1 1 DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA 2 SUGAR CANE GROWERS COOPERATIVE 3 OF FLORIDA; ROTH FARMS, INC.; and WEDGWORTH FARMS, INC., 4 Petitioners, 5 vs. DOAH CASE NO. 92-3038 6 SOUTH FLORIDA WATER MANAGEMENT 7 DISTRICT, an agency of the State of Florida; et al., 8 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 17 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. _________________________________ 25 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 2 1 Thursday, July 1, 1993 2 10:00 o'clock a.m. 3 The deposition of CLAUDE E. SWINDELL, JR., taken 4 pursuant to notice on behalf of the Petitioners Florida 5 Sugar Cane League, Inc., United States Sugar 6 Corporation and New Hope South, Inc., at the office of 7 Southern Court Reporters, Inc., 1908 Woodward Street, 8 Orlando, Florida, before Sandra Diane Evans, Registered 9 Professional Reporter, CP, and Notary Public, State of 10 Florida at Large. 11 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 16 On behalf of the Petitioners Florida Sugar 17 Cane League, Inc.; United States Sugar Corporation; and New Hope South, Inc. 18 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. 24 25 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 3 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 5 On behalf of the DER 6 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 11 THOMAS A.W. FITZGERALD, ESQUIRE 12 Assistant U.S. Attorney 155 South Miami Avenue 13 Miami, Florida 33130 (305) 536-5927 14 On behalf of the United States of America 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 4 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 6 PETITIONER'S EXHIBITS: 7 "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 17 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 20 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. - - - - - 25 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 5 1 Sugar Cane Growers -v- So. Fla. Water Management Dist. Depo taken 7-1-93 2 SUBSCRIPTION OF DEPONENT 3 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. 8 9 ______________________________ CLAUDE E. SWINDELL, JR. 10 11 Date:_________________________ 12 Sworn to and subscribed before me this ____day 13 of ____________, 1993. 14 _______________________ 15 Notary Public My Commission Expires: 16 * * * * * * * * * * 17 ERRATA SHEET 18 I, CLAUDE E. SWINDELL, JR., wish to make the 19 following corrections: 20 Page Line Correction 21 22 23 24 25 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 6 1 SOUTHERN COURT REPORTERS, INC. 1908 Woodward Street 2 Orlando, Florida 32803 (407) 894-8888 3 July 29, 1993 4 Donna LaPlante, Esquire 5 Assistant General Counsel Department of Environmental Regulation 6 2600 Blair Stone Road Tallahassee, Florida 32399-2400 7 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. 9 Dear Ms. LaPlante: 10 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. 15 Should you have any questions, please feel free to 16 contact us at the number listed above. 17 Sincerely, 18 19 Diane Evans Registered Professional Reporter 20 Notary Public, State of Florida at Large 21 cc: Rick J. Burgess, Esquire 22 Gary Perko, Esquire Patrick Cousins, Esquire 23 Thomas A.W. Fitzgerald, Esquire 24 25 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 7 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 8 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? SOUTHERN COURT REPORTERS, INC. (407) 894-8888 9 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? SOUTHERN COURT REPORTERS, INC. (407) 894-8888 10 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? SOUTHERN COURT REPORTERS, INC. (407) 894-8888 11 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 12 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 13 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 14 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? SOUTHERN COURT REPORTERS, INC. (407) 894-8888 15 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 16 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 17 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? SOUTHERN COURT REPORTERS, INC. (407) 894-8888 18 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 19 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? SOUTHERN COURT REPORTERS, INC. (407) 894-8888 20 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. SOUTHERN COURT REPORTERS, INC. (407) 894-8888 21 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 22 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. SOUTHERN COURT REPORTERS, INC. (407) 894-8888 23 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, SOUTHERN COURT REPORTERS, INC. (407) 894-8888 24 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 25 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 26 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? SOUTHERN COURT REPORTERS, INC. (407) 894-8888 27 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. SOUTHERN COURT REPORTERS, INC. (407) 894-8888 28 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 29 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. SOUTHERN COURT REPORTERS, INC. (407) 894-8888 30 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? SOUTHERN COURT REPORTERS, INC. (407) 894-8888 31 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 32 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. SOUTHERN COURT REPORTERS, INC. (407) 894-8888 33 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 34 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 35 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. SOUTHERN COURT REPORTERS, INC. (407) 894-8888 36 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 37 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 38 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 39 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 40 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 41 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. SOUTHERN COURT REPORTERS, INC. (407) 894-8888 42 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? SOUTHERN COURT REPORTERS, INC. (407) 894-8888 43 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. SOUTHERN COURT REPORTERS, INC. (407) 894-8888 44 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 45 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 SOUTHERN COURT REPORTERS, INC. (407) 894-8888 46 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 18 into quantifying what was going on in the sediments. 