Ktr00159

BEA, ROBERT 1/30/2009 Page 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA --oOo-IN RE KATRINA CANAL BREACHES CONSOLIDATED LITIGATION, No.

05-4182 "K" (2)

PERTAINS TO: ROBINSON, NO. 06-2268 _____________________________ DEPOSITION OF ROBERT GLENN BEA Friday, January 30, 2009

Reported By: KATHLEEN WILKINS, CSR #10068, RPR, CRR Johns Pendleton Court Reporters

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INDEX INDEX OF EXAMINATIONS PAGE EXAMINATION BY MR. STONE ........................7 AFTERNOON SESSION ..............................96 INDEX OF EXHIBITS Bea Description Page Exhibit 1 Document entitled, "Amended .......7 Notice of Videotaped Deposition" ---o0o---

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For Universal Health Services, et al.: 7 8 9 10 11 12

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DEPOSITION OF ROBERT GLENN BEA BE IT REMEMBERED that on Friday, January 30, 2009, commencing at the hour of 8:39 a.m. thereof, at GOODWIN PROCTER LLP, Three Embarcadero Center, 24th Floor, San Francisco, California, before me, Kathleen A. Wilkins, RPR, CRR, CRP, a Certified Shorthand Reporter, in and for the State of California, personally appeared ROBERT GLENN BEA, a witness in the above-entitled court and cause, who, being by me first duly sworn, was thereupon examined as a witness in said action. APPEARANCES OF COUNSEL Plaintiffs Liason Counsel: LAW OFFICES OF JOSEPH M. BRUNO BY: JOSEPH M. BRUNO, Attorney at Law ROB WARREN, Attorney at Law (appearing phonetically) 855 Baronne Street New Orleans, Louisiana 70113 Telephone: (504) 525-3780 E-mail: [email protected]

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For the Defendants: 19 20 21 22 23 24

(Telephonically present) SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. BY: MELLISSA M. ROME, Attorney at Law. 909 Poydras Street, Suite 2800 New Orleans, LA 70112 Phone: 504-299-2100 E-mail: [email protected] Telephone participants: Tom Wolff, Ph.D.; Don Resio; Bruce Ebersole; Reed Mosher

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APPEARANCES OF COUNSEL (Continued) For Lafarge North American, Inc.: GOODWIN & PROCTER BY: MARK S. RAFFMAN, Attorney at Law 901 New York Avenue, N.W. Washington, D.C. 20001 Telephone: (202) 346-4000 E-mail: [email protected]

THE U.S. DEPARTMENT OF JUSTICE TORTS BRANCH, CIVIL DIVISION BY: RICHARD R. STONE, SR., Attorney at Law ROBIN DOYLE SMITH, Attorney at Law DAN BAEZA, Attorney at Law 1331 Pennsylvania Ave., NW, Room 8002N Washington, DC 20004 Telephone: (202) 616-4291. E-mail: [email protected] [email protected]

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ALSO PRESENT: Benjamin Gerald, Videographer; Dawn Miller and Nina Cortiella --oOo--

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January 31, 2009 8:39 A.M. PROCEEDINGS THE VIDEOGRAPHER: Good morning. We are on the video record, ladies and gentlemen, at 9:27 a.m. I am Benjamin Gerald Joe, from Legal Point, LLC, in San Francisco, California. The phone number is (415) 692-3600. This is a matter pending before the United States District Court, Eastern District of Louisiana, in the case captioned "In Re Katrina Canal Breaches Consolidated Litigation." Civil action number is 05-4182K. This is the beginning of Tape No. 1, Volume I, of the deposition of Dr. Robert Bea, taken on January 30th, 2009. We are located at Three Embarcadero Center, San Francisco, California. This is taken on behalf of the defendant. Counsel, would you please identify yourselves, starting with the questioning attorney. MR. STONE: Richard Stone, United States Department of Justice. MR. BAEZA: Dan Baeza, United States Department of Justice.

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MR. SMITH: Robin Smith, United States Department of Justice. MR. STONE: And we have with us Dawn Miller, for TrialDirector, and Nina Cortiella, who is assisting her. THE VIDEOGRAPHER: Thank you. Would the reporter please swear the witness. MR. RAFFMAN: Mark Raffman, also present for third-party Lafarge North America, Inc. MR. BRUNO: And Joseph Bruno, plaintiffs for liaison counsel. MR. STONE: Before you swear the witness -Joe, we've agreed that we're going to try to use these materials we have on TrialDirector whenever we can and refer to them and attach them by reference, rather than making them as exhibits to the deposition. MR. BRUNO: Yeah. We have no -- for the record, we have no objection to that. MR. STONE: Swear the witness, please. ROBERT GLENN BEA, having been duly sworn, was examined and testified as follows:

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--oOo-THE VIDEOGRAPHER: Thank you. Please proceed. MR. STONE: I'd like to have you mark that as Exhibit 1 and provide it to Dr. Bea. (Whereupon, Deposition Exhibit 1 was marked for identification.) EXAMINATION BY MR. STONE MR. STONE: Q. Dr. Bea, the court reporter just provided you what's been marked as Exhibit No. 1, and it's a copy of the amended notice. You have seen that? A. Yes, I have. Q. You have? A. Yes. Q. Have you brought any materials that are reliance materials with you today -A. Yes. Q. -- for this deposition? Where are they? A. Well, I produced electronic copies on three sets of CDs, which you have. Q. Okay. Well, let me just have you read into the record what these CDs are all about.

Are these just materials that you've already produced in the litigation? A. That's correct. Q. Okay. A. Plus the materials as requested here that I have developed since my expert report of July the 14th, 2008. Q. Okay. Are these -MR. BRUNO: You took them out of the envelopes? They were given to you in three separate envelopes labeled 1, 2 and 3. MR. STONE: Correct. MR. BRUNO: No. 1 is the reliance materials. MR. STONE: Correct. MR. BRUNO: Right. And we didn't produce -MR. STONE: Is that these several disks? MR. BRUNO: Richard, they were in -- I don't know. They were in the envelope marked 1, okay? MR. STONE: That's all right. I'm just trying to find out what we got here. MR. BRUNO: Let's look at them. THE WITNESS: That's tough. Page 9

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MR. BRUNO: I'm trying. Anyway, they were in an envelope marked No. 1. The Dixon side. THE WITNESS: There's seven. MR. BRUNO: There's seven of them they, and they say Bea No. P-1 through P-7. THE WITNESS: Yours say D-1 through D-7. MR. STONE: Q. Okay. So those are materials you provided in the past and you brought them on disk, rather than bringing a big stack of materials, just like we did on TrialDirector? A. Yes. Q. Okay. MR. BRUNO: Richard, we didn't reproduce the IPET report, just so you know, nor did we reproduce any documents that we got from you guys. MR. STONE: I think we have pretty much everything he needs on TrialDirector. If there's something you don't have -MR. BRUNO: No, no, no. You're asking a different question. I just want you to know what we're producing today. I'm not talking about TrialDirector. Leave that alone. Second thing, No. 2 is -- what is No. 2

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again? I forgot. THE WITNESS: This is the material I have generated between July 14th and today. MR. BRUNO: All right. And this will be delivered to you in hard copy as soon as the FedEx man arrives, but it is one disk. MR. STONE: Is that the disk called Bea January '09 expert report? THE WITNESS: That is correct. MR. BRUNO: And then finally, the third envelope, it contains two disks. These are -- why don't you share with us. These are Bea government contracts? THE WITNESS: Correct. MR. BRUNO: And Bea litigation invoices? THE WITNESS: Correct. MR. BRUNO: Okay. There you go. MR. STONE: Q. All right. The one called "Bea government contracts," what contracts are on that? A. Two contracts. One with National Science Foundation, for studies, research related to the reliability of the complex infrastructure systems in the Sacramento River or Delta area. Second contract is from the National

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Science Foundation, for investigation of the Midwest levee failures that developed in July 2008. Q. These are contracts that you enter into with the United States -A. Correct. Q. -- to provide services? A. Correct. Q. Okay. As to the 2009 report, here's how I'm going to try to work it today, if it's okay with the two of you. I'm going to go through your reports that you've provided us in the past and ask you questions about those reports. If there's something new or different that you want to raise that's on these disks, then that would be the time to do it. But you'd have to inform me that you're now raising something that's new and different. A. I agree. MR. BRUNO: What's new and different, just so you know, Richard, is much like the other -- the other experts that you've already deposed in the case. They have critiqued the defendants' experts reports.

So it's not new and different; it's the critique of Westerlink and Resio and Ebersole. MR. STONE: Whatever it is. MR. BRUNO: All right. MR. STONE: Dr. Bea has agreed to just tell about it. THE WITNESS: Provide it. MR. STONE: Q. So what are your essential opinions that you would give in a trial of this matter? A. Regarding what? Q. Whatever it is that you're going to testify to in court. A. Relative to the performance of the manmade flood protection structures along the Mississippi River Gulf Outlet, MRGO, I will render opinions concerning the performance of those structures during two conditions. Condition No. 1 is Hurricane Katrina, as was. Condition No. 2 is Hurricane Katrina neutral conditions, characterizing do no harm associated with the design, construction, operation and maintenance of the MRGO. I will also render opinions concerning the performance of the flood protection structures Page 13

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along the portion of Reach 1 adjacent to the Lower Ninth Ward under the two previously mentioned conditions. I will also render opinions concerning the performance of the flood protection structures along the portion of the MRGO Reach 1 identified as the "New Orleans East Polder." I will also render opinions concerning the performance of the manmade flood protection structures adjacent to Reach 1 on the east/west side of the Inner Harbor Navigation Canal, identified as "IHNC." Q. I understood you to say east/west side for that IHNC. Both sides? A. Both sides. Q. Anything else? A. I will also render opinions on the influence of human organizational, institutional and political factors on the performance of the flood protection structures in the aforementioned locations. Q. Did you say human factors? A. Human, organizational, institutional and political factors. MR. STONE: Joe, it's my understanding

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that the west side of the IHNC breach is not in this litigation. Do you concur with that? MR. BRUNO: No, it is. MR. STONE: How is it in Robinson? MR. BRUNO: Oh, I'm sorry. MR. STONE: West side of the IHNC. MR. BRUNO: It's in MRGO. MR. STONE: Okay. MR. BRUNO: Why would you want -MR. STONE: If he wants to opine on it today -MR. BRUNO: He said he will talk about it, but -MR. STONE: Okay. All right. MR. BRUNO: Listen, it's your call. It is in the other case. We're here. And I think Robin still doesn't have any other expert reports for this -- we call it Robin's -- no, I'm sorry. We call it MRGO class action to distinguish the two. So it's your call. MR. STONE: Q. You provided us a list of opinions as -- like a supplement, and a summary of your opinions. A. Dated what?

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Q. Dated July 14, 2008. A. That is correct. Q. Now, is that a complete list of the opinions that you would expect to render on the subject matter that you've just mentioned? A. No, it is not. Q. Okay. What -- what would you now say would be an additional opinion that you'd be expecting to render at trial that's not in this summary? MR. BRUNO: By the way, just note for the record, this -- is the intent of these questions to suggest that he somehow is going to be limited in his testimony? You know, there's no way on God's green earth he can possibly know all the questions he will be asked. MR. STONE: I have no intent here. I don't matter here. I'm simply asking -MR. BRUNO: I'm so happy you acknowledge that. MR. STONE: I'm simply asking questions. MR. BRUNO: And I'm simply objecting to the question. MR. STONE: Well, say, "Objection," and then let me go ahead.

MR. BRUNO: I thought I was doing that. THE WITNESS: I will render opinions documented in my supplemental declaration dated October 7th, 2008. I will also render opinions documented in my expert report dated January the 29th, 2009. MR. STONE: Q. And what are those opinions? A. The opinions in my supplemental declaration dated October the 7th, 2008 relate to the performance of the manmade flood protection structures adjacent to Breach 2 of the MRGO. The opinions documented in my expert report dated January the 29th, 2009 pertain to the performance of the manmade flood protection structures adjacent to Reach 2 of the MRGO under both the as-was and neutral conditions, and performance of the Reach 1 manmade flood protection structures adjacent to the Lower Ninth Ward under the aforementioned conditions. Q. Let me direct you to your summary of expert reports that was provided July 14, 2008. And how would we refer to this so that we can find it in the future as an exhibit to this deposition incorporated by reference? Just as Page 17

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your supplement? A. Well, it's actually a separate expert report. It's not a supplement. Q. Okay. But it is -- it's 38 pages and it provides an outline. It says "Summary and conclusions of your reports"; is that correct? A. That's correct. Q. Okay. Let's start at the beginning there. A. May I see the document you are reading? Q. Do you have a copy of it with you? A. I'm not sure until I see what you're reading from. MR. BRUNO: I want to verify we're both looking at the same thing, Richard. MR. STONE: That's this document. It says "Prepared, Canal Breaches" -MR. BRUNO: Just want to make sure we've got the same paper. That's all. MR. STONE: Well, it's got my notes in it. I'm not providing you my notes. MR. BRUNO: I'm sure there's nothing in there that's going to surprise me or shock me, I can assure you. MR. STONE: That may very well be.

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MR. BRUNO: Not a hope. THE WITNESS: Flip to the last page. Want to make sure we're on the same document. MR. STONE: The last page? THE WITNESS: 28. That's not -- you're on 38. I have to page 28, which is where my signature is located. MR. STONE: Q. Well, let me look at the document you have, and I'll compare, because -A. Of course. Q. This is -- it looks like what was provided to us for what you're talking about ends at page 27, before your CV. And I just don't have that page that's in this report. MR. BRUNO: Okay. MR. STONE: Don't know why. MR. BRUNO: Okay. Well, whatever. THE WITNESS: That's a reason for checking the documents. MR. STONE: Thank you very much, sir. And here's your document back. MR. BRUNO: All right. MR. STONE: Q. At page 2 of this report, you say your declarations provide engineering forensic studies.

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Can you describe what "engineering forensic studies" are? MR. BRUNO: I think he's here. THE WITNESS: Yes. Engineering forensic studies are studies conducted to identify causes associated with the failure of engineered systems. MR. STONE: Q. And those engineered systems that you're talking about, what standard would they be applied -- would they be designed to? Let me rephrase that. First thing you'd do is you would look to the engineered system to see how it was required to be built; is that fair to say? A. Correct. That is correct. Q. Okay. How would you go about that? A. Generally, through study of the historic documents that chronicle how the system was designed. Q. And did you do that in the instant case? A. Would you -Q. Okay. I see you're having trouble with that. Any time -A. Thank you. Q. -- you're welcome to say that you don't

understand my question. Would you tell us how you went about looking at the original design for the system of -- for hurricane protection around New Orleans? A. Through a study of documents provided by the U.S. Army Corps of Engineers that pertained to that design phase. Q. Okay. And what was the Corps -- what standard -- question's withdrawn. What standard is the Corps building that system to in 1965 that you feel matters, if any standard does, in this litigation? A. The standards that were used by the Corps that have important implications for this case pertain to three categories of factors. Category No. 1 are the environmental conditions that the structure should be designed for. Two exemplars of those design conditions were the U.S. Army Corps of Engineers Standard Project Hurricane and their Probable Maximum Hurricane. The next category of conditions are the demand factors that result from these condition factors that specify such things as the design surge elevation, design wave conditions, design Page 21

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current conditions. The third category factors pertain to resistance factors. Those resistance factors are associated with how the system should be configured to resist the prescribed design conditions and design factors. The documents that were utilized by the U.S. Army Corps of Engineers were developed by the U.S. Army Corps of Engineers. Q. How does Congress's authorization enter into the design standard prescribing design factors? A. When the Congressional authorization is developed, it's developed based on recommendations provided by the U.S. Army Corps of Engineers for the design, construction, operation and maintenance of the particular engineered system attendant to that proposed design or cause. At the time of Congressional authorization, those conditions are integrated into that authorization. Q. What were the conditions that Congress authorized the Corps to build the levees to? A. The environmental conditions were primarily prescribed in the Corps of Engineer

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characterization of the identified Standard Project Hurricane and in addition, the Probable Maximum Hurricane. Q. Okay. When Congress authorized the Corps to build to the standard -- let's work Standard Project Hurricane first. There's no question that Congress authorization was for the Corps to build to the Standard Project Hurricane, correct? A. That's correct. Q. And I understand from your earlier deposition that you conclude that they also required it to build to Probable Maximum Hurricane; is that correct? A. And it was stated. Q. So first let's talk about Standard Project Hurricane. What was the definition of Standard Project Hurricane that was provided to the Corps of Engineers at that time in the authorization? A. The Corps of Engineers provided for the authorization the definition of the storm that would have a recurrence interval, average recurrence interval, of approximately 1 to 200 years at the location.

