1

1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

SUGAR CANE GROWERS COOPERATIVE

3 OF FLORIDA; ROTH FARMS, INC.;

and WEDGWORTH FARMS, INC.,

Petitioners,

vs. DOAH CASE NO. 92-3038

SOUTH FLORIDA WATER MANAGEMENT

7 DISTRICT, an agency of the State

of Florida; et al.,

Respondents.

9 _________________________________

10 FLORIDA SUGAR CANE LEAGUE, INC.;

UNITED STATES SUGAR CORPORATION;

11 and NEW HOPE SOUTH, INC.,

12 Petitioners,

13 vs. DOAH CASE NO. 92-3039

14 SOUTH FLORIDA WATER MANAGEMENT

DISTRICT, an agency of the State

15 of Florida, et al.,

16 Respondents.

_________________________________ VOLUME I of II

FLORIDA FRUIT AND VEGETABLE

18 ASSOCIATION; LEWIS POPE FARMS;

W.E. SCHLECHTER & SONS, INC.,

19 and HUNDLEY FARMS, INC.,

20 Petitioners,

21 vs. DOAH CASE NO. 92-3040

22 SOUTH FLORIDA WATER MANAGEMENT

DISTRICT, an agency of the State

23 of Florida; et al.,

24 Respondents.

_________________________________

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1 Thursday, July 1, 1993

2 10:00 o'clock a.m.

The deposition of CLAUDE E. SWINDELL, JR., taken

pursuant to notice on behalf of the Petitioners Florida

Sugar Cane League, Inc., United States Sugar

Corporation and New Hope South, Inc., at the office of

Southern Court Reporters, Inc., 1908 Woodward Street,

Orlando, Florida, before Sandra Diane Evans, Registered

Professional Reporter, CP, and Notary Public, State of

Florida at Large.

12 APPEARANCES:

13 RICK J. BURGESS, ESQUIRE

Peeples, Earl & Blank, P.A.

14 One Biscayne Tower, Suite 3636

Two South Biscayne Boulevard

15 Miami, Florida 33131

(305) 358-3000

On behalf of the Petitioners Florida Sugar

17 Cane League, Inc.; United States Sugar

Corporation; and New Hope South, Inc.

19 GARY PERKO, ESQUIRE

Hopping, Boyd, Green & Sams

20 123 South Calhoun Street

Tallahassee, Florida 32314

21 (904) 222-7500

22 On behalf of the Petitioners Sugar Cane

Growers Cooperative of Florida; Roth

23 Farms, Inc.; and Wedgworth Farms, Inc.

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1 APPEARANCES CONTINUED:

2 DONNA LaPLANTE, ESQUIRE

Assistant General Counsel

3 Department of Environmental Regulation

2600 Blair Stone Road

4 Tallahassee, Florida 32399-2400

(904) 921-9720

On behalf of the DER

PATRICK COUSINS, ESQUIRE

7 Popham, Haik, Schnobrich, & Kaufman, Ltd.

4000 International Place

8 100 S.E. Second Street

Miami, Florida 33131

9 (305) 530-0050

10 On behalf of the Respondent, South Florida

Water Management District

THOMAS A.W. FITZGERALD, ESQUIRE

12 Assistant U.S. Attorney

155 South Miami Avenue

13 Miami, Florida 33130

(305) 536-5927

On behalf of the United States of America

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1 I N D E X

PAGE

2 TESTIMONY OF CLAUDE E. SWINDELL, JR.

3 ERRATA SHEET .................................. 5

READING AND SIGNING LETTER .................... 6

4 DIRECT EXAMINATION (BY MR. BURGESS) ........... 7

CONTINUED DIRECT EXAMINATION (BY MR. BURGESS).. 203

5 CROSS EXAMINATION (BY MR. PERKO)............... 285

REDIRECT EXAMINATION (BY MR. BURGESS).......... 292

PETITIONER'S EXHIBITS:

"1" (C.V.)..................................... 131

8 "2" (Notice of Taking Deposition).............. 132

"3" (Agreement for the Everglades

9 Restoration Permit Review)................ 179

"4" (1-20-92 Letter, Biery to Baragona)........ 181

10 "5" (4-3-92 Meeting Notes)..................... 188

"6" (4-30-92 Memo from Maze to Biery, et al)... 188

11 "7" (3-27-92 Memo from Swindell to Biery)...... 189

"8" (5-21-92 Letter from Biery to Baragona).... 195

12 "9" (Compliance and Performance Review

Easterly Wetland Treatment System)........ 208

13 "10" (Conceptual Design)........................ 217

"11" (Intent to Issue).......................... 218

14 "12" (O&M Permit Application)................... 218

"13" (Completeness Summary)..................... 229

15 "14" (7-8-92 Letter from Swindell to Nearhoff).. 229

"15" (Review of the Hydraulic Computation)...... 236

16 "16" (12-19-91 Memo from Swindell to Shearer)... 254

"17" (12-10-91 Letter from Miller to Goforth)... 289

CERTIFICATE OF REPORTER (Volume I)............. 198

18 CERTIFICATE OF REPORTER (Volume II)............ 294

19 * * * * *

S T I P U L A T I O N S

It is hereby expressed by and between counsel

21 present for the respective parties and the deponent that

the reading and signing of the deposition be reserved.

22 It is further stipulated and agreed by and between

counsel present for the respective parties that all

23 objections, except as to form of the question, be

reserved until such time as the deposition is offered

24 into evidence at the trial of said cause.

- - - - -

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1 Sugar Cane Growers -v- So. Fla. Water Management Dist.

Depo taken 7-1-93

SUBSCRIPTION OF DEPONENT

STATE OF FLORIDA:

4 COUNTY OF ORANGE:

5 I, CLAUDE E. SWINDELL, JR., do hereby certify,

having read the foregoing deposition, that said

6 transcript is a true and accurate recording of the

proceedings had at the time and place designated,

7 including corrections noted on the Errata Sheet, if any.

9 ______________________________

CLAUDE E. SWINDELL, JR.