19 We were more interested in what was actually 20 occurring on top of the parent soils as opposed to what 21 was occurring below the parent soils, quite frankly. 22 So, we went out and did our best to try and -- 23 we retained a piece of the field in an undisturbed 24 fashion and we went out and sampled that piece of the 25 field and took some core samples inside the wetland, SOUTHERN COURT REPORTERS, INC. (407) 894-8888 47 1 assuming that the samples outside the field represented 2 background conditions. 3 Q. When was this; do you know? 4 A. I don't remember when it was started. I can't 5 tell you. 6 Q. What was the purpose for taking these cores? 7 A. Well, we were kind of hoping that we could 8 measure what was building up on top of the parent soils. 9 And, if I recall, our first attempt was really futile 10 because it was so little and it was so loose that we 11 really couldn't get what we considered a good sample. 12 Q. What was so little and so loose? 13 A. The buildup on top of the parent soils. 14 Q. Who at Post Buckley was in charge of this 15 experiment? 16 A. Me. 17 Q. Were there ever any written reports? 18 A. No. 19 Q. No written reports? 20 A. No. 21 Q. Were the soil samples that were taken either 22 in the wetland or the area you described as background, 23 were they ever analyzed for total phosphorus or any other 24 parameter? 25 A. I think they were. But, like I said, the SOUTHERN COURT REPORTERS, INC. (407) 894-8888 48 1 reason that we never really pursued it is because it was 2 my opinion that we really never got a representative 3 sample because there really wasn't enough there for us to 4 sample. So as an ecologist I was skeptical about 5 releasing that data. 6 Q. Was it ever released? 7 A. No. 8 Q. As far as you know, would it be in Post 9 Buckley's files? 10 A. Yes. 11 Q. In the context of the life of that project, 12 can you tell me when this experiment was done? 13 A. Like I said before, it was some time after we 14 started up. And I honestly -- I don't remember what the 15 dates were. 16 Q. When you say they were so little or small 17 amount of what was building up, was that a small amount 18 of peat? 19 A. Right. Organic material. 20 Q. Organic material that was? 21 A. Organic material that was forming on the 22 surface. 23 Q. Did you ever try to take other cores in other 24 areas? 25 A. We tried, but it wasn't a priority item for SOUTHERN COURT REPORTERS, INC. (407) 894-8888 49 1 us, quite frankly. 2 Q. Were those lab results ever analyzed or 3 interpreted by anyone other than yourself? 4 A. No. Like I said, I wasn't happy -- when I 5 went back and did a QA/QC check on the field collection, 6 I was not happy with the field collection, or I was 7 uncomfortable with it, and I felt like it would be a 8 disservice for me to start releasing data that may be 9 questionable, especially something like that. 10 Q. Having received this paper from Steve Davis 11 and being intrigued enough to set up this sampling effort 12 at Iron Bridge, did the fact that such a study was 13 carried on in the Everglades, and the fact that you were 14 unable to do it in Iron Bridge, tell you anything about 15 the difference in soils between the Everglades and Iron 16 Bridge? 17 A. No. I felt like it was sloppy field work on 18 our part, more than anything. Soil sampling was not part 19 of our permit and, therefore, it was kind of a secondary 20 item as such. People were out there all the time. 21 And, like I said, I really was unhappy with 22 the way the samples were collected in the field and 23 handled back to the lab. That's why I never really 24 discussed the data. 25 Q. To your knowledge, has anyone sampled soils SOUTHERN COURT REPORTERS, INC. (407) 894-8888 50 1 out at Iron Bridge and analyzed them for total 2 phosphorus? 3 A. EPA might have, but you're going to have to 4 ask them. I can't remember the young lady's name, but 5 she's doing a report on wetlands throughout the U.S. I 6 think she's working out of Oregon, and I do believe she 7 did take soil samples. 8 Q. When was that? 9 A. Vintage 1990. I don't remember. 10 Q. Anyone else, to your knowledge? 11 A. Not to my knowledge, no. Other people have 12 access to the sites, so they could have and I just don't 13 know about it. 14 Q. Have you had access to the site since January 15 of '93? 16 A. I have a key to the gate. 17 Q. Do you go back and sample? 18 A. No. 19 Q. Have you been back since January of '93? 20 A. Just once. 21 Q. For what purpose? 22 A. Showing someone around the site. 23 Q. In your last full year, let's say, 1990 to '92 24 when you were still a project manager for this site, this 25 site obviously was up and running at that time? SOUTHERN COURT REPORTERS, INC. (407) 894-8888 51 1 A. (Witness nods head affirmatively.) 2 Q. And what type work would you perform, or 3 research would you perform during the course of a year? 4 A. For Orlando? 5 Q. For that Orlando site. 6 A. I would go out on a periodic basis and inspect 7 the wetland. I reviewed any data that came in as it came 8 in. If there were modifications that needed to be made 9 to the flow-through to the system, or if one cell needed 10 to be maintained or whatever, I made those decisions. 