1 Division of Administrative Hearings 2 Department of Administration, State of Florida 3 SUGAR CANE GROWERS COOPERATIVE) OF FLORIDA; ROTH FARMS, INC.; ) 4 and WEDGEWORTH FARMS, INC., ) Petitioners, ) 5 V ) DOAH Case No.:92-3038 SOUTH FLORIDA WATER MANAGEMENT) 6 DISTRICT, an agency of the ) State of Florida, et al., ) 7 _____________Respondents._____) 8 FLORIDA SUGAR CANE LEAGUE, ) INC.; UNITED STATES SUGAR ) 9 CORPORATION; and NEW HOPE ) SOUTH, INC., ) 10 Petitioners, ) V ) DOAH Case No.:92-3039 11 SOUTH FLORIDA WATER MANAGEMENT) DISTRICT, an agency of the ) 12 State of Florida, et al., ) _____________Respondents._____) 13 FLORIDA FRUIT AND VEGETABLE ) 14 ASSOCIATION; LEWIS POPE FARMS;) W.E. SCHLECHTER & SONS, INC., ) 15 and HUNDLEY FARMS, INC., ) Petitioners, ) 16 V ) DOAH Case No.:92-3040 SOUTH FLORIDA WATER MANAGEMENT) 17 DISTRICT, an agency of the ) State of Florida, et al., ) 18 _____________Respondents._____) 19 Deposition of Jose Vidal, Ph.D. 20 Taken before Robin L. Merker, Court 21 Reporter and Notary Public in and for the State of Florida at large, pursuant to notice of taking 22 deposition filed by the Petitioners in the above cause. 23 - - - Thursday, October 1, 1992 24 319 Clematis Street West Palm Beach, Florida 33401 25 9:05 - 12:00 p.m. 1 APPEARANCES: 2 On behalf of the Petitioners Florida Sugar Cane League, Inc., United States Sugar Corp, 3 and New Hope, Inc.: 4 Peeples, Earl & Blank, P.A. 215 South Monroe Street 5 Suite 350 Tallahassee, Florida 32301 6 By: WILLIAM HYDE, ESQUIRE 7 On behalf of the Respondent SFWMD: 8 South Florida Water Management District 3301 Gun Club Road 9 West Palm Beach, Florida 33146-4680 By: RUTH P. CLEMENTS, ESQUIRE 10 On behalf of the Intervenor, United States of 11 America: 12 THOMAS A.W. FITZGERALD, ESQUIRE Assistant United States Attorney 13 155 South Miami Avenue Suite 600 14 Miami, Florida 33130-1693 15 ALSO PRESENT: 16 CURTIS D. POLLMAN 17 18 19 20 21 22 23 24 25 1 - - - 2 I N D E X 3 - - - 4 WITNESS: DIRECT CROSS REDIRECT RECROSS 5 JOSE VIDAL, Ph.D. 6 BY MR. HYDE: 4 7 - - - 8 E X H I B I T S 9 - - - 10 Vidal Exb. No. 1 7 Curriculum vitae of Jose L. Vidal 11 Vidal Exb. No. 2 48 12 Memorandum dated 2-20-92 from Jose Vidal to Thomas Fontaine 13 Vidal Exb. No. 3 86 14 Total Phosphorus procedures 15 Vidal Exb. No. 4 90 4500-P Phosphorus methods 16 Vidal Exb. No. 5 99 17 Phosphorus, All forms 18 Vidal Exb. No. 6 117 Orthophosphate Procedure 19 Vidal Exb. No. 7 118 20 Everglades Nutrient Removal 21 22 23 24 25 4 1 P R O C E E D I N G S 2 3 - - - 4 MS. CLEMENTS: I'd like to make a 5 statement here as to the expertise he will be 6 testifying to. It will be as to assessing the 7 methodology used to analyze water for nutrient 8 concentrations and the QA/QC procedures for -- 9 procedures for water quality analyses. We will 10 be providing an expert as to soil analysis at a 11 later time. 12 You can go ahead and swear in the witness. 13 Thereupon, 14 JOSE VIDAL, Ph.D. 15 being by the undersigned Notary Public first duly 16 sworn, was examined and testified as follows: 17 THE WITNESS: I do. 18 DIRECT (JOSE VIDAL, Ph.D.) 19 BY MR. HYDE: 20 Q. Okay. 21 Would you please state your full name and 22 home address for the record, please? 23 A. Yes. Jose L. Vidal. 12220 Southwest 24 103rd Terrace, Miami, Florida, 33186. 25 Q. Okay. Thank you, Dr. Vidal. 5 1 Do you prefer being addressed as Dr. 2 Vidal? 3 A. No, that's fine. Call me Jose. That will 4 be fine. 5 Q. Okay. 6 I'd like to start off with a few questions 7 about your educational background, particularly 8 relating to the area of expertise that your counsel 9 said you would be offered in. 10 Would you please begin with your college 11 degree and the area or your major? 12 A. Okay. Yes. 13 I go to -- got my doctor in science degree 14 in Spain in 1974 -- excuse me, 1969. And after that my 15 Ph.D. degree at the University of Florida, Gainesville, 16 in 1974. 17 Q. When you -- 18 A. The major -- I'm sorry. 19 Q. Which institution in Spain? 20 A. University of Santiago, Spain. 21 Q. Okay. 22 What was your undergraduate major there? 23 A. Undergraduate was in chemistry. 24 Q. Okay. 25 A. And my Ph.D., again, was inorganic with a 6 1 minor in analytical chemistry. 2 Q. Okay. 3 Just to make sure, you said you had -- 4 your Ph.D. is in inorganic? 5 A. Inorganic. 6 Q. And a minor in organic? 7 A. In analytical chemistry. 8 Q. Oh, excuse me. Okay. 9 Did you obtain a masters degree anywhere? 10 A. No, sir. 11 Q. Okay. 12 A. It was not required in the University of 13 Florida. 14 Q. Okay. 15 Have you done any postgraduate studies? 16 A. No. 17 Q. Okay. 18 Have you engaged in any teaching 19 activities -- 20 A. Yes, I do. 21 Q. -- since your obtaining your degrees? 22 Perhaps it would be a good opportunity, 23 just to give me a copy of your resume? 24 A. I just have my copy. You're welcome to 25 it. 7 1 (A short off-the-record discussion was 2 held.) 3 (Thereupon, the document was marked Vidal 4 Exb. No. 1 for Identification.) 5 BY MR. HYDE: 6 Q. Dr. Vidal, is Exhibit No. 1 your personal 7 C.V.? 8 A. Yes, sir. 9 Q. Okay. 10 And is the information contained in this 11 C.V. true and accurate to the best of your 12 recollection? 13 A. Yes, sir. 14 Q. Okay. 15 I believe before we took our short break 16 that I had just asked you if you held any teaching 17 positions. Are those positions set forth in detail on, 18 I believe, the third page of Exhibit 1? 19 A. That's correct. 20 Q. Okay. 21 Let me ask you a few questions about your 22 1986 to 1987 tenure as director-lecturer for Corporate 23 Coal Chemistry seminars. What specifically was that 24 job? 25 A. Okay. 8 1 I was director of the research center for 2 Westmoreland Coal Company. That's an analytical 3 support group conducting testing in coal and water for 4 the -- for the corporation. 5 Now, with respect to the teaching 6 assignment or teaching task there, I organized coal 7 seminars across the company for the employees, 8 management of the company, and, on this specific detail 9 here, I'm referring that I was the organizer, director 10 and lecturer at that seminar. 11 Q. Okay. 12 And I believe page two indicates that you 13 were a research scientist for Union Carbide for the 14 years 1974 to 1986? 15 A. Yes. My last title there was lecturer 16 there. 17 Q. And it was from Union Carbide that you 18 went to the Corporate Coal Chemistry seminars? 19 A. That's correct. West -- to Westmoreland 20 Coal Company. 21 Q. Okay. 22 Why did you move from Union Carbide 23 Corporation to Westmoreland Coal Company? 24 A. The position I had was eliminated after 25 the Bhopal incident. When the company eliminated 9 1 across -- 6,000 positions, I was the last one. 2 Q. Okay. 3 Do you recall who your supervisor was 4 while you were there at that time? 5 A. Yeah, sure. George -- Dr. George L. 6 O'Connor, Sr., research fellow of Union Carbide 7 Corporation. 8 Q. To the best of your knowledge, is he still 9 at Union or -- 10 A. No. He retired in 1987. 11 Q. Okay. 12 Moving on now to your position with 13 Westmoreland Coal Company, what did you do for them? 14 A. Describing -- it's described on page two. 15 Q. Okay. 16 Would that statement there be a fair and 17 accurate summary of what you actually did during that 18 time? 19 A. Yes, sir. 20 Q. Okay. 21 And from Westmoreland Coal Company, where 22 did you go? 23 A. I came here. 24 Q. Okay. 25 That was in 1987? 10 1 A. That's correct, sir. 2 Q. Okay. 3 What was your first position with the 4 South Florida Water Management District? 5 And just for purposes of our subsequent 6 questions, I'll just refer to it as being the District. 7 A. Yes. I started as a senior chemist. 8 Q. Okay. 9 A. That's supervising the day shift. 10 Q. Okay. 11 There's a night shift too? 12 A. Yes. 13 Q. Okay. 14 What did your duties as laboratory 15 supervisor of the day shift entail? 16 A. It was, you know, control of the staff 17 with respect to administrative and technical duties is 18 the best way to summarize. 19 Q. Did you do any hands-on work yourself, or 20 was your position more of a supervisory one? 21 A. It was more of a supervisory one. 22 Q. Okay. 23 I note that in 1990 you became a 24 supervising professional chemist? 25 A. Yes. 11 1 Q. How did that position differ from the 2 senior chemist status? 3 A. The senior chemist reports to the 4 supervising professional chemist. 5 Q. Okay. 6 So you, in effect, became the supervisor 7 of the senior chemist? 8 A. That's correct. That's a good -- 9 Q. What does a supervising professional 10 chemist do? 11 A. It's more responsibility than a senior 12 chemist, intake the data. 13 Q. To whom did you report in that role? 14 A. To the director of the laboratory. 15 Q. And that is whom? 16 A. Mary Lou Daniels. 17 Q. Okay. 18 And I note now that I guess you're interim 19 division director? 20 A. Right. 21 Q. Is that correct? 