11 Date:_________________________

12 Sworn to and subscribed

before me this ____day

13 of ____________, 1993.

_______________________

15 Notary Public

My Commission Expires:

* * * * * * * * * *

ERRATA SHEET

I, CLAUDE E. SWINDELL, JR., wish to make the

19 following

corrections:

Page Line Correction

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1 SOUTHERN COURT REPORTERS, INC.

1908 Woodward Street

2 Orlando, Florida 32803

(407) 894-8888

3 July 29, 1993

Donna LaPlante, Esquire

5 Assistant General Counsel

Department of Environmental Regulation

6 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Re: Sugar Cane Growers vs. So. Fla. Water Mgmt. Dist.;

8 Case No. 92-3038, 92-3039, 92-3040; Deposition of Claude

E. Swindell, Jr., taken on 7-1-93.

Dear Ms. LaPlante:

Enclosed herewith, together with your copy of the

11 above-referenced deposition, is the original Errata

Sheet. Please have Mr. Swindell execute it before a

12 notary public.

13 Once that has been accomplished, please forward the

original Errata Sheet directly to Mr. Burgess, with

14 copies to the attorneys listed below, as well as a copy

to our office.

Should you have any questions, please feel free to

16 contact us at the number listed above.

17 Sincerely,

19 Diane Evans

Registered Professional Reporter

20 Notary Public, State of Florida at Large

cc: Rick J. Burgess, Esquire

22 Gary Perko, Esquire

Patrick Cousins, Esquire

23 Thomas A.W. Fitzgerald, Esquire

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1 P R O C E E D I N G S

2 CLAUDE E. SWINDELL, JR.

3 having been first duly sworn by the reporter, thereupon

4 testified upon his oath as follows:

5 DIRECT EXAMINATION

6 BY MR. BURGESS:

7 Q. Good morning, Mr. Swindell. My name is Rick

8 Burgess, and I represent the Florida Sugar Cane League,

9 United States Sugar and New Hope South in this

10 administrative proceeding.

11 I'm going to ask you a few questions today and

12 tomorrow. And if at any time you don't understand my

13 question, I would appreciate you telling me that so that

14 I can repeat it. Otherwise, I'll assume that you

15 answered the question that I asked. Fair enough?

16 A. Uh-huh.

17 Q. Where are you employed now?

18 MS. LaPLANTE: Mr. Burgess, can I just

19 interject for one second. I would like to put on

20 the record, if it's okay with everyone, to preserve

21 all objections except as to form.

22 MR. BURGESS: That is fine. I think that's

23 the procedure we've been following.

24 BY MR. BURGESS:

25 Q. Mr. Swindell, where are you presently

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1 employed?

2 A. Ecotech Consultants, Incorporated.

3 Q. And where is Ecotech located?

4 A. Oviedo.

5 Q. And how long have you been employed there?

6 A. Since January the 8th of this year.

7 Q. 1993?

8 A. Right.

9 Q. And what is the business of Ecotech

10 Consulting?

11 A. It's a small environmental consulting firm. I

12 guess we specialize in wetland treatment systems, general

13 environmental studies, restoration habitat creation, and

14 just general environmental studies.

15 Q. Are you a principal?

16 A. Yes. I'm also a principal owner of Ecotech

17 International Party Limited, which is located in Ballina,

18 New South Wales and does the same thing, only in

19 Australia.

20 Q. What was the name of that?

21 A. It's Ecotech International Party Limited.

22 Q. How large is the Oviedo operation?

23 A. Four full-time employees and one part-time.

24 And the part-time employee is a co-owner of the firm.

25 Q. So two principals?

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1 A. Three.

2 Q. Three. Is one of the other full-time

3 employees a principal?

4 A. Right. Wendy Masteller.

5 Q. Were any of these employees at Ecotech

6 previously employed by Post Buckley?

7 A. They all were except for the part-time person.

8 Q. Did the ones that were previously with Post

9 Buckley all leave with you at the same time to form this

10 firm?

11 A. No. Staggered out one at a time.

12 Q. Were you the first?

13 A. Yes.

14 Q. And how large is Ecotech International Party

15 Limited?

16 A. We have, if you count myself, two full-time

17 employees, a full-time secretary and a part-time

18 environmental scientist right now working for us.

19 Q. Was that created at or near the same time?

20 A. No. That was created before the other firm.

21 All about the same time, but it was before. Prior to

22 Ecotech Consultants.

23 Q. Can you describe briefly the project or

24 projects that are consuming most of your time at the

25 moment?

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1 A. In the U.S. we're working as a consultant to

2 -- actually, subconsultant through Hartman & Associates

3 to the City of Cape Canaveral, design of approximately a

4 thirty-acre wetland treatment system for the City's

5 wastewater treatment plant. We're working as a

6 subconsultant through Masteller & Moler to Indian River

7 County, which is, again, design of a wetland treatment

8 system, the west sub-regional treatment plant.

9 We're currently a consultant to the Nature

10 Conservancy. We're assisting them on the implementation

11 of the restoration plan for the Disney Wilderness

12 Preserve. We are developing the wetland restoration plan

13 for the GOAA mitigation areas, if you will. We are

14 working for the City of Titusville, evaluating potential

15 use of wetland treatment technology to resolve their

16 north and south treatment plant disposal problems.

17 In Australia, we're working for -- Ecotech

18 International is working for the City of Lismore, and

19 we're in the second phase of preparing plans and

20 specifications for a wetland treatment system. And I

21 think that's for the City's south plant, for one of their

22 two plants. I can't remember which.

23 We're currently under contract to Johnstone

24 Shire to do miscellaneous environmental consulting.

25 Q. Is that in Australia?

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1 A. Yes.

2 We're currently assisting Kalbulcher Shire in

3 developing a site analysis for a wetland treatment

4 system. We're in the very first phase of working with

5 the City of Cairns developing a wetland treatment system.

6 And I'm not fully aware of the details, but

7 we've already assisted the City of Melbourne in

8 evaluating a wetland treatment system that they had

9 actually designed themselves. And I don't know at this

10 point if that project is complete or if we're moving into

11 the second stage.

