1 DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA 2 3 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA; ROTH FARMS, INC.; 4 and WEDGWORTH FARMS, INC., 5 Petitioners, 6 vs. DOAH CASE NO. 92-3038 7 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, an agency of the State 8 of Florida; et al., 9 Respondents. ________________________________ 10 FLORIDA SUGAR CANE LEAGUE, INC.; 11 UNITED STATES SUGAR CORPORATION; and NEW HOPE SOUTH, INC., 12 Petitioners, 13 vs. DOAH CASE NO. 92-3039 14 SOUTH FLORIDA WATER MANAGEMENT 15 DISTRICT, an agency of the State of Florida; et al., 16 Respondents. 17 ________________________________ VOLUME II of II 18 FLORIDA FRUIT AND VEGETABLE ASSOCIATION; LEWIS POPE FARMS; 19 W.E. SCHLECHTER & SONS, INC., and HUNDLEY FARMS, INC., 20 Petitioners, 21 vs. DOAH CASE NO. 92-3040 22 SOUTH FLORIDA WATER MANAGEMENT 23 DISTRICT, an agency of the State of Florida; et al., 24 Respondents. 25 ________________________________ Page 199 1 Friday, July 2, 1993 2 9:15 o'clock a.m. 3 4 The deposition of CLAUDE E. SWINDELL, JR., 5 taken pursuant to notice on behalf of the Petitioners 6 Florida Sugar Cane League, Inc., United States Sugar 7 Corporation, and New Hope South, Inc., at the office of 8 Southern Court Reporters, Inc., 1908 Woodward Street, 9 Orlando, Florida, and reported by Debra Bennett Worley, 10 Certified Shorthand Reporter, Registered Professional 11 Reporter, CP-CM, and Notary Public, State of Florida at 12 Large. 13 APPEARANCES: 14 RICK J. BURGESS, ESQUIRE Peeples, Earl & Blank, P.A. 15 One Biscayne Tower, Suite 3636 Two South Biscayne Boulevard 16 Miami, Florida 33131 (305) 358-3000 17 On behalf of the Petitioners Florida Sugar 18 Cane League, Inc.; United States Sugar Corporation; and New Hope South, Inc. 19 20 GARY PERKO, ESQUIRE Hopping, Boyd, Green & Sams 21 123 South Calhoun Street Tallahassee, Florida 32314 22 (904) 222-7500 23 On behalf of the Petitioners Sugar Cane Growers Cooperative of Florida; Roth 24 Farms, Inc.; and Wedgworth Farms, Inc. Page 200 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 7 PATRICK COUSINS, ESQUIRE Popham, Haik, Schnobrich & Kaufmann, Ltd. 8 4000 International Place 100 S.E. Second Street 9 Miami, Florida 33131 (305) 530-0050 10 On behalf of the Respondent, South Florida 11 Water Management District 12 THOMAS A.W. FITZGERALD, ESQUIRE 13 Assistant United States Attorney 155 South Miami Avenue 14 Miami, Florida 33130 (305) 536-5927 15 On behalf of the United States of America. 16 Page 201 1 I N D E X 2 PAGE TESTIMONY OF CLAUDE E. SWINDELL, JR. 3 ERRATA SHEET ...................................... 5 4 READING AND SIGNING LETTER ........................ 6 DIRECT EXAMINATION (BY MR. BURGESS) ............... 7 5 CONTINUED DIRECT EXAMINATION (BY MR. BURGESS) ..... 203 CROSS EXAMINATION (BY MR. PERKO) .................. 285 6 REDIRECT EXAMINATION (BY MR. BURGESS) ............. 292 7 PETITIONER'S EXHIBITS: 8 "1" (C.V.) ................................... 131 "2" (Notice of Taking Deposition) ............ 132 9 "3" (Agreement for the Everglades Restoration Permit Review) .............. 179 10 "4" (1-20-92 Letter, Biery to Baragona) ...... 181 "5" (4-3-92 Meeting Notes) ................... 188 11 "6" (4-30-92 Memo from Maze to Biery, et al) . 188 "7" (3-27-92 Memo from Swindell to Biery) .... 189 12 "8" (5-21-92 Letter from Biery to Baragona) .. 195 "9" (Compliance and Performance Review 13 Easterly Wetland Treatment System) ...... 208 "10" (Conceptual Design) ...................... 217 14 "11" (Intent to Issue) ........................ 218 "12" (O&M Permit Application) ................. 218 15 "13" (Completeness Summary) ................... 229 "14" (7-8-92 Letter from Swindell to Nearhoof). 229 16 "15" (Review of the Hydraulic Computation) .... 236 "16" (12-19-91 Memo from Swindell to Shearer) . 254 17 "17" (12-10-91 Letter from Miller to Goforth) . 289 18 CERTIFICATE OF REPORTER (Volume I) ................ 198 CERTIFICATE OF REPORTER (Volume II) ............... 294 19 * * * * * * 20 S T I P U L A T I O N S 21 It is hereby expressed by and between counsel 22 present for the respective parties and the deponent that the reading and signing of the deposition be reserved. 23 It is hereby stipulated and agreed by and 24 between counsel present for the respective parties that all objections, except as to the form of the question, be 25 reserved until such time as the deposition is offered into evidence at the trial of said cause. Page 202 1 (After the evening recess, the deposition was 2 reconvened at 9:15 o'clock a.m. Attorneys present at 3 that time were Rick Burgess, Gary Perko, Donna LaPlante 4 and Patrick Cousins. The court reporter at this point 5 was Debra Bennett Worley, CSR, RPR, CP-CM.) 6 CONTINUED DIRECT EXAMINATION 7 BY MR. BURGESS: 8 Q. Mr. Swindell, you're still under oath. Okay? 9 A. Yes. 10 Q. Good morning. 11 A. How you doing? 12 Q. Okay. How many times have you been deposed 13 before? 14 A. Twice, I think. 15 Q. Twice. What type of cases were they? 16 A. Lawsuits. 17 Q. I mean personal injury, administrative, 18 environmental? 19 A. City of Lakeland versus a cooling tower 20 manufacturer. I think it was Ecodonny. It might have 21 been C.T. Meng; I don't remember. 22 Q. Was that for breach of some warranty of 23 performance, or what was the reason? 24 A. If I recall, I think they were suing them for 25 design error. Page 203 1 Q. Then what did you testify about in that case? 2 A. Like I said yesterday, I was, for a short 3 period of time, responsible for the operation of the 4 cooling tower. So I was asked -- I was there when we 5 cleaned the Munters fill. I was asked to testify about 6 my opinion of the fill, whether it was suitable for that 7 cooling tower or not. 8 Q. Were you qualified as an expert in that case? 9 A. Pardon? 10 Q. Were you qualified as an expert witness in that 11 case? 12 A. What do you mean was I qualified? 13 Q. You said you were asked to give your opinion. 14 Usually to give an opinion in court or an administrative 15 proceeding -- 16 A. What I was asked, I was qualified to answer, 17 yes. 18 Q. Did the lawyer -- do you recall being formally 19 qualified as an expert to render an opinion on a given 20 subject? 21 A. I think I was. 22 Q. Okay. How long ago was this case? 23 A. Six years ago, seven years ago. I really don't 24 remember. 25 Q. Do you recall in what field of expertise you Page 204 1 were qualified? 2 A. Water quality. 3 Q. As a water quality scientist? 4 A. Right. 5 Q. What was the opinion that you gave in that 6 case? 7 A. I was asked to give an opinion on a report that 8 was prepared by another engineering firm. And I was not 9 involved in the preparation, review, generation of data, 10 or any other part of that report. So I was not able to 11 give an opinion on that. 12 I was also asked specific questions about the 13 condition of the fill in the cooling tower, if I recall, 14 and I did give an opinion about that. 15 Q. What is fill? 16 A. The best I can describe it, it's a block of 17 plastic that's designed specifically to have a high 18 surface area so that water trickling over it will come in 19 contact with the fill itself. And if it's used in a 20 trickling filter, has to give a high surface area for 21 bacterial growth. 22 In this particular case it was a high filter, 23 so the water would cool as it passed down through the 24 cooling tower. 25 Q. Okay. I'm sorry, was that in a court of law or Page 205 1 an administrative proceeding? 2 A. Like this. 3 Q. Oh, it was a deposition. 4 A. Right. 5 Q. Did the case go to trial or hearing? 6 A. No, not to my knowledge. 7 Q. You said you were -- had been deposed twice. 8 What was the other instance? 9 A. That was a case involving one of the power 10 companies. I can't remember if it was FP&L, where they 11 were putting up a power line easement across a piece of 12 land. And there was a dispute over whether or not the 13 power line was going to disturb or endanger a critical 14 habitat or endangered species. 15 Q. Were you a consultant to one of the parties or 16 groups in that lawsuit? 17 A. The best I can describe my actions, we were -- 18 the company was a consultant to one of the parties. 19 Q. Was that Post Buckley? 20 A. Yes. And I was called in as an expert witness. 21 Q. On what subject? 22 A. On ecology, wetlands and endangered species. 23 Q. Do you know what law firm retained Post Buckley 24 on that? 25 A. I might be able to generate it, because I think Page 206 1 I still have the lawyer's card; but I don't remember 2 their names. 3 Q. How long ago was this case? 4 A. Once again, I really don't remember. I think 5 it would be safe to say it was more than five years ago. 6 Q. Did that case ever go to trial? 7 A. To my knowledge, no. 8 Q. What opinion did you express in your 9 deposition? 10 A. I don't really remember the exact details. But 11 I was asked specific questions about the corridor that 12 was proposed. And I addressed, like I said before, 13 wildlife and habitat type questions relative to that 14 corridor. And I really don't remember the specifics of 15 any of the questions. 16 Q. Where was the easement? 17 A. It was, if I recall, it was in Palm Beach 18 County. 19 Q. Was it out in the Everglades? 20 A. No. It was, if you will, along the coastal 21 ridge somewhere. Actually, it went through a flatwoods 22 area, if I remember right. 23 Q. Okay. Have you ever testified in a hearing or 24 proceeding without having had your deposition taken ahead 25 of time? Page 207 1 A. No. 2 Q. Let me show you a document, see if you can 3 identify that for the record. 4 A. Looks like one of our annual reports for the 5 City. 6 Q. The City of Orlando? 7 A. Right. 8 Q. And is that with respect to the project that we 9 spoke about yesterday, the Orlando Wetland? 10 A. Right. 11 MR. BURGESS: We'll mark that as the 12 next-numbered exhibit, "9". 13 MR. PERKO: For the record, could you identify 14 the date on that document? 15 THE WITNESS: May '92. 16 Q. And what's the title? 17 A. Compliance and Performance Review for the City 18 of Orlando's Easterly Wetland Treatment System. 19 Q. Have you seen that document before? 20 A. Uh-huh. 21 (The said document was marked by the reporter 22 as Petitioner's Exhibit "9".) 23 Q. Did you author parts or part of Exhibit "9"? 24 A. Uh-huh. 25 Q. Page 2-29 of the document contains a paragraph Page 208 1 which reads, "The 1991 average TP uptake rate for 2 Stratum 1 was the first since the IBWTS start-up that 3 showed a net discharge of TP, as shown in Table 12. This 4 observation theoretically may be attributed to a 5 saturation of the TP storage sites in Stratum 1, or to a 6 shift in management practices for this area, or 7 potentially to a structural change in the structure of 8 Stratum 1 that increased the release of TP to a greater 9 level than the uptake rates. At this point it would be 10 very difficult to verify the first assumption; however, 11 the combined 1991 and 1992 data should provide strong 12 evidence as to the validity of the moving front concept 13 in the IBWTS. At this point the moving front concept 14 only can be discussed relative to the one data point 15 shown for 1991." 16 A. I wrote that. 17 Q. Did you write that? 18 A. Yes. 19 Q. Do you know whether a similar report has been 20 prepared for January 1992 to December '92 data? 21 A. Yes. 22 Q. And have you seen that report? 23 A. I wrote it. 24 Q. You wrote that report? 25 A. (Witness nods head). Page 209 1 Q. Does that report address this moving front -- 2 A. Yes. 3 Q. -- concept? And what does that report say 4 about it? 5 A. It says that once we restore the vegetation in 6 Cell One, the uptake rates return to their predisturbance 7 levels. And there was absolutely no evidence that the 8 moving front concept was valid for that particular 9 system. 10 I think it goes on to say there's absolutely no 11 evidence that the storage sites or the system's ability 12 to store phosphorus was reduced. And I think it 13 insinuates that that discussion in this paragraph was an 14 artifact of the operations and not of the system's 15 capability to take phosphorus up. 16 Q. What was it in the operations that allowed for 17 the -- 18 A. This is the same issue that we discussed 19 yesterday where I said -- 20 Q. Change in vegetation? 21 A. -- we flooded out the cattails. This is the 22 same cell that we're talking about here. 23 Q. Stratum 1 is the same as Cell One? 24 A. Is equivalent to Cell One. 25 Q. Okay. Page 210 1 A. If you had the whole report, there's a map in 2 there. And we have stations that, throughout the system 3 at various cells, that represent the stratum. And if you 4 looked at that map, you can see the sites kind of divided 5 up into five stratas as you go through, a progressive 6 movement towards the east. There would have been an 7 appendix to that, is where the map would have been, I 8 believe. 