11 Someone else carried it out. 12 Q. When and who did you show around the site 13 since January of '93? 14 A. It was just a friend of mine from -- just here 15 in town. It wasn't on a professional basis, if that is 16 what you're asking. 17 Q. It wasn't in connection with the litigation? 18 A. No. 19 Q. Administrative proceeding? 20 A. No. As a matter of fact, it was someone who 21 didn't even know what a wetland was. 22 Q. Tell me a little bit more about the design for 23 Cocoa and the Duda lands. 24 A. Similar. It was a cow pasture, same as 25 Orlando. It was -- the whole thing -- I mean, it was SOUTHERN COURT REPORTERS, INC. (407) 894-8888 52 1 identical to Orlando. We did a background study for a 2 year in the receiving waters to set the effluent 3 criteria. The wetland was basically designed the same 4 way. 5 Q. How large is it? 6 A. I knew you were going to ask that. I think 7 it's four to six hundred acres. I don't remember. I 8 think it was in that ballpark, though. 9 Q. Did you actually design that wetland? 10 A. I, once again, was the process side and the 11 engineers did the engineering side. 12 Q. Do you know -- well, did you yourself utilize 13 an uptake grade or a settling constant to determine the 14 size of that wetland? 15 A. Uptake grade. 16 Q. You did? 17 A. Similar fashion of what we did for Orlando 18 because at that point in time I was a little bit more 19 comfortable with that. That wetland has not been built, 20 by the way. So I don't want you to get the impression 21 that it has. 22 Q. You just did a design? 23 A. That's all permitted and ready to go. And 24 before they built it, Duda, I think, volunteered to take 25 the effluent onto their sod farm. And so right now SOUTHERN COURT REPORTERS, INC. (407) 894-8888 53 1 they're back into the mode of deciding whether they want 2 to go ahead and actually build it or not. 3 A. I would like to reference you to DER files 4 because I think it was permitted, but I'm not going to 5 say it definitely was. Reference you guys to DER's files 6 to check that out to see if it was or not. 7 Q. You mentioned having done something at or in 8 Sarasota County. Was that design? 9 A. We were asked by the NEP to look at the 10 potential of using wetlands down there, and I made a 11 couple of presentations and evaluated. This is, once 12 again, a quick and dirty evaluation of a spray field 13 site, and that was it and that's in the pre-conceptual 14 design phase. 15 MR. BURGESS: Take five minutes. 16 (There was a short recess taken.) 17 BY MR. BURGESS: 18 Q. Mr. Swindell, where did you go to high school? 19 A. JFK Senior High in Guam. 20 Q. Guam? 21 A. Right. 22 Q. Was one of your parents in the military? 23 A. Dad. Air Force. 24 Q. And how about your undergraduate work? 25 A. I started at Florida State and finished at SOUTHERN COURT REPORTERS, INC. (407) 894-8888 54 1 UCF. 2 Q. And any Masters or Ph.D? 3 A. UCF. 4 Q. For? 5 A. Masters. 6 Q. In what? 7 A. Biology, specialty in ecology. 8 Q. Any Ph.D courses or attempts? 9 A. No. 10 Q. Do you have any publications or papers you've 11 authored or company authored that have been published? 12 A. There's a couple, and I don't recall what the 13 titles were. One of them is in the publication that the 14 wetland conference puts out. Don Hammer, I think, 15 sponsors it every year. It's all over the world. 16 Q. What was the subject matter of the paper? 17 A. Creative wetland. Orlando wetlands to be 18 specific. 19 Q. Did you author or co-author that? 20 A. Yes. 21 Q. Do you remember what year it was? 22 A. '91, I think. 23 Q. Do you maintain a copy of that? 24 A. Do I? Only in the book. I passed down all 25 the other copies they gave me. SOUTHERN COURT REPORTERS, INC. (407) 894-8888 55 1 Q. Any other papers you've authored or co- 2 authored? 3 A. There's a couple, but I honestly don't 4 remember. They were so long ago I don't remember what 5 they were. 6 Q. Were any of them on any of the projects we've 7 discussed this morning? 8 A. No. 9 Q. In the context of the employment history that 10 you gave us this morning, when was the first time that 11 you were employed as a consultant to the South Florida 12 Water Management District? 13 A. It would have been for that conceptual design 14 report that I told you about. I would have to reference 15 you to the date on the report to get the year. I'm going 16 to guess it was in 1990, but -- 17 Q. And that was when you were employed with Post 18 Buckley? 19 A. Right. 20 Q. How did that consulting opportunity arise? 21 A. As far as I know, it came about because we 22 were a general engineering consultant to the District. 23 Q. Post Buckley? 24 A. Correct. 25 Q. And you hadn't worked on any other project for SOUTHERN COURT REPORTERS, INC. (407) 894-8888 56 1 the District up to that time? 2 A. Personally I hadn't, but the company had. 3 Q. What was your position and your 4 responsibilities with respect to that conceptual design? 5 A. I wrote it as the project manager. 6 Q. And did that process go further with you 7 involved? 8 A. It eventually wrapped around into the design 9 contract. In the design contract, Fred Biery acted as a 10 contract -- or the client project manager. I was 11 responsible for process design, and in the wastewater 12 group was actually responsible for the engineering 13 design. 14 Q. In general, how did you distinguish process 15 design from engineering design? 16 A. The way I describe it is we define what the 17 size of the cells are. You need "X" number of acres to 18 take down "X" number of pounds of whatever, phosphorus, 19 and they actually put the thing together and develop the 20 profiles and construction details for the berms and 21 structures and all the ancillary details. 22 Q. Did you in the context of the ENR, determine 23 the number of acres to remove a set amount of phosphorus? 