22 A. No. After -- that's not correct now. 23 After Mary Lou Daniels left in 1991, 24 October 25th, I became the acting or interim division 25 director and I have been still up to September 21st. 12 1 Q. Okay. 2 Who is now the division director? 3 A. Maxine Cheesman. She joined us on 4 September 23rd, or something like that. 5 Q. Okay. 6 You will continue to report to her at this 7 point? 8 A. That's correct. 9 Q. What were your responsibilities as the 10 interim division director? 11 A. Well, I have to take care of all overall 12 administrative managerial duties of the laboratory, 13 hiring new personnel, participate in the policies of 14 the director who followed -- you mean that -- 15 Q. While you were in that interim position, 16 to whom did you report? 17 A. To Dr. Leslie Wedderburn. 18 Q. Who is Dr. Wedderburn? 19 A. That's the Department's director for the 20 Water Research and Evaluation Department. 21 Q. Okay. 22 Let's move on now to, I guess, page four 23 of your C.V. under a subheading of professional 24 activities, societies, invited lectures. 25 A. Okay. 13 1 Q. I note here a National Science Foundation 2 position of -- from 1977 to 1986. What did that 3 include? 4 A. Well, a correction. That's not a 5 position. 6 Q. Okay. 7 A. It describes a series of activities 8 during -- done under the National Science Foundation 9 while working at Union Carbide Corporation. 10 Q. Were you paid by the National Science 11 Foundation? 12 A. No, sir. No, sir. 13 Q. Okay. 14 Was this something that you were expected 15 to do as part of your employment for Union Carbide? 16 A. No, sir. You are selected on the basis of 17 your publications and, quote, unquote, reputation in 18 the field in order to help in the National Science 19 Foundation to award grants and money to the different 20 proposals. 21 Q. Okay. 22 So this is, in effect, a professional 23 honor being accorded to you to do this? 24 A. I would call it that way if you want to. 25 Q. Okay. 14 1 And it says here that you evaluated 2 personally 20 academic proposals during that time. 3 A. Yes. I don't know how many. It could be 4 16 to 24. 5 Q. Okay. 6 (Thereupon, Mr. Fitzgerald entered the 7 deposition room.) 8 BY MR. HYDE: 9 Q. I note also that you were a reviewer of 10 scientific publications during that approximate time 11 frame? 12 A. Um-hum. That's correct. 13 Q. Are the three publications listed here, 14 the Journal of Organometallic Chemistry, Inorganic 15 Chemistry and Journal of the American Chemical Society, 16 are those three separate publications? 17 A. Yes, sir. 18 Q. Okay. 19 Again, were you compensated for any of 20 that work? 21 A. No, sir. 22 Q. Okay. 23 And then I see a series of invited 24 lectures from 1977 to 1986. 25 A. That's correct. 15 1 Q. Is that an all-inclusive list of lectures 2 you delivered during that time frame? 3 A. I think most of them would be there. 4 Q. Okay. 5 Have you done any work for the National 6 Science Foundation since 1986? 7 A. No, sir. 8 Q. Okay. 9 Or for other scientific publications? 10 A. No, sir. 11 Q. Or invited lectures? 12 A. Yes. I have two here at the bottom. 13 Q. Why did you cease doing work for the 14 National Science Foundation? 15 A. Because I went out of the field where I 16 was working with them. 17 Q. Okay. 18 And what was the field that you were 19 working with them? 20 A. Organometallic chemistry in catalytic 21 application of the transition metal carbonyl clusters. 22 And when I went from Carbide to Westmoreland Coal 23 Company I stopped working in that field. 24 Q. Okay. 25 So that was the only reason for the cutoff 16 1 then that you just sort of switched disciplines at that 2 time? 3 A. That's correct. 4 Q. Okay. 5 Tell me a bit about your invited lecture 6 number 15 concerning water quality in South Florida, 7 January 1992. 8 A. Yes. It was a professor from the South 9 Broward Community College that called the 10 communications office of the District, you know, trying 11 to get somebody to give a talk there on water quality. 12 Q. Okay. 13 A. And they suggested my name. He called me, 14 invited me. I had agreed and I went there and gave the 15 talk. 16 Q. Okay. 17 What kind of lecture was this? 18 A. It was on pesticides in groundwater -- 19 Q. Okay. 20 A. -- and so forth. 21 Q. Was this a lecture to chemistry students 22 or was -- 23 A. It was a lecture to chemistry students. 24 Basically he was the director of a club, environmental 25 club or environmental organization there, and he wanted 17 1 his students to be exposed to, you know, to this kind 2 of talk. And I gave the talk for him. 3 Q. And could -- can you identify the name of 4 that instructor? 5 A. I don't remember, but it's easy to locate 6 if -- I think that he's still the director of the 7 environmental student organization. 8 Q. Okay. 9 Do you recall whether other professors 10 were in attendance at that, or was it mainly a student 11 oriented type of lecture? 12 A. He was present, and I think it was mainly 13 students. I don't know who was in the audience. 14 Q. Okay. 15 I see a second listing here, Item 16, 16 water analyses techniques at the University of Miami in 17 March of 1991. 18 A. Yes. That was -- I was an adjunct 19 professor, an associate adjunct professor at the 20 University of Miami and in the research group where I 21 was one time I presented, you know, the techniques that 22 we do, and so it was sort of a -- what do you call 23 it -- a group seminar, whatever. 24 Q. Okay. 25 These are the same type of water analysis 18 1 techniques that you employ in your performance at the 2 District? 3 A. Yes. But -- although the presentation was 4 from a different point of view. In this case, on 5 number 16, I was talking about from the point of view 6 of the organometallic chemistry so away from the... 7 Q. What is an adjunct associate professor as 8 opposed to an associate professor? 9 A. It's a person that is not paid for the -- 10 by the University, and you put a lot of hours of work 11 in there. 12 Q. Okay. 13 But they still accord the title of 14 professor? 15 A. Yes. That's what they gave me on the 16 paper. 17 Q. Okay. 18 (Thereupon, Curtis Pollman entered the 19 deposition room and a discussion was held off 20 the record.) 21 MR. HYDE: Let's go back on the record. 22 THE WITNESS: Yes, sir. 23 BY MR. HYDE: 24 Q. While we were off the record I believe you 25 noted that you were actually compensated for your 19 1 service as an adjunct associate professor at Miami 2 Dade? 3 A. Yes, sir. 4 Q. Okay. 5 Approximately how much? 6 A. I don't know. It was about -- I don't 7 remember, but I would say $400 a month, or something 8 like that. No more than that. 9 Q. Okay. 10 And for -- is that for all 12 months of 11 the year? 12 A. If I was teaching in the summer, yes. 13 Q. Okay. 14 Let's move on now to the list of 15 publications -- publications on your C V. 16 MR. HYDE: Tom, we're going through the 17 C.V. right now, but we don't have an extra copy 18 for you. 19 (Thereupon, a discussion was held off the 20 record.) 21 BY MR. HYDE: 22 Q. I note here a list of U.S. patents. Are 23 these patents that have been obtained through the, I 24 guess, Federal Patent Office -- 25 A. Yes, sir. 20 1 Q. -- that you're referring to? 2 A. Yes, sir. 3 Q. Okay. 4 Give me an idea of some of these patents 5 particularly, excuse me, as they might relate to the 6 opinions that you might be rendering in this 7 litigation. Are there any that specifically relate to 8 that, or are directly related to your employer's 9 efforts in preparation for this upcoming hearing? 10 A. I would say directly not. Indirectly, 11 probably, you may -- no, not really. None of these are 12 related. 13 Q. Does that hold true for the category of 14 molten salts? 15 A. That's correct. 16 Q. And boron too? 17 A. That's correct. 18 Q. Okay. 19 What about transition metals, metal 20 clusters, inorganic synthesis and homogeneous 21 catalysis? 22 A. They're not related to environmental 23 problems. 24 Q. Okay. Okay. 25 Are there any other publications that you 21 1 have that are not listed in this list of publications 2 of your C.V.? 3 A. No. 4 Q. So this is an all-inclusive list at this 5 point? 6 A. I think so, sir. 7 Q. Okay. Okay. 8 Have you ever been involved in any 9 lawsuits as a party or a witness before? 10 A. No. 11 Q. Okay. 12 Have you ever been involved in any prior 13 depositions preparatory to actual litigation? 14 A. No. 15 Q. Okay. 16 So I take it that you've never -- never 17 offered any expert testimony in any administrative or 18 judicial proceeding? 