9 Q. Okay. Something else I wanted to ask you 10 about, not the map. 11 Table 1 on Exhibit "9" shows that, in 12 milligrams per liter, the average annual TP discharge 13 concentrations for 1991 was 0.087 milligrams per liter. 14 Do you know what it was for 1992? 15 A. It was 0.063, if I recall. 16 Q. Which is the same as 63 parts per billion? 17 A. Correct. But if you read that report, if you 18 flip to Table 5, I think, you'll notice that the system 19 is actually reducing it to .05 on a consistent basis. 20 And if you read the -- one of the first few reports, or 21 an interim letter to DER, the last two cells, or the last 22 stratum, which actually is that measurement point there, 23 is a wildlife habitat area, not actually part of the 24 treatment system. 25 So the point where we actually look at the Page 211 1 treatment for phosphorus would be on that one particular 2 table, this table, Table 11. 3 Q. What does Table 11 show? 4 A. This is a breakdown of the movement of the 5 water through the system, this being the influent, this 6 being the effluent. Stratum 1, 2, 3, 4 and then 5. 7 The stratum between MM8 and HS10 is actually 8 there as a wildlife habitat area, not as part of the 9 treatment system. So really, these are the numbers, 10 across here (indicating), on a long-term basis that we 11 use for the system's phosphorus uptake ability. 12 Q. And that's the first four years of the system's 13 operations; right? 14 A. Correct. 15 Q. And it's not unusual in the start-up phase of 16 the first three to five years to have significant 17 phosphorus uptake? 18 A. We really saw the system stabilizing itself. 19 And I don't know that -- 20 Q. After how long? 21 A. I think it was about six months. And we really 22 didn't notice that there was a tremendous statistical 23 difference after that point. It seemed to seek a level 24 and then stay there. 25 Q. After six months? Page 212 1 A. About six months. 2 Q. Yesterday we reviewed but did not enter in the 3 record a September 13, 1990 ENR Project Phase III 4 Conceptual Design document. And I want to make sure I 5 understand your testimony with respect to that document. 6 Yesterday I think you told me that the range in 7 net uptake rate, phosphorus uptake rate, contained in 8 Chapter 3 of that conceptual design for the ENR, 9 compares, in your opinion, favorably with the net uptake 10 rate presented in the Burns and McDonnell model in 11 support of the most recent ENR permit, which I think 12 we've identified as May of '93. And that comparison 13 allows you to conclude that the Burns and McDonnell 14 hydraulic model is conceptually valid; is that an 15 accurate -- 16 A. I said I thought that that's what it was, yes. 17 Q. Is there anything else, let's start with in 18 that document, which supports your opinion? 19 A. Well, the whole document, I think, has to be 20 taken in its entirety, and not pieces of it. I'm not 21 prepared to sit here and say that there's one specific 22 section that is the section that I'm basing my 23 comparisons on. 24 Q. So it's your testimony that the September 13, 25 '90 conceptual design document is a document that you Page 213 1 will rely upon for your opinion that the Burns and 2 McDonnell model is conceptually valid? 3 A. The results of that document and the work that 4 went into it, yes. 5 Q. The results of what document? 6 A. This (indicating). 7 Q. What results? 8 A. My findings that I came to in this document. 9 Q. That's what I'm trying to get at. What are the 10 findings in that document that allow you to say that the 11 Burns and McDonnell hydraulic model is conceptually 12 valid? 13 A. As I tried to explain yesterday, that my 14 findings really didn't pinpoint an average, you know, a 15 single number. It was a range of numbers. As I tried to 16 explain, I felt like that my range of numbers overlaps 17 sufficiently, or is close enough to their number, that at 18 this point in time I have no evidence or no reason to 19 doubt that their model is not accurate. 20 Q. Okay. This is helpful. Is it the range of -- 21 when you say "range of numbers", are you referring to 22 metric ton phosphorus uptake rates? 23 A. Right. 24 Q. Are there any other numbers or ranges of 25 numbers contained in there that you are relying upon for Page 214 1 your opinion? 2 A. All of the numbers that went into generating 3 that, the flows and the phosphorus concentrations and the 4 loadings. You know, everything that went into generating 5 my numbers for my range -- like I tried to explain 6 yesterday, if you don't load it at a certain rate, 7 obviously you can't get a particular amount out. And so 8 that loading or that variance in the loading is going to 9 give you a variance in the uptake rates. 10 And that's why I say I felt comfortable from a 11 statistical perspective saying that they are basically 12 the same. 13 Q. Are there any other conclusions or results 14 similar to the conclusion or result that you reached in 15 the conceptual design document with respect to a range of 16 phosphorus uptake -- I'm sorry, range of phosphorus 17 metric ton removal rates in that document, that are 18 sufficiently similar to what Burns and McDonnell found, 19 to allow you to say that you're relying on that 20 conclusion or range of numbers? 21 A. You're asking is there another document besides 22 this? 23 Q. No. I understand that you don't want to single 24 out a chapter of this document -- 25 A. Right. Page 215 1 Q. -- and say this is all there is. And I 2 understand that you have to take the document as a whole. 3 A. Right. 4 Q. But what I'm trying to find out is, in support 5 of your designation, what documents or reports there are 6 which support your opinion that the models provided by 7 Burns and McDonnell are conceptually valid. 8 And yesterday we did speak in terms of the 9 numbers. You referenced me to Chapter 3, I read 10 Chapter 3. 11 But I guess my question is, were there other 12 similar experiences, or let's just say other experiences 13 that you had with the conceptual design document for the 14 ENR that, as you sit here today, you recall support an 15 opinion which you're going to give that the Burns and 16 McDonnell hydraulic model is conceptually valid? 17 A. I'd have to reference you back to my notes that 18 went into the generation of this document. 19 Q. Okay. And those notes are the notes that are 20 at Post Buckley? 21 A. That we've already spoke about before. 22 Q. Is there something that you recall in those 23 notes that -- 24 A. Well, what I'm saying is if you get a hold of 25 the model and the disk that I talked about, and the Page 216 1 notes, the things that we talked about yesterday, you'll 2 find all of my entire thought process I think pretty well 3 laid out for this document. I mean it's all there. 4 MR. BURGESS: We're going to mark this. 5 (The said document was marked by the reporter 6 as Petitioner's Exhibit "10".) 7 Q. Let me show you a document which was not among 8 the documents that you -- or that DER provided us in 9 response to our notice, and ask you whether you've seen 10 that document before. 11 A. I'm going to have to defer you to my file, 12 because I don't recall this particular document. I'm not 13 saying I haven't seen it; I'm just saying I don't recall. 14 Q. Counsel for the Sugar Cane Growers Cooperative 15 has told me it was provided among your documents; I 16 didn't think it was. If, in fact, it was, can you 17 identify it for the record? 18 A. Looks like a notice of intent to issue the 19 District's Everglades restoration interim permit 20 Application A, October 20, 1992. 21 Q. There are conditions and specific conditions 22 contained within the document. Do you know whether you 23 have reviewed those conditions before? 24 A. I don't recall reviewing them. 25 Q. Is it safe to say that you didn't author or Page 217 1 help author any of the conditions? 2 A. I can't say that. I mean I might have written 3 something, like I said, about this (indicating), and it 4 eventually got incorporated into it. But at this point 5 in time I couldn't say that I did. 6 Q. As you sit here today, is it your understanding 7 that you would be testifying as to the reasonableness or 8 appropriateness of any of the conditions in this permit? 9 A. I was never asked to do that. 10 Q. Have you formulated any opinions with respect 11 to the conditions in the permit? 12 A. No. 13 MR. BURGESS: We'll mark it for the record. 14 (The said document was marked by the reporter 15 as Petitioner's Exhibit "11".) 16 Q. I show you what we'll mark as Petitioner's 17 Exhibit "12", which I believe is a document we referenced 18 briefly yesterday. 19 A. Right. 20 Q. Do you recall having reviewed that document 21 before? 22 A. Yes. 23 Q. Okay, can we identify that for the record? 24 A. May 13th, 1993, Everglades Nutrient Removal 25 Project, Operations and Maintenance Permit Application. Page 218 1 Q. Is this the document which you referenced 2 yesterday that contains the Burns and McDonnell hydraulic 3 model which you have determined is conceptually valid 4 based upon the comparisons with your ENR work? 5 A. I think, to clarify, I think that what I said 6 is, I felt like the model results and the assumptions. 7 And I think I deferred the actual model review to Jay 8 Maze, M-a-z-e, or to another engineer. 9 Q. When you say, to the actual model review, 10 you're deferring to Jay Maze or another engineer, what do 11 you mean? 12 A. Review of the algo rhythm, making sure that 13 it's doing what it's supposed to do. 14 Q. Can you point out for the record what 15 assumptions and results are contained in Petitioner's 16 Exhibit "12" that you specifically agree with. 17 A. Starting on Table 3. 18 Q. Is there a page? 19 A. I think it's page 31. It's not numbered. I 20 guess, in general, I agree with the general intent of 21 this, a list of -- or a series of figures, and they're 22 listed as figure 4, 4A, 4B, 4C. 23 Q. I need to get a better understanding of what -- 24 when you say you agree with the model's assumptions and 25 results, what are you referring to? Page 219 1 A. That's what I was trying to lay out, the output 2 and what's in -- for example, on figure -- on the stage 3 duration curves. 4 Q. What page are we on? 5 A. I don't know that they have a page. After page 6 15. 4C is the one I'm on. For example, does this 7 generally match up with the plant communities that they 8 proposed? Do I feel comfortable that this kind of stage 9 duration curve would support this plant community? I 10 feel comfortable that if those plant communities were 11 supported, that we could get the phosphorus uptake rates 12 that they're talking about in there. And at this point, 13 like I said, I feel comfortable with that. 14 Q. So that you understand, I need to understand, 15 when you say you agree with the model's assumptions and 16 its results, I need to know what assumptions and what 17 results. So if we need to go through either page by 18 page, or you can tell me -- we've just started the stage 19 duration curves. And if there are other subject matters 20 in here that you feel are -- other results or assumptions 21 in here that you feel are valid, I'd like to know what 22 they are. 23 A. Sure. 24 The assumptions that I'm talking about would be 25 in the front section, that would generally describe the Page 220 1 layout of the wetland, design of the wetland, and the 2 intent. And I think that's pretty well discussed in the 3 project description section right here (indicating) 4 starting on page three. And then the tables that I 5 pointed out to you -- I'm sorry, the figures and the 6 tables I pointed out earlier. 7 Q. We had figure 4A -- 8 A. No, figure 4, I think is the way it's -- and 4 9 has a bunch of appendices to it, I guess. 4, through 4 10 whatever. 11 I think there are responses up in the front, 12 starting with item one. I read through those, and I felt 13 like those also, taken in their entirety, help clarify 14 certain things for me. 15 Q. With respect to the items and the responses, 16 did you draft either of the items or the responses in 17 Exhibit "12"? 18 A. No. 19 Q. Did you assist either the District or the DER 20 in formulating the items or the responses? 21 A. Once again, I may have written comments, and 22 some of those comments may have been reworded or 23 incorporated into some of those. But I did not sit down 24 with a team, nor was I assigned to sit down and write 25 that particular question/response. Page 221 1 Q. Right, okay. Now as I understand Petitioner's 2 Exhibit "12", it is solely concerned with the Everglades 3 nutrient removal project and not with the stormwater 4 treatment areas that are proposed in the SWIM Plan. Have 5 you similarly reached an opinion or conclusion as to the 6 assumptions and results which go into any models which 7 support the stormwater treatment areas? 