24 A. We were given a project and asked how much 25 could we get out. We weren't asked, "here's how many and SOUTHERN COURT REPORTERS, INC. (407) 894-8888 57 1 tell us how many acres." They had already bound that ENR 2 Project, or it was already defined. 3 As a matter of fact, Burns & McDonnell was 4 well under way for their design of the parameter of the 5 canal and the pump stations. 6 Q. Okay. When you became involved with the 7 conceptual designs for the ENR, Burns & McDonnell was 8 already designing the parameter canal, the levy and the 9 pump stations? 10 A. (Witness nods head affirmatively.) 11 Q. Yes? 12 A. Yes. 13 Q. Was there an RFP for this conceptual design; 14 do you recall? 15 A. No, I don't recall. I'll be perfectly blunt 16 with you, "Here's the project and help get a budget 17 together", and I was responsible for actually doing it. 18 How it got up to that point, I don't know. 19 Q. When you say "here's the project", did someone 20 present you with a number of acres and -- 21 A. I mean, internally Post Buckley. Literally, 22 my boss came to me and said, "Are you ready to do this?" 23 And I said, "Sure." And so that's how I was introduced. 24 There was no marketing or prior, you know, discussions. 25 And then I had when my first meeting with the SOUTHERN COURT REPORTERS, INC. (407) 894-8888 58 1 District, yes, there was, a boundary that we were given 2 for the project. 3 Q. When you say Burns & McDonnell was well 4 underway designing the parameter canal, the levy and the 5 pump stations, was the area itself for the ENR wetland, 6 was that physically designed at that point in time when 7 you became involved? 8 A. I don't think so, but I really don't remember. 9 You would have to refer back to the dates of their 10 documents for that answer. 11 Q. You told me a little earlier that you were in 12 charge of the process design which included the design, 13 number of cells and the number of acres to remove the 14 amount of phosphorus. So -- 15 A. No. I said that's what process design -- 16 Q. Is? 17 A. Right. 18 Q. In the context of the ENR Project, did you 19 design the number of cells for the ENR Project? 20 A. If you look in the report, we proposed to 21 design, yes. 22 Q. And the design which you proposed necessarily 23 included a physical layout for the ENR, right? 24 A. Right. 25 Q. And was that physical layout something that SOUTHERN COURT REPORTERS, INC. (407) 894-8888 59 1 was given to you? 2 A. No. Just the boundary on the outside. 3 Q. Was it presented as a square or as -- 4 A. It's that, more or less, triangular shape. 5 Q. You were presented with that triangular shape? 6 That's what I'm trying to find out. 7 A. Right. 8 Q. The District presented you with that? 9 A. Right. 10 Q. And then your job was to optimize -- 11 A. The use of that. 12 Q. - the use of that site? 13 A. Of that site, yes. 14 Q. Did you, in fact, propose a conceptual design 15 that utilized the shape that you were given? 16 A. Yes. 17 Q. Did you develop an uptake rate or a settling 18 rate in order to optimize that land as a wetland? 19 A. We derived an uptake grade, that's correct. 20 Q. Who was involved in that process for Post 21 Buckley? 22 A. Once again, it would be a number of people. 23 Do you want me to list their names? I don't even know if 24 you can remember all of them. 25 Q. Was there a primary person? SOUTHERN COURT REPORTERS, INC. (407) 894-8888 60 1 A. Me. 2 Q. And then who would -- the primary person on 3 developing uptake rate -- 4 A. Right. 5 Q. -- that was you? 6 A. Right. 7 Q. And, if you can recall, who you would have 8 worked with? 9 A. Just about anybody that had any experience 10 with process design, I sat down and talked to at one 11 point or another, asking their opinion on it. 12 Q. How did you go about deriving the uptake rate? 13 Can you take me through that? 14 A. Really looked back at what we were getting out 15 of the Orlando wetlands. At that point Byron Bay was up 16 and running. So I used that as kind of a QC check. 17 Q. What was up and running? 18 A. The Byron Bay wetland over in Australia. 19 Q. Were you working on that at that time? 20 A. No. At the time I had access to some of the 21 data. And so -- 22 Q. How do you spell that? 23 A. B-y-r-o-n Bay. At any rate, we developed a 24 number based on the uptake rates that we were seeing at 25 the Orlando wetlands. SOUTHERN COURT REPORTERS, INC. (407) 894-8888 61 1 Q. Just procedural, I've never developed an 2 uptake rate. Take me through what type data you look at 3 and what did you do. Did you make a model? 4 A. Well, there was a very simple model, but we 5 basically looked at what was happening internally, what 6 the loading rates were, what the concentrations were, 7 what the nitrogen concentration was versus what the 8 effluent concentration out of that particular cell was, 9 and used that to make a curve. And from the curve versus 10 what we felt was a reasonable detention time -- 11 reasonable being something that we had already seen 12 within the bounds of something we had already seen back 13 on our way into the uptake rate. 14 So, in other words, it's a balancing act 15 between your detention time and what you think your 16 uptake rate is going to be. 17 Q. Any other data other than Orlando and Byron 18 Bay? 19 A. Lakeland. We used Lakeland and whatever I 20 could get my hands on from the Water Management District 21 of their Conservation Areas. I used that, also. 22 Q. Did you use the data from WC2A that you 23 recall? 24 A. Yes. 25 Q. What documents would, or are there any SOUTHERN COURT REPORTERS, INC. (407) 894-8888 62 1 documents that contain like a compendium of what data you 2 looked at to develop -- 3 A. Yeah. The files should have that in them. 4 I don't like to remember things. I used to 5 keep files on engineering paper, write out everything, or 6 I would Xerox it and stick it in my file. It's what I 7 called my water file. So any references, or any data, or 8 any calculations I did, or the formulas that I used, 9 would all be in that file. 10 Q. And do you know whether or not this type of 11 supporting data was included with or attached to the 12 conceptual design that you submitted to the District? 