19 A. No, sir. 20 Q. Okay. Okay. 21 Let me ask you a few questions about your 22 involvement with the development of the current 23 Everglades SWIM plan. 24 You know what I'm referring to when I say 25 the current Everglades SWIM plan, do you not? 22 1 A. That's correct, sir. 2 Q. What, if anything, have you had to do with 3 the development of that plan? 4 A. Directly, perhaps supervising the group 5 when we analyze some parts related to the ideas covered 6 by SWIM plan, but that's actually -- I didn't -- I did 7 not have any participation in other activities of the 8 SWIM plan. 9 Q. Did you write of the effects of the SWIM 10 plan? 11 A. No, sir. 12 Q. Did you contribute directly toward anyone 13 else's effort at writing a portion of the SWIM plan? 14 A. No. 15 Q. Okay. 16 Do you anticipate that you will be doing 17 anything in the future concerning the development of 18 the SWIM plan or additional drafts or amendments of it? 19 A. I have no idea. 20 Q. Okay. 21 Who are the other persons that you've been 22 working with who have assisted in the District's work 23 towards the development of the SWIM plan? 24 A. (No response.) 25 Q. You said that you had been supervising the 23 1 staff? 2 A. It was somebody that worked with me. 3 Q. Okay. 4 A. That as -- as a senior chemist or 5 supervising professional also later on that was 6 attending in 1989 SWIM project related meetings, and 7 that's all. 8 Q. Okay. 9 And who was that person? 10 A. Dr. Bill Donovan. 11 Q. Donovan? 12 A. Yes. 13 Q. Okay. 14 Is Dr. Donovan still with the District? 15 A. Yes. 16 Q. Okay. 17 In what capacity does he currently serve? 18 A. He's in the regulation department. 19 Q. Okay. 20 Is that a separate branch of the agency 21 from your -- 22 A. That's correct. 23 Q. -- department? 24 A. That's correct. 25 Q. What does his office do as opposed to what 24 1 your office does? 2 A. I don't know his present duties. 3 Q. Okay. 4 Identify for me, if you will, some other 5 persons whom you would consider to be very 6 knowledgeable in your field of endeavor. 7 A. Define my field of endeavor as? 8 Q. I guess it would be inorganic chemistry 9 and/or analytic chemistry. 10 A. Well, really very good people like 11 Professor Albert Cotton. 12 Q. Where is he employed? 13 A. Texas A&M University. 14 Jeffrey Wilkinson in London, in London 15 Queens College in Imperial College in London. You have 16 at the University of Florida, Gus Palenik, who was a 17 professor of mine at the department of chemistry and, 18 you know, on and on. 19 Q. Are any of those persons involved directly 20 or indirectly in development of the Everglades SWIM 21 plan? 22 A. No, sir. 23 Q. Okay. 24 Are there any people that you know to be 25 involved in the development of the Everglades SWIM plan 25 1 that you would consider to be very knowledgeable in 2 either of those fields that I just mentioned? 3 A. Actually the people that I know are 4 involved with the SWIM plan work for the District in 5 different positions. And I don't know what they do for 6 the SWIM plan, or whatever, what their representative 7 assignments are in that respect. 8 Q. Okay. 9 Have you discussed the SWIM plan with any 10 of the scientists that are representing outside 11 interests, such as the agricultural community, 12 regarding the SWIM plan? 13 A. No, sir. 14 Q. Okay. 15 A. Not even within, anybody at the District. 16 Q. Do you have any knowledge as to the 17 identities of some of these scientists or their 18 professional positions? 19 A. No, sir. 20 Q. Okay. 21 I've been advised that the District 22 sometimes employs outside firms, private firms to 23 conduct water quality analyses on behalf of the 24 District. Is that a correct statement? 25 A. Up to this point I don't know of any firms 26 1 that have done water analysis for the District. 2 Q. Okay. 3 A. There are plans for that, but not up to 4 this point. 5 Q. Okay. 6 You said there are plans for that. Why 7 are there plans? 8 A. Overflow. 9 Q. Okay. 10 A. Of the current capacity. 11 Q. Do you have any idea of which of those -- 12 strike that. 13 Do you have any idea which firms you are 14 going to look to to perform that work, or is this more 15 or less a conceptual stage? 16 A. No, it's not a conceptual stage as such. 17 It was an open proposal request by the District. 18 Several people bid on that or send open proposals. And 19 three companies were selected. PBSJ was one. Toxikon 20 was the other, and the third one was Flowers 21 Laboratory. 22 Q. Okay. 23 Is PBSJ Post, Buckley, Schuh and Jernigan? 24 A. That's correct. 25 Q. Were you involved in that selection 27 1 process? 2 A. No, sir. 3 Q. Okay. 4 Who would have been the person or persons 5 at the District that would do that, to the best of your 6 knowledge? 7 A. You mean the selection? 8 Q. Yes. 9 A. It was a committee, as far as I recall, 10 that examined the proposals, I mean the response to the 11 proposals request. That was in 19 -- should have been 12 '90 or 1991. And the persons involved, at least some 13 person, I don't know all persons involved, but were 14 Mary Lou Daniels, Richard Pfeuffer, and I assume 15 somebody from procurement were people that I know were 16 involved. 17 Q. That's procurement? 18 A. Procurement. 19 Q. Okay. 20 Do you know whether this outside 21 consulting servicing is to be implemented any time 22 soon? 23 A. I would not call it a consulting service. 24 The service that is contracted is to test, conduct 25 analytical testing in case the number of tests or 28 1 samples sent to the lab overflows our work capacity. 2 Q. Okay. 3 A. So how soon, it depends when that point is 4 reached. 5 Now, that's with respect to -- I don't 6 want to -- I want to keep things very objective. 7 That's with respect to water quality samples, what I 8 just mentioned. 9 Q. Okay. 10 Is there some other testing that's 11 contemplated for other parameters? 12 A. The information you may have been 13 referring to was they were -- there are firms that have 14 conducted analysis for the District on organic 15 compounds, or say in other words, pesticides, 16 herbicides and fragments on test soils. 17 Q. Who might some of those firms be? 18 A. That -- the best person to ask about those 19 is Richard Pfeuffer. 20 Q. Okay. 21 How do you spell Mr. Pfeuffer's last name? 22 A. Good question. P F E F F E R, I think. 23 MR. FITZGERALD: Actually, it's 24 P F E U F F E R. 25 THE WITNESS: Good for you. Appreciate 29 1 it. 2 BY MR. HYDE: 3 Q. I'd glad I asked, because I've never seen 4 it spelled that way, so... 5 Do you know why the District has looked to 6 outside firms to perform this testing of organic 7 compounds? 8 A. Because we don't have an organic 9 laboratory in-house. 10 Q. Okay. 11 Is that the only reason, to your 12 knowledge? 13 A. As far as I know. 14 Q. Okay. 15 Prior -- I think at the beginning of our 16 deposition your counsel stated that you would be 17 offering expert testimony on -- in the areas of 18 inorganic chemistry and analytic chemical industry. Is 19 that -- 20 MS. CLEMENTS: No, no. I said he'd be 21 offering testimony as to water analysis, QA/QC 22 procedures as to water analysis. 23 MR. HYDE: I stand corrected. 24 BY MR. HYDE: 25 Q. The interrogatory answers that were 30 1 provided by the District identify you, as your general 2 area of expertise, as being chemistry, analytical 3 chemistry and environmental chemistry. 4 Do you intend to offer any expert 5 testimony in any other areas of expertise? 6 A. No, sir. 7 Q. Okay. 8 Differentiate for me, if you will, 9 chemistry from analytical chemistry. 10 A. Chemistry is -- when you're talking about 11 chemistry you're covering all different applications of 12 chemical concepts. That could go from the non-carbon 13 related, non-carbon containing materials to carbon 14 containing materials. 15 In other words, that's going from 16 inorganic to organic chemistry and analytical chemistry 17 is application of techniques to know in composition, 18 elemental composition or any other type of properties 19 that you want on those terms. 20 Q. And what is environmental chemistry? 21 A. Environmental chemistry is related to the 22 effect or the presence of any of these materials that 23 we mentioned before on the different aspects of the 24 environment. That could be atmospheric to water to 25 soils. 31 1 Q. Okay. 2 Can one obtain an undergraduate or 3 graduate degree in the area of, quote, analytical 4 chemistry? 5 A. Sure. 6 Q. What about environmental chemistry? 7 A. Sure. 8 Q. Do any of your degrees pertain to those 9 two fields? 10 A. No. 11 Q. Okay. 12 As clarified by your counsel, I believe 13 you're going to be offering some testimony, some 14 testimony as to the methodology to sample water for 15 nutrient concentration, concentration and QA/QC 16 procedures for water quality sampling; is that correct? 17 MS. CLEMENTS: Objection. That's not what 18 I said. He is not going to be testifying as to 19 sampling. There will be later experts as to 20 sampling. 21 MR. HYDE: Okay. 22 THE WITNESS: That's correct. 23 MS. CLEMENTS: He's going to testify as 24 only to the QA/QC procedures used for analyzing 25 water samples. 32 1 MR. HYDE: I'm sorry. 