPs. 18 Q Are you affirmatively looking at the BMPs that 19 are occurring on the various properties to try to make 20 some conclusions or obtain some conclusions as to the 21 efficacy as to certain BMPs on certain land uses? 22 A Well, we have some information on the vegetable 23 farming site on -- when the pump BMP was implemented. 24 And the other sites, it isn't our intent to go in and 25 assess what has happened or what is changed since '77-78. ACCURATE STENOTYPE REPORTERS, INC. 62 1 That could be done, but that's not -- our focus right now 2 is trying to get the early base-line data in a form where 3 we have aerial loadings for the sites and then make the 4 comparisons. 5 Q I don't mean any pejorative, but it's sort of a 6 gross analysis of loadings, it's not a highly refined, 7 this one is doing this, and this one is doing that, and 8 therefore they had loading reductions of X and Y, is that 9 accurate? 10 MR. PERKO: Objection to the form. 11 Q Do you understand the question? 12 A Yes. A factor that influences loadings as we 13 discussed of the EAA as a whole is rainfall. So somehow 14 these results have to be rainfall corrected. 15 Q Well, that's an area of great dispute. 16 A Yeah. 17 Q And what will you use for your rainfall 18 numbers? 19 A No. I'm sorry if I misled you on rainfall 20 correction. I'm not talking about correcting the values 21 for the amount of phosphorus that you'd be getting from 22 rainfall. I'm talking about taking the loading from a 23 particular operation when there was 55 inches of 24 rainfall, and comparing it to an operation where maybe 25 there was only 40 inches of rainfall. Because this is ACCURATE STENOTYPE REPORTERS, INC. 63 1 something that you run up with when you make -- run into 2 when you make comparisons, so I'm not talking about 3 making an across-the-board correction for rainfall 4 phosphorus loading. I'm just talking about how much 5 water was pumped. And, because, you could have a 6 situation, a change in rainfall of 10 or 15 inches in a 7 year could in fact double the pumping from that 8 operation. 9 Q Just so I'm clear, Dr. Shannon, the expected 10 substance of your testimony regarding the phosphorus 11 loading from these individual farms will be that we could 12 in fact and should in fact expect higher phosphorus 13 reductions from BMPs than is presently envisioned under 14 the 25-percent reduction, is that accurate? 15 A I think it's reasonable to expect overall BMP 16 reductions of greater than 25 percent. 17 Q If you'll indulge me for a minute here, I don't 18 think there's been a great dispute that in fact farmers 19 could achieve greater -- isn't it fair to say the dispute 20 has been over what they were willing to be committed to 21 achieving? 22 MR. PERKO: Form. 23 A I think it's fair to say that there has been 24 objection to what they're willing to commit to. It's 25 difficult for a farmer to commit to an absolute number, ACCURATE STENOTYPE REPORTERS, INC. 64 1 you know, when he has to factor in, well, what happens if 2 I get 20 inches of rainfall over normal, you know, and my 3 pump BMP is not going to give me the same degree of 4 reduction that it gave me in a normal rainfall year, so I 5 think that's the kinds of problems they have difficulty 6 with is the absolute number. That I'm committing to 7 reducing my phosphorus loading 50 percent year after year 8 after year, or is it on an average basis. 9 Q Is the goal of some of this analysis to 10 determine -- assuming we have a standard somewhere of, 11 for example, the 50 ppb concentration into the EPA? 12 A Yes. 13 Q And whatever the load reduction that would 14 accompany that would be. Is the goal of this to 15 determine what other remedial efforts are reasonable and 16 appropriate to achieving that standard? 17 A The goal would be to look at -- let me just 18 rephrase that. I think our overall goal is to take a 19 waste minimization approach to the EAA. And when I say 20 that, I mean go back into the system and identify the hot 21 spots, and focus on the hot spots for removal of as much 22 phosphorus as you can remove with whatever appropriate 23 technology. And then for the rest of the area, try and 24 get as much phosphorus removal through the implementation 25 of BMPs. ACCURATE STENOTYPE REPORTERS, INC. 65 1 Q Would you envision any public works treatment, 2 whether it be STAs, or chemical treatment, or whatever, 3 being used in combination with this sort of site-specific 4 treatment? 