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Q. Wasn't the Standard Project Hurricane also defined as a certain set of barometric pressures at the center? A. The Standard Project Hurricane is prescribed by a number of environmental parameters to characterize a hurricane. Q. My question, though, is is there a minimum pressure or a maximum pressure at the center of the hurricane that the Standard Project Hurricane was described as? A. Yes. MR. BRUNO: Object to form. MR. STONE: Q. What was it? A. I do not know. I do not remember. Q. Does 27.6 inches of mercury sound reasonable? A. It does. Q. Okay. And what was the wind speed that was part of the expectation for the Standard Project Hurricane? MR. BRUNO: Object to form again. I'm very confused. You keep saying "expectation" of Congress. Congress told to Corps to go develop a Standard Project Hurricane, not the other way

around. MR. STONE: I'll rephrase that question. Q. I just want to know if the Standard Project includes any wind speed parameters. A. Yes, it does. Q. This is not a game here. I'm not playing a game with you. What are those parameters, sir? MR. BRUNO: It's developed. It's not -doesn't have -MR. STONE: Q. What are the parameters, sir? MR. BRUNO: -- no matter where you are in the whole country. It changes. MR. STONE: If there's an objection in there, state it. MR. BRUNO: I did. I object because you're confusing the record with the use of the word "Standard Project Hurricane." The Corps develops a Standard Project Hurricane based upon its own internal study. It's not a one hurricane. MR. STONE: Q. Do you need him to teach you this, Dr. Bea, or can you and I talk about this subject matter? A. He's become a very good student. Page 25

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Q. But do you need him to teach you about this? A. Absolutely not. Q. Then let's -- let's you and I ask -let's you and I deal with your answers. A. That's fair. MR. STONE: Reask the question, please. MR. BRUNO: Ask a fair question, and I won't object. (Record read by the reporter as follows: QUESTION: What was the definition of Standard Project Hurricane that was provided to the Corps of Engineers at --) MR. STONE: It's a bit later. Don't worry about it. I'll rephrase it. Q. Is there a set of wind speed parameters that are included in the definition of Standard Project Hurricane? A. Yes, there is. Q. What are those parameters? A. I don't know. Q. For the Standard Project Hurricane in 1965, it was 100 miles an hour within 30 miles of the center of the hurricane; is that correct? A. That sounds correct.

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Q. Now, is there a surge level that the Corps is expected to design to that is a part of the definition of Standard Project Hurricane? A. Yes, there is. Q. What was the surge level that they would be expected to design to in 1965? A. The surge level would be the surge level attributed to the definition of the Standard Project Hurricane. I do not recall the magnitude of the surge level. In addition, the surge level varied around the hurricane flood protection system. Q. For the Chalmette area, does 11.6 feet sound reasonable? MR. BRUNO: Nuh-uh. THE WITNESS: It does. MR. STONE: Q. In fact, you were provided that information in your last deposition? A. Correct. Q. And it was 11.6 feet, wasn't it? A. Correct. Q. Okay. All right. Now, did you review whether the Corps designed a hurricane protection system that would withstand 11.6 feet of surge in the Chalmette area?

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A. The -- yes, I did. The design includes much more than surge elevation. Q. I understand that, sir. And you'll be able to say everything you want to say here. My first question is, did they design a hurricane protection system that would withstand an 11.6-foot surge in the Chalmette area? A. That's a difficult question to answer because it was designed according to their engineering manual prescribed at the time. The question concerns its ability to withstand the prescribed environmental conditions. The design calculations indicate that the system, in general, met the prescribed design conditions. The facts remain different than the documentation. Q. When you did your forensic analysis of all the data you collected, did you determine whether or not the Corps of Engineers designed a system that would withstand a surge of 11.6 feet at the Chalmette? A. No, I did not. Q. Okay. A. That is to say, I did not check their calculations.

Q. Okay. What was the design water level expected for the hurricane protection system at the Chalmette area? A. I do not recall. Q. Did you ever evaluate that? A. Evaluated it in the sense of reviewing the figures and determining their reasonableness for the prescribed design conditions. Q. What design parameters did you test the Hurricane Katrina surge against when you did your investigation and came up with your opinions about failures? A. For the Hurricane Katrina conditions, I relied on other experts' work to define the meteorologic, oceanographic, hydrologic characteristics associated with Hurricane Katrina. Those sets of conditions came from the work done sponsored by the U.S. Army Corps of Engineers of the National Oceanographic Atmospheric Administration and Team Louisiana and the group I will identify as the Netherlands Hydrologic Studies Group. Q. Did you ever learn what the maximum surge was from Hurricane Katrina in the Chalmette area? Page 29

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A. That question is still under debate concerning the magnitude because the magnitude was not recorded; hence, analytical models are being employed to determine the elevations as a function of location, time, and other factors. Q. Okay. You take your evidence of what was the maximum surge for the Chalmette area from other parties, then; is that correct? A. That is correct. Q. Okay. What did you use as a maximum surge level? Let me tell you what you used. Okay. At page 49 -- 48 and 49 of your technical report. So the elevation -- the surge levels are 17-point plus? A. That sounds correct. Q. Okay. Surge levels? A. Thank you. Q. Now, surge level at Chalmette of 17 feet clearly exceeds the surge level of 11.6 feet, doesn't it? A. Correct. Q. So what did you test your opinions against as far as a design parameter for the hurricane protection system for the Chalmette

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area? A. The work that I have done is not focused on the initial design conditions. My work is focused on development of a coherent, most probable set of conditions that result in the lack of acceptable performance on the part of the flood protection system structure that is involved. Q. Say you were in charge of the Corps of Engineers, and you had this failure occur down there at the Chalmette. And you called in a geotech civil engineer expert from Berkeley, and you said, "I want you to determine what happened down here." What would you expect that civil engineer first to do as an effort to learn about the design of the system? A. Go to the field. Q. How would that tell them about the design of the system? (Tom Wolf has joined the conference.) THE WITNESS: Would you repeat your question, please. MR. STONE: Q. Well, let me ask it in a different way. You've answered the earlier one. Would you expect them to learn what went

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into the design of the system and how it was built -- whether it was built according to that design? A. That question has two parts. The first part was was it designed according to the condition. Q. Okay. A. The second part is was it built according to the condition. Q. So would you expect your engineer expert that you've just hired to go out there and find out what the design for the system actually was? A. For what specified purpose? Q. To determine what the failure mode was later. A. Not necessarily. Q. Okay. If you're looking for a failure of the system based on exceeding design parameters, you would, wouldn't you? A. That's correct. Q. Okay. Well, can you say here that this system failed within its design parameters in the Chalmette area? A. No, I cannot. Q. Okay. Is that because you've not

focused on the initial design conditions? A. That is correct. Q. Okay. So if you can't say that for the Standard Project Hurricane, you certainly can't say that for the Probable Maximum Hurricane, can you? A. That is correct. Q. But is it your opinion as you sit here today that this surge from Katrina exceeded the Probable Maximum Hurricane for Chalmette? A. No, it is not. Q. What is the basis for that rejection of that opinion? A. The Corps of Engineers documentation indicates a probable maximum surge elevation for parts of the flood protection system for the greater New Orleans area. I do not recall the magnitude of that surge elevation compared with the magnitude of the purported maximum surge elevations associated with Hurricane Katrina. Q. Okay. So you also don't know the design water levels that were -(Telephonic interruption.) MR. STONE: Question's withdrawn. Page 33

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Q. So you also don't know the design water levels that the hurricane protection system at Chalmette were built for, do you? A. I don't recall them. They're in the documentation. Q. Do you know whether those design levels are greater than or less than the Probable Maximum Hurricane water level for that area? A. My recollection says that the design water levels are less than the maximum water levels associated with the Hurricane Katrina as-was conditions. Q. Do you recall that the design water levels were greater than 13 feet for that area? A. Approximately, that figure. Q. Yes. And the Standard Project Hurricane surge level was 12.6 feet for that area, correct? A. Approximately. Q. Okay. So then the design water levels exceed the Standard Project Hurricane levels for that area, by definition? A. Correct. Q. Okay. But you didn't analyze any of that because you did not focus on the initial design conditions?

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A. That is correct. Q. Okay. So what were you testing Hurricane Katrina against if you weren't testing it against the original design conditions? A. This relates to the forensic engineering work. The objective of the forensic engineering work is to determine the various modes in which the system can fail, to evaluate those failure modes, how they interact, to determine the final performance of the system. Q. In other words, leaving design -- now, I'm going to put words in your mouth, but you don't have to accept them. A. Agreed. Q. I only want a fair and straight answer. That's all. A. That's what you'll get. Q. Okay. So in other words, leaving out the design conditions, you tested why Hurricane Katrina caused these systems to fail? A. That's correct. Q. So sitting here today, as plaintiff's expert witness, you can't tell us whether Hurricane Katrina -- or -- question's withdrawn. You cannot tell us whether a Standard

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Project Hurricane would have breached the levees in the same manner that Katrina breached the levees, can you? A. That's correct. Q. And you have not compared Hurricane Katrina conditions and breaches to Standard Project Hurricane conditions and breaches, correct? A. That is correct. Q. And nor have you compared them to maximum probable hurricane conditions? A. That is correct. Q. And Katrina exceeded the conditions for both of those types of hurricanes; is that true? A. I do not recall the truth of it, as previously stated. Q. Okay. But if its central pressure was lower than the pressure established for a Standard Project Hurricane, then it would exceed that condition, wouldn't it? A. No. That's not necessarily true, because hurricane conditions result from a variety of metrological parameters. Central pressure is only one. Q. I only want to ask about central

pressure first. A. Would you repeat your question. Q. If you have designated central pressure that meets the requirements of a special project hurricane, and the hurricane that you're analyzing has a central pressure that is less than that, then that exceeds the parameters of special hurricane -- of a special probable -- special project hurricane, correct, sir? A. Incorrect. MR. BRUNO: Standard Project. THE WITNESS: I believe correct because you used -- incorrect because you used the word "parameters." There's only a single parameter in discussion here, and that's the central pressure. MR. STONE: Q. Okay. I appreciate the correction, but that single parameter is exceeded by the hurricane, correct? A. That is correct. Q. All right. Now, if you have a wind speed within 30 miles of the center that exceeds the wind speed of a Standard Project Hurricane, then that hurricane is greater than the Standard Project Hurricane based on wind speed? A. That is correct. Page 37

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Q. And if the surge level exceeds, then it's greater? A. That's correct. Q. And you know that in this instance, Katrina exceeded all three, don't you? A. Relative to the Standard Project Hurricane question? Q. Yes, sir. A. Correct. Q. Okay. All right. Let's go back to the document we were looking at. All right. Now, at the bottom of page 2, paragraph III, you talk about the hurricane -- question's withdrawn. In that paragraph III, you speak of a neutral MRGO Hurricane Katrina conditions? A. Correct. Q. Describe that for us, please. A. The neutral MRGO Hurricane Katrina are based on the set of conditions that would result in the design, construction, operation and maintenance of the MRGO to do no harm to the associated flood protection system structures. Q. Where do you find that do-no-harm requirement in the Congressional record? A. I do not.

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Q. What's the basis for your opinion that Congress would expect the Corps to do no harm when it constructed the MRGO? A. Would you repeat your question. Q. What's the basis for your opinion that Congress expected the Corps of Engineers to do no harm when it constructed the MRGO? A. Engineering practice. Q. All right. Explain that. What is it about engineering practice that leads you to believe that Congress would expect the Corps to do no harm in constructing the MRGO? A. An example would be this building. The building has been built. If I construct a structure adjacent to it, and that structure falls into the construction excavation, that is not acceptable practice. And Congress certainly would not accept that sort of practice. Q. Okay. I'll get to that, building something next to it, real quick. We'll just jump to that real quick. But, first, from everything in these reports, it looks like the expectation of Congress that the MRGO -- question's withdrawn. Is there a way that you can dredge a

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canal like the MRGO through wetlands without harming the wetlands? A. No. Q. You have to harm the wetlands? A. Correct. Q. So any instruction that you think Congress might have for the Corps to do no harm would be -- any assumption that that occurred seems to be a false assumption because basically, right away, you're damaging the wetlands when you construct the MRGO through there? A. I think that's not true. Q. Okay. A. When an engineered structure like this is constructed, an environment -(Tom Wolf has joined the conference.) THE WITNESS: -- an environmental impact assessment is required. If the environmental impact assessment indicates high potential for negative effects, the applicant is required to mitigate those effects. MR. STONE: Q. You know that's a whole -- that's a whole area of itself -A. Indeed. It is. Q. -- environmental impact statements.

A. But it's -- it's an important part. Q. You're not -- we have a lot of ground to cover. So you are not testifying here as an expert on environmental impact statements, are you? A. Very certainly not. Q. All right. I would ask that we go with -- if you have something to say about them, that's fine. Tell me. A. Done. Q. But we don't need to go off on environmental impact statements. I understand what they are. The Court does. Record does. Everybody. So let's jump right over to what you were talking about. Something fell into something. You say, "You built this building, you built another building, this fell in." That's what you're saying about -- we built the MRGO and then the put the levees up and the levees collapsed because of the MRGO, correct? MR. BRUNO: You have it here. THE WITNESS: That's partially correct. MR. STONE: Q. Okay. What's the time Page 41

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line here? MRGO came first, correct? A. Correct. Q. All right. Let's say you're in charge of the Corps of Engineers again, and you hire a civil engineer, geotech engineer, and you say, "All right, I want you to build me some levees along the MRGO." A. Correct. Q. Would that engineer not know that the MRGO was there already? A. It's possible that engineer would know the MRGO is there already, but the design conditions used by that engineer may not accompany or accommodate the presence of the MRGO. Q. The Corps of Engineers clearly knew that the MRGO was there when it designed or had designed the levee system along Reach 2 of the MRGO, correct? MR. BRUNO: Objection. That calls for high speculation as to what the Corps knew. God only knows what they knew. MR. STONE: Q. Can you answer that question, sir? A. I would have to speculate to answer that the Corps had the ability to span the

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understanding represented by the design, construction, operation and maintenance of these two facilities. Q. But you would expect them to accommodate the MRGO in their plans for the levees when you built them, wouldn't you? A. I certainly would. And if they didn't, I think there would be some difficulty. Q. So I guess the point I'm getting at here is MRGO came first, the levees came next, so whatever went into building the levees would have included an analysis for the design of levees that would accommodate the MRGO, correct? MR. BRUNO: Objection. Assumes facts not in evidence. THE WITNESS: As well as I can determine, at the time the Standard Project Hurricane was developed in its parameters for the design, it did not accommodate the president -presence of the MRGO, nor the effects attendant on the presence of the MRGO. MR. STONE: Q. The question is slightly different. I'm asking you from the perspective of someone who's operating the Corps of Engineers,

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planning to have levees placed along the MRGO, knowing that the MRGO is there. You would expect that your design for the levees would accommodate MRGO, rather than the other way around, correct? A. That's correct. Q. Okay. So they'd have to, in order to build the levees -- question's withdrawn. In order to design the levee, they would take into consideration the MRGO, and that would be included within the levee design? A. That would be -MR. BRUNO: Objection. Assumes facts not in evidence. THE WITNESS: That would be an expectation. MR. STONE: Q. And that's all I'm talking about here. I'm not talking about what happened or what didn't happen. I'm asking you which way it works. MRGO came first. Levees came next. Anything that was done to build levees and design levees would have to accommodate the MRGO? A. It would not necessarily have to. The expectation would be that it would. Q. You believe it should be. All right.