2 MS. CLEMENTS: That's quite all right. 3 BY MR. HYDE: 4 Q. Just for purposes of the record, what does 5 the phrase QA/QC mean? 6 A. Quality assurance/quality control. 7 Q. Okay. 8 Would you run down the basic opinions that 9 you intend to offer regarding that subject matter? 10 A. What do you mean by run down? 11 Q. Well, list for me what general opinions 12 you intend to offer in that regard. 13 A. My opinion is -- you want a summary of my 14 opinion concerning what? 15 Q. Well, I presume that you will be offering 16 some testimony as to -- some expert testimony as to 17 quality assurance/quality control procedures for water 18 quality sampling. 19 A. Right. 20 Q. And what I'm trying to do -- 21 MS. CLEMENTS: Excuse me. 22 MR. HYDE: Water quality analysis. 23 MS. CLEMENTS: (Shakes head up and down.) 24 BY MR. HYDE: 25 Q. I would just like to, you know, get a 33 1 general synopsis of what that testimony would be, and 2 then go into the specific facts or basis for your 3 opinions in that regard. I mean it may be something 4 very simple, such as the District employees do great 5 water quality sampling. 6 A. Okay. 7 I was missing what -- I knew you were 8 asking me my overall testimony, but I was missing to -- 9 in what respect you wanted that testimony to be; in 10 other words, concerning what is what I cannot 11 understand, your question in that respect. 12 Q. Well, concerning in preparation for this 13 upcoming hearing, what kind of testimony do you intend 14 to offer in this hearing? 15 A. It depends on the questions. If you 16 want -- if you are talking about the quality of the 17 work done by the chemistry lab of the District, is that 18 your question? 19 Q. Yes. Start out with that subject matter. 20 A. Well, I didn't know. I did not understand 21 your question. I would say that my testimony could be 22 summarized I consider our work and work done by the 23 chemistry lab of the District to be of good to 24 excellent quality. 25 Q. Okay. 34 1 Will you testify as to the actual analytic 2 procedures utilized by the District? 3 A. Yes, I could. 4 Q. Okay. 5 What are those analytical procedures? 6 A. Depends what tests you're talking about. 7 Q. Okay. 8 How long have you been employed by the 9 District? 10 A. Since 1987. 11 Q. Okay. 12 How far back can you testify or -- how far 13 back does your knowledge as to the QA/QC procedures of 14 the District go? 15 A. Okay. 16 Let's describe for 1987 up to now and then 17 from 1987 back. 18 Q. Okay. 19 A. From 1987 up to 1991, as supervisor, I 20 have to apply or be sure that my technicians or my 21 staff apply quality assurance plan, quality control 22 aspects of the plan. From 1987 back I was not there. 23 Q. Okay. 24 Did you review -- excuse me. 25 A. Go ahead. 35 1 Q. Did you review -- 2 A. Sorry. 3 Q. -- QA/QC plans that had been promulgated 4 by the District prior to that time? 5 MS. CLEMENTS: Prior to what time? 6 MR. HYDE: 1987. 7 THE WITNESS: Yes. I am aware there was a 8 genetic plan, generic plan approved by DER and 9 issued by the District in 1987, and another one 10 in 1990. 11 BY MR. HYDE: 12 Q. Okay. 13 A. And -- 14 Q. Okay. 15 A. Go ahead. 16 Q. Did you review the QA/QC plans during your 17 tenure with the District to -- prior to their adoption 18 to ensure their accuracy and acceptability? 19 A. No. That was not my responsibility. 20 Q. Okay. 21 Whose responsibility was that? 22 A. Quality assurance officer of the lab at 23 that time. 24 Q. Who was that person? 25 A. Leslie, Mrs. Leslie Teets, T E E T S. 36 1 Q. Okay. 2 Did you assist in the promulgation of 3 those QA/QC plans during that tenure since 1987? 4 A. Go ahead and explain your question. I 5 cannot understand. 6 Q. Did you assist the authors, drafters of 7 those plans -- 8 A. No, sir. 9 Q. -- in your responsibilities? 10 A. No, sir. 11 Q. Okay. 12 How do you know that the current plans 13 being utilized by the District staff are good, accurate 14 and acceptable plans? 15 A. Okay. 16 I participated in writing, or at least 17 co-authoring the present plan. We used the DER and 18 federal indications we expanded with from the previous 19 plans, and we have followed the quality of the data as 20 it's been generated. 21 Q. Okay. 22 What was the date of that current plan; do 23 you recall? 24 A. January '92. 25 Q. All right. 37 1 I'd like to show you a document, which I'm 2 not going to attach because of its thickness, but it's 3 dated, or it's styled Generic Quality Assurance Plan, 4 July 1987. 5 And on its face it appears to be the 6 document that you're referring to. Could you identify 7 that and see whether it is the document you were 8 referring -- you were just referring to? 9 MS. CLEMENTS: I believe he was 10 referring to 1992 plan, this is the 1987 plan. 11 THE WITNESS: Yes, this is. 12 BY MR. HYDE: 13 Q. I'm sorry, I gave you the wrong one. 14 A. Yes. This is one of those I told you 15 about. 16 Q. I'm sorry, I'll get back to that in a 17 minute. I'm sorry. I gave you the wrong one. 18 A. Okay. 19 Yes, I think this is it. Yes, sir, this 20 is it. 21 Q. Okay. Thank you. 22 And this is the plan that you were 23 involved in the drafting of? 24 A. Yes. 25 Q. Okay. 38 1 Who were some other persons who assisted 2 you in that effort? 3 A. Okay. 4 That plan started being drafted by Mary 5 Lou Daniels and Leslie Teets before they left the 6 District. Then they, David Struve and myself, you 7 know, have to get it and ready in shape to pass the DER 8 approval. 9 Q. Okay. 10 Why did one -- or why did the District 11 develop this 1992 comprehensive quality assurance plan? 12 A. To go over, to put together in a single 13 document all the procedures involved from sample 14 collection to sample testing. 15 Q. Okay. 16 By whom has this plan been reviewed to 17 assure its integrity, accuracy and acceptability? 18 A. Florida Department of Environmental 19 Regulation has to approve. I think that the quality 20 assurance officer for the Florida Department of 21 Environmental Regulation. 22 Q. And what is the identity of that person? 23 A. Sylvia Labie. 24 Q. Labie? 25 MR. FITZGERALD: L A B I E. 39 1 BY MR. HYDE: 2 Q. Okay. Good. 3 A. That's correct. 4 Q. Do you know whether it was reviewed by any 5 other entity or organization? 6 A. (Shakes head side to side.) 7 Q. Okay. 8 Why do you submit it to DER for their 9 review? 10 A. It's a requirement for the plan to be 11 approved and validated. 12 Q. Okay. 13 Is that a requirement of state law, to 14 your knowledge? 15 A. Yes, sir. 16 Q. Okay. 17 Is that requirement found in Chapter 403 18 or Chapter 373, Florida Statutes? 19 A. That I cannot answer. 20 Q. Okay. 21 But it is your understanding that it is a 22 requirement of Florida law? 23 A. That's correct. 24 Q. Okay. 25 How do you ensure, as a supervisor, that 40 1 the methodologies set forth in the Comprehensive 2 Quality Assurance Plan of January 1992 are actually 3 implemented on a day-to-day basis? 4 A. Okay. 5 The supervisors, we have two supervisors 6 in the lab and there's a series of control solutions 7 that technicians or analysts have to use to ensure that 8 their measurements are reliable. Then they have to 9 report those results to their supervisors and they 10 compare the spectral results of those control solutions 11 with, you know, a previously defined acceptability 12 range. And if those results are within those ranges, 13 the measurements are accepted. 14 Q. You mentioned the term acceptability 15 ranges. What do you mean by that? 16 A. Okay. 17 There are, for those solutions that we are 18 talking about, there are expected values, or we call, 19 quote, unquote, true, true values. And they are 20 deviations from those true values, plus or minus 21 deviations that define with, up to a certain extent 22 based on standard deviations the range of 23 acceptability, and that, if parallel with that, this is 24 the acceptability range that you ascribe to that 25 measurement. 41 1 Q. Okay. 2 Is that, in effect, an acknowledgment that 3 there is some variability in scientific analysis of 4 this sort, such that one can't be absolutely precise in 5 each and every regard? 6 A. Absolutely precise, you mean that by 7 precision, you mean that you always obtain the same 8 value? 9 Q. Right. 10 A. Well, that's logically not, you know, not 11 very possible. 12 Q. Okay. 13 Do these acceptability ranges vary by 14 constituents or by testing methodology? 15 A. The ranges themselves numerically, it's 16 absolute value, yes, because it depends on the standard 17 deviation for that test. But what we have in 18 comparison it will not vary because we are taking plus 19 or minus to an extent standard deviation from true 20 value for most of the testing that we conduct. 21 Q. Do you look to some recognized text or 22 guidelines for determining those absolute values and 23 acceptability ranges? 