5 A There may be; there may not. It's -- if I can 6 use the -- I guess, a very simplified approach for the 7 EAA. If there is some 200 tons of phosphorus emanating 8 from the area now through the EAA -- and I've excluded 9 lake pass throughs -- 10 Q Right. 11 A -- and BMPs at 25-percent level can remove 40, 12 50 tons, if a hot-spot approach can eliminate let's just 13 say, for the sake of discussion, another 100 tons, we're 14 left with -- I don't know, what is it? 60 tons or 15 something like that? 16 Q Right. 17 A Which is still short of the 0.05 out of the 18 whole area for EAA loadings, I think equates to something 19 like 40 tons. So we're still 20 tons short. So one 20 approach may be to put on an add-on technology, STAs, or 21 whatever to get that extra 20 tons. Or another approach 22 may be to go to an enhanced level of BMPs, maybe take 23 your BMPs up to 30 percent, overall, that will probably 24 give you what you need. 25 Q Go to a 30-percent requirement for each ACCURATE STENOTYPE REPORTERS, INC. 66 1 individual farm, but treating the hot spots separately? 2 A Yes. 3 Q Is this pretty much the heart of what you will 4 testify, Dr. Shannon, this should be the approach at 5 present, in your view? 6 A Yes. 7 Q How long have you held this particular opinion, 8 Dr. Shannon? 9 A I've held this opinion for probably at least 10 half of my professional career. I got into the 11 environmental engineering area in 1970. And at the time 12 the approaches then were to treat the end of pipe, and 13 probably, in a very generalized -- making a broad 14 generalization, maybe in the '80s, early '80s, mid '80s, 15 more focus in pollution control was put on the so-called 16 waste-minimization approach, where you go back upstream, 17 and you look where the major sources of any particular 18 pollutant of interest are coming from, and it's 19 determined that it's more cost effective to remove it 20 there, then you polish what you have left over. So it's 21 a concept and a belief that I've had for a long time. 22 Q You'll have to forgive me for not being 23 familiar with all that went on in SAGE, but I have spared 24 myself some of what went on over the last six years. Did 25 you present this sort of a hot-spot theory to the SAGE ACCURATE STENOTYPE REPORTERS, INC. 67 1 committee? 2 A I did not make a specific presentation on the 3 hot-spot approach. I think everyone was certainly clear 4 that I was focusing on BMPs. So from that standpoint, I 5 think my position is very consistent with SAGE. I felt 6 the first step that should be made in the EAA is BMPs, 7 and try to get as much removal of phosphorus as you can 8 with BMPs. I -- really, the hot-spot aspect came to 9 focus when we started looking at the data from the 46 10 co-op farms that are participating in the early base 11 line. We then did in fact see some hot spots, and it was 12 very dramatic. 13 Q Do you have an explanation for the hot spots, 14 aside from the vegetable/sugar cane, which is pretty well 15 understood, even in a common-sense level? Do you have an 16 explanation beyond that for hot spots? 17 A No. I think the main explanation for one area 18 being higher phosphorus loading than another is it's 19 vegetable as opposed to some other land use. I think 20 that's the main thing that we've seen stand out. If the 21 operation had a previous history of vegetable farming, or 22 is presently in vegetable farming, it will exhibit higher 23 phosphorus loadings than an operation that has had a 24 history of sugar cane growing. 25 Q In your hypothetical as to how this might work ACCURATE STENOTYPE REPORTERS, INC. 68 1 for the whole EAA, do you recall that we said perhaps you 2 could eliminate as much as a hundred metric tons of 3 phosphorus just by treating the hot spots? 4 A Yes. 5 Q Is that an accurate recollection? 6 A Yes. 7 (Brief recess) 8 Q Dr. Shannon, in the waste-minimization 9 approach, or sort of hitting the hot spots, is that a 10 fair -- 11 A Yes. 12 Q I have a couple of questions. Would it take, 13 in your estimation, in the couple of years that we had 14 discussed, previously, before such a program could be 15 reasonably designed and put through a public process of 16 comment as to what people felt they could reasonably be 17 bound to achieve? 