Okay. Do you need a break? A. I think it would be a good time. Q. Let's take a break. MR. BRUNO: Before we go off the record, I presented to Dan the color copy of the supplemental report. MR. STONE: Okay. You guys have a copy, too. MR. BRUNO: Unfortunately, no. But that's my fault. MR. STONE: All right. We'll share it with you. MR. BRUNO: I was told I have two copies. I have only one. THE VIDEOGRAPHER: The time is 10:15 a.m., and we are off the record. (Whereupon, a recess was taken.) THE VIDEOGRAPHER: The time is 10:31 a.m., and we are back on the record. MR. STONE: Q. Page 6. And just read that first -- that No. 1 paragraph there to yourself, and I'm going to ask you a couple questions about it before we get into subparagraphs A and B, et cetera. A. Yes, sir. Page 45

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Q. Okay. I think you've already said or I've read so many different reports from you -A. I apologize. Q. I don't mean anything derogatory about that. A. I know you don't. Q. -- that the primary causes for the breaches of the manmade feature along Reaches 1 and 2 of the MRGO was the design, construction, and maintenance of the MRGO? A. Correct. Q. Other places in here, you say operations also. A. Correct. Q. So you would include operations in there, right? A. And maintenance. Q. Yeah, it's there. All right. And then the last sentence of that opening paragraph says, "Decisions of the USACE that resulted in the breaching and the catastrophic flooding of St. Bernard Parish, the Lower Ninth Ward, New Orleans East, and portions of New Orleans metro, (Figure 1) include the following:"

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Now, I want to ask you about the term "decisions." Okay. You say "decisions of the USACE." A. Correct. Q. But when you talk about decisions within this, it seems that some of those appear to be USACE, some appear to be Congress. A. And that's correct. Q. So I would like to distinguish between the two where we can, because I would like to hear from you about decisions made by the ultimate decision-maker when it's relevant and a subsidiary or lower level decision-maker when you feel it is relevant. A. Who's the ultimate decision-maker? Q. I won't supply you anything here, but my opinion would be the Congress in some instance, Corps in other instances, potentially. But that would come from your perspective. You're the one providing the opinions about the decisions. So I'd like for you to be able to tell me if it's a decision of the Corps you're talking about, if you know, or if it's a decision of Congress that you're talking about. All right. In your subparagraph A, you

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say -- and I'm going to add the word "decision" at the beginning of it. Decision, "to construct a deep draft navigation channel in the immediate vicinity of Lake Borgne that would feasibly connect with the narrow" -MR. BRUNO: Foreseeably. MR. STONE: Q. -- "foreseeably connect with the narrow waterway of the GIWW MRGO Reach 1 and the IHNC." Let's stop right there for a moment. Whose decision was it to construct this deep draft navigation channel, or at least whose decision is it that you contend was bad? A. Well, there's actually three sets of decisions represented in that paragraph. Decision No. 1 comes on the part of the Corps. That decision is to define feasible alignments, define feasible structural elements, define the design conditions associated with those elements, to result in the proposed engineering system. The next decision comes on the part of Congress, as you term, the ultimate decider, is whether or not to provide funding for the proposed engineered system.

That will be conditional on the third step, acceptability of those -- of the authorized conditions, contingent on things such as an Environmental Protection Act that's approved, and approval decision, again, by the Corps of Engineers that the initially proposed design conditions are appropriate for the present conditions. Q. I may have stopped that sentence a little early because the next part of it, you say, "Without any structures to control excessive and prolonged water flow into the confined IHNC during hurricane storm siege conditions." So that's a necessary part of that first letter A opinion, isn't it? A. That is. Q. All right. So what structures are you talking about? A. Well, for example, a structure similar to that being in the initial design phase for the closure of the MRGO. Q. You're talking about a barrier? A. A barrier. But it's not a barrier without gates -- gates to facilitate the passage of traffic both from the MRGO and on the Gulf Page 49

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Intracoastal Waterway. Q. I want to stick with just the decision, not the types of projects to -- like you're distinguishing between different kinds of barriers. I just want to stick with the decision right now -A. Understood. Q. -- because that's, quite frankly, easier. So first thing is the structures that are going to be built. Is there any coordination with state and local authorities that the Corps would have to do to determine whether barriers were going to be built in this area? A. Certainly. Q. Would the Corps of Engineers have to provide some sort of cost-benefit analysis to the Congress in order to get funding to provide a barrier if the Corps decided it was appropriate? A. Certainly. Q. Is there any kind of tradeoff between putting barriers there and using the money elsewhere within the system to either add shoreline protection to the MRGO and otherwise

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provide repairs? A. Certainly. Q. Okay. Is there any other kind of social, economic, or political needs that has to be satisfied for such barriers to be put in place? A. Certainly. MR. BRUNO: Objection. Outside the area of the witness's expertise. MR. STONE: Q. Okay. Let me -MR. SMITH: I think he already answered. MR. STONE: He did answer. MR. BRUNO: It's noted. MR. STONE: It's not a problem, but I want to make sure I don't go outside his expertise. Expertise seems broad enough. MR. BRUNO: Not for political. Not social, no. Come on, man. You know you're going out. I know where you're doing, too, but he's not that guy. He's an engineer. THE WITNESS: Not too smart. MR. BRUNO: I didn't mean to belittle you. Don't start on me. THE WITNESS: Engineers have limitations. MR. BRUNO: Not as many limitations as

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lawyers do. MR. STONE: Q. With that understanding, then, your opinions regarding decisions ought to be strictly based on science, correct? A. Incorrect. Q. Okay. What would they -- what would your opinions about all these decisions be based on? A. For example, economics. Cost-benefit is a -- is a necessary part of the engineering. It's not decoupled from it. Q. Okay. A. Social acceptability is a part of the engineering decisions. You can't subject people to risks that they haven't acknowledged or approved. Law becomes an instrument in engineering, to assure that what we construct is in the interest and benefit of the public. You can't -- you can't decouple engineering from reality. Q. Isn't it fair to say that before MRGO was built, before the levees were put up, the State of Louisiana had to communicate their need to Congress?

A. That's correct. Q. Is it also fair to say that there were problems with environmentalists in the Louisiana area during the time of construction of levees? That's a bad -- question's withdrawn. Were environmentalists active, particularly in court, during this time to prevent certain projects that the Corps and the state were trying to put in place? A. Yes. And they should be active. Q. Okay. And all of that enters into the decision-making of the Corps or Congress when they decide whether they're going to put in barriers or build any kind of projects like this; is that correct? A. It should. Q. All right. You're talking about the Corps should have selected a different route. A. Could have. Q. Well, okay. Could have. Once again, please correct me if I'm wrong because I do not want to put words in your mouth. A. We're working. Q. This is -- the question about that is, Page 53

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though, what kind of judgment calls on the part of the engineers would go into determining the route that MRGO would take through the wetlands or wherever down there? A. Well, one of the objectives that the engineer would have is to minimize potential negative environmental impacts. Another constraint the engineer would have to deal with would be economics. Another the engineer would have to deal with would be the available technology to accomplish what is proposed to be constructed life cycle cycle. Another thing the engineer would have to consider would be the social/political acceptability of the facilities that are proposed. A wide range of constraints and factors need to be considered by the engineer in development of a coherent, constructive engineered system. Q. Also including the need for exercise of eminent domain, obtain land through state processes, to be able to put something in somewhere, correct? A. Certainly. Q. So have you done an analysis of what

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other options the Corps of Engineers had in designing a route for the MRGO? A. No, I have not. Q. But you've concluded that the route that they did choose was a route that should not have been chosen? A. No, I do not. Q. Okay. Then I don't understand the -the opinion here. Well, that's not in that opinion, I guess? MR. BRUNO: Actually, it is. MR. STONE: You think it is in that opinion. MR. BRUNO: Yeah, without -MR. STONE: After talking about it, it's part of the opinion now, so ... MR. BRUNO: The comma that says without, Richard. MR. STONE: I can't remember my question. MR. BRUNO: You were on A. THE WITNESS: You were on A, and we were focused on that second part, regarding structures. MR. STONE: Q. If you haven't done an

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analysis of this and you've looked at the MRGO and you believe that the MRGO should have been built to a different route, tell me if you believe that or not. A. I find your question confusing because I don't understand what "this" means. Q. Let me withdraw the question, then. Do you have an opinion that the MRGO should have been placed somewhere else? A. No, I do not. Q. Okay. The next, paragraph b, you raise the issue of the decision to use the MRGO channel as a borrow pit for construction material for the hurricane protection system. What is your opinion about -- well, the question's withdrawn. What's wrong with the decision to use the MRGO for a borrow pit? And let me set it up for you a little bit. I mean, you're digging the MRGO there. Materials have got to go somewhere. Along with your cost-benefit analyses that you've talked about before, that material is worth something in some instances. If they select the materials from the

proper places, even within the MRGO, was it permissible to use that material to build the levees along the MRGO in 1965? A. Would you rephrase your question? Q. Sure. All those things considered, the decision to use the MRGO as a borrow pit was made by the Corps of Engineers at fairly high levels; would you say? A. Correct. Q. What's wrong with their decision to use the MRGO as a borrow pit? A. The analogy that I spoke to previously, where you have Three Embarcadero Center here, and you go next door and excavate material for the construction of some engineered system, if that construction of that borrow pit in this analogy results in the failure of this building, that's not acceptable. Q. Under any circumstances? A. Under any circumstance. Q. When you're talking about the borrow material here -A. Unless I'm trying to destroy the building. Page 57

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Q. What is it that's wrong with the borrow material from the MRGO, in your opinion? A. There are two aspects. One is through maintenance, we continue to excavate material which becomes side dump material, which imposes additional load on the areas adjacent to the flood protection structure. That material is forged by the overlying pressures, to be squeezed back into the MRGO, thereby resulting in decrease of the elevation of the associated adjacent flood protection structures. Category 2 pertains to the nature and characteristics of the material that is utilized as a result of the excavation. Those materials must either meet specifications appropriate for the flood protection structure under consideration, or be appropriately armored to provide such acceptable flood protection performance. Q. All of that sounds to me like you take issue with the types of materials being used in the building of the hurricane protection system. A. I take issue with the use of the materials without appropriate protection.

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Q. Okay. And that is an issue related to design, construction and maintenance of the levees, correct? A. And operation. Q. And operation of the levees themselves? A. That's correct. Q. Okay. MRGO there is simply an opportunity to take materials to use for the levees, and the Corps has taken that opportunity to do that? A. And to, at the same time, provide a navigation channel and to provide for its maintenance. Q. Okay. The second half of that Opinion B on page 6 seems to me to deal with the funnel effect; is that correct? A. That is correct. Q. Okay. And the funnel effect that you're talking about here, tell me exactly what that funnel effect is. And let me set this up a little better for you so you know what the focus of my question is. What does it have to with MRGO? What does it have to do with GIWW? What does it have

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to do with flood loss? How does a funnel effect occur and what is it? A. The funnel effect, as per its name, is analogous to a funnel. A funnel has walls up at the top. Q. Is that the levee walls for this funnel? A. Levee walls along Reach 2 of the MRGO. Levee walls along Reach 1 portion adjacent to the GIWW, Gulf Intracoastal Waterway. The throat of the funnel connects to the Inner Harbor Navigation Canal. As a faucet feeding that funnel is the channel of the MRGO, which connects directly to the Gulf of Mexico and the waters of Lake Borgne. As hurricanes affect the area, water is put into that funnel which results in concentration of flow. For example, high velocity flows coming through the throat of the funnel, which then splash into the Inner Harbor Navigation Canal. On the walls of the funnel, the water piles up. And that piling up results in an increase in the surge elevations. Q. So the water that comes up in the MRGO that reaches this GIWW is necessarily a result of

the construction of the MRGO there, isn't it? A. That's correct. Q. MRGO was designed to bring the water up so the ships could come up, and so the design is the problem, in your opinion, there? A. That is incorrect. In your statement, they didn't design it to have the water come up. Q. Okay. A. They designed it for the construction of a channel that would have sufficient depth to keep -- to clear the keel drafts of the associated shipping. Q. But any water that is associated with the MRGO that gets to that channel, without a hurricane surge or anything related, is a part of the design. It's necessarily expected from the design, isn't it? A. It's -- it is logically expected from the result of the design. That expectation may not be -- or might not be included in the design itself. Q. Okay. Well, let me talk about salinity here for a second, to just do an aside. Once you cut that MRGO through into the gulf, salinity is going to come into the area. Page 61

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That also is a part of the design of the MRGO, isn't it? A. That's correct. And the Corps actually ran laboratory experiments at Vicksburg to determine what those salinity effects were. Year, approximately, 1954. Q. Correct me if I'm wrong, but I don't find anything in your reports that says that the current of the MRGO is relevant to the issues that we're discussing here. A. That's incorrect. We actually studied the effect of the current on the performance of what I have chosen to call earth and berm spoil banks. We determined that the effects of the currents that would be flowing parallel to the faces of the EBSBs would be a secondary player in the development of erosion and breaching during intense hurricanes. Q. That would be places where the MRGO water touches the -- what you call EBSBs? A. Correct. Q. Okay. So other than that -- well, I may have misstated earlier, because other than that, if you're only talking about the current coming up Reach 2, just talking about it, that doesn't seem

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to have any relevance to the analysis that we're going through today, until you get to the funnel into the GIWW. A. That is not correct. Q. Okay. What is correct? A. The current in the channel at high water periods is able to propagate to the faces of the EBSB. They're flowing along the direction of the channel. The question is, is the magnitude of those currents and the associated waves and the other things that are present at that time a significant player in determining erosion and breaching of those manmade earth and protected structures. Q. And do you conclude that it is a significant player? A. We concluded that it was not. Q. Okay. Let's go up to the GIWW and the -- the funnel that's -- that occurs there -A. The neck is -Q. -- where the levees come together. Is this increased speed through the area a result of like the Bernoulli effect? A. Yes. That's correct.

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Q. And that would necessarily occur whenever you have a couple waterways come in through there into a confined channel? A. Exactly. Q. Okay. Now, I'm going to ask you probably a basic question that you're going to scoff at, but -A. I don't scoff at any given question. Q. Is it likely that the engineers designing the MRGO would not understand the Bernoulli effect at that junction? MR. BRUNO: Objection. Calls for speculation. THE WITNESS: I agree. I would have to speculate because several groups of engineers are involved. One group of engineers are concerned with excavation of the channel. Another group of engineers would be concerned with the structure systems that are associated with the channel. Another group of engineers would be concerned with the hydrologic system that's involved with the construction of the channel. At that time period, the Corps of Engineers of Vicksburg, Mississippi, had some of the world's finest hydraulic, hydrologic system

engineers. Now, whether or not that technology and knowledge reaches the engineering teams that are given the responsibility for the configuration of the engineering system is not clear, and I would have to speculate that it actually happened. MR. STONE: Q. Short answer is that you don't know whether they had a knowledge of the Bernoulli effect when they designed the MRGO? A. Who is "they"? Q. Okay. Engineers with the Corps. A. Engineers with the Corps did have such knowledge. Q. And it just depends on whether it was the engineers that were involved in that project and whether they were hydrologists or whatever or -A. The engineers at that time did know. I have personal knowledge. I was a member of the Corps of Engineers at that time. Q. Great. A. So was my father. Q. Page 25 of your report, you say -- you have a quote there from someone working in the Corps, and it's Bob. Page 65

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"Today the Corps of Engineers is not like it was when you and your father were with us in the 1950s. We have taken engineering out of the Corps of Engineers." Remember that quote, sir? A. I will never forget that quote. Q. So I think you just told us that back when the design occurred, the Corps was the old Corps then, and it was the good Corps? A. It was a good Corps. Q. Okay. So your expectation is that those people who were working in the Corps back in those days were doing everything they could to do an honorable job in developing a MRGO or anything else down there, correct? A. I agree. Q. Okay. Page 7. MR. BRUNO: Who is that? Oh, Reed Mosher is now on. THE WITNESS: Burt -- oh, Reed Mosher. Sorry. MR. STONE: R-E-E-D, M-O-S-E-R. MR. BRUNO: M-O-S-H-E-R. MR. STONE: Sorry. M-O-S-H-E-R. MR. STONE: Q. Sir, what is a high

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velocity in the MRGO channel? A. Something that would result in the erosion of the soil materials involved in the channel. Q. And can you quantify that? A. Velocities are the order of a meter per second or greater. Q. Less than a mile an hour? A. Less than two to three miles per hour. Q. Okay. Is that the velocity that you've been talking about this morning when we've talked about the channel current? A. The velocities I'm talking about in terms of erosive effect would be of the order of a foot per second. Q. Okay. What is the -- what is the high velocity in the GIWW MRGO channel? A. The hydrologic system experts in the Netherlands determine those velocities were the order in the throat itself of five to eight feet per second. Q. And what affects those velocities in both the MRGO and the GIWW MRGO channel? A. These -- a hurricane itself, which is a primary mechanism that is introducing unusual

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quantities of water. The geometry configuration of the hydrologic system. Those would be the two primary players. Q. Do you conclude in your reports that the current of the MRGO is relevant to the analysis of front side wave attack? A. We conclude to the opposite, that it proved not to be an important factor in the erosion breaching of the Reach 2 EBSBs. Q. Okay. Looks like we got a little bit ahead of ourselves on the last few questions. This paragraph C here talks about saltwater instruction. I think we've covered that. The rest of the paragraph C seems to be talking about wetlands -A. Swamps. Q. -- swamps, et cetera? A. Correct. Q. And the effect of those "Naturally protective barriers" on slowing down a hurricane? A. That's correct -- no. Not in slowing down the hurricane, but, rather, acting to damp the environmental conditions generated by the hurricane.