13 A. I don't think it was. 14 Q. Do you remember or recall what the uptake rate 15 was that you used? 16 A. No, I don't. I would have to review the 17 report. 18 Q. Do you recall whether you took any soil cores? 19 A. No. 20 Q. Did you do any litter bag studies? 21 A. We were doing litter bag studies in the 22 Orlando wetlands. And we used data that Steve Davis 23 supplied us from the litter bag studies he had already 24 performed in the South Florida area. We relied more 25 heavily on what he had done, obviously, because he had a SOUTHERN COURT REPORTERS, INC. (407) 894-8888 63 1 couple-year jump on us. 2 Q. Were you anticipating at this stage of your 3 design process that the plants, macrophites and other 4 things biological would be the primary -- 5 A. Yes. 6 Q. -- peat removal mechanism as opposed to the 7 soils? 8 A. Correct. 9 Q. Were you again at this point in the process at 10 all attempting to determine what the peat removal 11 capabilities of the soils at this ENR site would be? 12 A. No. Storage, but not removal. 13 Q. Storage? 14 A. Right. 15 Q. Storage in the soils? 16 A. In the sediments as it built up, like I 17 explained to you earlier. 18 Q. The studies that weren't successful at 19 Orlando, that weren't completed? 20 A. No. In other words, it's, like I said before, 21 you try and balance your flow through the system so you 22 don't scour the material that you're actually generating 23 by the wetlands, or cause it to be transported out of the 24 system. 25 So we were looking at, in the design, making SOUTHERN COURT REPORTERS, INC. (407) 894-8888 64 1 sure that the flow rates were sufficient to maintain that 2 material as it built up internally in the wetlands for 3 that design. 4 Q. Now, the uptake rate that you arrived at with 5 respect to the ENR Project, was that utilized in the 6 design of the interior cells? 7 A. It was part of the design, right. Part of the 8 design of the interior cells was to try and spread the 9 water out through the system because it was a big site. 10 So we were breaking it up into a number of smaller cells 11 to distribute it across the site. That was one of the 12 key factors in that design. 13 So, in other words, if you have one big cell, 14 you might have some channeling, but if you start putting 15 some berms or levies interior in that, you can start 16 forcing it through areas of the field. And that was the 17 thought process behind a lot of that. 18 Q. And was there another reason to need to drive 19 this uptake rate other than for that design? 20 A. Well, to estimate what the system was going to 21 do, right. 22 Q. System going to do from the standpoint of 23 removal of nutrients? 24 A. Right. Phosphorus, to be specific. 25 Q. What was your target phosphorus reduction SOUTHERN COURT REPORTERS, INC. (407) 894-8888 65 1 number? 2 A. The District never really said we had to get 3 to a certain limit. They said we would like you to go 4 down as much as you can. So we really had free say in 5 what we felt like the effluent limit was going to be. 6 And I think we zeroed in on .03 or .05. I 7 can't remember now which as to the effluent limit and the 8 actual uptake -- we proposed as the actual uptake rate 9 because at the time I think there was some discussion 10 about having twenty-five metric tons a year. We said 11 there's times that you don't get enough loading for that. 12 So the actual uptake rates would have differed 13 between years, whether it was a drought year or a flood 14 year; that sort of thing. You had to look at like a five 15 or ten-year period to get an average number. 16 Q. And the five or ten-year average you were 17 looking at was .03 or.05? 18 A. Yes. I would have to reference you to the 19 report. It's specifically stated in there. 20 Q. Had you ever worked on any wetlands previously 21 where your phosphorus reduction required was .03 or .05 22 milligrams per liter? 23 A. It was -- like I said before, the District 24 never really required us. They said, "we want you to get 25 it down as much as you can." And they asked me to tell SOUTHERN COURT REPORTERS, INC. (407) 894-8888 66 1 them what I thought that number was going to be out the 2 effluent side. There was a lot of goals set, but in the 3 end run they asked me. It wasn't something that they 4 cast in stone. 5 Q. Do you remember what your influent number was? 6 A. I think the average I used was .19 milligrams 7 per liter total phosphorus. 8 Q. And then you arrived at the .03 to .05? 9 A. Correct. 10 Q. And that process would be described where, in 11 the conceptual design document? 12 A. Correct. 13 Q. Were you concerned again at this point in the 14 process? In looking at the inflow number, were you 15 concerned with what percentage was dissolved or 16 particulate? 17 A. At that point, no, I wasn't. 18 Q. In the process of performing this calculation 19 to see what number you can get the phosphorus down to, 20 was that a concern, the dissolve versus particulate 21 fractionation? 22 A. No, because at that point we believed that the 23 wetland was going to consume and re-generate phosphorus 24 as it moved through. So that it would have been at that 25 point difficult for us to track it. SOUTHERN COURT REPORTERS, INC. (407) 894-8888 67 1 Q. Do you recall whether you basically used all 2 of the acreage that you were given? 3 A. As much as we could. 4 Q. Do you recall the size? Was it thirty-four or 5 thirty-seven hundred? 6 A. Total size of the project, I think, was around 7 thirty-seven hundred. 8 Q. Affected treatment area, do you recall what 9 that was? 10 A. Thirty-four, thirty-five hundred acres. I 11 really don't remember now. Like I say, it's in that 12 report. 