18 A With respect to the overall waste-minimization 19 approach or just the BMPs? There's two components of the 20 waste-minimization approach -- 21 Q Tell me. 22 A -- one is the hot spots, finding and treating 23 phosphorus discharges at the hot spots, and then the 24 second component in there, not necessarily one and two in 25 that order, the other is to implement BMPs at some level ACCURATE STENOTYPE REPORTERS, INC. 69 1 greater than 25 percent. 2 Q Well, really, what I'm looking for is sort of a 3 regulator's type of question. Let's assume the 4 regulators came to believe that this was, indeed, the 5 appropriate approach. What I'm looking for is your 6 estimation: (1) how long would it take, throughout the 7 EAA, to find and document what the hot spots are? How 8 long do you think that would take? 9 A Well, I think we'll have an initial estimation 10 of the number of hot spots, and the degree of loading 11 from those hot spots once we analyze the early base-line 12 monitoring data. 13 Q For the whole EAA? 14 A Well, for the farms that participated in early 15 base-line monitoring. There are a number of farms that 16 didn't participate. 17 Q How many farms didn't participate? Is there a 18 percentage? 19 A Again, these are broad numbers. 20 Q This is fine. 21 A I would say there's probably about 200-and-some 22 permit holders in the EAA, and there are 136 farms in the 23 early base line, so roughly 60 percent or something like 24 that. 25 Q So any estimate of hot spots at present would ACCURATE STENOTYPE REPORTERS, INC. 70 1 only be at that level of definition -- 2 MR. PERKO: Object to form. 3 Q -- do you agree? We would not know for 4 one-third of the farms out there where the hot spots were 5 located? 6 A Yes, that's true. 7 Q Is there any reason to believe that the ones 8 who are not participating are hotter or cooler than the 9 ones who are participating? 10 A I think a good deal of the ones that are not 11 participating, the land is in sugar cane, and I believe 12 there are some sod farms that are not participating. 13 Q Who don't intend to be in business that much 14 longer, so they don't care. 15 A I don't know. They had the option of being in 16 or being out. 17 Q So you think in the very near future for the 18 two-thirds of the farms participating, we could identify 19 the hot spots within the next six months, is that 20 accurate? 21 A We would have a preliminary cut or preliminary 22 indication of the hot spots out of those 136 farms. 23 Q Is that sufficient for beginning a program to 24 bind people to do certain things, in your opinion? 25 A I would say -- ACCURATE STENOTYPE REPORTERS, INC. 71 1 MR. PERKO: Object to form. 2 A I would say it isn't sufficient. But part of 3 the analysis that has to be done here is the -- I'm 4 searching for the right word -- is a quality check on the 5 early base-line monitoring data. 6 Q How long do you think that would take? 7 A Well, I think it would be incorporated into 8 this period of analysis of the data. I think you 9 estimated six months. But it, in general, is a 10 well-designed program, most of them have automatic 11 samplers, they have calibrated their pumping stations, 12 and they've all applied for permits, and they've all said 13 what they're going to do, and they're using certified 14 labs for collecting their water quality data, and so on. 15 The data should be good. But there needs to be -- we're 16 doing this in a way to figure out what's in the data 17 base, and how the data is put into the data base, and 18 what kinds of routine data base problems there are. But 19 I wouldn't want to rush out and then say, now, we got 20 early base-line data and you're a hot spot without maybe 21 some follow-up monitoring to confirm in fact that 22 particular farm is a hot spot. 23 Q Because the implication is that hot spots are 24 going to have to pay more to clean up their phosphorus, 25 isn't it? ACCURATE STENOTYPE REPORTERS, INC. 72 1 MR. PERKO: Object to form. 2 A I would think that, you know, the agricultural 3 area, as a whole, would develop an equitable process that 4 someone had to clean up, because that farm was identified 5 as a hot spot didn't have to bear those costs on their 6 own because it's to the benefit to the whole EAA. You 7 know, another way of looking at this is the term that's 8 used as the bubble concept, where you try to determine 9 where you can get the most loading reduction, and some 10 have to reduce and some don't. 11 Q Well, in fact, the STAs use a type of a bubble 12 concept, don't they? 13 A Yes, they take everything and treat it. 14 Q Well, I mean, it is a bubble concept. 