Q. What's the tide that comes across those -- I think in your report you call them brackish marshes east of the MRGO. What is the tide level that comes through there? A. Well, there are two components to the tide that comes through there. One is astronomical. Essentially, driven by our surrounding planets. The second component are the storm tides that are associated with a variety of kinds of storms that connect with the area -Q. Let's stick with astronomical for the moment. A. Certainly, if that's what you would like to do. Q. Do you know those to be about 2.6 feet? A. It depends on where you are in the hydrologic system. Q. What would it be between Bayou Bienvenue and Bayou Dupre, if you recall? A. One to two feet. Normal tide range. Extremes can be larger. Q. And essentially those tides inundate those wetlands there when they come in, don't they? Page 69

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A. Depends on their magnitude. It's a natural part of the wetland environment. Q. Does those tides also bring saltwater from Lake Borgne? A. Yes. Q. Okay. Do you have any evidence that there were cypress trees -- you know where I'm going with this, obviously -- east of the MRGO, between Bayou Bienvenue and Bayou Dupre any time after the Corps began building the MRGO? A. Would you repeat your question. Q. Yes. Do you have any evidence that there were Cypress trees of any significant number and amount east of the MRGO during the time that the Corps was building the MRGO to today? A. I do not. I have evidence that there wasn't any. Q. What evidence do you have that there were no cypress trees there? A. Photographic evidence provided by the U.S. Army Corps of Engineers that were taken during the construction of the Mississippi River Gulf Outlet. Q. Paragraph D. Well, let's back up for a second.

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There's a term here at the end of paragraph C, "Geometry of the constructed features magnified the forces and effects of the storm surge currents and waves in some sections." Is that back to the funnel effect? A. Yes, sir. Q. Okay. Paragraph D -- okay. And what constructed features are you talking about there? A. Those would be flood protection structures. Q. Paragraph D, you're talking about decisions "to maintain and operate the MRGO channel in a manner that foreseeably allowed it to erode its banks and widen." Okay. Have you looked at the design memoranda for the construction of the MRGO? A. Yes. Q. And have you determined whether those design memoranda took into consideration that there would be erosion in the operation and maintenance of the MRGO? A. I recur -- or I recall that the design memoranda considered erosion of the banks of the MRGO. Q. And do you know how they plan to account

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for that erosion? A. At the time that this was developing, the consideration was to provide foreshore armoring of the MRGO channel banks. Q. And is that decision to provide that foreshore armoring everywhere? A. No. Q. Where would they provide that? A. Well, the place I was particularly focused on that history of development was the Reach 2 of MRGO. Q. Was there a requirement in that design memorandum to provide armoring for the Reach 2 of the MRGO for the entire region? A. I do not -- I do not recall that there was a requirement, but the engineers were considering the necessity of providing such protection. Q. I got you. But the design memorandum itself is what regulates what happens with the maintenance and the design of the MRGO, correct? A. No, that's not correct because maintenance is a reactive process. If you detect damage developing to the structure, it is a duty

of the standard of care to appropriately react to that information. Q. The design controls how the MRGO will be constructed and whether foreshore protection will be required under that design, correct? A. Correct. Q. Okay. And you do not find any requirement for foreshore protection for the entire MRGO in that design, do you? A. That's correct. Q. Are you aware that the Corps of Engineers placed foreshore protection where there was a concern that the foreshore would erode and affect the levees? A. At what stage during the life cycle? Q. At any time. A. No, I'm not. Q. Okay. So you're not aware of whether the Corps made specific decisions as to only protecting the shoreline and the foreshore to avoid encroachment on to the levees? A. They did make such decisions as the history of the channel developed. Q. And that's an appropriate decision, to protect the levees, correct? Page 73

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A. Certainly. And, in fact, they expressed severe concern that the further encroachment would endanger the stability of the levees. Q. Are you aware of the tests that were done and the analyses that were done by the Corps where they determined whether the levees would be destabilized if the foreshore was completely washed away? A. Would you repeat your question. Q. Yes. In Design Memorandum 3, there's a section about analyses and tests that were done to establish whether the levees would be destabilized if the foreshore was completely washed away. A. Correct. Q. Are you familiar with that? A. Yes. Q. Okay. More in that paragraph D. You talk about maintenance dredging. What is it that you conclude about maintenance dredging that is a problematic decision of the Corps? A. The -- based on our analyses, the maintenance dredging had two important effects. Maintenance dredging, together with the other

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conditions, exacerbated the widening of the channel of the Mississippi River Gulf Outlet. At the same time, it provided a excavation into which materials placed along the fronting areas of the Reach 2 flood protection structures could then impose pressures that would result in transport of the soil materials back into the channel of the MRGO, thereby decreasing the elevations of the adjacent flood protection structures. Q. I understood you to say that this could cause transport of the materials back into the MRGO. Can you identify any particular place where that actually occurred? A. Well, the place that we studied carefully is near Bayou Dupre, where the channel had widened to within 200 feet of the toe of the adjacent earth and manmade flood protection structures. MR. STONE: Can you read that answer back to me. I was sidetracked. (Record read by the reporter as follows: ANSWER: Well, the place that we studied carefully is near Bayou Dupre,

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where the channel had widened to within 200 feet of the toe of the adjacent earth and manmade flood protection structures.) MR. STONE: Q. It actually was 258 feet there, wasn't it, according to your report, if you're talking -A. I think that -Q. -- about your test site, right? That's your test site? A. No. That's incorrect. On test site for the wave side induced for breaching of EBSBs is Station No. 497 plus 00 Corps of Engineers location. The site I'm referring to is along that same stretch, but is at the point of the nearest encroachment of the channel to the EBSBs. There are two different locations. Q. You earlier spoke about the Corps having tested to see what happens if the foreshore completely washes away to the levee, and that's in Design Memorandum 3. They found that this levee would remain stabilized; is that fair to say? A. Not quite. Q. Okay.

A. Because the Corps, at about the same time, was running tests, full scale tests, in the Atchafalaya Basin, where they built prototype earthen structures. They instrumented the site heavily, and they determined or identified and analyzed carefully these squeezing lateral movements of the soil that occur as a result of the imposed pressures caused by the earthen structure. The Corps was aware of it at that time. And purportedly, it should have been integrated into the section that you have referenced in Design Memorandum No. 3. Q. If you have two different areas of the soil conditions, Atchafalaya and the area around Chalmette, and you test in Atchafalaya and you do the same kinds of tests for the soil conditions over around Chalmette, are you required then to also include your information that you've learned from the Atchafalaya, the different area, within your design memorandum? A. It depends on the use of that term "required." You could be required by law. You could be required by practice or diligence. In the engineering standard of practice, you should Page 77

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take advantage of existing knowledge. Q. But your concern before was that it wasn't included in the design memorandum for the area around at the Chalmette? A. That's correct. Q. But the soil conditions in Atchafalaya are different. A. That is incorrect. MR. BRUNO: Atchafalaya. MR. STONE: Say again. MR. BRUNO: Atchafalaya. THE WITNESS: He's a perfectionist. I can't say it right either. MR. STONE: Q. How are the conditions the same and when does the testing in Atchafalaya matter to the foreshore along MRGO? A. The general soil characteristics in Southern Louisiana have been determined for many thousands of years by the Mississippi River. The Mississippi River meanders as a function of time, depositing soils, a rising, fall of a sea level is about the same across that area. Many soil characteristics are endemic to the entire Southern Louisiana coastline. Q. If the Corps can do the tests along at

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the Chalmette area and come up with a satisfactory plan to get the correct answer, that's all they need in their design memorandum, isn't it, regarding the testing of the Chalmette soils? A. It depends on the nature of the testing. Q. If they have everything they need in the test, then all they need to put in the design memorandum is the testing that they did in the area that was directly relevant and exactly where they were going to work, correct? A. I -- I do not understand your question -Q. Question's withdrawn. If the test is set up properly and it's done in the area where the Corps is going to do its work, and it is -- has all the checks and balances it needs to provide an adequate determination, that is all that needs to be reported in the design memorandum; isn't it? A. No. Q. What else needs to be reported about that kind of testing? A. A variety of tests are required. It's not a test. Q. Let's stick with the one test. If

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you've got one test, and you've got that same test being done somewhere else, you know, if everything has been done properly to do the test in the area that you're involved in and that you're going to put the project in, that test is the only test that you need to put in your design memorandum regarding that issue, correct? A. That may not be correct because a single test or even an analogous test in other areas may not provide sufficient information for the engineer to reach appropriate decisions. Different kinds of tests are required to support such decisions. Q. Okay. The tests done for the Design Memorandum 3, were they done -- the question's withdrawn. Do you know whether there's a difference between outcome of the tests along the Atchafalaya -- Atchafalaya and the tests done along the MRGO? A. Yes, there is a difference. Q. What's the difference? A. One test is focused on the stability, geotechnical engineering characteristics associated with the manmade earthen protection

structure. Another set of the tests are appropriate and focus on the erosion characteristics of the manmade earthen flood protection structures. Different tests for different things. Different strokes for different folks. Q. Do you know whether the Design Memorandum 3 accommodated or included any information that was obtained from the Atchafalaya testing? A. We could not find any evidence that it had been included. Q. Does that also mean that you couldn't find any evidence that it had not been included? A. Please repeat your question. Q. You said you found no evidence that it had been. Did you find evidence that it had not been? A. We did. Q. Okay. What's the evidence you found that it had not been? A. We could not find any evidence that it was there. Q. What difference does it make here? Page 81

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A. Because we're concerned with two aspects. One's stability and one's erosion and its implications on the structures. (Discussion held off record.) MR. STONE: Q. Is there something in the -- I won't belabor this much longer, but is there something in the design that would -- from which you could infer that the information obtained in the Atchafalaya tests weren't included in the Design Memorandum 3? A. We couldn't find any evidence that there was included. Q. I see. Now, this whole discussion that we've just had, we've been talking about foreshore protection, right? A. We've been talking about two things. Q. Okay. What are they? A. The integrity of the adjacent manmade flood protection structures. The other aspect is the integrity of the Mississippi River Gulf Outlet hydrologic structure. Q. Okay. But all that has to do with is the fact that there was erosion along the MRGO, correct?

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A. That is incorrect. Q. Okay. First thing is the structures and their integrity. A. Correct. Q. What is your evidence that erosion caused failure of the structures -- question's withdrawn. What is your evidence that erosion of the MRGO in and of itself caused failures of the levees without there being a hurricane involved? A. Hurricane involved? The decrease in elevation of the Reach 2 MRGO EBSBs as a function of time were symptomatic of this squeezing process I have referenced. Q. You're talking about the materials are going to settle, and they have weight. So they compress the soil, and you think they squeeze out the bottom, correct? A. They don't squeeze out the bottom. They squeeze to the sides, and they squeeze toward their direction where the confining stresses are the smallest. Q. And what specific locations were -- was the squeezing effect occurring that has some effect on this litigation?

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A. We could identify them as the areas that had been sheet pile repaired during the operation and maintenance of the MRGO. Q. All right. Let me make sure I understand. The areas that you're talking about that were affected by this compressing and squeezing out were the areas involving sheet pile? A. Correct. Q. And they're all south of Bayou Dupre? A. No. They're between Dupre and the Bienvenue. Q. Okay. And what happened was that you believed there was an erosion from the MRGO that occurred because the levees were built in such a way that they squeezed out and -- how does that work? Was it the levees and the materials used in the levees that caused the squeezing out that was then affected by the MRGO eroded areas? A. It's an interactive process. When you allow the MRGO channel to encroach that close to the toes of the EBSBs, you're providing a shortening of the migration channel for the soils under the EBSBs to then intrude into the channel. Q. So when the Corps was designing the

levees, they should have taken this condition into effect and made sure it didn't happen -A. That's correct. Q. -- that's what you're saying? Okay. All right. Last thing you have in here -- let's go back to maintenance dredging just for a second. Maintenance dredging is required to keep the channel open, isn't it? A. Of course. Q. Well, it was -- the channels closing now, but it was required to keep it open? A. Correct. Q. That was the purpose of the channel, was navigation? A. That's correct. Q. So what is it about maintenance dredging that you find to be problematic? I mean, I'm talking about the dredging itself. Is it box cutting? Small boxes? Big boxes? Whatever you're talking about. I need to know what you mean by "maintenance dredging" that you say is required to keep the MRGO in operation, but that somehow is one of the maintenance and operation problems that Page 85

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you -- that you observed. A. Correct. Q. What is it about the maintenance dredging that's problematic? A. Well, one is the squeezing mechanism we have talked about. The second is as the channels are allowed to widen, we're destroying several natural buffers for hurricane conditions. One of the most important is the natural buffer between the bank of the channel of the MRGO and the adjacent manmade flood protection structures. That vegetation has important effects on the hurricane conditions that arrive at the faces of those manmade protection structures. Q. Do you take issue with the placement of the dredge spoils rather than the actual way the dredging occurs? A. Correct. Q. Okay. So you -- I just want to make sure we're clear here. You're not attacking the dredging itself from the perspective of -- perspective of how the Corps does the dredging --

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(Reporter interruption.) MR. STONE: Q. It's what happens with the spoils that matters to you, correct? A. With the spoils and with the geometry caused by the dredging. Q. Does a widening of the channel cause a lower water depth without the -- so long as the bottom depth doesn't -- I don't know. Let me -let me withdraw that question. A. I was trying to draw a picture, and I couldn't. Q. The water in MRGO is a certain depth, let's say, at a width of 650 feet. A. Okay. That depth is variable. Q. Right. Does that level decrease as the MRGO broadens? A. The water gets deeper. Q. How does it get deeper by broadening? A. Because the bottom is going to a lower elevation. So the water depth is increasing in that process. Q. If bottom depth remains the same, through dredging or otherwise, and the banks of the MRGO are eroded away and MRGO gets broader,

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does the water level in the MRGO lower, or is it affected at all? A. I find your question confusing. Q. Okay. A. You can't dredge without lowering the bottom of the soil or the top of the soil. And if you lower the top of the soil, it has an effect on the depth of water. Now, none of this is having effect on the water level itself. The water level itself is being controlled by isostatic conditions. Q. More water comes in to replace the missing soil underneath I guess, right? (Reporter clarification.) THE WITNESS: He answered the question. MR. SMITH: The witness is excused. THE WITNESS: I don't want to be. God, I failed already. MR. BRUNO: Don't even say that. THE WITNESS: Am I Class A? Robin's right. MR. STONE: Q. Paragraph F. A. F. Q. Now, these are all preliminary to your reports, right. So we're kind of getting a few

preliminaries out of the way as best we can. But this is a summary of your actual reports, right? A. No. Q. Summary and conclusions? A. No. Q. Okay. Tell me what this is that you're going through right now. A. You're going through a summary of the expert report I submitted on July the 14th, 2008. It does not include any of the subsequent work. Q. Is that all included in the stuff you gave me this morning? A. No. Q. Okay. Well, where would I find the subsequent work, then, that you've done? A. It's probably in your file drawers. It includes the expert report I've wrote and submitted October 7th, 2008. Q. October 7, 2008, that was the declaration you gave to the court, right? A. That's correct. Q. Oh, okay. All right. Somehow I zonked out on that because I didn't pick up on it was your declaration to the court. Page 89

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MR. BRUNO: You're excused. THE WITNESS: No. If I can get whacked, he can, too. MR. SMITH: Madam Court Reporter, we're not used to having a court reporter that takes down every word that's spoken. THE REPORTER: It's videotaped, so I have to get down every single word. MR. SMITH: No, I'm not complaining. MR. BRUNO: They've been -- all been videotaped. MR. SMITH: I'm just looking at your transcript, and I'm noting all these side remarks that are appearing in here. THE WITNESS: Kathleen, you're doing a wonderful job. MR. STONE: Q. Paragraph E, that seems to have to do with the EBIA project? A. Yes. Q. Now, I'm not going to be asking you anything about EBIA, the activities of WGI and soils in the EBIA and whether they put the right materials back in or they didn't put the materials back in. Do you expect to be able to testify in

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court about these -- these issues? A. Certainly. Q. Okay. A. I would be disappointed -Q. What's your basis for thinking you ought to be allowed to testify about it? MR. BRUNO: Objection. That calls for a legal conclusion. He can't possibly know. MR. STONE: I want to know what his basis is. We'll deal with yours with the judge. MR. BRUNO: Well -THE WITNESS: I devoted significant time to field studies, document studies, photograph review studies pertaining thereto. MR. STONE: Q. Okay. All right. I will ask you a couple questions, but I don't agree that you'll be allowed to testify to that. I'm just telling you right up-front, because that's an issue that we've dealt with -MR. BRUNO: Yeah, but he's wrong. MR. STONE: Joe and I will have a -MR. BRUNO: Because it's a causation question. We made this point to you very clearly. This witness was asked to do a forensic evaluation. Obviously, he must tell the judge

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what that forensic evaluation resolved. Now, you are correct, the Court will resolve the liability of the Corps for those activities. MR. STONE: Q. Well, let me ask you a couple questions about that. MR. BRUNO: I just want to be fair. That's all. MR. STONE: Q. In doing that analysis, you determine that because WGI took some soil out of the area and didn't replace it with the right stuff, it caused some kind of underseepage, which allowed the flood walls along the east side of the Inner Harbor Navigation Canal to fail due to underseepage, correct? A. Incorrect. Q. Okay. What did you determine? A. We determined that hydrostatic uplift pressures associated with the water conductivity between those excavations and the stability of the manmade flood protection structures was a critical issue and could explain, in a most probable cause evaluation, the failure of the flood protection system structures identified as the north breach and the south breach.