12 Q. That's Melbourne, Australia?

13 A. Right. That's about it.

14 Q. Do any of the projects that you mention,

15 whether they be in Florida or Australia, involve

16 developing wetlands which will be receiving agricultural

17 runoff?

18 A. No.

19 Q. Again, same question with respect to both

20 Florida and Australia, are any of those projects

21 utilizing peat or muck soils in the wetland?

22 A. Yes.

23 Q. Which ones?

24 A. I think all but Cape Canaveral. The Indian

25 River scenario is, if you would, is a model type. It

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1 also alternates between sandy areas and mucky areas.

2 It's not a hundred percent peat soil across the site.

3 Q. You mention some sizes. I think the Cape

4 Canaveral is thirty acres. And what is the largest of

5 those?

6 A. Those?

7 Q. Of the wetlands that you've described.

8 A. That we're looking at right now would be

9 probably in the ballpark of two hundred and fifty acres.

10 Q. Are you yourself involved in some aspect of

11 all of these projects?

12 A. Right.

13 Q. Are you a project manager?

14 A. Right.

15 Q. On all or some of them?

16 A. I'm the lead person on them.

17 Q. On all of them?

18 A. Yes. My partner in Australia is more of the

19 local flavor in the business, and I'm the technical.

20 Q. How did you come about to open up a business

21 in Australia?

22 A. It's a long story. He got what's called a

23 local government grant to travel around the world. He

24 developed, or was in the process of designing, a wetland

25 for Byron Bay three or four years ago. I can't remember

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1 now.

2 At any rate, he went through Europe and into

3 Washington, I think it was, and then people in EPA

4 referenced him to the City of Orlando's wetland. City of

5 Orlando referenced him to me and took him on a tour.

6 And kind of half jokingly -- we met at the

7 airport. I was going somewhere and he was going to

8 Louisiana, I think it was -- I said, "sure would be nice

9 to do a project in Australia."

10 And next year he came back around re-assessing

11 the wetlands, and I made the same statement. And I guess

12 he took me up on it because he quit his job.

13 He actually started another firm prior to this

14 Ecotech and was operating out of that. And I made a

15 proposal to evaluate and actually help operate the

16 wetland that he constructed at Byron Bay. He quit his

17 job with the Shire Council and started this other

18 company.

19 And, really, one thing led to another, and he

20 pestered me for about two years. And, finally, when

21 things were getting sour at Post Buckley, I said, "sure,

22 why not?" Off it went.

23 In the interim, between the time he left his

24 job with the Shire Council government, or Shire Council,

25 and when he actually started Ecotech, we had made a

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1 number of presentations in New South Wales and

2 Queensland.

3 Q. So the thought was he would have that

4 operation there and you would have the one here, but you

5 would co-own them?

6 A. No. I'm actually the technical guy for both.

7 Q. Okay.

8 A. Brian is an engineer specializing in solid

9 waste. Like I say, he basically -- there's twenty

10 million people in Australia. It seems like he knows all

11 twenty million of them, or went to school with them. So

12 he's really the business side of things.

13 Q. What percentage of time do you spend in or on

14 the U.S. projects versus the Australia project?

15 A. Probably two months out of the year on

16 Australia and the rest in the U.S.

17 Q. Are you aware that this case is presently set

18 for hearing in November, did you know that, of 1993?

19 A. I may have been told, but I don't remember.

20 Q. Do you have presently any plans to be in

21 Australia in November or December?

22 A. At this point, no. I could make plans.

23 Q. You said that at the time you were exploring

24 this opportunity to do this internationally, things were

25 getting sour at Post Buckley. What did you mean?

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1 A. Well, my management philosophy and their

2 management philosophy were two different things. And so

3 I felt like it was getting to the point where I needed to

4 move on to something bigger and better.

5 Q. How long were you at Post Buckley?

6 A. I think I started October the 29th, 1984. I

7 think that's the right date.

8 Q. So you were with them a little --

9 A. Over eight years.

10 Q. A little over eight years?

11 A. Right.

12 Q. Take me through chronologically, if you can,

13 the positions that you held at Post Buckley.

14 A. I started out as an environmental scientist.

15 And I really can't recall the dates, but as the company

16 developed to more of an environmental group, I became the

17 unofficial official head of the environmental sciences.

18 And probably the third or fourth year, or

19 something in there, they officially started an

20 environmental science group. And I remained as the

21 program manager up until August of 1992 at which point I

22 was moved off into a marketing technical -- they called

23 it a technical guru position, if you will, where I was

24 supposed to be the senior person, but also heavily

25 responsible for the marketing of those parts of the

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1 business.

2 Q. Did you want to get into marketing those parts

3 of the business?

4 A. No, I don't.

5 Q. You didn't at that time?

6 A. Well, it's like I say, I didn't mind

7 marketing, but marketing what they wanted me to market

8 wasn't what I thought was in the best interest of people

9 that were in the program. And, like I said, we had a

10 difference in philosophy.

11 Q. Is it at or around this point where the

12 difference became --

13 A. No. There was a difference before that. I

14 can't recall when, but it started nine months or ten

15 months or so before that time.

16 Q. What was the basis for the disagreement at

17 that time?

18 A. Like I say, it was a difference in how you

19 treat people, how you operate the business, and who you

20 target for clients and how you treat your clients. Like

21 I say, just a general difference in philosophy.

22 Q. Well, was there one or more event or client

23 contact or project where this became evident?

24 A. No. It was something that just built and

25 built and it reached a head. And actually reached a head

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1 over a personnel issue as opposed to a project issue.

2 Q. Did you tell Post Buckley when you were moved

3 in August of '92 to this marketing position that you

4 didn't want to do it?

5 A. It was discussed before that, and I made it

6 clear.

7 Q. That you didn't want to do it?

8 A. Right.

9 Q. What did they want you to do in this new

10 position?

11 A. They felt like that I was a, at that point, a

12 world-recognized expert in wetlands and they wanted me to

13 go out and market myself as such.