13 Q. Okay. We have you working as a project 14 manager on the conceptual design for the ENR in 1990, and 15 at the same time Burns & McDonnell was working on the 16 perimeter canal, levee and pump stations. 17 What did you do next after you submitted the 18 conceptual design? 19 A. Tried to negotiate for the actual design 20 services for the interior ENR Project. 21 Q. Were there others who had submitted conceptual 22 designs in addition to Post Buckley for the ENR? 23 A. Not to my knowledge. 24 Q. Was Post Buckley ultimately selected to do the 25 design services for the interior? SOUTHERN COURT REPORTERS, INC. (407) 894-8888 68 1 A. Yeah. That's what I was describing to you 2 before. 3 Q. Fred Biery? 4 A. Yeah, right. 5 Q. And Fred Biery then became the project 6 manager. And what is it that you did during this design? 7 A. Fred Biery was a client project manager, and I 8 was the project manager for the process design. And Bob 9 Morrell, I think, was the project manager for the 10 engineering design. 11 Q. I'm sorry. You were the project manager for 12 the -- 13 A. Process design. 14 Q. Is the process design something that goes on 15 during the conceptual design phase or the actual design 16 phase? 17 A. Both. 18 Q. How does the process design during the design 19 services phase differ from what you did previously? 20 A. Because then you start actually laying out. 21 You go from the conceptual layout of berms or levees to 22 the actual layout of levees and water control structures, 23 and things may change slightly. 24 It's, once again, a balancing act between your 25 flows and your hydrology and what you're expecting as an SOUTHERN COURT REPORTERS, INC. (407) 894-8888 69 1 uptake rate. So there is some room. And the process 2 design also included the monitoring plan and the O&M 3 plan, and all of that ancillary permitting type issues. 4 Q. Do you recall during this process whether or 5 not your inflow numbers of nineteen milligrams per liter 6 and your expected outflows of .03 to .05, whether those 7 changed? 8 A. No. 9 Q. You don't recall, or they didn't? 10 A. They didn't. 11 Q. Now, how did what you were doing under the 12 design services phase with respect to the berms and water 13 control structures differ from what Burns & McDonnell was 14 doing? 15 A. They were doing the perimeter and we were 16 doing the interior. 17 Q. So, the berms and water control structures 18 that you're speaking about are with respect to the 19 interior test cells or the interior configuration? 20 A. It would have been all of the interior. So we 21 would have tied into their perimeter levee system. Or, 22 for example, we would have tied into their effluent pump 23 station. 24 Q. So they were continuing to do their work -- 25 A. Right. SOUTHERN COURT REPORTERS, INC. (407) 894-8888 70 1 Q. -- on the exterior? 2 A. Right. 3 Q. And I assume that this process design phase of 4 design services was completed at some point in time? 5 A. Right. 6 Q. Did that result in a report or document 7 something? 8 A. I think there were two reports, a process 9 report and an engineering report. Those reports are more 10 along the lines of specifications than they were a 11 typical report. 12 Q. More numbers than narratives? 13 A. Like how you build the levees or how you build 14 a water control structure, whatever. 15 Q. Were you actually constructing at this time, 16 also? 17 A. I can't answer that. I don't recall. We 18 weren't. Whether somebody else was, I don't remember. 19 Q. What was the next step, then, after the 20 completion of these two reports? 21 A. Well, the District decided that they were 22 going to enter into an agreement with the power company 23 to run a transmission line through the ENR Project. So 24 they took our report and basically converted our design 25 into one to where the power transmission line that goes SOUTHERN COURT REPORTERS, INC. (407) 894-8888 71 1 through that project formed the, more or less, the north/ 2 south berm through the site. 3 Q. Why did the District decide to enter into this 4 agreement, if you know? 5 A. It was, I think, because the power company was 6 willing to pay for the construction of that levee. And 7 so that would have saved them, however much money that 8 was, in the construction of the interior works. 9 Q. Was that levee present in your process design? 10 A. Yes. It changed the configuration, but the 11 overall thought process was still there. 12 Q. Did it have any negative impact on the design, 13 in your opinion? 14 A. None that I could identify. 15 Q. What happened next, then? 16 A. Well, then we went to work for DER and we 17 phased out of the South Florida project altogether. 18 Q. Were you involved at all in any consideration 19 of the construction of test cells within the ENR? 20 A. Yes. 21 Q. When did that come about? 22 A. That came about in the original conceptual 23 report, and, once again, in the design of the interior of 24 the ENR Project. And we -- what we recommended and what 25 they actually wound up doing were not the same because SOUTHERN COURT REPORTERS, INC. (407) 894-8888 72 1 when they obviously changed the alignment of the berm, 2 they changed where we had the test cells. So that, more 3 or less, got taken out of our contract and was an 4 internal project as opposed to one that we were dealing 5 with. 6 Q. In the context of at this point in time, after 7 the District entered into this contract with the power 8 company, were you pursuing further work on the ENR 9 Project with the District? When I say you -- 10 A. I don't know that we were pursuing, but we 11 wound up sitting in on the discussions that took place 12 between the District, DER and the Department of Justice 13 and the Fish & Wildlife Service. 14 Q. About? 15 A. The overall project. 