15 A Yes. On the question of who should pay for it, 16 you know, I don't propose to get into that. I propose to 17 take a look at it from an overall standpoint, and say 18 here's where the high loadings are, and here is what it 19 will cost to do something about that loading. Now, the 20 next step of who pays for that, that's something that 21 I -- that maybe should go to economists, or go into the 22 political arena, or something, but certainly not in the 23 technical arena. Because you could go now and you 24 could -- probably almost every vegetable operation would 25 have higher phosphorus loadings. ACCURATE STENOTYPE REPORTERS, INC. 73 1 Q You believe that you would be able to offer 2 testimony at trial as to what it would cost to reduce the 3 phosphorus loading from the hot spots that at least you 4 will analyze? 5 A Yes. 6 Q Have you done that work yet? 7 A Yes. We did some work on microfiltration. 8 And, actually, took our results and developed a 9 conceptual design and a cost estimate for a hot spot. 10 Q For a single hot spot? 11 A For a single hot spot. 12 Q I assume this has been turned over with your 13 documents? 14 A Yes, it has. 15 Q And this document, did it estimate what it 16 would cost at various levels of concentration to reduce 17 down to what the cost would be at various concentrations? 18 A No. The microfiltration technology produces an 19 effluent phosphorus that is consistently less than 0.05, 20 and there is really not much cost saving if it's 0.04, as 21 compared to 0.05, or whether it's 0.03, or in fact we 22 found that it could go as low as 0.02. But we assumed at 23 this particular site that the water would be treated to 24 the 0.04 level. 25 Q I'm sorry. Because I did recall some of your ACCURATE STENOTYPE REPORTERS, INC. 74 1 charts that had actual concentrations and dollars at the 2 far end as what it would cost to get the various 3 concentrations. I'm pretty sure there was a document 4 that did that. Maybe I'm wrong. 5 A Well, you may be right. But I think I know 6 what you're referring to, and that's not what -- 7 Q That's not what it's doing? 8 A No. 9 Q What I have previously been looking for, 10 however, Dr. Shannon, was the time frame that you would 11 estimate it would take to put such a waste-minimization 12 program into place. And do you understand the question 13 I'm driving at? 14 A Yes, I do. 15 Q And what is your estimate as for that time 16 frame? 17 A I would -- if I can just break it down into 18 components, I think -- in order to define the hot spots 19 and get some consensus, either among the farmers or the 20 regulators that, yes, these are in fact hot spots, and an 21 appropriate treatment technology should be applied here. 22 That's probably going to take anywhere from six to nine 23 months, maybe as much as a year. I don't want to get 24 pinned down to numbers that, you know, just aren't 25 achievable, but give a range of six to 12 months for ACCURATE STENOTYPE REPORTERS, INC. 75 1 that. 2 And then the actual -- then assume that 3 microfiltration is the technology of choice for treatment 4 at those hot spots. That's another assumption that it 5 may take another six to nine months to design facilities. 6 And I really feel that further pilot work needs to be 7 done on microfiltration, and that could be concurrent 8 with the first six to 12 months that I gave you that 9 could be going on in conjunction with that. So I don't 10 think that's an add on to the time, but in order to 11 design and construct the facilities for hot spots, you 12 may be looking at a period of 12 to 18 months. 13 Q That's 12 to 18 months assuming that the 14 microfiltration becomes the technology of choice? 15 A Yes. 16 Q Okay. 17 A And then the other component of 18 waste-minimization package or plan would be BMPs, you 19 know, enhanced BMPs, and there is a lot of work going on. 20 IFAS is doing work, U.S. Sugar is doing work. And if we 21 assume that we can get 100 tons through microfiltration, 22 then, you know, we have to get another 20 tons or so 23 above the 25-percent level, which everyone has bought 24 into. Anyway, that's not that big of a challenge. 