8 A. It was my understanding -- once again I'm going 9 to have to defer back to my notes -- that this model was 10 going to be similar to the one that was used or has been 11 used for the STAs, the last one that I saw. And if this 12 kind of application is transferred to the STAs, then once 13 again I have to say that the -- I wouldn't have any 14 problems or objections to the general procedures or 15 results that were generated by that particular analyses. 16 Q. You said the last one you saw. You mean the 17 last model you saw for the STAs? 18 A. Yes. 19 Q. What model was that? 20 A. I'm going to have to defer you to my files, 21 because I couldn't give you the specific name of the 22 paper. 23 Q. How about when it was that you saw it? 24 A. It would have been -- I hesitate to answer 25 because -- it would be the latter half of '92 maybe. Page 222 1 Q. Let me ask you to turn to page 29. The first 2 full paragraph on that page reads, "The overall results 3 of this performance model demonstrate that over the 4 period of record, had the ENR Project been in place and 5 operating at its long-term removal capacity, an average 6 annual phosphorus load reduction of approximately 22 7 metric tons of phosphorus would have been realized." 8 Do you recall whether that was the -- or one of 9 the results of the Burns and McDonnell model that you 10 recall being within the range of the reductions that you 11 anticipated in your document? 12 A. Right. 13 Q. Next sentence. "At present, there is no 14 scientific procedure for verifying these performance 15 model predictions". Would you agree with that statement? 16 I'm sorry, it continues on, comma, "because there are no 17 actual ENR Project performance results for this purpose." 18 A. In its entirety, yes. 19 Q. Next sentence, "Moreover, the total phosphorus 20 loads and flow-concentration relationships will change as 21 the EAA Rule takes effect." Would you agree with that 22 statement? 23 A. In its entirety, yes. 24 Q. Next sentence, "Thus, the estimated phosphorus 25 removal performance of the individual treatment cells, or Page 223 1 the project as a whole as predicted by the model, should 2 not form the basis of long-term compliance target for the 3 ENR Project." Again, would you agree with that 4 statement? 5 A. I guess I'd have to say I'm more a believer. 6 But I guess in its entirety that would have to be true at 7 this point in time. 8 Q. Down at the bottom of the page, I believe in 9 that last paragraph, the second sentence begins, "Because 10 there is no similar stormwater management system with 11 which to compare ENR Project performance before its 12 construction and operation, the project has a very clear 13 demonstration objective as a prototype stormwater 14 management system for phosphorus removal in South 15 Florida." Do you agree with that statement? 16 A. Not entirely. 17 Q. Why not? 18 A. I think that some of the biology that's 19 involved in this process has been looked at in 20 considerable detail in other areas. 21 Q. Other areas being where? 22 A. Well, Iron Bridge is one, I think, that the 23 actual technology at Iron Bridge is similar to this. I 24 think the difference would be that -- I would agree with 25 that. The difference would be the constant loading, Page 224 1 hydraulic loading from a treatment plant versus the 2 cyclic loading of the stormwater treatment area due to 3 random rainfall events. 4 Q. You have different types of soil up at Iron 5 Bridge too, don't you? 6 A. I have never really considered that a problem. 7 Q. What do you mean by "a problem"? 8 A. For comparison's sake. 9 Q. The fact that one is on peat soils and one is 10 on a majority of sandy soils? 11 A. That's correct. 12 Q. In your opinion that difference in soils does 13 not make a scientific difference for purposes of 14 calculating phosphorus removal and storage? 15 A. Based on the procedures that I use, it doesn't 16 make a significant difference. 17 Q. What do you mean by based on the procedures you 18 use? 19 A. I focused on biology, as I described yesterday, 20 as the primary uptake. And then ultimate disposal 21 retension mechanism, as opposed to soil absorption. 22 Q. And, in fact, you haven't measured soil 23 absorption capacities at Iron Bridge; have you? 24 A. That's correct. 25 Q. How about the fact that Iron Bridge is Page 225 1 receiving, what is it, secondary or tertiary treated 2 water? 3 A. It's tertiary treated. 4 Q. Tertiary-treated water compared to the 5 agricultural run-off that the STAs will receive. Does 6 that make a difference in your opinion? 7 A. I think that my opinion that was stated either 8 in here (indicating), or previous, or subsequent letter 9 follow-up to this, was that I felt like the nitrogen, the 10 phosphorus ratio in the Everglades was much more 11 favorable for phosphorus uptake in the wetlands than it 12 was at Iron Bridge simply because nitrogen phosphorus 13 ratio at S5A, for example, is higher than the nitrogen 14 phosphorus ratio at Iron Bridge. 15 Q. And that means what with respect to -- 16 A. As I tried to explain yesterday, we work, and 17 continue to work on a theory that as inorganic nitrogen 18 becomes lower and lower, the system's ability to take up 19 phosphorus decreases because the biological activity 20 starts to slow down somewhat. 21 And if you look at the Iron Bridge reports, 22 whatever it is, you'll notice as we go through, the 23 percent organic nitrogen increases dramatically through 24 the end of, say, the four stratum, at which point we have 25 a very low phosphorus uptake rate. Page 226 1 In this document, like I said, and some other 2 related correspondence we -- or I went on record as 3 saying I thought that that ratio was much more favorable 4 in the Everglades than it is for us at Iron Bridge. 5 Q. So that which you just said supports your -- 6 A. The overall nutrient balance, is what I said, 7 makes the Everglades situation, in my opinion, more 8 favorable than, say, the Iron Bridge situation. 9 Q. More favorable for -- 10 A. The biology to operate. 11 Q. The plants to grow and -- 12 A. Right. 13 Q. -- remove phosphorus? 14 A. Correct. 15 Q. I think you said yesterday that in your opinion 16 it's always good to have more science, in the context of 17 a question that I asked you with respect to whether the 18 ENR Project would yield data that would help design the 19 STAs. 20 Do you have an opinion as to whether or not the 21 ENR Project should or should not have been allowed to 22 proceed and yield data before the design process -- in 23 fact, design and construction process for the STAs began? 24 A. I'll admit that I've thought about that, but 25 I've never really come to an opinion on it simply because Page 227 1 of the amount of work that I've done at Iron Bridge 2 biases me towards the point where I feel like I'm 3 comfortable with the data base I have now. 4 Q. Do you feel that the data base from Iron Bridge 5 is sufficient to allow the District to proceed with a 6 four to five hundred million dollar construction or 7 design, construction and operation process? 8 A. I feel like it's sufficient to initiate that 9 process. 10 Q. Well how far do you go before you wait for data 11 from the ENR Project? 12 A. My last involvement in that question, there was 13 a definite phasing in of the STAs. And I felt like that 14 phasing-in process would have -- was more than sufficient 15 to address the issues that I would have personally been 16 concerned about, which would have been the control of 17 flow through the wetlands. 18 I think those issues would be answered 19 relatively quickly or early on in the operations. And I 20 don't think that in the long run, that they would 21 necessarily -- and I'm emphasizing -- that they would 22 necessarily affect the overall phosphorus uptake rate. I 23 think it would be more of an operational fine-tuning type 24 thing, as opposed to a large-magnitude scientific study, 25 if you will. Page 228 1 Q. Have you been asked to formulate final opinions 2 on the question of whether the ENR Project should proceed 3 before design and construction of the STAs is concluded? 4 A. Nobody's asked me for my opinion. 5 Q. Let me show you a document dated May 19, 1992. 6 It's a letter from Tom MacVicar to Carol Browner. Ask if 7 you've seen that document before. 8 A. Once again, I have to say I don't recall, and 9 refer you to my files to verify that. 10 Q. What is that document? 11 A. It's Everglades Restoration Interim Permit, 12 FDER Application, May 19, 1992. 13 Q. Is it, in fact, a Completeness Summary Response 14 for the Everglades Interim Permit? 15 A. I have to sit and read it. At this point in 16 time I couldn't answer that question. That's what it 17 says. 18 Q. As you sit here today, do you recall having any 19 input into this document? 20 A. Once again, I'd have to read through. And I 21 put my response as that I certainly may have reviewed 22 this and sent comments, and those comments may have been 23 incorporated into some of the issues here. But as to 24 whether I specifically sat down and wrote these things, 25 the answer is no. Page 229 1 Q. At the present time do you intend to offer 2 expert opinion with respect to the reasonableness of 3 permit conditions -- 4 A. No. 5 Q. -- for the Everglades Interim Permit? The 6 answer is no? 7 A. Yes. 8 Q. The answer is no, that's correct? 9 A. Yes. 10 MR. BURGESS: Can we mark that? 11 (The said document was marked by the reporter 12 as Petitioner's Exhibit "13".) 13 Q. I show what you we'll mark as Exhibit "14". 14 A. I was in Australia and knew nothing about this. 15 (The said document was marked by the reporter 16 as Petitioner's Exhibit "14".) 17 Q. Can you identify Petitioner's Exhibit "14"? 18 A. Yes. 19 Q. What is it? 20 A. It's a review that we did for one of the items 21 that DER specifically asked us to review. 22 Q. And what item was that? 23 A. It was a report by Kadlec entitled "Phosphorus 24 Removal in wetland Treatment Areas", June 1992. 25 Q. Did you author this letter? Page 230 1 A. I wasn't joking. I think that I put these 2 comments together; but, as you notice, that my 3 signature's not here. I do think I was in Australia when 4 it was mailed. 5 Q. Who was it that signed the letter for you? 6 A. My assistant program manager. 7 Q. And what's her name? 8 A. Wendy A. Masteller. 9 Q. Is she still at Post Buckley? 10 A. No. 11 Q. Is she at Ecotech? 12 A. Yes. 13 Q. So it's your testimony that you drafted these 14 comments, but you didn't prepare this letter? 15 A. No, I did not sign the letter. 16 Q. But these are your comments? 17 A. Yes. 18 Q. Going to comment number one which reads, "Why 19 does the model ignore the effects of dry-out periods? If 20 the dry-out periods are significant events, how 21 significant are they relative to parameter estimation, 22 and how will they be affected by the proposed operational 23 plan for the STAs?" Was your question -- was that 24 question of yours ever answered? 25 A. I believe so. And I think part of that answer Page 231 1 is in this document. And I think that -- 2 Q. Which document, so we're clear? 3 A. Number "12". 4 Q. How was the question answered, and what part of 5 the answer is in document "12"? 6 A. The question was raised because at that time 7 there was no written attempt to present an O&M plan for 8 the wetlands. And that document right there describes an 9 operation maintenance procedure that will address issues 10 like this. 11 Q. Well if I understand this query, it goes to the 12 model that was used to determine the phosphorus uptake 13 rate for designing the STAs; is that correct? 14 A. I think it was -- yeah. I don't recall. I'd 15 have to see the document to see what I was talking about. 16 Q. How would operation and maintenance procedures 17 cure the fact that a model did not include periods of 18 dry-out in its computation of a phosphorus uptake rate? 19 A. One of the things we look at is restart-up of 20 the cell, how fast, how much, how long could you hold it 21 while it basically equalized itself before you allowed it 22 to discharge, and those sorts of things, what the actual 23 vegetation component in that cell was. 24 Q. Do you have an opinion as to whether or not, 25 for purposes of formulating a model to calculate an Page 232 1 uptake or settling rate, periods of drought or dry-down 2 should be included or not included? 3 A. You should make it a real-world model as much 4 as possible. So if that's something that you're actually 5 going to allow to happen, then it should be included. If 6 it's something that you're not going to allow to happen, 7 then it obviously should not be included. 8 Q. Item number eight on that second page reads, 9 "How will the change in the sequence of flow events for 10 the STAs as compared to WCA-2A affect the design, and can 11 this change be quantified?" Was that question of yours 12 ever answered? 13 A. I believe it was in a subsequent follow-up 14 discussion between the District and DER. 15 Q. Were you in on that discussion? 16 A. I don't remember specifically being at that 17 meeting, but I believe that we received written 18 correspondence addressing that issue. 