24 A. Sure. 25 Q. Okay. 42 1 A. I myself was not involved in how it was 2 done in 1987, from '87 to 1990, but there are quality 3 assurance tests that are -- I follow, that are followed 4 to the letter. 5 Q. Okay. 6 Can you identify some of those tests? 7 A. Um-hum. It's a test done by Professor 8 Taylor for quality assurance measurement that, you 9 know, we have followed. 10 Q. And what -- do you know where Professor 11 Taylor is employed? 12 A. No, I don't know. I think it-- he is of 13 the -- of the book with the National Bureau Office of 14 Standards, or something like that. 15 Q. Well, there is a published text, I guess? 16 A. Yes. Yes. 17 Q. Do you recall the title of that text? 18 A. No. 19 Q. Okay. 20 Are there any other texts that you might 21 look to in that regard? 22 A. I -- we have, you know, several quality 23 assurance tests in the lab. 24 Q. Could you give me a couple more ideas of 25 those books if you -- 43 1 A. I don't remember. 2 Q. -- could, titles or authors? 3 A. I don't remember. No, sir. 4 Q. Okay. 5 Are the control solutions submitted to the 6 analysts as blind samples? 7 A. It depends. The QC, quality control 8 solution, not what we call spikes, no. But the 9 performance samples from independent institutions, yes. 10 Q. What is a spike? 11 A. It's a -- it's a sample that is prepared 12 by adding known concentrations to a previous sample, to 13 a sample that is in that batch. And it's 14 representative of the matrix in the batch. 15 Q. Why would one do that, for what purpose? 16 A. To be sure that your results are accurate, 17 that they reflect exactly the value of the analyzed 18 statistic. 19 Q. And I believe you mentioned that spikes 20 and quality control tests are not submitted to the -- 21 as blind samples; isn't that correct? 22 A. That's correct. 23 Q. Why do you not submit them as blind 24 samples? 25 A. Because you want the analyst, when he's 44 1 generating the measurement, to have a way to gauge the 2 quality of the measurement before accepting it. 3 Q. Okay. 4 And is that why the other categories are 5 submitted as blind samples to test and compare? 6 A. The other category is an external check, 7 in addition to all internal in-house checks. 8 Q. Okay. 9 What do you, or more generally, what does 10 the District do to keep or maintain reports on its 11 QA/QC performance? 12 A. Okay. 13 We have -- let's go back to the simple way 14 and then we'll elaborate. 15 There are quality control charts that are 16 kept on the -- for the correct water on the District on 17 the laboratory hallways where the technicians are 18 coming and reporting on a daily basis. There is 19 results that they generate for those quality control 20 samples, understanding by that the spikes and all that, 21 plus the QC's. Then that is reviewed by the 22 supervisor, as I said before, by the quality assurance 23 officer, and those are compiled at the end of the 24 quarter in that quality assurance quarterly report and 25 those are kept in the files. 45 1 Q. Okay. 2 How long are those files maintained? 3 A. At the laboratory we have it up to -- it 4 depends on the storage capacity that we have. And we 5 are getting pretty full, to tell you the truth, and we 6 maintain it at least several years back. And then 7 after that they go to the storage section of the 8 District. And they are stored there, I would say they 9 store it for several years. Exactly, I don't know. I 10 cannot mention. 11 Q. To your knowledge, are those records at 12 some point destroyed or disposed of? 13 A. I am not involved in that, no. 14 Q. How many persons, technical persons work 15 under your employ in the -- as lab technicians, or sort 16 of persons who do this kind of testing? 17 A. Okay. The laboratory staff, is that the 18 question? 19 Q. Yes. I'm excluding from that clerical or 20 secretarial -- 21 A. Okay. 22 The -- 23 Q. -- persons. 24 A. Okay. 25 We have the laboratory, the division 46 1 director. Then you have the supervising professional. 2 At this moment that's the position I have. As I told 3 you before, there is two laboratory supervisors, and 4 each of those supervisors may have four to five people 5 each at different levels, from analysts to entry 6 technician. And then there is quality assurance group. 7 Q. Okay. 8 A. Quality assurance group is, of course, 9 headed by a quality assurance officer. 10 Q. Okay. 11 Who are your two lab supervisors at this 12 time? 13 A. Now? 14 Q. Yes. 15 A. David Struve and a new person we're 16 hiring. 17 Q. Okay. 18 A. Because Dr. Donovan transferred, as I 19 mentioned before. 20 Q. Okay. 21 And you mention there's a quality 22 assurance group. Who's the head of that program? 23 A. That is at this moment Mary Loucraft 24 Manzano. 25 Q. Can you spell Mary's last name, please? 47 1 A. Yes. The middle name is Loucraft, 2 L O U C R A F T. And the last name is M A N Z A N O. 3 Q. Okay. 4 What are the other bases or foundations 5 for your opinion that the lab does good to excellent 6 quality work? 7 A. Yes. First, as I said, how the 8 technicians or analysts, the results that they generate 9 for the controls solutions and how we follow them, but 10 perhaps -- and that's the in-house way. But perhaps 11 more objectively is the overall grading of the 12 laboratory results in the case of total phosphorus, for 13 instance, on the basis of round-robin or independent 14 performance testing conducted by other organizations. 15 Q. Are there any other basic reasons to 16 support that overall opinion that good, excellent 17 quality work is done? 18 A. Well, as I said it's the -- as you may 19 call it an in-house reason, that up to some point you 20 may even think is subjective, but I think -- I believe 21 is objective, because numbers are objective, and that 22 concerns me, as I stated before, of how the results 23 technicians accept perform with the established quality 24 assurance acceptable measurements. But there is even a 25 more objective measurement that I base my statement on, 48 1 and it is the results that the District laboratory has 2 generated concerning samples of a known concentration 3 submitted by outside organizations. 4 Q. Okay. 5 Would you describe those independent 6 performance tests that you referred to just a moment 7 ago? What are they? 8 A. Yes. There are several performance 9 evaluation programs that the chemistry lab of the 10 District has participated or is participating, 11 rather -- that's my English. And one of them is the 12 EPA. I think I have it here somewhere, defined 13 results, if you want to see it. I don't know if you 14 have this or not. 15 Q. Let's see. 16 A. But if you don't have it, you're welcome 17 to see it because this -- 18 MS. CLEMENTS: He does. 19 THE WITNESS: Oh, he does. 20 BY MR. HYDE: 21 Q. Let me just see if you could identify this 22 document for me, then let's -- why don't we just make 23 this No. 2. 24 (Thereupon, the document was marked 25 Vidal's Exb. No. 2 for Identification.) 49 1 BY MR. HYDE: 2 Q. I'm going to hand to you a document 3 labeled Exhibit 2. It's a memorandum through Leslie A. 4 Wedderburn to Thomas Fontaine, et al., regarding search 5 for changes in TPO4 testing operations for 1972-1992 6 and potential effects on data quality. Is that the 7 document you were just referring to? 8 A. Yes, sir. 9 Q. Okay. 10 What was the -- your purpose in 11 promulgating that document? 12 A. Okay. 13 I was asked by Dr. Fontaine to review the 14 results that the District had generated concerning 15 total phosphorus testing from 1972 to the time I wrote 16 it in January '92, or something like that. 17 Q. Okay. 18 Maybe I could get that back and you can 19 refer to your own copy at this point. 20 A. Okay. Fine. 21 Q. Down toward the bottom of the first page 22 there is the statement: 23 "Our overall conclusion has been: One, it 24 has not been possible to identify any 25 adverse effect of operational changes on 50 1 data quality." 2 A. Correct. 3 Q. How did you arrive at that conclusion? 4 A. Very simple. I first evaluated all the 5 changes that we have had on different aspects of TPO4 6 testing as summarized on that chart in the last page of 7 that document. 8 Q. Okay. 9 A. And then to -- to determine whether it was 10 any adverse affect from any of those changes, of 11 course, we have the in-house program I referred about 12 before. But more objectively, I look at the results 13 from two different performance evaluation programs. 14 Q. Which? 15 A. On table two and table three. At least 16 that's table two and three. One of them on table two 17 is the EPA -- the USGS December performance evaluation 18 program and the District joined in this, as far as I 19 could determine, remember I came in '87, I'm checking 20 back, these are in 1979, and the other is the EPA 21 certification program. And the District started, as 22 far as I could determine, into this program in 1987. 