Other causative mechanisms and factors were investigated as well. Seepage is only one of a series of important causative mechanisms. Q. Okay. We're not going to have much more time on the videotape, but let me ask you real quickly here. You were a co-leader on the ILIT, correct? A. Correct. Q. And the ILIT -A. ILIT means Independent Levee Investigation Team. Q. And ILIT concluded that the failure of the north breach occurred before overtopping, correct? A. That is correct. Q. And the mode of failure was that the flood wall began to lean from the pressure of the water; a gap developed in the levee crest, which allowed charged water to descend and seep under and push out the levee wall; is that fair to say? If it's not, correct me. A. General conception is correct. Q. That was for the north bridge. And for the south bridge, they concluded Page 93

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overtopping. The water came over the top of the levee flood wall, dropped to the back, scoured out the back and allowed that levee -- entire levee system for 900 feet to be displaced. That's the way they determined that the failure occurred? A. That is incorrect. Q. Okay. How did that failure occur, according to ILIT? A. That failure occurred, according to ILIT, as a multimodal failure that unfolds during the process of elevation of the surge, including overtopping, involving significant hydraulic conductivity and seepage effects underneath the south breach area. Q. All right. What does your analysis of the WGI project add to the investigation of the mode of failure of either -- of the north wall first? A. With your permission, I'll answer your question generally for both now, north and south breaches. Q. Okay. A. At the time of the Independent Levee Investigation Team's work and at the same time during the conduct of the Corps of Engineers

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Independent Performance Evaluation Task Force, the presence and effects of excavations on the east bank industrial area associated with the Army Corps of Engineers lock expansion project site clearing was not recognized. If those effects were not included in either of the investigations, nor in the investigations conducted by the National Institute of Standards and Technology, it was missed. Q. Let's assume for the sake of argument that you're right. Are you assuming that the soil conditions along the length of that EBIA are similar for the full length of the EBIA? A. The important word in your question is "similar." The people in this room are similar, but they have some very important differences. Q. Let's cut right to the chase. You didn't -- you deal with the activities of WGI as if they didn't fill some excavations in the area, and that caused the underseepage in the failures, but you don't deal with the McDounough borrow pit, which is just completely dug out and full of water right next to the flood wall, and the flood wall didn't fail.

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How do you distinguish between the McDounough borrow pit and either of these other two areas in a -- in that distance? A. Your question is flawed. We did consider that particular factor. Q. Okay. How did you consider it? Why didn't that flood wall fail? A. Well, we had to explain it. We not only are burdened with explaining failures, but we have to explain successes, nonfailures. So the perplexing question was, why didn't that stretch fail? Well, it was in the course of reviewing several hundred photographs and reviewing the documentation associated with the east bank industrial area site clearing operations, that we discovered the answer. The answer was the parties involved, the Corps of Engineers and WGI, recognized the potential impacts that that excavation could have on the stability of the adjacent flood protection structures. They took steps to mitigate that impact in the sense that they placed clay wedges, linings on the wall of the excavation.

And the purpose of that clay lining in walls and bottom on the excavation was to prevent water intrusion into the underlying soils, so that when they opened up the excavation, they were afraid water could intrude, get under the walls, and it couldn't because they had mitigated. MR. STONE: You need to change your tape. THE VIDEOGRAPHER: This marks the end of Disk No. 1 in the deposition of Dr. Robert Bea. The time is 11:40 a.m., and we are off the record. (Whereupon, a lunch recess was taken.) AFTERNOON SESSION THE VIDEOGRAPHER: This marks the beginning of Disk No. 2 in the deposition of Dr. Robert Bea. The time is 1:06 p.m., and we are back on the record. MR. STONE: Q. Mr. Bea, before the break, we talked about the squeezing out of materials from underneath the levee? A. Yes. Q. Did you notice -- the question is withdrawn. Did you quantify any difference between settlement due to squeezing and settlement from Page 97

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consolidation of the soil below the levees? A. No, we did not. Q. Okay. Were you unable to do that because of lack of information or what? A. Both. MR. BRUNO: Or what? MR. STONE: Q. Why were you unable to do that? A. I apologize. One was because of lack of information. The other was lack of time and other resources. MR. STONE: Q. So you won't be going into court and saying there was a quantifiable difference that you were able to detect by looking at a particular levee? A. I would like to do that. Q. But you're not prepared to do that at this time? A. That's correct. Q. Okay. Did you determine if there was any tilting to any of the levees that occurred due to this squeezing effect that you've talked about? A. We investigated two modes of performance. One directly associated with the squeezing; the lateral displacement of soil from

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under the levee. We used current state-of-the-art techniques to perform those calculations and corroborated those calculations with the performance of a similar facility constructed by the U.S. Army Corps of Engineers in Florida. In addition, we performed stability analyses utilizing characterizations of the soil for long-term loadings, commonly called "creep," to determine if the EBSB levees' earthen protection structures were in danger of loss of stability. Q. Did you observe any levee that you were able to determine had tilted because of the squeezing effect? A. No, I did not. Q. Okay. A. Levees, in general, don't tilt. Q. Okay. Was there any difference in vertical movement between the protected side and the unprotected side of any levee you looked at due to this squeezing effect? A. There were differences between those elevations that you cited, but we did not determine if that was due solely to the squeezing

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effect. Q. Did you determine that a portion of it was due to a squeezing effect? A. No, we did not. Q. Okay. Let's go to paragraph F on page 8 of the document we were looking at before lunch. That talks about your opinion regarding the decision to conduct the LPV -- excuse me -the decision, "to construct the LPV along Reach 2 and portions of Reach 1 (New Orleans back levee) with dredged spoil from the MRGO channel which was not suitable for constructing a hurricane flood protection system for a coastal environment." Can I stop there? A. Yeah. Q. Okay. Are you using "dredge spoil" synonymously with "hydraulic fill"? A. Yes. Q. Throughout your reports? A. Yes. Q. So any time we're talking about either, we're talking about something that's been pulled out of the MRGO channel? A. Or a similar channel. Q. Or from borrow pits?

A. In general, no. Q. Okay. A. This was -- the -- the reference to "dredge spoil" would infer -- require the use of a hydraulic dredge. Two locations, in particular, are of concern. One is the Reach 2 EBSBs between Bayou Bienvenue and the turn of Reach 2 to Caneveron. The other location is the New Orleans East Back Levee, a section, in particular, between the northeastern extremity of that levee and Pump Station 15. Q. North of Bayou Bienvenue to the turn of the GIWW; you're not concerned with that part? A. That's correct. That was truck fill, compacted. Q. What was it truck filled and compacted using? What material was truck filled? A. Well, of course, trucks, compaction equipment, and soil obtained from nearby borrow areas included materials that brings the entire range of soils from sands to silts, very importantly, clays, nonorganic. Q. How about the section that's called the New Orleans Citrus Back Levee; you have no Page 101

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concerns about that as far as materials used in that levee? A. That's correct. Q. You just said "nonorganic clays"? A. Nonorganic soils. Q. Soils. Are you distinguishing between organic soils that have clays in them and organic soils that don't have clays in them, or how does that matter to this case? A. The organic materials are a strength degrading material in the soil composition. The amount of organic material is controlled through specifications developed at the time of design and sometimes at the time of construction. Sometimes at the time of construction, decisions are reached to accept greater or perhaps lesser amounts of organic material. Q. What are the guidelines that the Corps would use to make the determination as to when to use the particular different kinds of soils that can be used for levees? A. The Corps would rely on their specification for the design and construction of levees, Engineering Manual 1110, and I forget the

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suffix number. Q. 1913? Does that sound right? A. I don't like to rely on things that sound right. Q. But you're talking about the design and construction of levees manual? A. Correct, Corps. Q. That's an engineering manual for the Corps? A. That's correct. Q. Now, you were a co-leader on the ILIT. We've already talked about before. A. Correct. Q. And during that period of time, you evaluated the building of these levees, correct? A. That's correct. Q. And you looked at whether or not the materials used in those levees were authorized by the Corps's guidelines, correct? A. The Corps's guidelines? We could not make such an evaluation because we did not have complete information on the soil characteristics of the soil that comprised the Reach 2 EBSBs, nor the soils that comprise the four-sided section of the New Orleans

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east back levee. Q. Did you have soil borings, particular sites of the Reach 2 along the MRGO? A. We had the soil borings that had been provided through the development of the Corps of Engineers IPET study, had been posted on their site. In addition, we performed soil borings as part of the ILIT study on portions of the Reach 2 EBSBs. Q. Did you compare -- did you personally compare those soil borings to the engineering manual that you just spoke to me about that was relevant for the time period of the construction of the levees? A. Would you define what you mean by the term "compare." Q. Did you take those soil borings, determine what soils were shown by those borings, and compare that to the guidelines that the Corps had available for use of those materials in designing construction of levees? A. Yes. Q. You personally couldn't have done that, could you?

A. Well, yes, I could. Because during one of the -- if I'm correctly understanding your question, during one of my -- well, my first deposition with Robin Smith, they produced a series of borings performed in 2001. We then compared the characteristics summarized in the information from the boring logs that was presented with, and that comparison was with appropriate materials to be used in the construction of manmade earthen flood protection structures. Q. But at the time of the ILIT, you weren't -- question's withdrawn. At the time of the ILIT report, you did not compare any of those soil samples to the relevant manual for design and engineering of the levees, correct? A. We had soil boring information that had been provided by the Corps of Engineers IPET study that we used to compare with the specification of appropriate materials in the Corps of Engineers engineering manual for design and construction of levees. Q. What manual did you compare it to when you were working on the ILIT? Page 105

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A. The original -- well, the EM that was posted on the U.S. Army Corps of Engineers public web site for access to their engineering manual documents. Q. In your deposition with Mr. Smith, you specifically stated that you had never seen the 1978 engineering manual? A. And that's correct. Q. So you -- you couldn't possibly have compared any of the soil samples to the guidelines for use of those soil samples from the 1978 engineering? A. And that's correct. Q. Okay. Did you -- well, I don't mean to be tricky here. A. Me either. Q. I didn't know it would go this way. 1947 manual for levees for the rivers? A. Right. Q. You didn't have that available to you either? A. That's correct. Q. So you didn't compare any of the guidelines within that manual to any of the activities of the Corps, even up to the time you

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did the report for the ILIT? A. That's correct. Q. Still in paragraph F, there's a clause there, "Congressionally mandated Hurricane Flood Protection System." We've covered that, haven't we? A. Yes. Q. Okay. I think next we covered at least the '78 and 1947 manual that's mentioned in -where you say they constructed these without utilizing applicable USACE manuals, guidelines, criteria standards and policies in effect from 1965 to the present. Let me stop there for a minute, and you tell me if there are any other guidelines for right now, other than ones that you've mentioned in -- I think it's Volume V of your technical report. A. Will you repeat the question. Q. Yes. Other than the 1978 manual and 1947 manual, are there any other guidelines, manuals, criterias, standard, and policies in effect from 1965 to the present of the Corps, that the Corps didn't follow, that you haven't mentioned in your

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technical report? A. To make the comparisons, we had to rely on the manuals that are currently available. The original design manuals were not currently available through the Corps of Engineers IPET web site. Q. Did you inquire from any of your contacts at the Corps for them to provide you any earlier manuals that were relevant? A. Subsequently, we did. Q. After your report? A. That's correct. Q. There's another section to that paragraph G, and that's where you talk about where the Corps didn't meet generally accepted engineering standards for coastal hurricane flood protection structures. What are those generally accepted -- and I want to make sure that we're clear about this when we talk about it. Things that were generally accepted at the time, that people in the industry were using to build levees like those levees along MRGO, and around that hurricane protection system. A. Right.

Q. Okay. So what -- what are you talking about there for "generally accepted engineering standards"? A. One of the primary ones is U.S. Army Corps of Engineers -- Coastal Engineering Manual is the term given to it today. It's had many predecessors for many years. In addition, there are geotechnical engineering standards that were published at that time in the form of technical papers and reports that are used by engineers for the design of earthen flood protection structures. In this time period, I was chief offshore engineer for Shell Oil Company. We had responsibility for the design, construction, operation and maintenance of such structures to protect coastal facilities such as refineries. We applied this body of technology, knowledge to the design, construction, operation of the flood protection structures for Shell Oil Company in coastal regions. Q. Okay. Let me -- I'm only exploring here to find out what standards or -- you're saying the Corps failed to follow. So I understand so far that what you Page 109

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mean is the Corps' own standards and guidelines, and that coastal manual is -- is actually mentioned in your tech report? A. That's correct. Q. So any geotech standard that was available out there to the Corps, if you think that they violated it, you've mentioned it somewhere in your report; is that fair? A. That's correct. Q. Now, paragraph H, a decision not to "expeditiously complete the hurricane flood protection system." How did that cause the failure or the breaches of the levees for the hurricane protection system? A. The Army Corps of Engineers was still constructing those structures at the time of Hurricane Katrina. Q. Did they have an authorized completion date from the Congress? A. At the time of Hurricane Katrina? Q. Yes, sir. A. I do not know. Q. I thought I saw in your deposition that they were to be completed by the year 2017.

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Do you know whether that's true or not? A. That's correct. Q. Okay. And -- and also that the Corps had asked for funding for those levees? A. And that's correct. Q. So Congress hadn't provided the funding, so this is one of those Congressional decisions that you're complaining about, right? A. That's correct. Appropriation without authorization. Q. Now, you've also said in the past that building of these levees in lifts was an appropriate method of construction, and that's true because of settlement; is that correct? A. That's correct. Q. So there has to be a period of time for the levees to settle and cure, essentially, before you can come in with the next lift? A. That's correct. The time period is necessary to increase the strength of the soils beneath the levee. And so water is being squeezed out as you impose the lifts, and time has to be provided for that consolidation process to be accomplished. Q. That's part of the normal process of

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building the levee? A. Yes, sir. Q. Can you show me anywhere in your report that you have concluded that these levees, if they had actually been built to the final lift standard, would have survived Hurricane Katrina? A. Will you repeat your question. Q. I think your report says that they may have. A. Correct. But "would have" and "may have" are two different things. Q. All right. So -- so you can't definitively state that they would or would not have survived Hurricane Katrina if the final lift for the Reach 2 of the MRGO under the Chalmette Area Plan 2001 had been completed, correct? A. That's correct. Q. Okay. Before we move on, just a little bit more background material. Are you aware that whenever the Corps of Engineers personnel start designing, or whenever they have contractors design levees, these design documents go through many endorsements? A. Indeed. Q. Okay. What's the purpose of running all

those design plans through the endorsements like they do in the Corps of Engineers? A. They're attempting to find potential -to find or identify potential flaws in the design engineering. Q. This is -- withdrawn. What you've just said meets your recommendation from your report that people brainstorm about the issues; am I correct? A. Potentially you're not correct. Q. Okay. This is not a brainstorming process? A. It depends on which brains are involved. If all of the brains are from -- we'll call it the same area of thinking, you are inhibited from finding important flaws and defects. If everyone thinks the same, you can't expect the same thinking to disclose these unusual elements. Q. And that's one of your concerns about the levee system that was built in the New Orleans area -A. That's correct. Q. -- that the Corps of Engineers, with other people in the vicinity, such as from state Page 113

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and local authorities, came up with the reasoning and the plans. And they didn't do that, though, to the exclusion of other scientists, did they? A. I have no knowledge. Q. Okay. Do you know whether wetlands personnel, through the years, have been asked their opinion about the way the MRGO and GIWW and all of the other systems down there are affecting the wetlands? A. Asked by whom? Q. By the Corps. A. Oh, no, I do not. Q. Okay. Are you aware that the Corps has personnel who meet with local state and local government personnel that are involved in that kind of a business -A. Yes, I do. Q. Okay. And are you aware of the 1979 environmental impact statement -- and I'm not going to talk about it very much -- that the Corps was a part of that addressed the issues related to dredging and everything else having to do with the wetlands? A. Correct.