14 Q. Did you feel you were a worldwide expert in

15 wetlands?

16 A. Well, I don't consider myself an expert on

17 something. I consider myself a person that's very

18 knowledgeable about it.

19 Yes, I do think that I would probably be

20 considered among the leaders in having dealt with wetland

21 treatment systems.

22 Q. So you didn't disagree with how they --

23 A. Interpreted what I was, but I disagreed in the

24 clients they were chasing after primarily.

25 Q. What clients were they chasing after?

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1 A. Gulf of Mexico, national estuary programs, bid

2 EPA projects and things that we really didn't have a lot

3 of prior history with, or we just simply lacked the staff

4 to pursue them.

5 I mean, the experience on our staff was not at

6 that time marine-oriented, nor did we have the experience

7 to go after the bigger environmental impact type studies.

8 We were looking at fresh water systems,

9 terrestrial systems, estuarine systems; that sort of

10 thing.

11 Q. You were targeting those areas?

12 A. Yes.

13 Q. And you didn't feel --

14 A. We had a potential for a rather large client

15 base outside of Florida, in my opinion, and I really

16 wasn't allowed to pursue it. So, like I say, it was just

17 a general philosophical difference.

18 Q. What client or client base did you have

19 potential for outside of Florida that you weren't allowed

20 to pursue?

21 A. I felt like we had -- we were on the door step

22 of talking to a number of agricultural interests in

23 Virginia, North Carolina. We had started with

24 silvilculture folks in Georgia and actually developed a

25 good rapport in the Chatham County area, and we had good

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1 movement in the project for the City of Mobile, Alabama.

2 Q. And those type projects were the projects that

3 Post Buckley didn't want you to --

4 A. They discouraged me from spending a lot of

5 time on them, right, because they wanted me to

6 concentrate on Florida projects as opposed to that.

7 Q. When you left in January of '93, were you

8 still just a marketing technical person?

9 A. Right. At that point I had basically drawn it

10 in so I was spending most of my time on just project

11 management on several projects. Mostly wetlands or

12 wetland treatment, and I was giving advice on Disney and

13 a couple of other projects. I was pretty busy at that

14 time.

15 Q. Going back to your hire date with Post Buckley

16 in October of 1984, what was the first Everglades-related

17 project that you consulted on with or for the South

18 Florida Water Management District?

19 A. It would have been a conceptual design report

20 that I wrote for the, I guess they call it the phase one

21 of STA-1 now. It was the old ENR wetland. I think prior

22 to that -- the dates I can't really remember now. I

23 don't remember if it was prior to that or after that time

24 I made two presentations to the LOTAC people.

25 Q. What were those presentations on?

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1 A. Those were -- if I recall, they were both on

2 the Orlando wetland system.

3 Q. When you refer to Orlando wetland system, are

4 you referring to Iron Bridge?

5 A. Right.

6 Q. What wetland projects have you worked on in

7 Florida?

8 A. City of Lakeland, City of Orlando and the ones

9 I've previously mentioned.

10 Q. Let me go back. I'm sorry?

11 A. Canaveral.

12 Q. Excuse me one second. I want to make sure you

13 understand the frame of reference of my question because

14 I didn't give it to you. While you were employed with

15 Post Buckley.

16 A. Okay. Did a design for, I think it was the

17 City of Cocoa. It was called the SKWRS Project,

18 S-K-R-W-S, and I don't remember who the client was. It

19 was on the Duda lands west of 95.

20 I evaluated a wetland option for the Miami

21 Dade area for a seventy-million-gallon-a-day treatment

22 plant.

23 Talked to Sarasota Bay NEP folks about a

24 wetland treatment system, and it would be, I think, in

25 Sarasota County.

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1 I did a little wetland treatment system for a

2 company called Nitram, Incorporated.

3 Let's see. Off the top of my head those are

4 the ones -- we evaluated a wetland treatment system for

5 Monroe County.

6 Let me see. We evaluated a wetland treatment

7 system for Seminole County's landfill. It would have

8 been a leachate treatment process.

9 We evaluated potential wetland treatment for

10 another leachate system for Lake County.

11 Right off the top of my head, that's all I can

12 recall.

13 Q. Okay. When you say that you have evaluated

14 wetland treatment or wetland options --

15 A. Those were conceptual-type reports or

16 feasibility studies.

17 Q. And with respect to those that you mentioned

18 -- the Miami Dade, the Monroe County, Seminole landfill

19 and the Lake County -- were any of those wetlands

20 ultimately constructed?

21 A. No. Well, the Miami Dade, that wouldn't be a

22 fair statement because they're in the process of

23 evaluating -- to my knowledge, they're still evaluating

24 what disposal option they're going with the last time I

25 was with the project. So I don't think that would be a

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1 fair statement for them, but --

2 Q. How large was the wetland ultimately

3 constructed for Lakeland?

4 A. I think it was in the ballpark of fourteen

5 hundred acres.

6 Q. And what period of time was this?

7 A. It was right in the same time frame as

8 Orlando. And I think the Lakeland system went on line in

9 July of '87 and Orlando went on line in September of '87.

10 So it was basically from almost the date I

11 walked in the door with Post Buckley until that point in

12 time.

13 Q. How large is Orlando?

14 A. Twelve hundred acres.

15 MR. PERKO: Just for the record, that's the

16 Iron Bridge project?

17 THE WITNESS: Right.

18 BY MR. BURGESS:

19 Q. Is Lakeland the one that's also referred to as

20 Easterly?

21 A. No. The Easterly is an Orange County project.

22 Q. Did you mention that one?

23 A. No.

24 Q. Did you work on that one?

25 A. No. That was CDM, I think.

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1 Q. Were both Lakeland and Orlando wastewater, the

2 wetlands project?

3 A. Right. If you're referring to the rural,

4 they're man-made wetlands, but they're both treating

5 wastewater.

6 MR. FITZGERALD: Just so I can keep straight,

7 what do you mean by wastewater? Can you define that

8 for us if you don't mind?