16 Q. Meaning the STAs in addition to ENR? 17 A. Right. ENR was, I guess, a minor part of 18 those discussions you might say. 19 Q. How many such discussions were there? 20 A. I don't recall, but I have a log. I had to 21 write a report for each meeting that I went to. So you 22 could look in the file. 23 Q. Do you know whether those reports -- whether 24 you made those reports available to your -- to DER in 25 answering the request for documents for this deposition? SOUTHERN COURT REPORTERS, INC. (407) 894-8888 73 1 A. What do you mean? 2 Q. Well, did you provide some documents to DER in 3 response to a written notice about this deposition? 4 A. Yeah. I just gave them what I personally had. 5 I was no longer in possession of any of that. 6 Q. You said you have a log? 7 A. No. I had to write a report to DER for every 8 meeting that I went to. I'm sorry, it was for the 9 District at first. And when I went to work for DER, I 10 had to write one for them. So they're buried in the 11 files. They were originally hand scribbled on standard 12 memo forms. And then as I got a little bit more 13 progressive, I typed them on the computer, issued them in 14 the form of a memo. 15 Q. Do you know how many such reports you did? 16 A. I really don't, no. 17 Q. Do you know whether those were provided with 18 your documents for this deposition? 19 A. I was never asked to go to Post Buckley. So I 20 don't have any knowledge of where they are right now. 21 Q. Now, I'm trying to take you back to the period 22 of time where you submitted the process design for the 23 design services. Is there a better term for that? Is 24 that the final design? 25 A. Right. SOUTHERN COURT REPORTERS, INC. (407) 894-8888 74 1 Q. Okay. Now, at the time of having submitted 2 your paperwork in conjunction with the final design -- 3 A. Right. 4 Q. -- for the ENR Project, was Post Buckley 5 pursuing any further work with the District in connection 6 with that presented final design? 7 A. To my knowledge, no. But, once again, what 8 else was happening, I wasn't aware if it was. You got to 9 understand, though, our contract had us on site through 10 construction. 11 Q. To oversee the construction? 12 A. Correct. 13 Q. Okay. Did you, in fact, do that? 14 A. No, because we severed the contract when we 15 went to work for DER. 16 Q. Why did you sever the contract? 17 A. I don't think I can answer that. John Shearer 18 had recently taken over as the Director of Environmental 19 Services. 20 Q. Where? 21 A. At Post Buckley. And we had an opportunity to 22 work for DER and we took it. I mean, I can't answer it 23 any further than that. 24 Q. Whose decision was it? 25 A. The company's. SOUTHERN COURT REPORTERS, INC. (407) 894-8888 75 1 Q. Did you participate in discussions about 2 whether this would be a good thing to do or a bad thing 3 to do? 4 A. I was told that we had the opportunity, and 5 made the comment that I thought it was -- would be a good 6 opportunity. And beyond that, I was outside of 7 discussions. 8 Q. Who are the decision makers at Post Buckley 9 with respect to that decision? 10 A. I would have to say that John Shearer would be 11 the ultimate decision maker. Who was involved, I don't 12 know. 13 Q. Do you have any inkling or inclination as to 14 why you would sever your relationship with the District 15 and go to work for DER? 16 A. There were some hard times between the company 17 and the District because the engineering design was 18 handed in late and the designer didn't show up to any of 19 the design discussion meetings. So the District was a 20 little irritated at Post Buckley and, I guess, that kind 21 of festered and -- 22 Q. Who was the designer that didn't show up? 23 A. Hermann Konrad was the one that actually 24 worked on the project. But like I mentioned to you 25 earlier, the project manager for that was Bob Morrell. SOUTHERN COURT REPORTERS, INC. (407) 894-8888 76 1 Q. Who? 2 A. Bob Morrell. 3 Q. Morrell? 4 A. Right. So there was a little bit of a hard 5 time there on that. 6 Q. Where was John Shearer employed before he went 7 to work for Post Buckley? 8 A. He was the Assistant Secretary for DER. 9 Q. Were you ever told that anything that you had 10 done in connection with the ENR Project was done to the 11 dissatisfaction of the District? 12 A. No. As a matter of fact, I was told the 13 opposite. 14 Q. Did you concur in the decision to go work for 15 DER as opposed to the District? 16 A. It wasn't my position to concur, I don't 17 think. 18 Q. I don't mean to repeat myself, but were you 19 ever on site during any of the physical construction of 20 the ENR project? 21 A. No. The only thing that I was on site for was 22 the construction of the nursery. 23 Q. How many acres was that? 24 A. I think it was about forty. 25 Q. And that was within the interior? SOUTHERN COURT REPORTERS, INC. (407) 894-8888 77 1 A. It was up on the north side of the interior, 2 yeah. Once again, I would like to reference you to the 3 documents on the actual sizes. 4 Q. I understand. These aren't trick questions. 5 If we want to start pulling some documents -- I want to 6 go through documents later, but they get time consuming 7 and so on. Certainly, if you want do that and go through 8 them, if there's anything you want to correct, you go 9 right ahead and do that. 10 Do you know whether Post Buckley was paid for 11 all of their work on the ENR Project -- 12 A. Yes. 13 Q. -- by the District? 14 A. Yes. 15 Q. Did Burns & McDonnell continue on and 16 complete, with respect to the ENR, their exterior 17 engineering? 18 A. I wasn't involved to the point where I could 19 answer that. 20 Q. Do you know whether -- do you know who became 21 the on-site construction coordinator? 22 A. No. 23 Q. When was the last time you were out at the ENR 24 Project? 25 A. Many moons ago. I can't give you an accurate SOUTHERN COURT REPORTERS, INC. (407) 894-8888 78 1 answer to that because I just don't remember. 