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Q. Okay. In No. -- No. 2 -- are we finished with your basic opinions here, and now we're going to No. 2? And these first opinions were about decisions that were made, right? A. Correct. Q. And now we're into a different kind of opinion? What's the distinction between decision-making opinions and what we're doing now when we get to No. 2 on page 9? A. They're related. Q. Okay. It's a relationship? A. Exactly. Q. And you're continuing to flesh out what you mean by the "decision-making process" earlier? A. Correct. Q. Okay. You say, "Each of these factors, as well as in combination" -- and that's the opening clause -- those are the opening clauses of that section. Now, you are able to separate out each of these factors and say how it fits within the -the analysis of the breaches for the system; is that fair to say? A. Repeat your question. Q. I'll have to say it better than that for

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sure. The factors that you're talking about are design, construction, maintenance and operation. And you can separate each one of these out and tell what effect it has on the causing of the breaches of the levees? A. Correct. Q. Okay. A. We can identify the factors. Quantitatively evaluating all of the factors and their components is difficult and, at this point, incomplete. Q. And then each of these factors has, you said in other places, a synergistic -A. Cumulative effect. Q. -- cumulative effect on others? A. Correct. Q. All right. Now, if you were in charge and the breach has occurred, and you wanted to find out what caused the breaches within -- from within the Corps of Engineers, and you're in charge now -A. Yeah. Q. -- is it fair to say that you'd first sit down and call in your department heads, you'd

call in your department head for construction, your department head from design, and one from engineering, you know, maintenance operations, and you'd have them do an investigation, come to you, provide you the outcome of their investigation and recommendations? A. You asked the question would I do that -Q. That's correct. A. -- as a responsible policy maker for the Corps? Q. Yes. A. No. Q. What would you do? A. The first thing I would do would be to start the investigation at a basic level to determine what factors were involved in development of the breaches. The next thing that I would do would be -Q. Can we stop there for a second? A. Certainly. Q. Tell us where -- where would you go to get that information? MR. BRUNO: Guys on the phone, IDEP Page 117

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apparently is up and running. THE VIDEOGRAPHER: This is the videographer. Until we take a break, we won't get the transfer feed. But we do have the video and audio feed. MR. BRUNO: Okay. Well, I stand corrected. MR. STONE: Q. All right. Back to where we were. A. Repeat. Refresh. Q. I had asked you, and we were talking about what you would do first. A. Right. Q. And you've got more things that you were going to do, but I stopped you at that point. A. Yes. Q. And I wanted to know, where would you go to get this analysis done? A. The field. To the field. Q. You would send people out in the field to do this? A. To gather data, information, so that then you can bring it back to the office and subject to it analysis. Q. Okay. So you would send people from

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those departments. You would have the department heads send people out to begin their investigation? A. Well, if it were me, I would send two groups of people. One from the department that had part of the history, and I would, as well, bring in outsiders who had not been part of the development of that history. Q. Do you have any evidence that in the circumstances that we're dealing with right now -A. Yes. Q. -- the breaches of the levees, the Corps failed to do that; bring in two groups of people? A. No. They brought in two groups of people. Excellent. Q. So IPET was one of those groups; is that fair? A. That's correct. And they were overseen by two other splendid groups. Q. They were overseen by the American Society for Civil Engineers and also by the National Research Council? A. That's correct. Q. And National Research Council was completely independent, overseeing what they did?

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A. How do you use the word "independent"? Their work was paid for by the Department of Defense. Who pays me is something that creates a dependency. Q. But they did not participate in the investigations. They were set up to evaluate what -A. Oversight. Q. -- what came out of the investigation? A. Well, they -- not just what came out. They actually participated in the conduct of the work so that as the IPET Corps group, both Corps of Engineers employees and the outside consultants, as they were developing their thinking, both ASCE committee and the NRC committee were providing advice and observations about the conduct of what was being done. Q. Do you have any evidence that either of these groups failed in that function? A. Yes, I do. Q. Okay. What is your evidence of that? A. Well, one example is brought out in the declaration -- or in the expert report that I have written dated January the 29th, 2009.

I cite specific examples where recommendations made by the NRC committee were not, to the evidence I have available, action taken thereof. Q. That's NRC? A. That's NRC, correct. Q. Okay. A. At the direction of Dr. Winecloff. Q. Now, if I look at your 600 pages tonight, I'll find that in there. Can you kind of direct me to it? A. Go to the section dealing with the analysis of the breaching at the Lower Ninth Ward. You can do a word search on Dr. Mosher. Q. Okay. Just for short form here, what is your evidence, and what is it that you claim Dr. Mosher did that you take issue with? A. The evidence are the quotations of recommendations made by the NRC committee to the IPET investigation group. The evidence I cite is the evidence documented in the expert report by Dr. Reed Mosher. Q. And what were the questions or the information that was provided by NRC that failed Page 121

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to be followed through on? A. Well, one of the interesting ones was in Report 2 from the NRC, when they suggested that the IPET group contact the investigators performing the ILIT activity. We were never contacted. Q. So your -- your objection is that when NRC suggested that Dr. Mosher and others should have followed through on it -A. Correct. Q. -- and contacted ILIT? A. Correct. Q. But weren't you considered to be, by the name of your group, an Independent Levee Investigation Team? A. That's why it's so crucial. We were independent of obligation, financial or otherwise, to the investigation being done by the Corps into its own failures. Q. The ILIT was working under a grant at that time -A. National Science Foundation had no relationship to the IPET -Q. Okay. A. -- studies.

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Q. Is your objection because you and the members of your team weren't qualified to pursue certain things that needed to be done, and you needed the help of the IPET? A. No. Q. What is your concern, then, and objection to the IPET not contacting you? A. The NRC cited specific things that needed to be considered as you performed stability and seepage analyses. We had worked hard on those components. They were recommending that they contact us to take benefit from the learning we had gone through. It was not to force confrontation. It was intended to -Q. I wouldn't say confrontation. A. -- enforce collaboration, which never happened. Q. I didn't mean to insinuate confrontation of any kind. So you had information that you wanted to provide to the IPET? A. That's correct. Q. And what's the problem with just picking up the phone, calling up Dr. Mosher or anyone else

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and providing the information? A. We did not have such access. Q. Did you call Dr. Mosher and offer him the information? A. Certainly not. I never made any calls as a co-investigator. Q. Okay. Did anyone else, as far as you know? A. I do not know. Q. So let me stop for a minute with these four factors that we've been talking about. You have design. What's the problem with design here in a nutshell? We'll flesh it out in your reports. Give it as thorough as you want, but I'm kind of looking for what really is the problem with design here. A. I think we started organizing that this morning in response to one of your questions. We organized the response into design conditions, characteristics. You'd say an equivalent in this category would be the Standard Project Hurricane and the Probable Maximum Hurricane, together with the prescribed environmental characteristics that you

were citing, like the minimum barometric pressure or the maximum wind speed. Second category are elements related to the definition of the required capacity -- pardon me -- the required demand characteristics to be employed in engineering the system. By "demand characteristics," I would refer to such things as erosive potential of soils. Another demand characteristic would be vertical imposed loadings on an engineered structure. Another would be, well, given the prescribed environmental characteristics, for example, waves, what kind of force, run-up/run-down characteristics should be applied by the engineer in engineering that system. The third category are resistance factors. These are the things that determine performance characteristics for the engineered system, which would mean how it should perform under the prescribed design conditions, as well as beyond the design conditions. So that would involve such things as how you calculate capacities for the various potential failure modes, the factors of safety that should Page 125

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be employed in those processes, and the quality assurance and quality control processes that should be employed during that entire process. That's engineering a complex, engineered system. Q. I probably should have interrupted you, but I try not to. A. Thank you. Q. Because I'm strictly talking -- I'm -A. Don't let me run on. Q. I'm strictly talking about the MRGO itself. I'm not -- when it came out originally, what's wrong with the design on the MRGO that you -- you think that matters here? A. Okay. Focusing on the MRGO as an engineered hydrologic system, one of the things that I cited earlier today was a lack of sufficient -- or protection to control water flows during both normal and abnormal conditions. Q. In other words, the barriers? A. Barriers or gates. There's different ways to protect the system. Q. So we're kind of stuck with the design as far as the route goes, right? A. Yes.

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Q. Once you got a route like that, things happen, you're saying that you -- there's more to the design -A. Oh, yes. Q. What is it that's wrong with the design for the MRGO that matters here? A. Well, for -- one of the things that's of particular importance would be the itroduction of salinity into otherwise brackish or fresh water areas. Q. We're stuck with that also -A. No, we're not. Q. -- because that's part of the design, isn't it? A. No. Q. How do you reduce the flow -- how do you reduce salinity on the MRGO, then? A. For example, you could put barriers on the Gulf of Mexico, where the highly saline dense waters are, that would prevent the intrusion into the fresh water areas. The ducts, as well, have used bubble curtains. Air is being bubbled through, or it can be conducted, so the dense waters can't come through.

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Q. And so that's a modification of the design that you would recommend to prevent salinity coming up the Gulf? A. Correct. Q. I'm sorry. Up the MRGO. A. Yes. Q. Anything else for design on MRGO? A. Sure. The gates that you cited. Q. Okay. A. Water control structures. Q. Anything else? You talked earlier about the erosion too. So we'll include that in your problem with the design. A. Correct. Q. The erosion was allowed? A. Well, erosion -- yeah. Erosion was anticipated, but not defended. Q. It was allowed? A. Correct. Q. Okay. And it was allowed under the design, wasn't it, the original design? A. Correct. Q. Okay. So let's drop to the next category, from design to construction.

A. Got it. Q. What is there about the construction of the MRGO that you take issue with? I don't mean to tire you out, so any time anybody needs a break. A. Bless you. Thank you for your consideration. I'm thinking is the reason for the pause. Q. That's tiring, isn't it. A. Yes, sir. It's worse than having to work for a living. Let's see. Back to the construction. Yes. The side cast ridge spoil was instrumental in filling large areas of protective marshland in swamps. Q. Okay. So you include that both in -okay. You include dredging in construction? A. And maintenance. Q. And maintenance? A. Because that's how the channel gets there. Q. But the way dredging is a problem under Page 129

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your analysis is that it damages -A. The eco environment. Q. -- the environment? Okay. Anything else for construction? A. I think not. Q. I'm sorry, sir? A. I think not. Q. Okay. What's next? Maintenance? A. Maintenance. Q. Yes, sir. MR. BRUNO: Operations/maintenance. THE WITNESS: Operations would then carry forward to maintenance. Maintenance dredging, for example, that would deepen the channel or contribute to the widening of the channel, which then poses stability performance problems for the adjacent flood protection structures. Maintenance dredging would also contribute to the inundation of the marshland with the sediment that would kill the marshland. MR. STONE: Q. Operations? A. Operations would be an example where ships are allowed to trans -- transmit pressure waves that erode the shore banks of the channel,

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and no action is taken to control that erosion. Q. Okay. What action would you recommend -- question's withdrawn. After having done an analysis of this, if you have, what recommendations do you have regarding operations? A. Slow the ships down, armor the channels. Q. Okay. All right. Have we pretty much covered what you claim are issues relate -related -- the question's withdrawn. Have we pretty much covered those four categories as far as your opinions of problems that -- for the MRGO? A. With the -- for the MRGO. The one we may not have covered adequately, and please correct me if I'm not being responsive to your intended question, would be the effect of the salinity induction on the natural protective features. Q. Do you have any expertise in the area of salinity of water resources? A. Yes. Q. You're not holding yourself out to be the expert on that here in this litigation, are you?

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A. No way. But I know when you pour saltwater on grass, it dies. MR. STONE: Is this a good time to take a five-minute break? MR. BRUNO: Yeah. You all need to visit. THE VIDEOGRAPHER: The time is 1:49 p.m., and we're off the record. (Whereupon, a recess was taken.) THE VIDEOGRAPHER: The time is 2:02 p.m., and we are back on the record. MR. STONE: Q. Do you know a member of the ILIT team named Dr. Rogers? A. David Rogers, yes. Q. He was geotech? A. Geotech, geology and historian. Q. Okay. And are you still communicating with him? A. Oh, very definitely. Q. Okay. A. He's -Q. It's my understanding that Dr. Mosher communicated, or at least the IPET communicated with him, about issues? A. I would not --

MR. BRUNO: Push over to the left just a tad. THE WITNESS: I would not know. MR. STONE: Q. Do you want to call Dr. Rogers about it, since you all communicated about it, you might find out. What opinions do you have about salinity and how it caused the failures or breach of these levees? A. It's the effect on the natural protective features, vegetation. Q. What did it -- what type of vegetation did it affect? Spartina or whatever? A. It would affect anything that was in the brackish to fresh water regimes; cypress trees to Spartina. Q. Cypress, we've concluded, are not an issue here for this litigation, not for anything east of MRGO, correct? A. That's correct. (Reporter interruption.) MR. STONE: Q. Still on paragraph 2 on page 9, you say, "The system in place would have been adequate to contain most of the surge but for the increased and sustained surge, currents and Page 133

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waves exacerbated by the MRGO." That's the last sentence there. But the system that is in place at the time, according to your reports, is one where levees are made with sand and no grass; is that fair to say? A. No, that's not fair to say. Q. Okay. What condition is the system in at the time that it would withstand everything but the increased and sustained surge, currents and waves exacerbated by MRGO? A. I don't understand your question. Q. It's probably not a good question. I don't know how to get though without going through your report. I guess that's the best way to flesh out what you mean by this sentence right here, isn't it? A. Let me see if I can help. Q. Okay. I do have one page from your report that might be helpful. That's page 114. No. 134. But we don't have to go there if you can tell me what you mean by that -A. Oh. Q. -- by that sentence?

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A. The MRGO -- and I will refer to the portion of MRGO along Reach 2, had several sets of factors involved in the Katrina as-was conditions, contrasted with our defined Katrina neutral conditions. The factors would include effects on weight, current, surge, currents. Surge, not particularly, I will call it, in dispute, but the waves, certainly. That story is embedded in the effects on the protective marshlands, wetlands, on its effect on the foreshore protection for the manmade flood protection structures; on its effect in contributing to the settlement of the earthen flood protection structures that we described this morning; on its effect on the grass protection, if you will, its integrity and root density that coated the surface of the earthen flood protection structures. Q. All right. You just said that surge not particularly in dispute? A. I think that's true. Q. Okay. A. However, that statement is conditioned on the information that I have seen from you

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recently produced by Dr. -- Professor Westerlink. And information I've received is that information is deeply flawed. Q. All right. With that in mind, surge not particularly in dispute, let me read you something that Mr. Bruno said to the Court in the causation argument. "The critical difference between them and us is that the Corps of Engineers believe that the levees failed because of back side erosion -I'm sorry -- caused by overtopping. The plaintiffs' argument is that the levees failed because of front side erosion." Do you agree with that? A. No. Q. Okay. What's -- all right. Is there a way you can say what's the critical difference between them and us -- you're them -- without there being surge involved in the picture? A. One of the forensic -- one of the sets of the forensic analyses that I would attribute generally to the defendant experts is that the EBSB's earthen flood protection structures failed primarily due to overtopping back-to-front

breaching. Q. Okay. A. Our forensic engineering analyses indicate that a substantial portion of the breaching was due to front side initiate -- front wave side -- or front side wave initiated breach development exploited by the rising surge water, which then breached from front to back. Approximately 45 percent of the length of the breached structures we attributed to that mechanism and 55 percent to the overtopping back-to-front breaching mechanism. Q. So the overtopping you now conclude is a greater cause of breaching than is front side erosion? A. By 5 percent. Q. Okay. And do you conclude that based on professional engineer Bruce Ebersole's report? A. His work has been a primary contributor to our knowledge. We don't grade -- base anything on a sole source of information. Q. Okay. All right. In your technical report at page 3 -A. Which technical report? Q. It's the technical report that came Page 137

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along with your July 11, 2008, Technical Report No. 1. A. Technical Report No. 1. I do not have that technical report with me, but I can get it on my computer. Q. Whatever is easiest. We have it. We can bring it up for you. A. I can get it here, I think. MR. STONE: Lena, can you grab a copy of it out of the box there if he'd like to have a hard copy. THE WITNESS: That would be very helpful. I'm a paper guy. MR. STONE: Q. We're going to go back to that small book first. We're going to work through that stuff. I want to point out that first sentence here in your report. A. Part 1, technical report. Got it? It's coming up. Q. Okay. And I quote, "The purpose of this study was to evaluate the magnitude of erosion resulting from wave-induced scour on the flood side of the Mississippi River Gulf Outlet (MRGO) earthen berm/spoil bank (NESG) during Hurricane