19 MR. PERKO: "We" meaning? 20 THE WITNESS: Post Buckley. 21 Q. What change in sequence of flow events were you 22 referring to? 23 A. I think that my comment was referring to the 24 fact that we were led to believe that the STAs would not 25 be operated in exactly the same manner as water Page 233 1 conservation areas. And, as such, I felt like it was 2 important to take that into consideration, because I 3 thought that if they did, that would actually -- or at 4 least potentially increase the phosphorus uptake 5 capabilities of the STAs, because I felt like that 6 perhaps they were being a little bit too conservative 7 with that approach. 8 But like I said, I think, to the best of my 9 recollection, that issue has been resolved. 10 Q. How was it resolved? 11 A. Well, I think partially it's resolved when they 12 originally proposed an operation maintenance plan for 13 this, that I could see that they would carry over. And I 14 think that there's -- if I recall, and once again this is 15 from way back, that I think they actually submitted a 16 general operation plan for the overall STAs at one point. 17 Q. So it's your testimony that this change in 18 sequence of flow events which you raised as a question 19 insofar as you wondered how it would affect the design of 20 the STAs, is resolved in the operation and maintenance 21 plan in Exhibit "12"? 22 A. What I'm saying, it's partially resolved there, 23 and it's partially addressed in that document. And I 24 think that they've answered my question in that there is 25 going to be some operation maintenance procedures carried Page 234 1 out so that it's not going to -- my understanding, it's 2 not going to be operated like the water conservation 3 areas. That's my understanding at this point in time. 4 Q. Do you know whether or not the change in the 5 sequence of flow events has been quantified? 6 A. No. 7 Q. Do you know whether it can be quantified in 8 answer to your question there of number eight? 9 A. I think my question in number eight is more 10 just groping for an O&M plan, something that would be put 11 on paper saying yes, we're going to operate this thing, 12 than it was a specific issue to a parameter in the model, 13 for example. It was more of a generic question than a 14 specific question. 15 Q. What O&M plan are you referring to? 16 A. I'm referring to the one that -- the most 17 recent one, Exhibit "12". 18 Q. Exhibit "12" references the Everglades nutrient 19 removal project permit? 20 A. Right. 21 Q. Not the permit for the STAs. Is it your 22 understanding that the O&M plan is the same for the ENR 23 as for the STAs? 24 A. That these issues would be carried over, that's 25 my understanding. Page 235 1 (A document was marked by the reporter as 2 Petitioner's Exhibit "15".) 3 Q. I show you what's been marked as Petitioner's 4 Exhibit "15" and ask you if you can identify that. 5 A. Right. 6 Q. What is that document? 7 A. These are the comments from Jay Maze. 8 Q. Comments from Jay Maze to what? 9 A. To me. 10 Q. To you? 11 A. To one of the documents that we were asked to 12 review by DER. 13 Q. And what document? 14 A. It doesn't say. 15 Q. Let's start with, what is the title of the 16 document? 17 A. Review of the Hydraulic Computation of the B&M 18 STA Models. 19 Q. And what is it dated? 20 A. May 28th, 1992. 21 Q. Were you asked by DER to review the hydraulic 22 computation of the Burns and McDonnell STA models? 23 A. Yes. 24 Q. And is this report dated May 28, 1992 in 25 satisfaction of one of Post Buckley's work orders with Page 236 1 DER? 2 A. Right. I think it's a partial satisfaction. 3 Q. If you'd go to the third page of the document, 4 is there another report? 5 A. Yeah, it looks like it. 6 Q. What is the title of that report? 7 A. Review of the Phosphorus Modeling Components of 8 the B&M STA Models. 9 Q. What is that dated? 10 A. June the 4th. 11 Q. 1992? 12 A. Uh-huh. 13 Q. And was that report issued in satisfaction of a 14 work order that Post Buckley had with DER? 15 A. That's correct. 16 Q. Did you author any of the May 28 or June 4 17 reports? 18 A. No. 19 Q. Who authored them? 20 A. Jay Maze. 21 Q. In what capacity were you transmitting to Bart 22 Bibler on June 8, 1992 these reports as shown on the 23 telecopy front page? 24 A. As acting project manager. 25 Q. So did you have overall responsibility to see Page 237 1 that these reports were prepared and were furnished to 2 your client DER? 3 A. That's correct. 4 Q. Go to the first page of the May 28 report, 5 which begins with the sentence, "The B&M STA models are 6 essentially phosphorus accounting systems which track 7 phosphorous with losses from settling only." Do you 8 agree with that statement? 9 A. I didn't write this, and I didn't review it in 10 a technical fashion. 11 Q. You didn't review this before you sent it to 12 Bart Bibler? 13 A. No. I had Fred Biery look at it, because he's 14 an engineer. 15 Q. And is it your testimony that Jay Maze authored 16 it? 17 A. Yes. 18 Q. Was it your understanding in June -- June 8, 19 1992 when you transmitted this to Bart Bibler, that this 20 review comprised the collective opinion of Post Buckley 21 with respect to a review of the hydraulic computation of 22 the models? 23 A. We sent our letterhead, so it would have to. 24 Q. Did you have an opinion then, or do you now, as 25 to whether or not the Burns and McDonnell STA models are Page 238 1 essentially phosphorus accounting systems which track 2 phosphorus with losses from settling only? 3 A. No. 4 Q. You don't have an opinion? 5 A. No. 6 Q. Next sentence, "Hydraulic characteristics are 7 treated minimally in a simplistic fashion." Do you agree 8 with that statement? 9 A. Once again, I didn't review this in that -- and 10 also I didn't -- 11 Q. Were you done? 12 A. Uh-huh. 13 Q. Do you have an opinion as to whether or not the 14 Burns and McDonnell model treats hydraulic 15 characteristics minimally in a simplistic fashion? 16 A. Relative to that comment, no. Because that's 17 talking on a -- strictly a technical basis on what 18 formulas they used for their weirs, what formulas they 19 used for flow through their pipes, and that sort of 20 thing. And I did not review it in that level of detail. 21 Q. What hydraulic characteristics of the Burns and 22 McDonnell model did you review? 23 A. As I mentioned before, the stage duration 24 curves, the effects of the flow through the system that 25 were summarized in the tables earlier, or the figures. Page 239 1 Q. Let me show you Exhibit "6" from yesterday and 2 ask you if that appears to be a draft of the May 28 3 report in Exhibit "15"? 4 A. I don't know that it's a draft. I don't know. 5 Q. Could you take the time and look at the two and 6 compare them? 7 A. It looks like this was originally sent over to 8 our office from Tampa, and we asked Jay to go back and 9 turn it into this document right here (indicating), 10 Exhibit "15". 11 Q. That's correct. I noticed in my review of 12 Exhibit "6" and "15" that the first paragraph titled 13 "Overview" in Exhibit "15", does not exist in Exhibit 14 "6". Do you know who authored the paragraph titled 15 "Overview" in Exhibit "15". 16 A. This (indicating)? 17 Q. Yes. 18 A. I would have to say Jay did. 19 Q. Back to Exhibit "15", the first page of the May 20 28 report lists a number of observations. The first one 21 being, "The models do not check to verify that the 22 orifice flow exists at any time step during the 23 simulation." Do you agree or disagree with that 24 statement? 25 A. I'm going to have to say for this whole thing Page 240 1 that I will admit that I took Jay Maze at his word at 2 what he said here, and passed this on, and basically 3 considered him my expert. At no time did I sit down and 4 independently derive any of these conclusions. 5 Q. And to the second page of that document, the 6 penultimate paragraph begins, "In conclusion, we have 7 serious reservations concerning the accuracy with which 8 this model simulates the flow through the system." 9 A. Uh-huh. 10 Q. Did you share those reservations? 11 A. If Jay stated it, he felt like it was a 12 concern. And I would have to say that I felt like it was 13 a concern. 14 Q. Have you seen a Burns and McDonnell model which 15 corrects or answers the concerns that you and Jay had? 16 A. There was a follow-up meeting where we sat down 17 with Burns and McDonnell, and Jay expressed or outlined 18 his concerns. And it's my understanding that Burns and 19 McDonnell did go back and reevaluate these issues. 20 I do not recollect if, personally, if I ever 21 saw a model that was modified relative to these issues. 22 And I would refer you to Jay Maze to answer that 23 question. 24 Q. The last sentence of the paragraph begins, "We 25 believe that a considerable amount of effort is needed to Page 241 1 improve the model's basic approach to flow simulation." 2 Do you know whether that was ever undertaken by either 3 Burns and McDonnell or Post Buckley? 4 A. All I can say is that we had a very productive 5 meeting with Burns and McDonnell. And to the best of my 6 recollection they did take -- both the District and Burns 7 and McDonnell did take actions relative to these 8 comments. 9 Q. When and where was the meeting? 10 A. The meeting was held in the old District 11 building, the one out on the road. And it was -- I don't 12 recall what it would be. I don't know, you'd have to 13 look at my travel logs to see what the actual date was. 14 Q. Who was there? 15 A. From Post Buckley it was myself, Steve Lienhart 16 and Jay Maze. I believe Gaylen Miller was there for 17 Burns and McDonnell, Gary Goforth, I think J.B. Jackson. 18 And the remaining District staff, I don't recall who they 19 were. 20 Q. Was the purpose of the meeting to address these 21 concerns? 22 A. Yes. 23 Q. Is it safe to say that the meeting took place 24 sometime after May 28th and sometime before January 3rd, 25 '93? Page 242 1 A. No, I don't remember. 2 Q. Did you attend it after you left Post Buckley? 3 A. No. 4 Q. So is it safe to say it occurred between May 5 28th, '92, the date of this report, and January 3rd, '93, 6 the day you left Post Buckley? 7 A. Right. 8 Q. Okay, the next report in the same Exhibit "15", 9 dated June 4, '92, is it your testimony that Jay Maze 10 authored that report also? 11 A. Yes. 12 Q. Do you recall whether or not you reviewed this 13 report before you sent it to Bart Bibler at DER? 14 A. I read it. 15 Q. Did you comment on it? 16 A. No. 17 Q. The first sentence of the second paragraph 18 begins, "The B&M STA models utilize a simplistic settling 19 equation to simulate the operation of STAs for the 20 removal of phosphorus." Do you agree with that 21 statement? 22 A. I didn't review it in that same light. 23 Q. So you don't have any opinion as to whether or 24 not the Burns and McDonnell STA models utilized a 25 simplistic settling equation? Page 243 1 A. I would agree that they do, or they did use a 2 simplistic settling equation; but I did not review the 3 model in the context of that statement. 4 Q. Did you review the settling equation which 5 Burns and McDonnell utilized to calculate a settling 6 rate? 7 A. Yes. 8 Q. Do you plan to offer expert opinion testimony 9 at the hearing in this matter as to the appropriateness 10 of the settling equation that Burns and McDonnell 11 utilized to calculate a settling rate? 12 A. At this point in time, I don't. 13 Q. You do not? 14 A. No. 15 Q. The first sentence under the part which says 16 Long-Term Average Settling Rate begins, "The basis behind 17 the determination of the required area for the STAs is 18 the principle of a long-term average settling rate." And 19 do you agree that that is the principle behind Burns and 20 McDonnell's efforts to determine the required area for 21 the STAs? 22 A. Once again I say that particular sentence, I 23 think, is Jay's opinion. And to be quite frank with you, 24 I never reached a similar conclusion. 25 Q. Did you reach a different conclusion? Page 244 1 A. No. 2 Q. Is it your understanding -- or do you have any 3 understanding with respect to how Burns and McDonnell 4 determined the required area for the STAs? 5 A. Yes. I sat down and watched them calculate it 6 out. 7 Q. Okay. And did you understand that the 8 calculation was the -- utilized the long-term average 9 settling rate? 10 A. Yes. 11 Q. And did you further understand that the Burns 12 and McDonnell report used a settling rate of eight meters 13 a year? 14 A. I believe at one point in time it did, yes. 15 Q. And has that settling rate changed? 16 A. It's my understanding that it has, yes. 17 Q. To what number? 18 A. I can't recall. 19 Q. You don't anticipate, as you sit here today, 20 that you'll offer any opinion as to the appropriateness 21 of the settling rate that Burns and McDonnell used to 22 design the STAs? 23 A. No. 24 Q. No, you don't anticipate testifying about that? 25 A. No. Page 245 1 Q. Okay, over to the next page, under 2 "Observations". With respect to number one, do you know 3 whether Appendix F of the SWIM Plan was ever made 4 available to Post Buckley -- 5 A. Eventually. 