23 Q. Okay. 24 What does TPO4 stand for? 25 A. Total phosphorus. 51 1 Q. Okay. 2 Let me refer you now to table one. 3 A. Table one. 4 Q. Of Exhibit 2. The title of that page is 5 detection limits accepted into LIMS, L I M S, for TPO4. 6 What does that LIMS stand for? 7 A. Laboratory information management system. 8 That's the computer. 9 Q. Okay. 10 The upper left hand corner of that table 11 or chart on that page, there's the phrase detection 12 limit. What does that refer to? 13 A. It's the metal, the detection limit for 14 the total phosphorus metal that we have been using. 15 Q. Does that mean in what minimum quantities 16 that can be detected by existing technology? 17 A. Yes. That's correct. I'm sorry. 18 Q. What is the technology that is employed by 19 the District to ensure or not ensure, but to reflect 20 that detection limit? 21 A. You mean how detection limits is 22 determined? 23 Q. Yes. 24 A. We apply the total Federal Regulation No. 25 40, chapter one, and we follow the procedure there 52 1 which says that you take a solution that is about five 2 times the previous, with respect to detection limits 3 that you know from previous experience. Then you test 4 it several times, determine just under standard 5 deviation and multiply it by a factor that is ascribed 6 some confidence level or that is described. 7 Q. Do you employ some given instrumentation 8 to -- 9 A. Sure. 10 Q. -- to perform these tests? 11 A. Yes, sir. 12 Q. And what is that instrumentation? 13 A. Currently it is -- well, it always has 14 been flow analyzers in 1987, which by always, I mean 15 since 1979, let's qualify that. That is what I 16 researched it back. In 1987 we obtained what is called 17 a rapid flow analyzer and new type of instrumentation. 18 And before that we were analyzing with a technical flow 19 analyzer. 20 Q. Okay. 21 Do you recall the new technology in 1987 22 to be a better technology as compared with what was 23 employed before that time? 24 A. It's a -- it's a newer instrument, faster, 25 and more stable output. Yes, I think so. 53 1 Q. Okay. 2 Does it yield better results or just more 3 quick results? 4 A. No. I think the results, quality would be 5 the same. 6 Q. Okay. 7 A. You know, perhaps the instrument is more 8 amenable to the technicians to work with. 9 Q. Okay. 10 The detection -- detection limit that you 11 have on table one of Exhibit 2 of 0.002 appears to me 12 to be an extremely low detection limit. 13 A. Yes, it is. 14 Q. How did you arrive at that detection 15 limit? 16 A. Again, that detection limit, I don't know 17 how it was arrived to, the date, but it's -- the date 18 precedes my employment at the District. 19 Q. Okay. 20 Do you have any idea when it came into -- 21 into play, or was accepted by the District as the 22 detection limit? 23 A. I have no idea. 24 Q. Okay. 25 Is it something that's reflected in just 54 1 what existing technology can detect or is it some other 2 marker there? 3 A. No. I would say the four, you know, the 4 four parts per billion is reflecting very well for our 5 day-to-day detection limits. 6 Q. Okay. 7 A. I would put it this way for you though, if 8 you look back on the table on the last chart there -- 9 Q. Which table are you referring to? 10 A. The -- 11 MS. CLEMENTS: Last page. 12 BY MR. HYDE: 13 Q. Last page? 14 A. The last page. What I summarized for you 15 now is all changes -- and to use this, you have, in 16 some points of the 1980's, before the introduction of 17 the named system, say '84 and back, they were using 18 some manual calculation, and you see where I -- where 19 you found the detection limit of 0.002 being introduced 20 in the system, that was 1982. 21 Q. Okay. 22 A. Do you see it there? 23 Q. Um-hum. 24 A. Okay. 25 Q. So to the best of your knowledge that's 55 1 when that detection limit was first, I guess, 2 prescribed, for lack of a better term? 3 A. That's when I found it. What I made -- 4 did to find that, is I conducted a search in the LIMS 5 system looking for the detection limits, and that 6 actually, if you look at it, was from November '81 up. 7 Q. Are you referring now to table one again? 8 A. Yes. Well, that's what we are talking 9 about. 10 Q. Okay. 11 Do you personally regard .002 as being a 12 reliable detection limit? 13 A. No. 14 Q. Okay. 15 Why not? 16 A. Because I believe the position of 17 measurement there would be, you know, difficult to 18 substantiate. 19 Q. Okay. 20 Why do you suppose it's being utilized? 21 A. I don't know if it's being utilized, but I 22 found it in the LIMS system in my search. 23 Q. Okay. 24 So you were just relying on what you 25 found? 56 1 A. No, it's not relying. This is no more 2 than a summary of what I found there. 3 Q. Okay. 4 What, to your way of thinking, would be a 5 more reliable detection limit? 6 A. I believe the four parts per billion is a 7 reliable. 8 Q. Four parts per billion. Okay. 9 A. Usually. 10 Q. Do you -- 11 A. I'm sorry. 12 Q. Okay. 13 Do you use any special detection 14 techniques to get that detection limit below ten parts 15 per billion? 16 A. Below ten parts per billion, no. We 17 follow the established procedure as is described in the 18 standard methods, and we determine, as I said before, 19 the detection limit following the CFR regulations. 20 Q. Okay. 21 If you're dealing with a concentration 22 that is a very low concentration of phosphorus, say 23 below ten parts per billion, how do you have any 24 confidence in that result or in that testing 25 methodology? 57 1 A. Well, obviously the confidence there would 2 be lower than we presently have with the one you 3 ascribe to higher concentration, but the -- I believe 4 that we have the methods, practical quantification 5 limit, that in our case ascribes the 95 percent 6 confidence level at eight parts per billion. 7 Q. Okay. 8 Why did the District feel a need to 9 develop a quality assurance/quality control plan in 10 this regard? 11 The reason I ask that question -- just 12 this may give you a little bit more background for your 13 answer -- is that, as a lawyer, I'm somewhat surprised 14 there aren't already established QA/QC programs in that 15 regard. Am I mistaken in making that decision? 16 A. What do you mean? I don't know what 17 you -- can you elaborate a bit more to me to understand 18 the question? 19 Q. Well, let me rephrase it. 20 A. Let me answer it this way. Since I came 21 in 1987 we have -- I saw a quality assurance program 22 there. 23 Q. I guess my question is really related more 24 to my surprise, for lack of a better term, that there 25 aren't in effect standard QA/QC programs for this kind 58 1 of testing that the District wouldn't have to develop 2 its own independent QA/QC program. 3 A. Every laboratory develops the quality 4 assurance program, you know, adapted to what the 5 laboratory is doing, because not all laboratories do 6 the same type of work. 7 Q. Okay. 8 A. Now, the effort of our programs, as such, 9 was developed to guarantee that we are taking in 10 account all scientific, and you know, state and federal 11 requirements in that. 12 Q. Okay. 13 Did you compare your QA/QC programs to 14 other programs with which you might be familiar or be 15 aware of? 16 A. No, not that I know of. 17 Q. Okay. 18 A. We submitted to the DER for approval, and 19 they approved it. 20 Q. Okay. 21 A. And we have used it to analyze the 22 performance samples and we have obtained very good 23 results on them with the District laboratory as far as 24 TPO4, that is what we're looking at, total phosphorus 25 testing, getting a rating of good to excellent over -- 59 1 since 1979 up to 1991, on the EPA certification getting 2 a rating of good to excellent since 1987 to 1992. 3 Q. Which documents were you referring to -- 4 A. Same. 5 Q. -- in making that testimony? 6 A. The same document. 7 Q. And which page of that document? 8 A. Table two and three. 9 Q. Okay. 10 Let me refer now to table three. 11 A. Three? 12 Q. Yes. 13 A. Okay. 14 Q. Just so I can understand how this table 15 works. 16 A. Okay. 17 Q. It's labeled at the top as being a, quote, 18 certification, end quote. 19 A. Um-hum. 20 Q. Round-robin results. 21 A. Sure. 22 Q. What does that mean? 23 A. The round-robin program is used in 24 different industries in the water testing, testing 25 soil. Soil quality, for instance, it was very 60 1 important too. It was a series of a known and sent by 2 somebody to the participating laboratories, people 3 analyzed it, reported back the results. You analyzed 4 with your regular technique, you know, that technique 5 that you usually apply and then they get, gather all 6 the results, apply statistic means and generate a -- 7 defined a true value determined -- just determined a 8 statistic and determined the true value. And from 9 there they go and define the standard deviations that 10 apply to the different individuals' contributions to 11 the material to determine the rating, depending upon 12 how far you are from that true value. 