25 That's maybe stepping it from 25 percent to maybe a ACCURATE STENOTYPE REPORTERS, INC. 76 1 little over 30 percent, overall reduction, for BMPs. 2 Q In regard to the load reduction, is it fair to 3 say that there would not be a predictable concentration 4 of phosphorus coming out of the EAA? 5 A I think that's fair to say that. 6 Q Would it also be fair to say that rainfall 7 events would always have significant impact on any 8 particular loading for a year? 9 A I think that's a fair statement. In the design 10 of a facility, like any other treatment system or 11 engineered system, there will have to be a condition 12 developed of what you design around -- you know, whether 13 it's the 25-year storm, or whether it's the five-year 14 storm -- and just saying that farm has to be able to 15 treat whatever condition happens probably is that going 16 to be doable. Then your equalization facilities get 17 larger, and larger, and larger, and your treatment 18 facilities get larger. 19 Q You're relying, in your phosphorus reduction or 20 your waste-minimization program, for largely half of its 21 success on this microfiltration, is that right? 22 A Yes, at least half. 23 Q You said there needs to be further pilot work 24 done. What is that further pilot work that needs to be 25 done? ACCURATE STENOTYPE REPORTERS, INC. 77 1 A I would recommend that a test at an individual 2 site at some reasonable level of scale like maybe 3 one-twentieth of the actual flow from a farming 4 operation, complete with the equalization base, and then 5 the treatment facility size to handle that, and run that 6 facility for six to nine months. 7 Q What percentage of the flow of a farm have you 8 treated to date? All? I mean, I don't know. 9 A No. We ran a -- our pilot study was very 10 small. It was two gallons a minute. So that would be 11 very, very small percentage of the actual flow from that 12 operation. And the study we did was for a few days. 13 Q Are you going to be doing more of this study 14 before the time of trial? 15 A We have a proposal in to the co-op to do an 16 extended study for -- I think we indicated three to six 17 months of testing at the hot spot where we did our 18 earlier testing. 19 MS. PONZOLI: I'd like to take a break for 20 lunch now. Is an hour good? 21 (Discussion off the record.) 22 (Luncheon recess.) 23 Q Dr. Shannon, we've been talking a lot about 24 your concept of waste minimization and, obviously, I need 25 to talk to you a whole lot more about your ACCURATE STENOTYPE REPORTERS, INC. 78 1 microfiltration work and opinions. But before I move on 2 in some more detail in that area, I would like to ask 3 you: your designation indicates that you would give 4 testimony about comparison of proposed STAs, and 5 potentially viable phosphorus treatment alternatives, 6 including but not limited to microfiltration prototype 7 testing in the EAA so I guess I would like to ask you 8 what the substance of that testimony will be. 9 A Primary focus will be on microfiltration with 10 comparison to STAs and direct filtration. 11 Q And, essentially, what will you be saying that 12 comparison shows? 13 A Well, we have discussed that and made that 14 comparison in the -- I believe it was the second 15 technical memorandum in those series of three 16 microfiltration memoranda. 17 Q Can you just summarize that for me. I'm aware 18 of the three, I believe, that you're talking about. But 19 just, as a summary, what is your fundamental belief of 20 microfiltration versus STAs? 21 A The fundamental belief is that when 22 microfiltration is applied at hot spots, or areas with 23 more concentrated phosphorus, it is much more cost 24 effective than the STA or direct filtration. 25 Q Is that related to the fact that it's treating ACCURATE STENOTYPE REPORTERS, INC. 79 1 far less water, also? Is that a -- 2 A Yes. This is in -- removal of pollutants or 3 materials like phosphorus processes that treat more 4 concentrated streams tend to be more cost effective than 5 processes that treat more dilute streams. And this is on 6 the basis of a dollar per pound of phosphorus removed. 7 Q Is there some comparison of the amount of water 8 that you're treating in the hot-spot treatment versus the 9 amount of water that would be treated through the STAs? 10 A Yes. That comparison could be made. 11 Q Do you know just sort of generally what 12 percentage you're treating in hot-spot treatment versus 13 treating -- essentially, there's two -- I guess you could 14 say the SWIM Plan treatment or the expanded? 15 A Well, the SWIM Plan or the STA systems will be 16 treating flows -- and, again, I'm going from memory -- in 17 the order of 100- to 150-million gallons a day plus. 18 Th