6 Q. -- and whether it was reviewed? Did you review 7 it? 8 A. I read it. 9 Q. For what purpose? 10 A. For my information. 11 Q. As a result of your review, were you able to 12 satisfy the second sentence of observation one which says 13 that, "Consequently, the basis of the adopted regression 14 equation and eight-meters-a-year settling rate cannot be 15 verified as reasonable." 16 A. No, we never verified or investigated that. 17 Q. Not only you, but you're saying Post Buckley 18 never verified the eight meters a year? 19 A. To my knowledge they did not. 20 Q. Do you know whether they verified this newer 21 number you just testified about? 22 A. I don't know. 23 Q. First sentence of number three says, "The 24 settling equation used in the models could not be shown 25 to correlate with WCA-2A historic data." Were you aware Page 246 1 of that fact at the time this report was written? 2 A. Yes. 3 Q. Were you in on discussions about the fact that 4 that correlation could not be made? 5 A. Yes. 6 Q. Did you review the equation in the model to 7 determine whether or not it could be correlated with 2A 8 data? 9 A. Yes. 10 Q. You did? 11 A. Yes. 12 Q. And what conclusions or opinions did you reach? 13 A. The same as stated there. 14 Q. Why couldn't the equation be correlated with 2A 15 data? 16 A. I think in part, when I was involved in this, 17 because there is a component of the wetland that was not 18 actually in 2A, or not accurately represented in 2A, it 19 was my opinion that that was a large part of the problem 20 with that correlation. 21 Q. What component? 22 A. A marsh. 23 Q. I guess I'm not following you. 24 A. The design of the treatment area was not 25 necessarily the same as the layout of the water Page 247 1 conservation area. 2 Q. Okay. 3 A. Okay. 4 Q. So that prevents you from what? 5 A. Well that, obviously, is not comparing apples 6 and apples. That prevents you from any correlation in 7 your model, in some cases. 8 Q. Do you have any opinions with respect to the 9 transferability of data collected in 2A to the design of 10 the stormwater treatment areas? 11 A. I used part of that data set myself. So I'd 12 say that it can be used in the design of the STAs. 13 Q. What data did you use and/or what data do you 14 believe you can, or one can use? 15 A. You can use all of it, in my opinion, in one 16 fashion or another. 17 Q. What is the basis for your opinion in that 18 regard? 19 A. I think the primary basis is because it's water 20 quality data that was collected -- or biological or soils 21 or plant datas collected within the general vicinity of 22 the STAs. And my opinion relative to our work was that 23 it reviewed the data for its validity, first off; and, 24 secondly, how it could be brought into the analysis 25 process that we were doing. Page 248 1 Q. What data did you, in fact, use in your 2 analysis process? 3 A. We used whatever water quality flow data was 4 available, whatever transect data was available that the 5 District had generated. I think there was a Richardson 6 report floating around at that point in time. I do 7 believe the District had actually collected some soil 8 samples and sediment and water quality samples in that 9 area. 10 Q. How did you review the data for its validity? 11 What did you do to determine its validity? 12 A. Well, for example the Richardson report, we sat 13 down and read everything that he gave us relative to how 14 he set it up and what he was looking to do, to determine 15 how valid or where the data would fit in our analyses. 16 And the same thing with the rest of the data base. Was 17 it an unusual event to the best of our determination? 18 Were the samples collected properly and analyzed 19 properly? Were the samples within the boundaries of our 20 study limits? 21 Q. Are you aware of a report, or a draft and final 22 report prepared by Nolte and Associates, consultant to 23 the District, with respect to a review of the stormwater 24 treatment areas? 25 A. If you showed it to me, I might recognize it. Page 249 1 Q. The name doesn't mean anything to you? 2 A. Doesn't ring a bell, no. 3 Q. Are you aware of any reports that have 4 questioned the use and transferability of data collected 5 in 2A and the design process for the STAs? 6 A. The only report that I'm aware of is the one I 7 spoke to you earlier about. And that was authored by 8 Kadlec and -- 9 Q. Newman? 10 A. Yes, thank you. 11 Q. And is it your recollection that they conclude 12 that the data is transferable or is not; or is there a 13 question? 14 A. I don't really remember, to be honest with you. 15 I read that report more as a matter of information than 16 for detail. 17 Q. The first sentence in paragraph four reads, 18 "The corroboration of the eight meters a year by the 19 calibrated model results is of little surprise or value 20 when it is realized the model was calibrated against a 21 regression equation whose source, in all likelihood, was 22 the eight-meter-a-year value." Do you agree or disagree 23 with that statement? 24 A. That's, once again, a technical comment that 25 Jay derived from the algo rhythm. And I didn't verify or Page 250 1 check that. 2 Q. The last sentence on page two reads, "B&M's 3 inability to correlate these parameters to the extent 4 that the model would provide a reasonable approximation 5 of the historic data which was available is an indication 6 that perhaps the model will not reasonably simulate the 7 operation of the STAs." Did you agree with that 8 statement when it was made? 9 A. Yes. 10 Q. And have you seen documentation which has 11 changed your opinion in any regard with respect to that 12 statement? 13 A. As I stated earlier, I believe that they have 14 modified the model. And the last report that I recollect 15 seeing or having read, seems to me that at that point I 16 was not having the same difficulties as I was when this 17 was written. 18 Q. What report was that that you saw? 19 A. I have to refer you -- it was a modified 20 version of their original report. I'd have to refer you 21 to my files for the exact name. My ex-files. 22 MR. PERKO: Would it have been a conceptual 23 design report? 24 THE WITNESS: Pardon? 25 MR. PERKO: Would it have been a conceptual Page 251 1 design memorandum? 2 THE WITNESS: I think that's what it was, but I 3 don't really remember. 4 Q. Was this subject matter, whether or not the 5 model will reasonably simulate the operation of the STAs, 6 discussed at that meeting you testified to earlier with 7 Gaylen Miller up at the old building at the District? 8 A. Yes. 9 Q. Were there any other documents other than this 10 later report which you've seen, which has alleviated your 11 concern with respect to the operation of the STAs? 12 A. Once again, I'd have to refer you to my files 13 for those follow-up correspondence that we received from 14 DER. 15 Q. I'm sorry, follow-up correspondence? 16 A. That we've received from DER, since that 17 meeting took place. 18 Q. And what type of follow-up correspondence? 19 A. We received updated versions of the Burns and 20 McDonnell report. 21 Q. Oh, I see. 22 A. And responses to questions that DER asked, 23 similar to the ones that you've already shown me. 24 Q. Page four of that document titled "Conclusions" 25 begins, "The phosphorous modeling, aside from the use of Page 252 1 a questionable settling concept, appears to have some 2 flaws. These problems, coupled with the hydraulic 3 modeling shortcomings, cast a suspicious shadow on the 4 model, its results, and the interpretation of those 5 results." Was that your opinion in June of 1992? 6 A. As I stated earlier, that was my opinion in the 7 sense that I was agreeing with Jay Maze. 8 Q. Your understanding then, he would have authored 9 this paragraph? 10 A. Yes. 11 Q. To the best of your knowledge, would Jay Maze 12 feel similarly today with respect to the statements that 13 are contained in this conclusion paragraph? 14 A. I can't answer that. You have to ask him. 15 Q. Have you spoken to him about this document 16 since you left Post Buckley -- 17 A. No. 18 Q. -- in January of '93? 19 (A brief recess was taken.) 20 Q. Just back to Exhibit "15" quickly, page five of 21 the June 4th memo references a number of issues raised in 22 a March 20, '92 memo by Andrzej Baniukiewicz. 23 A. This is the same guy you asked me about 24 yesterday. And I see you can't pronounce it any better 25 than I did. Page 253 1 Q. I did say at that time, "Was his first name 2 Andrzej, and his last name begin with a B?" And you said 3 you thought so. 4 Did you review that March 20, '92 memo? 5 A. I read it. 6 Q. Did you form any opinions or conclusions as a 7 result of reading it? 8 A. I couldn't understand it. 9 Q. Okay. 10 (A document was marked by the reporter as 11 Petitioner's Exhibit "16".) 12 Q. I show you what's been marked as Petitioner's 13 Exhibit "16", ask you if you've seen that before. 14 A. Yes. 15 Q. What is that? 16 A. It's a memo from myself to John Shearer. 17 Q. What's the date? 18 A. December 19th, 1991. 19 Q. And what is the subject matter? 20 A. It's a summary of the STA design review working 21 group meeting. 22 Q. And did you attend that meeting as a consultant 23 to the District or to DER? 24 A. I don't really remember that we were under 25 contract by anyone to attend this meeting, to be honest Page 254 1 with you. 2 Q. Why would you be sending a memo to John 3 Shearer? 4 A. Because I believe he asked me to attend the 5 meeting. 6 Q. And who is he? 7 A. He's the director of environmental services for 8 Post Buckley. 9 Q. So did you or did Post Buckley attend this just 10 to keep familiar with Everglades issues, as opposed to 11 fulfilling contractual requirement with a client? 12 A. I cannot -- I do not remember that we were 13 there on behalf of anyone. Once again, you'd have to 14 refer to our contracts file. 15 Q. Did you author this memo -- 16 A. Yes. 17 Q. -- Petitioner's Exhibit "16"? 18 A. Right. 19 Q. The second paragraph on the first page reads, 20 "In my opinion, the meeting appeared to have two 21 purposes; give B&M as many ASAs to their existing 22 contract as possible, and to appease the Feds." Is B&M 23 Burns and McDonnell? 24 A. Right. 25 Q. What are ASAs? Page 255 1 A. It's addendum for additional services. 2 Q. What happened at the meeting which caused you 3 to reach these conclusions? 4 A. Just a familiarity between the District and 5 Burns and McDonnell. 6 Q. Were they asking for ASAs? 7 A. No. 8 Q. Did you mean this tongue and cheek or 9 seriously? 10 A. Tongue and cheek. 11 Q. What happened at the meeting for you to reach 12 the opinion that the meeting was held to appease the 13 Feds? 14 A. Once again, that was just a general impression 15 I reached while I was sitting there. 16 Q. The next sentence reads, "I'm not sure we were 17 negotiating design criteria at any point in this meeting, 18 but rather figuring out how to meet all the criteria 19 passed out by the Feds." What criteria was passed out by 20 the Feds? 21 A. I can't recall at this time. 22 Q. Next sentence, "This was a significant shift in 23 attitude compared to the meetings I attended with Tom. 24 Overall, I thought this meeting was a waste of time and 25 the resources could have been better spent." Was that Page 256 1 your opinion at the time? 2 A. Yes. 3 Q. What significant shift occurred compared to 4 previous meetings? 5 A. Well, I think I was on record as stating that I 6 felt like our working relationship -- my working 7 relationship with the District was extremely productive 8 and that, you know, we had an agenda and we always moved 9 in a direction. I thought the District staff was very 10 professional, and thought we worked well as a team. 11 Q. And you don't feel that was occurring at this 12 meeting? 13 A. Well, I didn't say that. I said this indicates 14 that we were -- that there's really nothing resolved in 15 my opinion. 16 Q. The fact that you wrote "it was a waste of 17 time"? 18 A. Yes. 19 Q. On the second page there's a note which reads, 20 "It sure appeared to me that the Feds were looking for 21 any reason to increase the size of the STAs, and looked 22 like they were doing a good job of intimidating the 23 District staff present, also the Feds have inserted 24 themselves into the District's design process by placing 25 members on various other review groups, so now the STA Page 257 1 design is being more or less directed by the Feds, but 2 they made it clear the liability of compliance remained 3 with the State. Very nice arrangement if you ask me." 4 Did you author that? 5 A. Yes. 6 Q. What was happening at the meeting to make it 7 appear that the Feds were trying to increase the size of 8 the STAs? 9 A. I don't know that there's anything that 10 happened at this particular meeting. It was just like I 11 had mentioned before, there was a difference -- 12 originally there was a difference between what they 13 proposed and what I proposed. 