13 Q. Okay. 14 Let me just take that table three from 15 left to right. The first column is year. Is that the 16 year in which the test is done? 17 A. Yes, sir. 18 Q. And the next column is month. I take it 19 that is that the month in which the test was done? 20 A. That's correct, sir. 21 Q. Okay. 22 The next column is sample and the numbers 23 underneath sample are all threes and fours? 24 A. That's what they sent to us. 25 Q. Is that the number of samples? 61 1 A. No. They send two samples twice a year. 2 Q. Okay. 3 Then how -- then why the numbers 4 underneath there, three and four? 5 A. I don't know. I am not doing those 6 numbers, they send it to us. 7 Q. Okay. 8 The next composite column has two parts to 9 it. At the top it says TPO4 results. I guess that's 10 milligrams per liter? 11 A. It's milligrams of phosphorus per liter. 12 Q. Okay. 13 And the first column underneath, subcolumn 14 is SFWMD. What does that column reflect? 15 A. South Florida Water Management District, 16 that's the results that we generated. 17 Q. Okay. 18 So for the -- let's see, November 1987 19 sample under South Florida Water Management District, 20 the number is 0.298. What does that reflect? 21 A. That's the answer that we got for that 22 sample. 23 Q. Okay. 24 A. Concentration of phosphorus that was 25 reported on that sample. 62 1 Q. Can you restate that term there in parts 2 per billion for me? 3 A. 298. 4 Q. Okay. 5 A. And then just below it there's the number 6 2.04? 7 A. Right. 8 Q. How does that translate to parts per 9 million? 10 A. 2,040. 11 Q. Okay. 12 Now, the next column or subcolumn under 13 TPO4 results, milligrams of phosphorus per liter is 14 true value again. What does true value reflect? 15 A. That number that's determined by an 16 independent institution, a basis of results recorded by 17 all the contributors to this specific case. 18 Q. The true value for the November 1987 19 category was 0.298 -- is 0.300, correct? 20 A. That's correct, sir. 21 Q. That strikes me as simply being a, quote, 22 rounding off to the nearest ten. 23 A. That's reported to us by them, I didn't do 24 the rounded off. 25 Q. Okay. 63 1 A. They gave all values and true values are 2 then from what they gave us. 3 Q. Okay. 4 And what do these true values come from 5 again? 6 A. The EPA sends us back a certificate, I 7 mean a form, a report telling us, you know, your 8 results, the true values that they determined on the 9 basis of the results for each other contributor. 10 Q. Okay. 11 The next column is called, quote, 12 acceptable range, end quote. What is that? 13 A. It's defined by them. That means that the 14 value, if your value is within that range your 15 measurements is acceptable. 16 Q. Okay. 17 When you said defined by them, did you 18 mean the EPA? 19 A. Yeah. By the group conducting a 20 round-robin sample. 21 Q. Okay. 22 A. Could in some cases be the EPA, in some 23 cases, on the previous table, USGS. 24 Q. For the November 1987 sample the 25 acceptable range is 0.226 to 0.394. Yet the other 64 1 acceptable range below that appears to differ quite a 2 bit from that. How can you explain that? 3 A. It would vary with the standard deviation 4 if they apply that criteria and for the -- all the 5 other results. I have no idea at this point. I just 6 took -- 7 Q. What would you check to determine the 8 answer to that? 9 A. It's in the report. 10 Q. Okay. 11 A. I mean they will give a criteria that they 12 follow, the statistical criteria that they follow, and 13 tell you, as I said it, they determined standard 14 deviation from the measurement and they apply it to 15 other measurements. 16 Q. Again, this EPA report? 17 A. Yes, sir. 18 Q. Okay. 19 And then final column is percent 20 deviation? 21 A. Correct, sir. 22 Q. Again, what does percentage deviation 23 mean? 24 A. I calculate that myself. That's my number 25 there. 65 1 Q. Okay. 2 A. And I calculate that taking the absolute 3 difference between the true value and our value and 4 dividing by true value and multiplying by 100. So 5 that's all. So that if you want, the number's done by 6 myself. 7 Q. Did you encounter any round-robin results 8 for very low -- by that I mean less than 0.020 9 milligrams per liter? 10 A. 0.020. 11 Q. Yeah, of phosphorus samples? 12 A. I reported for you here on this table all 13 the values I found in this specific round-robin. 14 Q. Okay. 15 Well, did you encounter any results that 16 would reflect those extremely low phosphorus 17 conditions? 18 A. No. This specific table? 19 Q. Yes. 20 A. Not that I remember. 21 Q. Okay. 22 A. Not that I remember. 23 Q. What about any other round-robin results? 24 Did you ever encounter those extremely low values for 25 phosphorus samples? 66 1 A. I have a table here that you don't have in 2 that report. That is another round-robin program, the 3 USGS, and this, again, we have a rating of three and 4 four. And I tried to look back and I got up to June 5 '91 there, and again the values are higher. No, I 6 don't have that. 7 Q. Okay. 8 Let me take a look at that. 9 A. So that doesn't, you know, answer your 10 question there. No, that doesn't answer the question 11 you're asking. 12 Q. This document you just handed to me is 13 labeled at the top table ten, USGS, and then Ocala in 14 parentheses. 15 A. Yes, because actually I was checking out 16 the data, you know, out that data recently, and it's 17 another round-robin -- 18 Q. Okay. 19 A. -- effort. That's all that it is. 20 Q. Okay. 21 I'd like you to refer now to table four -- 22 A. Four? 23 Q. -- of Exhibit 2. 24 (Thereupon, a discussion was held off the 25 record.) 67 1 BY MR. HYDE: 2 Q. Table four, can you explain to me what 3 that table represents? 4 A. Yeah. What I did is again, for the 5 purpose of this request, that you were requesting me 6 before -- 7 Q. Um-hum. 8 A. -- to this document. I went back and I 9 examined the tables that I mentioned before that we put 10 in the hallways to control the quality assurance 11 reports and so forth and results, and for the control 12 solutions that you see there, it's QC1, QC2, the 13 spikes, or standard additions and all were this percent 14 of our dispersion of our data on the -- on the -- this 15 column here, on the repeat column. 16 Q. That column that states RPT and then 17 percentage sign CV? 18 A. Correct, sir. 19 Q. What -- explain to me what that means. 20 A. It's no more than the -- a column that 21 summarizes our -- the precision of our measurement over 22 that year. 23 Q. Okay. 24 A. For TPO4. 25 Q. For the year 1982? 68 1 A. 1982. 2 Q. Okay. Yes. 3 A. Okay. 4 Q. In this table four the repeat percentage 5 CV is? 6 A. Minus ten percent, lower than ten percent. 7 Q. What does that mean? 8 A. It means that the limit of acceptability 9 for the coefficient of values during that year was ten 10 percent, so values that are ten or lower means that our 11 measurement for that specific batch of sample was an 12 acceptable. 13 Q. Okay. 14 If it was higher than ten, though, it 15 would be considered unacceptable? 16 A. That's correct. 17 Q. So the 1983 sample would be incorrect? 18 A. That -- no. That varies, and it's defined 19 on that basis by the quality assurance officer from 20 year for year. 21 Q. Okay. 22 A. And again, I was not there during 1987, 23 before '87. 24 Q. Okay. 25 I note that for the years 1984 through 69 1 1987 on table four there is no information and yet 2 there is a repeat percentage CV. 3 A. Right. Good point. I could find out some 4 information for those repeats at this table. I didn't 5 find the -- the acceptability ranges for QC1 and QC2 on 6 these spikes. 7 Q. Okay. 8 And for the years 1988, 1989 and 1990, 9 there is no repeat percentage CV? 10 A. No. What that means is that they didn't 11 vary. It's lower than ten percent. 12 Q. Lower than ten percent? 13 A. Instead of repeating numbers, I left that 14 out. 15 Q. Okay. 16 That's a good result, is that correct? 17 A. Lower than ten percent. 18 Q. Okay. 19 A. And the same thing at the bottom, I am 20 missing the sign here at the bottom of that table. 21 Q. When you spike a sample, what is the 22 desired spike level relative to the actual sample 23 concentration? 24 A. To assess your accuracy to measurement to 25 be able to tell that you have detected all phosphorus 70 1 that are present there. 2 Q. Okay. 3 Do you have a number in mind? Is there -- 4 can you put a number to that general answer? 