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Katrina August 2005." A. That's correct. Q. That's what you're studying here. You are not studying -A. In this report. Q. You are not studying overtopping? A. That's incorrect. Q. Okay. Can you just give me a general outline of how you studied overtopping and applied it to your purpose here? A. Yes. Q. Okay. A. And it's a very important point to develop a realistic, reasonable understanding of the breaching mechanics. What we were concerned with was ways -or flood side wave attack -- thank you -- erosion that would penetrate through the crest of the EBSB. We identified that phase at crenellation. So a trench is being developed by the waves in the flood side face of the levee. At that point, the crenellation can be exploited, eroded by the ensuing water. We would call that crenellation

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exploitation by the rising surge. It has been confused with overtopping. It is a form of overtopping, but the difference is the presumption that the crest of the levee EBSB is intact prior to the water arriving at that elevation. So we look at the phases that can get you there. At that point, we have to study backside erosion because water runs downhill. Q. All right. Let's go back to your earlier report that we were looking at. A. Page? Q. Page 9, unless we're finished with it, and I'm not sure yet. A. Okay. We can always go back. This is where we're studying the history of the Reach 2 structures. Q. I think we talked about this before, that one of your opinions here is that no effective action, early action, was ever taken to prevent the MRGO channel from encroaching into the protective berm areas? A. Correct. Q. But you don't have any evidence that any berm area eroded to where the MRGO was touching

the levee, do you? A. Berm area was eroded where the -that's correct. It was the berm that was being encroached on. Q. We talked earlier about a couple numbers. One was 258 feet of berm. And that -- I thought that was the berm width where you did your test site. A. It might be. I don't recall the precise figure. Q. Okay. In looking at the MRGO and how it related to the levees themselves, what's the closest you saw any berm area to the levee toe? A. If I understand your question correctly -Q. What's the width of the berm at the closest place you found between MRGO and the toe of the levee? A. Approximately 200 feet. Q. That's the -- that's the closest. What's the widest area that you -- that you saw in your evaluations? And I'm not doing this in a way that I'm holding you to precision. A. Thank you. Q. I mean, if it's 500 feet or 400, if Page 141

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it's -A. It's more than 200. Some areas were relatively unencroached. The configuration of the MRGO areally, it changes, inundates, if you will, gets narrow, gets wide, depending on what's happening on the two sides of the bank. So the narrowest one relative to the encroachment on the EBSBs was the order of a couple of hundred feet. Other areas would be much wider, perhaps 500 or so feet. Q. Okay. Now -A. That information, by the way, is contained in the expert report by Chad Morris. Q. Okay. I keep going off on these tr. A. That's fine. My wife does, too. Q. I don't have ADD. Oh, look, there goes a bunny rabbit. A. You heard that one. Q. So the surge and the waves that are coming in across the MRGO on to the foreshore -A. Berm. Q. -- and then on to the berm -A. Right. Q. -- and to the toe on the levee --

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A. Yes. Q. -- can have as little as 200 feet to travel -A. Right. Q. -- and as much as maybe 6- or 800 feet, correct? A. Correct. Q. Have you done any correlation between where you believe the front side wave attack caused breaching of the berm out of the levee in any way with the width of the berm between the water surge and the toe of the levee? A. Yes, we have. Q. Okay. What -- what research did you do on that? A. That research is documented, summarized in my expert report submitted January the 29th, 2009. We studied a variety of locations north and south of Reach 2 to determine how the multiple interactive, interdependent factors were affecting the development of the breaching. Q. Okay. And did you learn from that that the breaching from wave action on the front side, as it is affected by berm width, is that there is

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a reduction of front side wave attack the wider the berm? A. It's not solely a function of the width of the berm. It's a function as well of the vegetation on that berm. Q. So the width is one of the causes of the reduction in the front side wave attack, and the vegetation is another of the causes of the reduction in the front side wave attack? A. Correct. Q. Did you do any analysis of the levee elevations; you know where this is coming from? A. Of course. Q. I'm talking to you about Mr. Ebersole's report, basically. Did you do any analyses of elevations that were being attacked by front side wave attack? A. Certainly. And I'd say as an aside, the expert report by Mr. Ebersole is an excellent piece of work. And, similarly, with Dr. Resio. They corroborated and worked together. That connects to Dr. Reed Mosher's report. He, as well, is addressing these factors. We brought it on board as soon as we

could get the reports. They're due December the 22nd, we get them December the 29th. They're not supported as was requested. We did everything we could to learn from that excellent work. Q. I'm not chastising you. A. Thank you. But what I'm trying to explain to you is we've not had very long to, in fact, take on that excellent work. I've done the best that I can. The people as well that are helping me. We've said, yes, there's things that have to be looked at here. Just because they don't agree with us doesn't make them wrong. So in the work I have submitted, we've taken their opinions on board, the strong and the weak, attempt to sort the wheat the chaff, and that's incorporated in our work. Q. In -- I'm going to go off of this subject, and we'll come back to it. A. Just fine. It's like visiting an old friend. Q. Because there's a lot for us to talk about, about the differences between overtopping, freeboard surge and front side wave attack, and we'll get to the details on that. That might Page 145

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happen this afternoon, might happen tomorrow, but we'll get to it. A. At first it looks simple. But as you learn more, it turns to be less simple. So I don't have any remarkable feeling that you're struggling to comprehend the complex problem. Q. Page 10 of the first document that we were looking at, is that paragraph 4 just fleshing out what you were saying earlier about failure to follow guidelines and use of unsuitable materials? A. I only have two paragraphs -- oops you're on page 10? Q. Yes, sir. A. I only have two paragraphs. MR. BRUNO: He switched. MR. STONE: Q. Back to this one, the small one. A. Please repeat your question. Q. Paragraph 4 on page 10. A. And your question is? Q. In that are you simply fleshing out your earlier discussion of decisions about failure to follow guidelines and the use of unsuitable materials?

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A. That's correct. Q. Now, in paragraph 5, this is going to take a couple minutes. "Particular failures to meet accepted professional design and construction standards included the use of, first, unsuitable uncompacted dredge spoil comprised largely of sandy, silty, shell fill as foundations in major parts of this system." Do you see that, sir? A. Yes, sir. Q. What is your evidence that these materials were made of sandy, silty, shell fill? A. When we first went to the field there approximately October the 1st, 2005, we went to the shoulders of the breaches. Those shoulders had exposed large cross sections of the earthen flood protection structures. We took samples of those shoulders. That was the first line. Q. Can you tell me how you -- how you -how you collected those samples? A. Yeah. With a shovel and put them into a two-gallon bag. Q. How did you establish that you had a

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representative sample of the levee materials? A. That's a difficult question to answer because you can't, quote, get a representative sample of something that is as variable as we found in those earthen flood protection structures. Q. Okay. A. It would be again to try and -- to find an acceptable sample of the group around this table. Q. Okay. Let me ask you a harder question, then. A. That was hard enough. Q. What I think is a harder question. You took samples from Site 497 plus 00 -A. Yes, we did. Q. -- that station. And you took them with a shovel? A. Correct. Q. But you didn't take them from the edges of a berm or a levee; you took them from the eroded area? A. Correct. The shoulders of the eroded area.

Q. You took them from the eroded area. How did you account for materials that had been washed away when you picked up your samples there? A. You can't. Can't account for what's not there. Q. All right. You attack the Corps for not having made these levees of cohesive compacted materials, correct? A. That's only a portion of the problem. Q. Are you familiar with the terms "advection" and "dispersion"? A. A little. Q. Do you know what is advected to the water and carried away from an erosion site? A. I know that that's how you refer to it. Q. Okay. Materials are advected and carried away? A. Transported. Q. Dispersed? A. Correct. Q. And they go away, and sometimes they come back with the outflow? A. Very definitely. Q. And then if you have another event like Page 149

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Hurricane Rita, that occurred before you took your samples -A. Right. Q. -- you have another level of difficulty in ensuring yourself that you have a representative sample? A. Well said. Q. Do you know what materials are advected and dispersed by the water? A. In some cases, yes. Because they were still there. That is, the fans behind the levee or behind the earthen flood protection structures, they were still evident. So you could go and obtain samples of them. That's the reason we took the samples at the shoulders of the breaches. It had not been advected/conveyed away. It was there. Q. It's cohesive materials that are -- that are -- I'm talking about your Site 497. A. Yeah. Keep talking. Q. And you say you took these samples from the shoulders? A. That's correct. Q. And erosion had occurred to those shoulders where you took the samples?

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A. That's correct. Q. So some materials had washed away from that section? A. That's correct. Q. And those materials are cohesive materials that are advected and carried away? A. Not necessarily. Can be sand or silt or whatever is in the breach geometry. Q. All right. Then you don't know that those are cohesive materials that are carried away by the water; the lighter materials are carried away by the water, correct? A. So are the heavy ones. Depends on the water velocity. Q. Would it be fair to say that lighter materials would be carried further away? A. Correct. Q. But you're not familiar with that concept that it's the cohesive materials that are removed? A. That's correct. That would be called winnowing. Means separation of the materials in the process of a hydraulic flow. Q. Assume, for the sake of argument, that cohesive materials were carried away from the site

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where you took your sample. How would you then conclude that you had a representative sample to take back to the laboratory, put back together, compact in some way and rely on it? A. I would rather not assume anything. Q. Okay. If you're missing cohesive materials out of your sample -A. That's not a good thing. Q. Okay. That's basically all I need to know. A. I'll try and help. No. It's not a good thing. Q. Do you agree with our experts that those samples taken by shovel -A. Right. Q. I'll give it an easier ride. They are difficult to reconstitute and use for compacting and erosion testing? A. Amen. And that's the reason why we had to vary the analytical work across ranges, including compaction, including clay content. So we -- because of the lack of definitive knowledge, we have to study the problem parametrically, looking at plausible realistic combinations to

evaluate how we think breaching developed. In that evaluation, precision is not there. There could be things that characterized one state. You'd call that an upper bound. Another state, you'd call that a lower bound. And you'd have to use multiple sources of evidence and analysis to tell you where the most likely result is. Q. As a forensic engineering and, I'll say, analyst, if you know that you have an issue related to compacting -A. Yes. Q. -- and you're not confident that you have a high level of compaction or a low level that you're looking at, what is the basis for a decision as to what level of compacting that you're going to use in your later model when you apply the sample to erosion testing? A. The first question is was there any specified element of compaction in placement of the earthen structure. In this case, there was none. Q. The settling doesn't compact? A. No. Q. Not at all? Page 153

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A. No. That's not quite so. That's the reason we use compaction equipment in the construction of a highway. We're attempting to compact the material to increase its strength and durability characteristics. In this case, there was no mechanical compaction specified or possible. Q. And you weren't able to take soil samples from a drill at that point -A. Correct. Q. -- from the existing levee, correct? A. That's correct. We couldn't get access. We tried. Q. The next clause for that paragraph 5, page 10, "Insufficient attention to transitions between components that comprise the system." In that are you talking about the transition from navigation structures at Bayou Bienvenue and Bayou Dupre to the levees? A. That would be one. Q. And other places where there were -A. Hard structures and salt structures in contact. Q. And then next is, I think, armoring, is what you're talking about, and grass.

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A. Next paragraph. Q. Paragraph 5. You're basically talking about not protecting the soils that are there for the levees. A. That's correct. Q. Okay. Have you looked at the photographs -- we have them here. We can bring 'em up at some point. But have you looked at the photographs that a professoral engineer Ebersole, has supplied in the appendix to his report? A. We looked at them before we received his report. Q. You already had those? A. That's correct. They had been supplied by the defense. Q. Did you see anything there -- the question's withdrawn. When you looked at all of those pictures coming from the north down to the south, I believe, along the MRGO over the levees after Katrina, but before Rita, I think, okay, did you observe that on the existing levees there were any areas where there was no grass?

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A. No grass. Q. I'm talking about, you know, substantial missing grass off of the levees. A. There were patchy areas where there was no substantial grass. But, in general, there was grass present on the surface of the levees. Q. Okay. Having that as the only evidence of where grass was and wasn't out there, how did you conclude that there was little or no grass on those areas of the levees that had been breached? A. That's a deduction taken from the performance of the system based on the results of our qualitative and quantitative analysis of the available evidence. Q. Okay. You looked at the places where the failures occurred? A. Right. Q. And from that and other evidence that you could find -A. Right. Q. -- but no remaining levee section for that -- those areas because they have been breached? A. But the -- for example, the area that I included the photograph of at the shoulder of the

EBSB wave breaching study site, Site No. 497, plus 00, Station 497 plus 00 shows sparse grass cover. Q. I missed something there. What was it? It was 497, but it was a document? A. Yes. Q. What document was it? A. No. No. It was the photographs that I provided taken at the shoulders of that breach. Q. And that was after overtopping, right? A. That's correct. Q. Maintenance requirements is the next item. A. Paragraph number? Q. Still in five. A. Got you. Sentence? I'm not with you yet. Q. Well, at the very end, "Failure to meet maintenance requirements." A. Got it. Q. Okay. What are the maintenance requirements that you're concluding that the Corps failed to meet? A. Armoring, A-M-O-R-I-N-G. Q. That's -- they never put armoring in? A. That's correct. On the EBSBs. Page 157

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They provided, in some sections, protection for the channel walls. Q. I missed one. There's another clause here, "Insufficient attention given to hydraulic effects, including erosion, scour, hydrostatic pressure and through and under levee seepage." So is there something straightforward that affects all of those, or does each one of them exist alone as a problem that the -- in your opinion, the Corps did not evaluate and correct? A. In some cases, singly, and in other cases, combinations. Q. Did you observe areas along the levee that had been eroded before Katrina -- I don't know how you would do that. Let me ask this a different way. A. Can't. Q. You don't know whether there was erosion that had occurred pre-Katrina in any of those places that breached? A. That's not correct, because there is photographic evidence. Aerial photography and LIDAR surveys that were run before Katrina. So we got a reasonable picture of the pre-Katrina

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conditions. Q. Okay. What specific places along those levees did you include -- conclude that erosion had occurred before Katrina? A. Erosion had occurred. Q. And not been repaired. A. I can't recall of any area. MR. BRUNO: Object to form. I think you've confused it. MR. STONE: I didn't mean to. I'll go back. MR. BRUNO: You switched from maintenance to -MR. STONE: I'm just talking about erosion here. MR. BRUNO: That's what I thought. THE WITNESS: So this is erosion at the maintenance phase. And what you're trying to ask is, did we have evidence to indicate there were areas eroded before Hurricane Katrina that had not been repaired? MR. STONE: Q. Right. A. No. Q. Scour, hydrostatic pressure and through and under levee seepage, does that essentially all

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have to do with water going under the levee? A. Or through it. Q. Or through it? A. Or around it. Q. I guess scour wouldn't be involved in that. It would be -A. It can be if the water flow is high enough. Q. So the way scour would be included in that, I guess, is that if the levee scoured, and it was, let's say, sand all the way through, you would conclude that water could go through there? A. Correct. The scouring -Q. Under loading? A. The scouring could be at the surface or it can be subsurface. Q. Okay. A. Frequently results in things called sand boils. Q. All right. What evidence do you have that there were sand boils that appeared out there in any particular place along Reach 2 along the MRGO? A. At what time? Q. Before hurricane -- relevant to

Hurricane Katrina, but before Hurricane Katrina. A. No. Q. You have no evidence of that? A. That's correct. Q. Do you know whether the local levee sponsors maintained those levees along there? A. No, I do not. Q. All right. On to paragraph 6. Here you say that those -- I'll use your term -- EBSBs along the MRGO "were never intended to serve as hurricane flood protection levees." How do you know that they were never intended to? A. My experience says that no knowledgeable, practicing professional engineer would ever expect uncompacted sandy fill to withstand a wave attack from intense hurricanes in a coastal setting. Q. So this is from your experience; not from something that you have, as a document or something, where they say they don't intend to make these hurricane protection systems; they're just going to put, your term earlier, piles of dirt out there, right? A. You are exactly correct. Page 161

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Q. Okay. The term "intent" usually is from the perspective of the person intending. So it's your experience that you have, but no other evidence of their intent? A. That's not quite correct. Q. Okay. A. Let's -- if you could, I'll try and respond to your point. I don't think that the Army Corps of Engineers had an intent to provide a structure that would ultimately provide dangerous entrapment. I think, as Dr. Wolley and Shabman correctly evaluated in their decision chronology, this is a result of a series of slippery slope decisions, tradeoffs, judgments that carry you ultimately to disaster. Q. And those decisions were made -- I think in your report somewhere, you said nobody had a -what was the term you used? Monopoly, I think, on these decisions. A. That's correct. That's correct. Q. So you include in that state and local authorities and federal authorities and anyone else who had responsibility for maintaining or

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building or whatever the hurricane protection system? A. Not quite. Q. Okay. Who do you include in that? A. As our esteemed past president put it, I am the ultimate decider. In this case, the ultimate decider is U.S. Army Corps of Engineers. Now, they have to collaborate, consult a large number of other parties. They're doing the best they can to develop that collaboration. Ultimately, they hold the decision. Q. Skip down to paragraph 7 on page 11. And it's about three lines down, near the end of sentence. "The USACE made other engineering and design decisions that foreseeably contributed to the failure of the system during and after Katrina." Are these in addition to things that we've talked about so far? Or are there other engineering and design decisions that we haven't touched on so far that you can think of right now? A. I think there aren't. I think we've touched on the key ones.