14 Q. When you talk about originally a difference, 15 are we going back to the closed doors where you were at 16 30,000 they were at 36,000? 17 A. Right. 18 Q. And was it your understanding at this meeting 19 that the Feds were attempting to justify the 36,000 acres 20 in the settlement agreement? 21 A. Right. 22 Q. And, in fact, were they looking to make them 23 even bigger than the 36,000? 24 A. No. 25 Q. What was happening to make it appear that they Page 258 1 were intimidating District staff present? 2 A. They were the dominant speakers. 3 Q. The note also contains a statement, "So now the 4 STA design is being more or less directed by the Feds." 5 How was that being done? 6 A. I think it also says that they were also 7 becoming part of the design teams. As I mentioned 8 before, at this particular meeting I believe they did 9 most of the talking. 10 Q. Did you believe at the time that the STA design 11 was being more or less directed by the Feds? And by "at 12 the time", I mean in December of '91 when you wrote this 13 memo. 14 A. Well at that point in time I think I meant that 15 on the surface it appeared that way. 16 Q. Okay. 17 A. But to be perfectly frank, I don't know that 18 for a fact. 19 Q. But it appeared that way? 20 A. Right. 21 Q. Okay. Do you have an opinion as to whether or 22 not the STA process, as it has evolved since December of 23 '91 to today, in fact was a process more or less directed 24 by the Feds? 25 A. No. Page 259 1 Q. You don't have an opinion one way or another? 2 A. No. I think that the District has become a lot 3 more dominant in the process. 4 Q. And what has caused you to reach that opinion? 5 A. Their people are taking a lead role with this 6 meeting. 7 Q. In what meeting? 8 A. At this particular meeting right here 9 (indicating), this December meeting. 10 Q. Well this is the meeting that you said they 11 were intimidating District staff. 12 A. Right. At this meeting the Feds were taking a 13 dominant role. Since this time the District staff has 14 taken more of a lead role, or has taken a lead role I 15 should say. 16 Q. And your change in opinion that way is as a 17 result of what? Of attending other meetings? 18 A. Yes. In other words, I never saw the people 19 who were contracted by the DOJ take as leading of a role 20 as they did at this point in time. 21 Q. Paragraph number two, second sentence states, 22 "Basically Gaylen is forcing the District" -- I'm sorry, 23 "forcing the data to comply with the eight-meter-a-year 24 rate constant originally proposed by Bob Kadlec." What 25 led you to that conclusion? Page 260 1 A. A presentation that he did at this meeting. 2 Q. Next sentence, "Galen's analysis actually shows 3 this constant ranging higher than the magical eight 4 meters a year." What did the word "magical" refer to? 5 A. Sarcasm. 6 Q. Is there something magical about eight meters a 7 year? 8 A. That was just a number that they picked out and 9 tried to use as their settling rate or as their uptake 10 rate, if you will, for that particular model. 11 Q. What was there in Galen's presentation which 12 led you to conclude that he was forcing the data to 13 comply with Bob Kadlec's eight meters a year? 14 A. If I recall, he showed some graphics that 15 actually had higher uptake rates, or that the uptake rate 16 was proportionate to the loading rate. 17 Q. You have here "the eight-meter-a-year rate 18 constant originally proposed by Bob Kadlec." When was 19 that number proposed by Bob Kadlec? 20 A. The first time I saw it, I think, it was either 21 the beginning of June or end of July. 22 Q. '91? 23 A. Right. 24 Q. And was that in these closed-door meetings? 25 A. Right. Page 261 1 Q. Was it your understanding that the eight meters 2 a year was a design criteria for the STA acreage set-out 3 in the settlement agreement to the federal lawsuit? 4 A. I can't say that I can agree with that 5 statement. 6 Q. Do you just not know or -- 7 A. I have to say I don't know. 8 Q. Okay. Do you know whether the eight meters a 9 year was a design criteria for the thirty-five thousand 10 and some acres which appear in the SWIM Plan for the 11 stormwater treatment plant? 12 A. I can't say that I know that either. 13 Q. What was the eight-meter-a-year rate constant 14 used for? 15 A. At this particular meeting it was in the models 16 that they were using to demonstrate the phosphorus 17 dynamics and the design they presented. 18 Q. But you don't have any understanding or opinion 19 as to whether it was also used to determine the size of 20 the STAs? 21 A. I just don't remember. 22 Q. Five lines from the bottom, sentence reads, 23 "The data in this letter also resizes the STAs to an area 24 about eight thousand acres larger than those in the 25 lawsuit agreement." Page 262 1 A. Uh-huh. 2 Q. Do you recall what acreage was in the lawsuit 3 agreement? 4 A. No. 5 Q. Do you recall why the data in the letter 6 resized the STAs? 7 A. It's my understanding that they were bringing 8 in additional water that we never considered, from 9 another canal in there, if I recall. It would have been 10 the canal going out to the east, and I can't remember 11 what the label was. 12 Q. Is that the L7? 13 A. It might have been that. I don't remember. 14 Seems like it was an L51 or something, or something like 15 that. 16 Q. Do you know what percentage reduction the rural 17 and/or the SWIM Plan mandates for BMPs? 18 A. No. 19 Q. Do you have any opinions as to whether or not, 20 if the BMPs are more successful than called for in the 21 rural or the SWIM Plan, it will affect the size of the 22 STAs? 23 A. Could you restate that again? 24 Q. Do you have or have you formulated, put it that 25 way, any opinions as to whether or not if target levels Page 263 1 of phosphorus reduction through on-farmed BMPs are 2 greater than called for in the rural or the SWIM Plan, 3 such phosphorus reduction results would affect the sizing 4 of the STAs? 5 A. Uh-huh. So in other words if you get better 6 uptake, would you make them smaller, is that what you're 7 asking? 8 Q. If you remove more on farm. 9 A. I think that's a reasonable statement. 10 Q. Have you examined BMPs in the context of their 11 impact on potential STA design? 12 A. No. As a matter of fact, that was a very 13 confused issue while I was with the District. 14 Q. What do you mean "confused issue"? 15 A. It was never brought to a conclusion. So I was 16 never in a position to form an opinion on it. 17 Q. Was it discussed? 18 A. Yes. 19 Q. Was it discussed, in fact, at this meeting? 20 Let me refer you to -- 21 A. If it's not in here, then I don't remember it. 22 If I've mentioned something, obviously it was. 23 Q. Let me refer you to the last sentence before 24 the note, on the second page. 25 A. Right. Once again, that was -- the BMP issue Page 264 1 was very much up in the air at this point in time. 2 Q. And have you been involved with that issue at 3 all since this meeting? 4 A. Not since -- not directly. I've sat and 5 listened to conversations off and on, but not a 6 participant. 7 Q. I show you a document which came from your 8 files, ask you if you've ever seen that before. 9 A. I can't recall. I believe I've seen this, but 10 I -- 11 Q. Do you recall the subject matter of the letter? 12 A. Yes. 13 Q. And were you in on conversations about whether 14 or not Post Buckley should attend the SAGE meeting as 15 requested by the Florida Sugar Cane League? 16 A. Yes. 17 Q. And who else was in on those discussions? 18 A. Fred Biery and John Shearer. 19 Q. And did Post Buckley ultimately make a 20 presentation at the SAGE meeting? 21 A. No. 22 Q. Why not? 23 A. Our client was DER, and DER never formally 24 asked us to go. 25 Q. Did they informally ask you to go? Page 265 1 A. No. 2 Q. Were there conversations that you were involved 3 in as to whether Post Buckley should or should not go? 4 A. It was discussed in general conversation. I 5 can't recall what the details were. 6 Q. Was there an opinion one way or the other 7 within Post Buckley that we should attend and defend our 8 review, or we should not attend? 9 A. I can't speak for the others. As for myself, 10 my opinion was if I was asked to go, I go; and if I 11 wasn't, I wasn't. 12 Q. But in any event, DER didn't ask you to go? 13 A. Right. 14 Q. Do you know why? 15 A. No. 16 Q. I show you two groups of documents that were 17 provided among the records that we received in response 18 to our notice. 19 A. Uh-huh. 20 Q. Ask you if you know what those are. 21 A. This looks like some of the work that we did on 22 one of our contracts. It looks like a design contract. 23 Looks like some of the engineering design work that we 24 were doing. 25 Q. For the ENR Project? Page 266 1 A. Correct. 2 Q. Did you participate in drafting any of the 3 these graphs? 4 A. I did not participate in the drafting. I 5 directed some of this, yes. 6 Q. But you don't do the drafting? 7 A. I don't draw them. 8 Q. Okay. 9 A. In other words, I would say put that there and 10 divide it up like this. I would not draw anything on it. 11 Q. Okay. In one of the graphs which appears to be 12 a schematic of the area south of Lake Okeechobee, there's 13 some handwritten notes at the bottom of the graph. Do 14 you recognize those notes? 15 A. Those are mine. 16 Q. What do they say? 17 A. Two hundred two metric tons, 1.56 grams per 18 square feet per year. Total area equals 29,000 acres, 19 plus Water Management Area Five, 75 percent reduction. 20 Q. What significance, if any, do those have to 21 you? 22 A. Those are ancient notes. I don't remember what 23 I was doing at that point in time. 24 Q. What would you express of grams per meter 25 squared? Page 267 1 A. It would be either a loading rate or an uptake 2 rate. 3 Q. And you don't recall whether that was the 4 uptake rate you used for calculating -- 5 A. No, I don't really remember. If you want to 6 verify that, I suggest you get that file I mentioned 7 yesterday. 8 Q. Which is? 9 A. The design file I told you about. 10 Q. At Post Buckley? 11 A. Right. 12 Q. I show you something that purports to be a work 13 order, number eight, for Post Buckley's contract with 14 DER, and ask you whether you know whether that work order 15 was ever executed or not? 16 A. Pieces of it were, but not the -- as we talked 17 about yesterday, not the entire thing. 18 Q. What pieces were, and what deliverables exist? 19 A. I believe we wrote a report relative to the 20 hydroperiod limitations, maintenance requirements, 21 interspecies competition success, and establishment 22 timeframe, methodology and cost of cattail versus 23 bullrush for their use in flowway cells. I think that's 24 the part that we did. And there should be a follow-up 25 report to this. Page 268 1 Q. Okay. Let me show you Post Buckley memo dated 2 March 9, '92 from yourself to George Baragona, and ask 3 you if you recall that memo. 4 A. Right. 5 Q. What was that memo from or for? 6 A. This is in response to one of our work orders. 7 And we attended a meeting in Miami at the Attorney 8 General's office. 9 Q. How many such meetings did you attend at the 10 Department of Justice? 11 A. This is the only one. 12 Q. And was this one of those closed meetings you 13 referenced yesterday in your testimony? 14 A. I can't say that it was. I'm not -- I don't 15 have any information one way or the other. 16 Q. Do you know whether any representatives of 17 industry were there? 18 A. I don't remember seeing any. 19 Q. There's a reference in one of the paragraphs on 20 the first page to a discussion of the use of lakes -- 21 A. Uh-huh. 22 Q. -- for nutrient reduction. 23 A. Uh-huh. 24 Q. Was this your first discussion on such a topic? 25 A. Correct. Page 269 1 Q. And did it go past this day? 2 A. My private discussions did, but not relative to 3 the project. 4 Q. Were you reviewing the use of lakes for 5 nutrient reduction? 6 A. Not for this project. 7 Q. Who was proposing, if anyone, an examination of 8 the use of lakes? 9 A. Bob Wetzel and David Lien. 10 Q. And did either Wetzel or Lien ever conclude one 11 way or the other that they were or were not a valid STA 12 alternative? 13 A. My recollection of this meeting was they 14 presented their theory, and it was to be massaged and 15 discussed further at later dates. 16 Q. Did it get massaged and discussed later at 17 meetings that you were at? 18 A. I don't really recall ever discussing it again. 19 Q. Who were Wetzel and Lien, at this meeting, on 20 behalf of? 21 A. I can't answer that. I don't -- 22 Q. Do you know either of those gentlemen? 23 A. Pardon? 24 Q. Do you know either of those gentlemen? 