9 MR. BURGESS: Define what?

10 MR. FITZGERALD: What he means when he says

11 wastewater.

12 THE WITNESS: Domestic wastewater is what I'm

13 referring to. I don't know how else to define it

14 for you.

15 MR. FITZGERALD: That probably does, as

16 opposed to industrial wastewater runoff.

17 THE WITNESS: It's running from a domestic

18 treatment plant.

19 BY MR. BURGESS:

20 Q. Are both the Lakeland and Orlando wetlands

21 projects which were man-made on muck soils or mineral

22 soils?

23 A. The Orlando system is on a sandy soil that at

24 the time, if I recall, our hydrogeologist told us there's

25 thirty percent organic. And that was attributed by them,

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1 if I recall, to the cattle operations that had been on

2 that particular site since around the 1920s.

3 The Lakeland system is in a series of seven

4 phosphate settling pits.

5 If you're familiar with that, they pump their

6 process water in and the coarse ground sand materials

7 settle out on the upstream side. And the real fine clay

8 materials settle out on the downstream side of those

9 cells.

10 So the first four-and-a-half cells were pretty

11 much filled up. And I think you could classify the

12 sediments in cells three, four and five as being mostly

13 clays.

14 And then beyond that there were -- there was a

15 shallow lake and two relatively deep lakes were you might

16 say cells that they hadn't used in their process

17 treatment.

18 Q. What experience, if any, did you have before

19 you went with Post Buckley in 1984 in designing man-made

20 wetlands?

21 A. I had designed and was on site doing some

22 construction monitoring and operation of a small wetland

23 for the City of Lakeland's McIntosh power plant and had

24 actually assisted in a one-acre water hyacinth treatment

25 system for the City of Lakeland at their Glendale

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1 treatment plant.

2 Q. And who were you employed with at that time?

3 A. It was a firm called Dawkins & Associates.

4 Q. And how long were you there?

5 A. I think I started in July of '79, and the firm

6 went bankrupt on, I think it was April the 23rd of '82.

7 Don't hold me to those exact dates, but it was definitely

8 in April of '82. I think it was the 23rd, actually.

9 Q. And what was your position there?

10 A. Environmental scientist or specialist.

11 Q. How small was the small wetland you developed

12 for the City of Lakeland?

13 A. It was approximately twenty acres plus a four-

14 acre hyacinth system or lagoon.

15 Q. And what was the influent there?

16 A. It was secondary effluent that had been cycled

17 through the ecodine cooling tower four times and they

18 would blow it down to a small aeration basin and went

19 from there to a small clarifier well and out to the first

20 wetland cell.

21 Q. Just continue backwards in your employment

22 history. Where were you before Dawkins?

23 A. Department of Natural Resources.

24 Q. And how long were you there?

25 A. From March of '87 -- March of '77 until July

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1 of '79.

2 Q. What was your title?

3 A. I think I was just called a biologist, if I

4 remember right.

5 Q. Were you in Tallahassee?

6 A. No. I was with the Lake Conway project here

7 in town.

8 Q. And what was that project?

9 A. It was -- supposedly it was -- I can't

10 remember if it was a two or three-year study of the

11 effect of the grass carp on Hydrilla and native

12 vegetation.

13 Q. That is what you did on that project for two

14 years?

15 A. Right.

16 Q. Before the Department of Natural Resources?

17 A. That's as far back as I go.

18 Q. Were you hired at Post Buckley to work on the

19 Lakeland and Orlando projects?

20 A. I think the terminology they used is that they

21 needed to start covering what they called soft

22 engineering issues, and that my experience lent itself to

23 that particular sort of thing.

24 Q. Was Post Buckley already working on those

25 projects when you were employed?

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1 A. Right. There's one segment in there that you

2 need to fill in. And I was self-employed from between

3 the time I went out from Dawkins and I went to Post

4 Buckley. It should be April from '82 until October of

5 '84, if I'm not mistaken.

6 At that point in time, I retained the City of

7 Lakeland as a client and I actually was managing the

8 wetland operations. And I at one point was actually

9 trying to help them start up the binary cooling tower and

10 was responsible for the people that managed the ecodine

11 cooling tower for a short period of time.

12 And that's when I say soft engineering, that's

13 where it comes from is my experience with those water

14 operations and the wetlands.

15 Q. You were an independent consultant, as it

16 were, for those?

17 A. One person.

18 Q. Did you bring the City of Lakeland with you as

19 a client to Post Buckley?

20 A. No.

21 Q. Going back to then when you started at Post

22 Buckley, did you devote all of your time and resources

23 for the first three years to the Lakeland and the Orlando

24 wetland project?

25 A. No.

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1 Q. What percentage of time?

2 A. There was the water hyacinth project going on

3 at the same time I started, and I devoted pretty much all

4 of my time for the first year to that -- between that and

5 the wetland, two wetland projects.

6 And then after -- I don't remember how long it

7 was, but it was after a certain point in time I started

8 helping people with dredging fill permits or wildlife

9 studies.

10 We actually hired another fella and put him in

11 the Cocoa office to pick up some of the slack there on

12 those other type projects.

13 But I was pretty much just full-time for the

14 first little bit on the water hyacinth project and the

15 wetland.

16 Q. What was the water hyacinth project?

17 A. The City had a thirty-acre water hyacinth

18 system at the treatment plant site itself, and the idea

19 was they could lower the pounds of nitrogen and

20 phosphorus discharge using the water hyacinth, and

21 consequently increase their flow rate through the

22 treatment plant because their permit has a concentration

23 limit and it also has a pounds loading limit.

24 The concentration limit, obviously, you could

25 make it less, but to actually increase the flow through

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1 the plant and not increase the pounds loading, you would

2 have to decrease the concentration.

3 So they opted to put the hyacinths in and

4 decrease the concentration, increase, I think it was by

5 four MGD, the flow through the plant, or the capacity of

6 the plant.

7 Q. Were you the project manager?

8 A. No. Once again, that project was already

9 underway when I started with Post Buckley.