5 A. Well, you try to be close to the -- the 6 center of your calibration line, if you can. 7 Q. Let me ask the question a slightly 8 different way. Let's say the sample is ten parts per 9 billion. What would be a desired spike level for a 10 concentration in that area? 11 A. We don't do it that way. 12 Q. Okay. 13 Why not? 14 A. Because that's not a procedure that we 15 have. 16 Q. Okay. 17 What would the procedure be? 18 A. We take five samples and test it before 19 starting the analysis to select a sample that is not 20 either very low or very high, because it will 21 invalidate the procedure of the measurement. It will 22 defeat the purpose what standard addition is for spike 23 is. 24 Q. The last page of Exhibit 2, at least my 25 Exhibit 2 is a -- well, could you explain for me what 71 1 that page represents? 2 A. It's a tough, tough chart. Okay. Okay. 3 What I did there is I tried to summarize 4 from left to right in a chronological order all the 5 changes that I could detect or that I could find, a 6 historical search for the different factors described 7 on the left, over the X axis if you want a vertical 8 axis there. 9 Q. Does this all refer to testing for total 10 phosphorus? 11 A. Yes. Yes. I'm sorry. That's the whole 12 thrust of the paper. 13 Q. Okay. 14 Look at the left-hand column, the first 15 listing there is instrument. Is that the technology 16 employed? 17 A. Yeah. 18 Q. Okay. 19 So if you go across from the word 20 instrument you're going to see the technology employed 21 over the years? 22 A. That's correct. 23 Q. Okay. 24 A. That's correct, sir. 25 Q. Now, the next listing there is method, and 72 1 the first listing for method is EPA 365, is it point 2 one? 3 A. 365.1 modified by strand metal, 4500 F. 4 Q. Okay. 5 Is that -- what does that method reflect? 6 Identify that method for me. 7 A. Ascorbic acid total phosphorus method, you 8 can define the term generically if you want to. 9 Q. As you go chronologically across that 10 chart you see different methods employed; is that 11 correct? 12 A. No, no. Those are different aspects that 13 were changed, including previous ones, as far as I 14 could detect it. 15 Q. Okay. 16 A. That doesn't mean essentially those not -- 17 did not include all, because I didn't find essential 18 changes in the method. 19 Q. Okay. 20 The next listing is detection limit 21 milligrams per liter? And I see the first listing 22 there is approximately 1982, it says manual calculation 23 0.002. 24 A. That's the one that you asked me before on 25 table one that I referred to this table. 73 1 Q. Okay. 2 Why did the manual calculation change to 3 0.004? 4 A. I cannot answer that. 5 Q. Okay. 6 The next listing on the left-hand column 7 of that page is operator? 8 A. Correct. 9 Q. What does that mean? 10 A. That means the person that was doing the 11 analysis at that time, as best as I could tell. 12 Q. Do the little boxes with initials in them 13 or letters in them refer to person's initials? 14 A. That's correct. 15 Q. Who is H.A., to your knowledge? 16 A. Yeah. You want the name? 17 Q. Yes. 18 A. Henry Alexander. 19 Q. L.P? 20 A. Lori Perkowski. 21 Q. And C P? 22 A. Charles Scott. 23 Q. And then M L M. 24 A. Mary LouCraft Manzano. 25 Q. And there's C S again. 74 1 A. Charles Scott. 2 Q. And H A again? 3 A. Again. 4 Q. Okay. 5 Are all of these people still in the 6 employment of the District? 7 A. Yes. 8 Q. Okay. 9 And what are their positions? 10 A. Okay. 11 Mary Lou Craft Manzano is a work quality, 12 quality assurance officer. Charles Scott, Henry 13 Alexander and Lori Perkowski are senior lab techs. 14 Charles Scott is a laboratory analyst. 15 Q. Okay. 16 The next listing in the left-hand column 17 is USGS per table two. Now, what does this listing 18 reflect? 19 A. I love it because I don't remember what 20 the percentages I put there are. So I mean I was 21 looking at it, I want to tell you I don't remember. 22 Q. Okay. 23 A. You know what it could be, we have to -- 24 let's go to table two. 25 Q. Okay. 75 1 A. See if I can find I was looking at -- I 2 knew you were coming down the table. And let's see 3 what I can find. Okay. 4 Yes. What those numbers, those 5 percentages there means is that for that round-robin 6 program described on table two, on that specific date I 7 found at least one, in one case and in '81 two samples 8 and so on that had a deviation that was higher than 9 what I feel all the others were. So it's an unusually 10 characteristically result, put it that way. Do you 11 follow me there? 12 Q. No, I don't. Maybe you could run -- 13 A. Let me help you with this. 14 Q. Okay. 15 A. The -- what you have is, because I know 16 you can follow it, because it caused me time to figure 17 it out, what I have done is presenting in graphic form 18 these results. 19 Q. Okay. 20 So -- 21 A. By describing here that on 12-79 that is 22 one sample for that round-robin program that had a 23 deviation defined, as I defined it before, of 40.8 and 24 I don't believe I liked that result. Here I found two, 25 and so on. Do you follow me? 76 1 Q. Yes. So let me just take across there in 2 the first box to the right of the USGS listing it's 3 minus 40.8 percent so that just refers to one sample? 4 A. Correct. 5 Q. Now, the second box is similar. The third 6 box has two listings, one that's ten point -- minus 7 10.6 percent and the second is 10.9 percent. 8 A. That's correct. 9 Q. That reflects two separate samples? 10 A. Two samples. 11 Q. One above and one below; is that correct? 12 A. (No response.) 13 Q. Well, one is a minus ten, other is ten? 14 A. Well, I could have to look. No. Actually 15 both are the minus sign, so I should have put a minus 16 there of ten points. So that should be a minus. 17 Q. Okay. 18 Now, the next listing there is EPA per 19 table three? 20 A. Um-hum. 21 Q. What does that intend to refer to? 22 A. Same thing. 23 Q. Okay. 24 A. Same value. Same criteria. 25 Q. Okay. 77 1 And the next listing is QA program per 2 table four acceptability ranges? 3 A. Yeah. Well, what I did, I summarized what 4 is in table A in graphic form. That's all. 5 Q. Okay. 6 And then the next listing is QC1. What 7 are you referring to there? 8 A. The -- one of the solutions of the -- of 9 the quality control solutions, QC2 is the other. 10 Q. Okay. 11 A. Lower and high you can call it too, if you 12 want, high and low. 13 Q. Okay. 14 Is that referring to table four? 15 A. Yeah. 16 Q. Okay. 17 Then below that, that is spikes followed 18 by a percentage sign. 19 A. Correct. 20 Q. Which table is that referring to? 21 A. It's also from table -- from table four. 22 Q. And the final listing is CV percentage 23 sign? 24 A. Yes. 25 Q. Again, table four? 78 1 A. Table four, that's the repeats column 2 there. 3 Q. Repeats column. Okay. 4 A. And again -- okay. Go ahead. I'm sorry. 5 (Thereupon, a discussion was held off the 6 record.) 7 BY MR. HYDE: 8 Q. Going back to the USGS per table two 9 listing. 10 A. Um-hum. 11 Q. On that page. 12 A. Go ahead. 13 Q. Most of the values there are significantly 14 negative. Does that perhaps -- does that -- do you 15 understand what I mean when I say that? 16 A. Yes. You said that most of the values are 17 negative. 18 Q. Yes. 19 A. What do you mean? 20 Q. Well, most significant deviations are 21 negative, does that perhaps reflect a negative bias in 22 the analysis? 23 A. Actually, there are a lot of positive 24 values, and it -- if we look at it, I am going to count 25 it. I have three, five, six, seven, eight, nine, ten, 79 1 eleven, twelve, thirteen, fourteen, fifteen, sixteen 2 and seventeen, out of 48 values. So that's close to 3 40, 45, you know, 50 percent, would consider that to be 4 significant because it's 50 percent. 5 Q. Which document are you referring to when 6 you did that calculation? 7 A. I counted on table two. 8 Q. Okay. 9 A. I went under the percentage deviation 10 column and I found the number of percent values and I 11 went through it. And actually -- 12 MR. HYDE: This might be a good point to 13 take a break. 14 THE WITNESS: That was a good question. 15 (Thereupon, a recess was taken until 11 16 o'clock a.m.) 17 MR. HYDE: Okay. 18 Go back on the record. 19 THE WITNESS: Okay. 20 BY MR. HYDE: 21 Q. Let's refer again to the last page of 22 Exhibit 2. 23 A. Okay. Yes, sir. 24 Q. The listings to the right of the USGS per 25 table two we were discussing just before our break, I 80 1 had asked you a question whether these results perhaps 2 reflect a negative bias. And I believe you essentially 3 stated that they did not. And the question -- you also 4 said that there was something interesting about that. 5 A. Yeah. 6 Q. Do you recall that statement? 7 A. Yeah. That's -- let's go back to review 8 that. 9 Q. What were you referring to? 10 A. What I did, while you were talking, just 11 in my head very briefly, I counted the number of 12 results that we have positive and negative under that 13 percent deviation. And then I considered, because it 14 was whether the matter was biased, heavily negative 15 bias. And I counted the number of positive results and 16 I divided by the total number of results and comes 17 about, as I said in my head without a calculator, 40 18