25 A. Well, since, I've developed a talking Page 270 1 relationship with David Lien. 2 Q. Okay. And who is he? 3 A. He's a -- works in Canada. I think I can 4 produce his business card if you're interested. I think 5 he works -- if I remember right, he's a part-time 6 professor and part-time consultant. Canada's kind of 7 socialist, so their government and industry overlap. I 8 think he's involved in something like that, where he has 9 some time to do private consulting and he also works for 10 the government in some capacity. 11 Q. What is his area of expertise? 12 A. It is my understanding it was water quality as 13 related to lakes. 14 Q. The use of lakes for nutrient removal, or is 15 that what was being examined here? 16 A. I don't know if it would necessarily be for 17 nutrient removal. But studying nutrient removal process 18 in lakes in general. 19 Q. What was he presenting at the meeting? 20 A. If you look right here, there's a paper that he 21 referenced at this meeting. He, like I say, gave a 22 general overview of his findings or his conclusions that 23 he reached with his lake studies. 24 Q. Okay. And what were those conclusions or 25 opinions as you recall it being presented? Page 271 1 A. The only thing I can recall would be what I 2 stated in this memo right here. 3 Q. Do you recall, was he advocating the use of or 4 consideration of the use of lakes for nutrient removal in 5 the Everglades? 6 A. The consideration, right. 7 Q. Anything else that he was advocating or 8 supporting? 9 A. Not that I can remember. 10 Q. Was there any representatives from Justice that 11 appeared more favorably disposed than not towards 12 considering such a theory? 13 A. I don't recall that there was someone like 14 that. 15 Q. And is it your testimony that you were not 16 present at any meetings where this subject was discussed 17 again in the context of STA alternatives? 18 A. I don't recall ever sitting in on another 19 discussion like that. 20 Q. There's a reference in the last paragraph to -- 21 let me just read it into the record. "Gary Goforth and 22 Kadlec basically told us the natural revegetation" -- I'm 23 sorry, "told us the ENR design would include a bullrush 24 mixed marsh component and a natural revegetation algae 25 cell component. They also explained that their model Page 272 1 efforts for the WCA-2A data base were going well, and 2 they were able to close the loop," in quotes, "on the 3 data set. We all agreed it sounded encouraging," 4 etcetera. 5 What reference do you recall you were referring 6 to when they were closing the loop on the data cell? 7 A. It would be in reference to some of the issues 8 that we talked about earlier relative to the model not 9 necessarily calibrating like it was supposed to. 10 Q. Can you elaborate what issues specifically? 11 A. Pardon? 12 Q. What was it about the 2A data set that, up 13 until this time, didn't allow some loop to be closed? 14 A. This wasn't really discussed at this meeting in 15 any great detail. It's just kind of a statement that 16 that's what they were working on and that's what they 17 were doing. So there was not a formal presentation as 18 there had been at that other meeting. It's more of just 19 kind of a statement, if I remember right, than anything 20 else. 21 Q. What did you understand at the time were the 22 shortcomings of the 2A data set that necessitated some 23 loop to be closed? 24 A. At this point the reason that that's not in any 25 greater detail is that I didn't know, and I needed to Page 273 1 follow up and get more information. Because like I say, 2 I remember this as being more of just redoing this kind 3 of statement as opposed to any elaborate discussion. And 4 that's why there's no, you know, more detail on that. 5 Q. Ultimately were you able to get more 6 information to find out what that was referring to? 7 A. Yes. 8 Q. And what was it referring to? 9 A. If I recall, it was referring to, at an earlier 10 meeting, there had been a lot of criticism, and Sugar was 11 at this meeting. 12 Q. At the earlier meeting? 13 A. Yes. Of Burns and McDonnell not being able to 14 calibrate their model. The comments along the lines are 15 the ones that we discussed earlier, the Jay Maze 16 correspondence, and that as I mentioned earlier, the 17 District took, I think, that pretty seriously and went 18 back and tried to understand why it didn't close, to 19 generate whatever data they needed to close it, and then 20 see if they could upgrade the model so that it did 21 calibrate it. 22 Q. Let me just show you two copies of the reports 23 we discussed earlier, the Nolte reports, and ask you 24 whether you recognize either of those documents. 25 A. I'm not saying I don't have this. If I read Page 274 1 it, I read it for interest and not for effect. I don't 2 recall having any reaction to it, so I can't really 3 recall seeing that one. 4 Q. That's the September 29, 1992 Nolte and 5 Associates report? 6 A. That's correct. And the same for this. I 7 would not say that I haven't read this, but I just don't 8 remember. It's not one of those things that -- 9 Q. That's the December 1992 Nolte report? 10 A. That's correct. 11 Q. There has been discussions within the past 30 12 to 45 days in and around the District about something 13 called a technical mediation plan. Are you familiar with 14 that document? 15 A. No. 16 Q. What work steps have you undertaken since you 17 left Post Buckley in January of '93 that are relevant to 18 your anticipated areas of testimony which we reviewed 19 yesterday and which I can repeat if you would like? 20 A. Just as I stated earlier, the latest thing that 21 I have done is to review this document right here 22 (indicating). 23 Q. That is Exhibit "12"? 24 A. Wait a second. Yes. 25 Q. And I'm asking since January 3, 1993 what else, Page 275 1 if anything, have you done to support your areas of 2 anticipated testimony? 3 A. I can't think of anything since then. 4 Q. Have you attended any meetings at the District? 5 A. No. 6 Q. Or DER? 7 A. No. 8 Q. What do you anticipate doing in further 9 developing your opinions for the hearing, between now and 10 the scheduled hearing date of November 15th? 11 A. At this point in time the only things that I'm 12 going to do are review this and then re-read -- I'm going 13 to have to go to Post Buckley and get the most recent 14 copies of the STA report permit, design calculations. 15 Q. Re-read Exhibit "12". 16 A. I'm going to re-read all of the most recent 17 copies of permit applications. 18 Q. Well, is it safe to say that if any permit 19 applications have come out between January 3, 1993 and 20 today, in fact, you would be reading them for the first 21 time and not re-reading them, other than Exhibit "12"? 22 A. Except for the ones I've received, I couldn't 23 answer that. I'm not aware that I've received all of the 24 permit applications that have come out since then. 25 Q. It would be except for the ones that you've Page 276 1 received before January 3, '93; right? 2 A. Right. 3 Q. Okay. Have you read any Burns and McDonnell 4 technical reports or design documents or modeling 5 documents, other than that appended to Exhibit "12", 6 since January of '93? 7 A. I don't recall reading any. I will search my 8 records, but I don't recall reading any. 9 Q. Yesterday you testified Steve Lienhart was -- 10 A. Lienhart. 11 Q. -- Lienhart was a Post Buckley employee in the 12 Tampa office. What is his area of expertise? 13 A. Stormwater. Stormwater modeling, stormwater 14 treatment. 15 Q. What, if any, role did he play in Post 16 Buckley's contractual relationships with either the 17 District or DER concerning the Everglades? 18 A. If I could summarize, he was an adviser to me. 19 Q. On the subject matters of stormwater modeling 20 and treatment? 21 A. On all of this. Whenever I would receive 22 either a document from DER or something from Jay Maze, 23 such as the documents we've discussed, I would ask his 24 opinion, or Fred Biery. 25 Q. Do you know what areas Steve Lienhart is Page 277 1 anticipating testifying about in this case? 2 A. No. I don't remember if he's even on the list. 3 Q. Do you know whether he authored or helped 4 author any of the May and June '92 review of the Burns 5 and McDonnell models? 6 A. No. 7 Q. You don't know, or he didn't? 8 A. I don't think he did. 9 Q. You testified earlier that you were aware in 10 general that the settling rate of eight meters a year had 11 changed in some respect and by someone's calculation; is 12 that correct? 13 A. Uh-huh. 14 Q. What, in general, do you know about that? 15 A. Nothing specific that I could state right now. 16 Q. Do you know who -- 17 A. I have to reference back to my notes. 18 Q. Well, is it your understanding that it changed 19 before January 3 of '93? 20 A. Yes, that's my understanding. 21 Q. Do you know who performed calculations that 22 resulted -- 23 A. No. 24 Q. -- in a different settling rate? 25 A. No. Page 278 1 Q. Do you know whether the settling rate went up 2 or down? 3 A. I think it went up. 4 Q. Do you know whether the anticipated STA curves 5 went up or down? 6 A. I don't know. 7 Q. Normally what would you expect to happen with 8 respect to the size of a wetland whose design is based on 9 a settling rate if that settling rate component became 10 larger? 11 A. I wouldn't know. I'd have to look at the 12 hydrologic aspect and see what happened to that at the 13 same time. 14 Q. Why the hydrologic aspect? 15 A. Because as I mentioned yesterday, in my opinion 16 you have a component and a design that's hydrology and a 17 component that's nutrients. They both have to work 18 within the design, or else the whole thing won't work. 19 And so just because one gets better, so to speak, that 20 doesn't necessarily mean the other one will. 21 Q. Can you assume for purpose of my question that 22 the hydrology remains the same? 23 A. Okay. 24 Q. And the settling rate gets larger, as you said 25 it was your understanding. Page 279 1 A. Okay. 2 Q. What would you anticipate would happen to the 3 design of the wetland? 4 A. Assuming that the hydrology remained the same? 5 Q. Remained the same. 6 A. Once again I'd have to say that that wouldn't 7 necessarily make it -- because if it was sized for the 8 hydrology component and it didn't change, then just a 9 change in increase in the uptake rate wouldn't 10 necessarily decrease the size. Because if it's been 11 sized for that particular hydrology, you see, that would 12 have to -- something would have to happen there, say a 13 BMP that would reduce the amount of water that went on 14 before you would down-size it. I hope you understand. 15 Q. I think I do. But what would have to happen to 16 the hydrology? What do you need to know about the 17 hydrology? 18 A. For example, let's say there's a BMP that 19 decreased the flow in addition to. We look and say okay 20 the settling rate is greater than it was before. Then 21 you could down size it, in my opinion. But just because 22 the settling rate or the uptake rate gets higher, doesn't 23 necessarily mean the size will get smaller, because you 24 still have that hydrologic component sitting out there 25 that you have to deal with. Page 280 1 Q. Okay. Yesterday, probably midday, we went 2 through your opinions as expressed in the expert witness 3 designation filed by DER. I reviewed them with you, and 4 I think you told me at that time that that is your 5 understanding of all that you anticipate testifying 6 about. 7 A. Right. 8 Q. You also gave me a list of documents that you 9 would rely on to support your opinion. 10 A. Right. 11 Q. And my question is whether 24 hours later, 12 having gone through some other issues and other 13 documents, whether there is -- whether your answers to 14 those questions would remain the same as they were 15 yesterday. 16 A. I think, based on yesterday, I personally would 17 like to go through my old file at Post Buckley and 18 re-read everything and refresh my memory on the entire 19 project. Just like I said, this is a project that you 20 sort of have to understand. 21 Q. Would you want to do that before you told me 22 whether you've told me all the documents -- 23 A. Right. 24 Q. -- that you are relying on for your opinions? 25 A. I'm only going to rely on the most recent Page 281 1 version of any documents. So, in other words, if there's 2 a report that's gone through numerous intermediate steps 3 to get to a point, I'm going to rely on the most recent 4 version, nothing before that. Okay? 5 Q. Okay. Then here's my question. If, in fact, 6 all you've done in connection with your work efforts 7 since January 3 of '93 is to review the permit 8 application for the ENR Project, is it your testimony 9 that you would need to review documents produced over the 10 last six months by Burns and McDonnell and others with 11 respect to STA modeling efforts? 12 A. Just the most recent version of those 13 documents. 14 Q. But there are documents that exist over the 15 last six months, that you haven't reviewed, that you're 16 testifying you need to review before you can finalize 17 your opinions; is that correct? 