10 Q. What did you do on that project?

11 A. Well, the first thing I did was review all the

12 design to make sure I agreed with it, commented on it.

13 And then I was on site during the construction. And then

14 I wrote the O&M manual, and actually started up and ran

15 it for the City for the first six months until they were

16 able to contract with an outside firm to pick up

17 operations.

18 Q. Do you recall what type phosphorus

19 concentration you were dealing with on both inflow and

20 outflow levels?

21 A. For which?

22 Q. For the water hyacinth project.

23 A. It seemed like it was around one, but I really

24 don't remember, one milligram per liter, but I really

25 can't recall.

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1 MR. FITZGERALD: Did you translate that into

2 parts per billion?

3 THE WITNESS: Milligrams per liter and parts

4 per million are the same.

5 MR. FITZGERALD: Per billion?

6 THE WITNESS: You take it times a thousand so

7 it would be one thousand parts per billion.

8 BY MR. BURGESS:

9 Q. You were dealing on an inflow or outflow of

10 one thousand parts per billion?

11 A. Inflow.

12 Q. And you were targeting a reduction?

13 A. No. It was for nitrogen. That hyacinth

14 system was designed for nitrogen more than anything else.

15 Q. The City of Lakeland fourteen-hundred-acre

16 project, what were the nutrients of concern there?

17 A. BOD solids and nitrogen.

18 Q. Was phosphorus?

19 A. No, because it was a retired phosphate

20 settling pond, so you couldn't -- it would be

21 unreasonable to expect it to --

22 Q. How about the Orlando?

23 A. Phosphorus was a concern there.

24 Q. Do you recall what your inflows and outflows

25 were at Orlando?

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1 A. Once again, I'm going to frame this in the

2 line of cobwebs in the back of my mind. I think for

3 phosphorus the design was .75 milligrams per liter.

4 Q. Which is what in PPT?

5 A. Seven hundred fifty. And the actuals last two

6 years have been, if I recall, around twenty parts per

7 billion. Is that right? I'm sorry, it would be two

8 hundred parts per billion. Sorry about that .2.

9 I'm going to talk in terms of milligram per

10 liter and ya'll can translate it before I get confused.

11 .2 milligrams per liter is what it was the last couple of

12 years.

13 Q. Is that for inflow or outflow?

14 A. Inflow.

15 Q. When you say "inflow", you mean inflow to the

16 wetland?

17 A. Correct.

18 Q. After tertiary treatment?

19 A. Correct.

20 Q. And what accounts for the reduction from seven

21 fifty to two hundred?

22 A. The City originally had an RBC plant out

23 there.

24 Q. What is an RBC?

25 A. I'll explain it to you. It was designed by

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1 Dawkins. And the water came in and went through a

2 clarifier and it went into a series of large tanks that

3 had drums. And the drums were designed to have a very

4 high surface area. They had plates on them that looked

5 like something like that. (indicating) Only had holes

6 in it or slots. And the idea was that it would nitrify

7 the waters that passed by.

8 And Dawkins had it going from there to a

9 secondary clarifier where the phosphorus was removed, the

10 solids were removed. And then it went into a series of

11 denitrification tanks, which was the same exact drums

12 only they were under water. And from there it went to

13 sand filtration, chlorination, aeration and out.

14 The problem was that they starved the bugs in

15 the denitrification tanks by taking all the phosphorus

16 out in the clarifier.

17 So when Dawkins went bankrupt, Post Buckley

18 went in and they had the water going from the

19 denitrification tanks, from the clarifier to the sand

20 filters; okay?

21 That worked, I think that you could say,

22 pretty close to as well as they thought it would.

23 But when they expanded to phase two of the

24 Iron Bridge facility they went to bardon flow type

25 treatment.

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1 Q. What is that?

2 A. It's a biological treatment, okay, that is

3 actual in attaining as opposed to one of these plates.

4 And that particular treatment process gets the nitrogen

5 and the phosphorus to a lot lower numbers than the RBC

6 technology was able to do, and that accounts for -- if

7 you look at the data when they go from the RBC to the

8 plants, to the bardon flow plants, you'll notice that the

9 actual effluent quality of that facility gets a lot

10 better.

11 I think the highest annual average phosphorus

12 concentration that was discharged to the wetland was

13 around .5 milligrams per liter, and I think that was in

14 '89. And after '89 it steadily decreased towards

15 somewhere in the ballpark -- I don't think it was less

16 than .2, but it was around .2 milligrams per liter.

17 Q. I'm sorry, you said the highest annual average

18 discharged in '89 was what?

19 A. About .5. I think it was .56 or something

20 like that. Once again, I really don't remember the exact

21 numbers. And then after that it steadily decreased down

22 to very low numbers.

23 Q. And that was as a result of what was going on

24 in these tanks?

25 A. Treatment plant. They added these other

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1 plants on, if you will, that caused a decrease.

2 Q. What were your responsibilities with respect

3 to the Orlando project?

4 A. I was responsible for reviewing the process

5 design that had been submitted us by Ron Bess. And that

6 had occurred prior to my arrival at Post Buckley. And

7 then I wrote the process portions of the engineering

8 report. I represented the City during the construction

9 phase as a construction manager on the planting part of

10 the project, and then I was the project manager for the

11 operation of the system basically from the beginning

12 through the point in time I left Post Buckley.

13 Q. Until basically January of this year?

14 A. Right.

15 Q. Have you reviewed any data from Iron Bridge

16 since January of this year?

17 A. I've reviewed just a couple of months worth.

18 I think I reviewed the April and May internal monitoring

19 reports and that's it. I really haven't seen the other

20 data.

21 Q. Do you recall what those reports showed?

22 A. No, I really don't.

23 Q. Who was Ronnie Bess working for when he drew

24 up the process design?

25 A. He was a professor at the University of

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1 Florida who subconsulted to Post Buckley prior to my

2 arrival there.

3 Q. Did he continue to work with you or with Post

4 Buckley on the project?

5 A. I think the way that I can summarize that best

6 is his participation decreased pretty quick. And I don't

7 remember him really being heavily involved much beyond

8 January of '85, and he really kind of backed out of the

9 picture once I got there. I'm not saying he wasn't

10 involved, but his participation went down fairly quickly.