2 Q. Have you reviewed any data from the ENR 3 Project? 4 A. Early on when we did the design. 5 Q. Conceptual design? 6 A. Correct. 7 Q. This is 1990? 8 A. Right. 9 Q. Yeah, okay. 10 A. But beyond that, the only things that we've 11 reviewed would have been in the Kadlec report or the 12 District's permitting package. 13 Q. How long after you or Post Buckley terminated 14 the relationship with the District did you begin working 15 for DER? 16 A. I don't really remember. I could only guess. 17 And I don't really remember to be honest with you. 18 Q. Was it just within a period of months? 19 A. Months. 20 Q. Or days? 21 A. Months, right. 22 Q. And did what you were going to do for DER 23 differ from that which you were doing for the District? 24 A. We were asked just to review the documents 25 that were submitted by the District, and we were asked to SOUTHERN COURT REPORTERS, INC. (407) 894-8888 79 1 attend the meetings and advise the DER staff, who were 2 also present at the meetings, of what our opinions were 3 on the issues that were discussed. 4 Q. Now, these meetings, are you talking about STA 5 design group meetings that occurred at the District? 6 A. They were supposedly closed-door meetings with 7 the Department of Justice. And I think after a period of 8 time they opened them up and Sugar started attending. 9 Q. How many such meetings did you attend while 10 they were closed-door meetings? 11 A. Like I said earlier, I would have to reference 12 you to that one file. 13 Q. If I were to ask -- 14 A. More than five. 15 Q. -- Post Buckley -- if I were to ask Post 16 Buckley for that file, how would I -- what would I call 17 it? How would I reference it? 18 A. My -- it would be SFWMD Correspondence. 19 Q. And that would have those meetings reports in 20 there? 21 A. Yes. Let me rephrase that. That should have 22 those meetings reports in there. 23 Q. Who else besides yourself on behalf of Post 24 Buckley attended any of these closed-door meetings? 25 A. Jay Maze, and I think on one occasion Steve SOUTHERN COURT REPORTERS, INC. (407) 894-8888 80 1 Lienhart. 2 Q. And they were Post Buckley employees? 3 A. Correct. 4 Q. Are they in the Tampa office? 5 A. Correct. 6 Q. Where were these meetings held? 7 A. Most of the meetings were held at the District 8 office in West Palm Beach. 9 Q. Yet it's your understanding or impression that 10 they were closed-door meetings? 11 A. That was my understanding because I was asked 12 not to discuss it. 13 Q. With anyone? 14 A. Well -- 15 Q. Sugar? 16 A. Well, obviously discuss it with the company. 17 No, there was no reference to Sugar. They just asked me 18 not to discuss it. 19 Q. Who attended these meetings on behalf of, 20 let's start with the District? 21 A. Tony Fedareco, (ph) Paul Waylan, Tom MacVicar, 22 Marguerite Koch, K-o-c-h; Steve Davis, Gary Goforth. I 23 think the fella's last name was Brown. At one point 24 Bernie Shatner attended a couple of meetings. Geez, I 25 can't remember her name; Sue Newman. I can't remember SOUTHERN COURT REPORTERS, INC. (407) 894-8888 81 1 the other fella's name that took over. It's on the tip 2 of my tongue. 3 Q. Took over the -- 4 A. The ecology or environmental science group. 5 At any rate there was a couple. 6 Q. Was Pete Rose ever there? 7 A. Pete Rose was there, yes. 8 Q. Garth Redfield? (ph) 9 A. Garth was there. They weren't at each 10 meeting, but they were, at various and sundry times, 11 there. 12 Q. These are the closed-door meetings I'm 13 referring to. 14 A. Yes. 15 Q. Who was there on behalf of the Department of 16 Justice? 17 A. I can't remember their attorney's name. 18 Kadlec. 19 Q. How many attorneys? 20 A. I really only remember one. 21 Q. Male or female? 22 A. Male. Kadlec was there and a fella named Bill 23 Walker. 24 Q. And how about for DER? I'm sorry, anybody 25 else for the Department of Justice? SOUTHERN COURT REPORTERS, INC. (407) 894-8888 82 1 A. I can't remember any. 2 Q. How about for your client? 3 A. We had Bart Bibler, George Baragona were the 4 two primary ones that were there. 5 Q. Okay. Any other groups represented other than 6 District, Department of Justice and DER? 7 A. I think the Soil Conservation Service was 8 there. Once again, I'm thinking on that one. I think -- 9 I know that Fish & Wildlife was there. 10 Q. Who was there for SCS or -- 11 A. I think SKO was there, and I don't remember 12 the names. If you look in the files that I referenced 13 you to, attached to the memo is a list of who attended 14 the meetings and you can get their names right off that 15 sheet, who was actually there. 16 Q. What was the reason to have these meetings? 17 A. I don't know. I was there as a technical 18 advisor and I was not interested, nor was I involved in 19 the politics of it. 20 Q. What was the reason for excluding the public? 21 A. I just said I wasn't -- I didn't know and I 22 didn't want to know. I was strictly there as a technical 23 advisor. 24 Q. Did you take notes at the meeting? 25 A. Yes. SOUTHERN COURT REPORTERS, INC. (407) 894-8888 83 1 Q. And they would be within that file? 2 A. They would be reflected in my reports, right. 3 The reports are actually a synopsis of what I felt the 4 key issues were or what my assignments were. 5 Q. What was discussed during the meeting? What 6 was the subject matter of discussion? 7 A. I guess in a nutshell it was to how the STAs 8 could be designed and what would be the uptake rates and 9 how big, where, what would they look like. 10 Q. Was there talk during this time of integrating 11 or how to integrate the ENR Project into this? 12 A. Eventually that was discussed. 13 Q. Do you know whether these meetings took place 14 before or after the federal lawsuit settlement agreement? 15 A. I think there were some meetings before, but I 16 really don't rem