18 A. Potentially that's correct. 19 MR. BURGESS: Well, with that on the record, 20 and I think pretty clear, in addition to the witness 21 stating yesterday that he needs to review his notes 22 and files to offer final opinions, and the fact that 23 not all of the records he testified yesterday he 24 would rely on, specifically I'm referring to the 25 calculations in support of his ball-park estimation Page 282 1 of 30,000 acres for effective treatment areas of 2 STAs, with those two caveats we would, on behalf of 3 my clients, adjourn the deposition and not conclude 4 it, and reserve the right to depose Mr. Swindell 5 solely on the subject matters revealed by any 6 additional review of additional documents as he 7 testified to thus far. Thank you for your time. 8 MS. LaPLANTE: Before Mr. Perko begins, I just 9 want to state for the record that yesterday I made 10 some objections regarding the attorney/client 11 privilege in regards to some questioning by 12 Mr. Burgess, of Mr. Swindell's conversations with 13 Susan Schwartz. And I'd like to withdraw that 14 objection. 15 Q. Before I get started, I'd just like to make the 16 same reservation about adjourning this deposition, that 17 Mr. Burgess made. In the event that Mr. Swindell's 18 additional documents that he referenced earlier are 19 produced and Mr. Swindell reviews additional documents 20 prior to developing his expert testimony, we'd like the 21 right to depose him again, or restart this deposition, to 22 inquire about those matters. 23 MS. LaPLANTE: Can I just interject? 24 MR. PERKO: Sure. 25 MS. LaPLANTE: I would also concur with Page 283 1 possibly continuing the deposition if Mr. Swindell, 2 in his review of those additional documents, finds 3 that he did need to review those in order to finalize 4 his opinion. 5 MR. COUSINS: Can I just ask a question 6 practically? Are your opinions final right now in 7 your mind? Or do you think, based upon the documents 8 from January '93 on, that they're not? I'm not 9 trying to preempt your question; you're going to ask 10 him anyway, but is it even -- 11 THE WITNESS: I'm comfortable with my position 12 right now. 13 MR. COUSINS: Okay. 14 MS. LaPLANTE: Can I just interject then? Are 15 you saying, Mr. Swindell, then that you don't need to 16 review any of the documents that Mr. Burgess 17 referenced in order to render a final opinion at this 18 time? 19 THE WITNESS: No. I'm saying I would like to 20 review everything. 21 MR. COUSINS: So what you're going to be -- 22 everything you testified to so far then, really can't 23 be listed as final because -- it may turn out to be, 24 but you're not sure until you review the documents 25 that are out there that you haven't seen? Page 284 1 THE WITNESS: Right. Because those documents 2 could change it to a position I don't agree with. 3 MR. COUSINS: No, I understand. I just need to 4 tell my people when they ask me why I'm coming back 5 up here. 6 MR. PERKO: With that understood, Mr. Swindell, 7 I just have a few follow-up questions for what 8 Mr. Burgess previously asked you. 9 * * * * * * 10 CROSS EXAMINATION 11 BY MR. PERKO: 12 Q. For the record, my name is Gary Perko. I'm 13 with the law firm of Hopping, Boyd, Green and Sams in 14 Tallahassee. I'm here on behalf of the Sugar Cane 15 Growers Cooperative, Roth Farms and Wedgworth Farms, also 16 petitioners in this administrative proceeding. 17 Mr. Swindell, you previously testified 18 regarding your work with Jay Maze and Steve Lienhart of 19 Post Buckley and Schuh. 20 A. Right. 21 Q. My question to you is, have you had any contact 22 with either Mr. Maze or Mr. Lienhart since you left Post 23 Buckley and Schuh in January of this year? 24 A. No. 25 Q. Do you anticipate confirming with either Page 285 1 Mr. Maze or Mr. Lienhart prior to developing final 2 opinions in this case? 3 A. Not necessarily, no. 4 Q. Mr. Swindell, I'd like to refer your attention 5 to the March 9th, 1992 memorandum that you wrote to 6 George Baragona during the STA meeting at the Miami 7 Attorney General's office, that we discussed previously. 8 Specifically the last paragraph of the first page of that 9 document states that, "Bill Walker stated their study of 10 phosphorus in the EAA had shown that 70 percent was 11 orthophosphorus." 12 A. Right. 13 Q. Who is Bill Walker, sir? 14 A. I don't know him personally. He was a -- my 15 understanding is, he's a modeling statistical computer 16 expert. And I think he's out of Massachusetts, Boston to 17 be exact. And beyond that, I really don't know that much 18 about him. 19 Q. You reference a -- their study of phosphorus in 20 the EAA 21 A. Right. 22 Q. What was that study referring to in this 23 sentence? 24 A. As near as I can remember, that's pretty much 25 directly quoted from him. And I don't -- there was never Page 286 1 any mention of -- I don't recall there ever being a 2 mention, nor do I recall ever following up on that. 3 Q. Do you recall what that study entailed? 4 A. As I'm saying, I really don't know the details. 5 That's almost a verbatim statement, if I remember, from 6 Bill Walker. 7 Q. The next sentence states that, "They apparently 8 are proceeding with their modeling studies using this 9 number." 10 A. Right. 11 Q. What is the reference to "they"? What is that 12 referring to? 13 A. South Florida Water Management District. 14 Q. I take it then that the modeling studies 15 referenced later on in that sentence are also the 16 District's modeling studies? 17 A. To the best of my knowledge that's what that 18 refers to. 19 Q. Would that be the Burns and McDonnell models 20 that you've testified to previously? 21 A. To the best of my knowledge that would be it. 22 Q. The previous paragraph, as Mr. Burgess pointed 23 out, refers to David Lien? 24 A. Right. 25 Q. And I believe you testified that you have since Page 287 1 developed a talking relationship with Dr. Lien; is that 2 correct? 3 A. That's correct. 4 Q. What matters have you conferred with Dr. Lien 5 about subsequent to this March 9th, 1992 memorandum? 6 A. We actually contacted him to see if he would be 7 part of our project team for a proposal we were preparing 8 for the City of Lakeland, and I've had one short 9 conversation relative to trying to obtain some of his 10 results from some of his studies. 11 Q. What studies are you referring to? 12 A. That he mentioned, in the context, he said, 13 "We've been doing studies." And I asked him for some of 14 the results on those studies. I didn't have an exact. 15 Q. Are these the lake studies referenced in the 16 paragraph? 17 A. Right, right. 18 Q. Have you conferred with Dr. Lien regarding the 19 Everglades case? 20 A. We never discussed the case. 21 Q. Do you plan to discuss the case with Dr. Lien 22 prior to developing any final opinions? 23 A. No. 24 Q. Mr. Swindell, you've testified at length 25 regarding the Burns and McDonnell modeling used for the Page 288 1 STA design, as well as the model described in the May 2 20th, 1993 permit application for the ENR Project. 3 A. Uh-huh. 4 Q. Do I understand you correctly that the model 5 discussed in the ENR permit application is essentially 6 the same model that Burns and McDonnell is using for the 7 STAs? 8 A. It's my understanding that it is, yes. 9 Q. I just wanted to clarify that. 10 MR. PERKO: If you could mark this, please. 11 (The said document was marked by the reporter 12 as Petitioner's Exhibit "17".) 13 Q. Before we get to the next exhibit, I refer your 14 attention back to Exhibit Number "16". That is the 15 December 19th, 1991 memo that you wrote to John Shearer 16 regarding the summary of STA design working group 17 meeting. 18 Specifically if you could refer to page two of 19 that memorandum, under item number two, first sentence 20 under that item states that, "Gaylen Miller (B&M), 21 reviewed the data in his December 10th, 1991 letter to 22 the District as attached." That letter is not attached 23 to this exhibit. But if I could refer you to Exhibit 24 Number "17" and ask you if the letter referenced in 25 Exhibit Number "16" is represented in Exhibit Number Page 289 1 "17"? 2 A. It looks like the same letter to me. 3 Q. That would be a December 10th, 1991 letter from 4 Galen Miller to Dr. Gary F. Goforth; is that correct? 5 A. Right. 6 Q. If I could refer you to the -- first of all, 7 I'm going to refer you again to page two of Exhibit "16", 8 item two. The second sentence, you state that, 9 "Basically Gaylen is forcing the data to comply with the 10 eight-meters-per-year rate constant originally proposed 11 by Bob Kadlec (Feds)." Could you explain to me how 12 Gaylen Miller was forcing the data to comply with 13 eight-meters-per-year rate? 14 A. In simplistic terms it would be, in my opinion, 15 it would be like wanting to model a group of data to come 16 up with, say, a regression equation. Basically having 17 the answer before you started the modeling effort. You 18 know what I'm saying? So you keep the numbers going 19 until you actually get the result that you originally 20 proposed. 21 Q. If I could refer you then to Exhibit Number 22 "17", the December 10th, 1991 letter from Gaylen Miller, 23 specifically page two, the middle of that page, paragraph 24 beginning with -- or the paragraph that states, "For 25 phosphorus modeling the base condition analyses proceeded Page 290 1 upon the assumption of a first-order relationship between 2 concentration and rate of phosphorus deposition. The 3 apparent settling rate employed in the models was 4 developed by an iterative analysis of STA-4, and adjusted 5 such that the apparent long-term settling rate at STA-4 6 would be equal to 8.0 meters per year." 7 A. Uh-huh. 8 Q. It was determined that a modeled settling rate 9 of 27 meters per year, when applied to a period of record 10 analysis of STA-4, would result in a target average value 11 of 8.0 meters per year. That modeled settling rate of 27 12 meters per year was then applied in the analysis of STA-3 13 and STA-4. 14 Does this generally describe how Gaylen Miller 15 forced the data to comply with eight meters per year? 16 A. Uh-huh. It was just in his overall 17 presentation. You understand that this was passed down, 18 but there was a presentation that went in addition to 19 this. 20 Q. Do you know why Gaylen Miller was forcing the 21 data to reach the target eight meters per year? 22 A. No. 23 Q. Mr. Swindell, other than the model developed by 24 Burns and McDonnell in connection with STA design, are 25 you aware of any other models that evaluate the water Page 291 1 quality effects of the STAs? 2 A. No. 3 Q. No? 4 A. No. 5 Q. Have you ever heard of the Everglades 6 phosphorus and hydrology model being developed by 7 Tetratech, Incorporated? 8 A. No. 9 Q. Mr. Swindell, to your knowledge what pending 10 permit applications are there relating to the Everglades 11 restoration projects? 12 A. I don't think I'm -- I'm not involved in that, 13 so I'm not capable of answering that. 14 MR. PERKO: I have nothing further. 15 * * * * * * 16 REDIRECT EXAMINATION 17 BY MR. BURGESS: 18 Q. Do you think Gaylen was forcing the data to 19 comply with the eight-meter-a-year rate because he was 20 trying to appease the Feds? 21 A. I have no idea. You understand this was one of 22 the first meetings that I attended since I was out of the 23 loop -- 24 MR. COUSINS: Form. 25 A. -- at the District. Page 292 1 MR. COUSINS: Had nothing do with you. 2 THE WITNESS: Pardon? 3 MR. COUSINS: I'm just objecting to the form, 4 sort of late. It has nothing to do with you though. 5 You can finish whatever you were going to say. 6 THE WITNESS: No. 7 MR. BURGESS: Nothing further. 8 MS. LaPLANTE: I have no questions. 9 (The deposition was terminated at 11:57 o'clock 10 a.m.) Page 293 1 REPORTER'S CERTIFICATE WITH ACKNOWLEDGEMENT 2 STATE OF FLORIDA: 3 COUNTY OF ORANGE: 4 I, DEBRA BENNETT WORLEY, Certified Shorthand Reporter, Registered Professional Reporter, CP-CM, 5 certify that I was authorized to and did stenographically report the foregoing deposition of CLAUDE E. SWINDELL, 6 JR., and that the transcript is a true record of the testimony given by the witness. 7 I FURTHER CERTIFY that I am not a relative, 8 employee, attorney, or counsel of any of the parties, nor am I a relative or employee of any of the parties' 9 attorneys or counsel connected with the action, nor am I financially interested in the outcome of this action. 10 I FURTHER CERTIFY that I have furnished the 11 original hereof to RICK J. BURGESS, ESQUIRE. 12 DATED this _____ day of July, 1993. 13 ______________________________ 14 DEBRA BENNETT WORLEY Certified Shorthand Reporter 15 Registered Professional Reporter CP-CM 16 17 STATE OF FLORIDA COUNTY OF ORANGE 18 The foregoing Certificate was acknowledged 19 before me this _____ day of July, 1993, by DEBRA BENNETT WORLEY, who is personally known to me. 20 21 ______________________________ 22 Notary Public State of Florida at Large 23 Page 294