11 Q. What percentage of your time was spent on

12 this, for lack of a better term, the tanks situation that

13 you just spoke about in reducing from seven fifty to two

14 hundred, and what percentage of your time was spent on

15 the wetland construction of the wetland?

16 A. I spent zero amount of time on the treatment

17 plan.

18 Q. Okay.

19 A. And I spent -- out of two thousand eighty

20 hours a year, I spent about seven hundred fifty or eight

21 hundred hours, I think it was, a year, on the Orlando

22 projects. It was almost about half of my time. If you

23 take away -- what I'm doing is taking away vacation and

24 that sort of thing. It worked out to about fifty percent

25 of my billable hours.

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1 Q. When you reviewed the process design submitted

2 by Ron Best, did you make any recommendations or changes?

3 A. I can't remember any right off the top of my

4 head. I think what I did more than anything else is fill

5 in the holes.

6 You know, DER has a specific set of questions

7 that we had to answer. And his report didn't necessarily

8 answer all of those questions. So I think I did more

9 filling in the holes than anything else.

10 Q. Did you design the actual wetland?

11 A. Like I said, I was part of the design team,

12 but I was never, you know, the single designer. Like I

13 say, I was a designer as part of the team.

14 Q. Did that team design the wetland?

15 A. Right.

16 Q. Who else was on the team, if you recall?

17 A. Just a whole host of people. I don't really

18 remember the names.

19 Q. And is that the team that decided what size

20 the wetland needed to be?

21 A. I guess, to a large extent, I was responsible

22 for justifying the size based on process aspects. And

23 the other members of the team were assigned specific

24 things, like the engineering design, berms and the

25 control structures and that. I was heavily involved, or

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1 basically the leader after I joined Post Buckley, in the

2 process design part of it.

3 Q. How did you go about doing that?

4 A. Pardon?

5 Q. How did you go about doing that? If you can,

6 chronologically and briefly describe.

7 A. I started with what Ronnie Bess gave me as a

8 starting spot, and then I used my experience with

9 Lakeland and sat down and looked at all -- I looked at

10 the system as a system.

11 Again, there's a bunch of biology that goes on

12 inside of that. Kind of like -- if I could use a crude

13 example -- your body, if I sat down and tried to

14 categorize what each piece was going to do with the

15 nutrients as it passed through.

16 It was based on my experience of McIntosh and

17 what I was able to dig out of the literature, plus what

18 Ronnie Bess had given me at that point.

19 So pulling that all together we were able to,

20 or at least we attempted to, kind of quantify what was

21 going to come out. Say, do the system in each layer of

22 cells, if you will, and look at basically what was left

23 over as being a discharge number and could we live with

24 that based on our permitting numbers.

25 So it's as detailed of analysis that I could

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1 do looking at the individual components of the wetland at

2 that point in time.

3 Q. Did Ronnie Bess give you something that called

4 for a twelve-hundred-and-two acre wetland?

5 A. Right. He had already -- he had proposed the

6 size.

7 Q. Do you know what the size was?

8 A. I don't remember. It's in his report. He

9 said -- it's in an appendix to the reports submitted to

10 DER. So I could find out pretty quick there.

11 And my first task is to go back and see

12 whether that was actually going to work or not from a

13 nutrient removal perspective.

14 And, like I say, I don't want to sound like I

15 was the only person working on this because there were a

16 lot of other people working on pieces of it and I was

17 helping other people and they were helping me. So it was

18 a team effort in every respect.

19 Q. Do you recall from your first task whether

20 Ronnie Best's proposal, in your opinion, was going to

21 achieve the nutrient reductions?

22 A. If I recall, we really didn't change that

23 much --

24 Q. Okay.

25 A. -- on his system. I mean, when we sat down

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1 and evaluated what he had given us, the size of the cells

2 may have changed or the number of layers. That may have

3 been a change. But overall, you know, I cannot recall a

4 significant alteration.

5 Q. I know from reviewing some of your documents

6 that you're familiar with the settling rate concept that

7 Burns & McDonnell and others have utilized in some of

8 their papers.

9 Was a similar settling rate or removal rate

10 concept utilized in the process design for the Orlando

11 wetland?

12 A. No.

13 Q. Why not?

14 A. I think I've gone on record saying that the

15 settling rate at that point in time, we didn't even

16 consider it. But the settling rate to me is kind of like

17 an abiotic way of looking at what happens in the

18 wetlands.

19 And we, in the design for the Orlando

20 wetlands, tried very hard, like I said, using existing

21 experience and existing data in the literature, to try

22 and break the wetland down into his biological or, if you

23 will, its abiotic components, such as soil absorption

24 capabilities, and evaluate it from that perspective. And

25 at that time we felt like we had enough information to

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1 justify the design that we presented to DER and EPA.

2 Q. What do you mean by abiotic?

3 A. Non-living. For example, the difference

4 between settling solids in a clarifier and settling

5 solids in a wetland. That's what I mean.

6 Q. You said, as opposed to looking during the

7 design process at a settling rate, you looked at things

8 such as soil absorption capabilities; is that correct?

9 A. That was one issue that we looked at.

10 Q. What other issues?

11 A. Like I said, biological uptake and a

12 biological storage and the littoral zone, biological

13 storage in rhizomes roots that died. Our primary

14 nitrogen removal mechanism was nitrification/

15 denitrification. Our prime other phosphorus removal

16 mechanism was via the vegetation uptake. Vegetation

17 includes bacteria in this statement, eventual death and

18 settling into the sediments. Sediments being the portion

19 of the bottom that's formed by the wetlands. The soil

20 being the portion of the bottom of the tank that was the

21 parent soils that are already there. You know, settling

22 into the sediment zone.

23 So we really relied more heavily on biological

24 removal of phosphorus than we did -- as a matter of fact,

25 we really didn't consider the sediments because we felt

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1 like they would be a short-term solution. And if it was

2 a short-term solution, it really wasn't a feasible

3 project for the City necessarily.

4 Q. Why were sediments a short-term solution?

5 A. Because we were led to believe by our

6 hydrogeologist that the confining layer, the hardpan, was

7 very closed throughout the surface of the soil on into

8 the soil. And, see, we would get very little downward

9 movement of the water through the sands and,

10 consequently, we would have what we considered a very

11 finite amount of material that could act as a phosphorus

12 sink on that particular site. So we really looked

13 heavily at biological removal of phosphorus.

14 Q. Who is your hydrogeologist that was there; do

15 you know?

16 A. I think it was Jammal & Associates. Once

17 again, you can get a copy of their report in the firm

18 that we filed with DER, EPA.

19 Q. Can you quantify, via percentages, the amount

20 -- I mean, gross percentages -- the amount of phosphorus

21 being uptaken biologically through the plants at Iron

22 Bridge versus through the soils?

23 A. No.

24 Q. Is there a way to do that?

25 A. Yes.

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1 Q. How would -- what would you need to do?

2 A. We would have to test the soil and look for

3 accretion, like, in the sediment layers, or changes in

4 the soils themselves.

5 And as I mentioned before, we did, after the

6 fact, start a sediment study. It was never really -- I

7 mean, I can honestly say I haven't even looked at that

8 data because we, like I said, were relying on biological

9 removal and never really considered the sediments the key

10 uptake mechanism.

11 Q. Well, do you have an opinion as to whether or

12 not the majority of the phosphorus was being removed

13 biologically as opposed to through the sediments?

14 A. Well, I'm going to say that just because the

15 sediments didn't act in that fashion, I would be -- I

16 would have to say they are taking up some phosphorus.

17 How much, we don't know.

18 We feel, based on an experiment that we did --

19 I think it started around 1990 and ran through the end of

20 '91 -- pretty comfortable in saying that the vegetation

21 is the primary mechanism for phosphorus removal in that

22 wetland. At least, that's my official position.

23 Q. You mention an after-the-fact sediment study

24 that was started. Is that the one that you just referred

25 to as 1991?

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1 A. No. What we did in 1991 is we flooded out the

2 cattails. And the idea was to replace the cattails with

3 bulrush. And I already had the experience to know that

4 flooding out cattails wasn't really that big of a

5 problem. However, the experiment portion of this with

6 the bulrush was growing as fast as we lost the cattails.

7 And the answer was no.

8 What we wound up with is removing a lot of the

9 vegetation out of cell one, which is where the experiment

10 took place. And as we removed that vegetation, we

11 replaced it with things like duckweed or plants that are

12 floating on the surface. The system actually appeared to

13 lose its ability to take up phosphorus.

14 As a matter of fact, I think if you look at

15 the data, it actually discharged phosphorus out of cell

16 one during our experiment; whereas before, it had taken

17 -- had a net uptake of phosphorus.

18 The City -- we sort of did this without

19 telling the City. And when they found out about it,

20 although it didn't affect their permit at all because at

21 the end of the system, they were still getting about the

22 same concentration they had the first years, they got a

23 little nervous about it and made me restore cell one back

24 to the cattail stand. And when we restored it, the

25 nutrient uptake capability of cell one was restored.

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1 So I say, by indirect evidence I have a pretty

2 good feeling that the biology was playing a very

3 important role in phosphorus uptake.

4 Q. How large is cell one?

5 A. It's -- I quote about sixty-five acres in the

6 reports.

7 Q. So this was an actual experiment --

8 A. To remove cattails.

9 Q. -- to remove cattails by flooding?

10 A. Right. And it turned into an after-the-fact

11 experiment on the nutrients that, really, I would have

12 liked to have admitted we had that sort of in the back of

13 our minds, but, really, the primary purpose was to

14 replace cattails with bulrush and it wasn't until

15 actually we started it that it became a nutrient

16 experiment, too, in addition to that.

17 Q. How do you go about flooding the cattails?

18 Just raising the water level?

19 A. Maintaining the water level up at a constant

20 depth. And they have a fairly high turn-over rate. And

21 when I say high turn-over rate, I mean they can turn over

22 maybe every nine to twelve months. And they have to get

23 from the bottom to the surface because they re-sprout.

24 And if you keep the water up, generally speaking, you

25 can, what's called flood them out and you get very poor

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1 recruitment back in that particular area. And, like I

2 said, we proved that pretty conclusively, but --

3 Q. Do you know what the permit concentration is

4 for phosphorus with respect to the Orlando project?

5 A. For which?

6 Q. Phosphorus.

7 A. In or out?

8 Q. Well, it was out, but we can do that.

9 A. In the design was .75 and out was .2.

10 Q. That's in and out of the --

11 A. Wetland.

12 Q. -- wetland?

13 A. Only.

14 Q. So that I'm clear, before we were talking

15 about seven hundred fifty parts per billion and two

16 hundred parts per billion?

17 A. Right.

18 Q. And we were talking in the context, I thought,

19 of that reduction having occurred in the tank treatment

20 process for discharge to the wetland?

21 A. Right. The design -- the permitted limit for

22 the wetland is .75. What actually goes in there can be

23 less, and it has been less and that's where -- I said the

24 highest that we ever discharged to the wetlands was

25 somewhere a little above .5, and it's ranged down to the

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1 lowest, which I think was last year it was somewhere

2 around .2, .22, or something like that, if I recall. I

3 really don't know.

4 Q. Lowest inflow?

5 A. Inflow concentration. And understand that

6 just because it's .75 in a permit, you can make it

7 whatever you want less than that going in. That's why

8 there's a difference.

9 Q. Okay. You had earlier mentioned an

10 after-the-fact sediment study that was started. Tell me

11 about that.

12 A. That was after we became involved, or after I

13 became aware of what was going on in the Everglades and

14 had actually received a paper from Steve Davis that he

15 had written, actually published by the District. And we

16 felt like it would be interesting to look at those same

17 types of studies in the Orlando wetlands to really get