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MR. STONE: Let's take about a five-minute break. THE WITNESS: Thank you. THE VIDEOGRAPHER: This marks the end of Disk No. 2 in the deposition of Dr. Robert Bea. The time is 2:44 p.m., and we are off the record. (Whereupon, a recess was taken.) THE VIDEOGRAPHER: This marks the beginning of Disk No. 3 in the deposition of Dr. Robert Bea. The time is 2:57 p.m., and we are back on the record. MR. STONE: Q. Back to the grass cover questions. Did you ever review any levee inspection reports? A. Levee inspection reports? Yes. Q. And what did you learn from those levee inspection reports regarding the grass cover? A. Not much. Q. If there had been problems with grass cover, it should have been mentioned in those lever inspection reports, right? A. Keyword "should," yes. Q. Do you have any reason to believe that there were problems that weren't mentioned?

A. Sure. Q. Okay. How do you know that? A. I don't know. I can only surmise, given the length of time that was devoted to the inspections, how the inspections were performed. Q. And, basically, your conclusion there is that because not enough time was devoted, they must have been performed in a way that wasn't effective? A. Correct. Q. Do you know if these levee inspectors were on site all year? A. No. Q. Okay. The reports that you've looked at, are they just the annual inspections? A. That's correct. Q. Okay. THE WITNESS: Come on, give me the joke, Robin. MR. STONE: Q. Sir, what do you know about mean overtopping rates, if any -A. Mean overtopping rates? Q. Yes, sir. A. Mean overtopping rates are average overtopping rates. Page 165

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Q. And how familiar are you with the Dutch levee design practice? A. Reasonably familiar, but certainly not at an expert level relative to the Dutch design practice. Q. Do you know whether they set their levee elevations based on mean overtopping rates? A. No, I don't. Q. Would you agree with that concept, if that's the way they were to do it? A. It would depend on the rest of the design formulation. Q. How would it depend? A. For example, on the specification of the sea state that's associated with a mean overtopping rate, meaning the surge elevation, the wave characteristics. All of this goes into this overtopping rate. Q. What is the upper end of the range that should be used to validate design? A. Upper range? Q. If you know. A. Used to validate design ... Would you explain and restate your question.

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Q. Well, I'm not sure that I can. But if mean overtopping rate is used, then you would have a bracket, potentially, that would be higher or lower than that that you would think would be sufficient to handle -A. Variability? Q. -- overtopping rates that you would expect to see. A. That's not correct. Q. Okay. A. That's conditional on a specified set of hurricane characteristics. In the previous discussion we had this morning, that could be characterized with the difference between the Standard Project Hurricane and the Probable Maximum Hurricane. So the mean overtopping rate associated with a Standard Project Hurricane could be very different, would be, than that associated with a Probable Maximum. Q. If there's one set of criteria established by the Dutch for designing the levees, and they design them to the mean overtopping rate, do you have an idea of what a range would be for a mean overtopping rate that would be satisfactory

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to accomplish the purpose a levee has? A. No, I don't. Q. You don't. Okay. How high do you think the discharge can be before there is a high probability of failure? A. I have no opinion. Q. No opinion on how high an overtopping can be either before there's a probability of failure? A. We address that condition in my expert report of July the 14th, 2008, and we have reinvestigated that set of analyses as documented in my expert report dated January the 29th, 2009. Q. For the levees along the MRGO, Reach 2, how high above the design elevations of these levees, the crest elevation, is a failure probable? A. It can be probable before the mean surge water level is at the top of the earthen protection structure. That's the crenellation process. Q. If there's no crenellation process, how high above the design is failure probable for overtopping? A. For what conditions?

Q. Let's just -- would you have to -- would you have to know something more than the fact that they're just overtopping? A. Yes. Q. What would you have to know? A. I'd have to know the configuration of the earthen flood protection structure. I'd have to know what the composition is and what its surface cover is, for example. Q. And you'd have to know the speeds across the crest and down the back side? A. Yes, sir. Q. Okay. A. And how long they persist. Q. How long the overtopping -A. The flows. Q. Okay. Have you provided your actual hydrographs that you used in your studies? A. Yes. Q. To us? A. Yes. Q. Somebody asked me that today, and I didn't remember. A. We have. They're in -- well, they're in several places in my expert report of July the Page 169

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14th, 2008. Q. I get these questions like you get these questions. Okay. So I'm going to go back and go through these for just a minute. A. That's fine. Q. And then we'll get back to these. But the soil samples that you accumulated, were they processed in a laboratory? A. Yes. Q. How were they processed? A. A variety of tests were performed on the soil samples we obtained from the Reach 2 earthen flood protection structures at the Texas A&M University, under the supervision, direction of Dr. Jean-Louis Briaud. Q. And how involved were you in the decision-making process to develop, say, protocols for making these tests? A. None. Q. Not at all. A. There's -- one category of them are traditional soil tests, for example, specified and detailed by the American Society for Testing and Materials. Q. Is there a number for that test?

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A. I'm sure there is, but I don't remember that number. The other category of tests, very importantly, was that it was associated with the erosion function testing apparatus. And they called it EFA testing apparatus. That testing work was done in the process of research performed at Texas A&M University by Professor Briaud. Q. Is that EFA peer reviewed for this purpose? A. Correct. Peer reviewed, published, et cetera. Q. Does the outcome of the test depend on -- in any way on the information that you provide to the tester -- you, Dr. Bea, provide to the tester? A. Other than in the form of the soils that are introduced at the test. Q. You provide them the soils, and do they select the manner of compacting? A. Correct. Q. Okay. And they give you undercompacting and overcompacting, and then you decide which set of scenarios that you're going to use from their

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results? A. Well stated. Q. Let me just ask you. I think you may have already told me, but in the reports, you use undercompacted rather than overcompacted? A. We actually use two: One called under and one called moderate. Overcompacted we did not use for the study location. Q. For the study location, what type of compacting did you use? A. Well, I didn't use any. Professor Briaud and laboratory technicians and students that performed those tests are the ones that determined the compaction applied to the samples. Q. Okay. And then out of that, what did you use to introduce into the rest of your analysis, say, for example, when you did the LS-DYNA work? A. Two ranges. One, undercompacted or, we'll call it, without significant compaction, and the other with moderate compaction. So we studied the range. Q. You studied the range? A. Yes. Q. But then when you applied the outcome

from those tests, did you apply them in any way to your -- to arrive at an opinion? A. Sure. Q. Okay. Which did you apply to arrive at the opinion, or did you apply both? A. We applied both. Q. Did you give two opinions? A. No. Just a single one. Q. Okay. And your single opinion had to do with -- question's withdrawn. We'll go through, because it's in your report. Paragraph 9 on page 12 -A. Yes, sir. Q. -- where you said, "Based on my experience" -(Reporter interruption.) MR. STONE: Q. Quote, "Based on my experience, my observations and results from extensive analyses performed after conclusion of the ILIT" -- and I'll stop there for the moment. Where -- can you describe for me where your opinions in ILIT ended or left off and what opinions you have after ILIT -A. Sure. Page 173

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Q. -- that are relevant to this case? A. Sure. Q. Okay. A. 6:00 a.m. May 14th, 2006. Q. I don't know whether you're joking or you misunderstood me. After ILIT, you apparently have come up with new conclusions or more conclusions. What conclusions did you arrive at in ILIT that you think are still relevant to this case? A. Oh. Q. Okay. What conclusions have you arrived at after ILIT that are different from those you arrived at in ILIT? A. Well, for example, we've progressed the analyses, both qualitative and quantitative, that were embodied in the ILIT study. Q. You've progressed them, you say? A. Yes. Q. How have you progressed those? A. Through additional analytical modeling, through additional qualitative evaluation of available data, including video transcripts of surveys performed immediately after Hurricane

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Katrina. A vast amount of information, new information, has become available and has been evaluated, at large cost. Q. Bottom of page 13 to the top of page 14, you is say, "LIDAR" -A. LIDAR. Q. -- "survey elevation data gathered following Hurricane Katrina indicates approximately 35 percent of the EBSBs along Reach 2 failed in this manner, meaning by wave side hydraulic attack," correct? A. Correct. Q. How do you determine that 35 percent of EBSBs along Reach 2 failed in this manner from looking at LIDAR? A. We have to use the other lines of evidence to reach that conclusion. And LIDAR is a component in development of that conclusion. Q. Now, you had one test site in the case, right? A. That's correct. Q. So -A. We'll call it the study site. Q. Did you take anything that you learned

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from that test site and apply it to these other sections of the MRGO that add up to this 35 percent? A. Yes, sir. Q. Okay. Did you also do the same thing when you determined that approximately 47 percent of the EBSBs along Reach 2 failed in this manner? A. Yes, sir. Q. Do you know how many stations there are along the Reach 2 of the MRGO? A. No. I do not recall. Q. Would you be surprised if there were 1500? A. No, not at all. That's a long stretch of earthen protection structures. Q. Well, let me just cut to the chase here because I'm curious how you can take your test from one particular place and apply it to 1500 other places of similar size? A. A crucial question. The single location we studied we studied using a variety of demand and capacity characteristics. For example, including the shape of the flood protection structure, the incoming wave

action, and surge hygrographs. H-Y-D-R-O-G-R-A-P-H-S. We, as well, evaluated performance under differing soil conditions. We correlated the performance under those conditions at the EBSB study location with other indirect information, for example, the results from LIDAR surveys, video surveys, photographic surveys and field surveys I performed personally. Q. All of those things that you looked at that you've just listed, you then added the testing that you had done at the -- the one breach site, Station 497, and what you learned from that to them, and you extrapolated from that? A. Essentially, you're -- you've got the correct theme, but we actually tested soils from additional sites. The Corps of Engineers actually performed in the field tests following ours that we also used. So there were in situ in-place measurements that became very useful as we did this extrapolation work. Q. This testing that you did, you collected samples? A. Correct. Page 177

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Q. You used those samples -- question's withdrawn. You collected samples. You tested the samples. You then used the outcome of those tests in your LS-DYNA program, and whatever came out of that program you then applied to all of these other things that you studied for each of the stations along the 1500 stations of the MRGO Reach 2; is that correct? A. I think that's incorrect. Q. Okay. A. First of all, LS-DYNA is one component in the analytical model involved at the study site, and now we've done several others, A through F, down the entire length of the Reach 2 manmade earthen flood protection structures. LS-DYNA is used solely to get velocity-time characteristics at various elevations on the flood side face of the EBSBs. Other model components have to be employed to determine erosion characteristics. Once the crenellation has been formed through breaching of the crest of the EBSBs, yet another set of model components have to be utilized to determine the exploitation of the

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wave-initiated breaching. LS-DYNA is just one step. Q. Is it a critical step, though, in your analysis? A. All steps in the analysis are critical. Analysis is like a chain. If you don't get all the links right, you can't get the chain to work. Q. Okay. What did you conclude about the tie-ins of the EBSBs with the Bayou Bienvenue and Bayou Dupre structures as far as failure modes? A. Primary failure mode at Bayou Bienvenue was determined most probably to be associated with underinterface seepage and blowout due to the lack of closure between sheet piling that had been driven down into the shell fill placed to minimize weight on the varied channel under the shell fill. Water at the high stage was able to communicate under, blow out under it. That's the reason that the breach has the characteristics that we saw after Hurricane Katrina and before Hurricane Rita. Q. And that sheet piling is part of the hurricane protection system. It's designed to keep the water from the MRGO side out of the protected area, correct?

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A. That sheet piling is part of the navigation water control structure inserted into the flood protection system. Q. Is it designed to keep the hurricane protection system crest elevation at essentially the same height? A. No. Q. No. Does it serve a hurricane protection function? A. It serves a function that goes beyond the hurricane. It's to prevent seepage from undermining and damaging the performance characteristics of the navigation of the water control structure. Q. So it serves both functions? A. Yes. Q. Okay. A. Bayou Bienvenue, based on our analyses, the primary failure mode was overtopping, erosion at the interface between a concrete sheet piling and the EBSB on the north side of the navigation water control structure. Q. And did it serve the same functions as the sheet piling for the Bayou Bienvenue?

A. Define "it" in your question. Q. The sheet pile. A. That's correct. Q. Okay. And how did it fail -- let me back up. Question's withdrawn. Reach 2, Bayou Dupre, the tie-in. What from wave attack caused it to fail? A. It was a combination of water erosion both serving -- or as a result of wave run and surge attacking that soft interface between the hard and concrete sheet piling and the very soft earthen flood protection structure. Q. So the wave attack is an attack on the -- the levee, rather than the sheet pile? A. That's correct. Q. Okay. A. The sheet pile stood undamaged. Mr. Stone, you asked me to contribute anything we had learned documented in our January 29th, 2009, report -Q. Yes, sir. A. -- that you had not seen previously. We have spent considerable time ensuring that we have correctly identified the causative failure modes. Page 181

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The thing that triggered that study was in the report -- expert report by Dr. Mosher, December 2008. In that report he chose a photograph with a missing segment of the concrete sheet pile wall. We had previously located photographs that were not taken after Hurricane Rita. They were taken the morning following Hurricane Katrina, and they show no missing concrete sheet pile section. Dr. Mosher proceeds to say that the causation of the breach was symptomatic, along with the failure of the sheet pile wall, of overtopping erosion. The structure did not fail during -- the concrete sheet pile portion of that structure did not fail during Hurricane Katrina. The photographs show it. The camera doesn't blink. In addition, the video surveys performed, together with the LIDAR survey on September the 13th, 2005, corroborate the EPA photographs that were obtained. That information is contained in my expert report, January the 29th, 2009. Q. We'll have to look at it when we get to it.

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But are you saying -- now, which one is this, Bayou Bienvenue or Bayou Dupre? A. Bayou Dupre, north breach. Q. Are you saying it didn't breach from Katrina; it breached from Rita? A. No, we're saying -Q. Just a portion of it, then? Just a portion of it breached from Katrina and a portion from Rita? A. I am not saying that. Q. Okay. A. What I'm saying is that the soft interface between the concrete sheet pile and the earthen flood protection structure, that did fail during Hurricane Katrina. But the concrete sheet pile panel that purportedly failed during Hurricane Katrina due to overtopping did not. And, hence, the deduction that overtopping had failed the structure is incorrect. Q. In either instance, it's a failure of the -- the system to hold back the hurricane at that point? It's the hurricane protection system failure, correct? A. It's two failures.

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Q. Both hurricane protection and navigation -- as you said before, it goes beyond hurricane protection; it's both failures? A. There's three failures. Q. Three failures. A. The failures is failure in forensic engineering, and it smacks of starting with the answer and developing a way to get the answer. Q. Okay. You have to explain that to me. A. Well, if your brain tells you that it's overtopping-caused failure, your brain will search for corroborating information to substantiate the observation. It's called "confirmational bias." Q. Now, a lot of people decided that overtopping was what caused most of the failures in the hurricane protection system; is that fair to say? MR. BRUNO: Nuh-uh. THE WITNESS: Yes. And in addition, a lot of people, for several hundred years, decided the earth was flat. MR. STONE: Q. Right. So they're all wrong and you're right on this? A. Absolutely not. Q. Okay.

A. I start with I'm wrong, they're right. Q. But your -- your fault with them is -- I believe you say it in other places here -- that it's the way questions were phrased to them? A. Yes. Q. Do you think that -- is it fair to say that hundreds of people analyzed these failures? A. No. Q. Not -- not hundreds? A. No. Q. How many people analyze these failures? A. Probably two dozen. Q. Two dozen? A. We're referring to this Dupre example. Q. I'm actually talking about the entire system. So if you're only talking about the Dupre system, fine. If you're talking about the entire system, how many people would you say have analyzed that system? You know, engineers like we talked about before. A. Thousands. Q. Geotech? Okay. A. A lot of intelligent people have studied Page 185

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this because it's so important. Q. Right. Now, the members of your ILIT team really don't agree with your current -- or in the ILIT report, they don't necessarily agree with your current opinions because they didn't reach those opinions? A. Correct. Q. Well, why didn't you reach those opinions when you were doing the ILIT report? A. Didn't have the information at the time or resources. Q. I see. A. We had $330,000 to bring 33 people into the field to study this massive problem. We didn't have $33 million to conduct the study, as did the IPET. It was a David and Goliath challenge. Q. I see. How many dollars have you had to study this with since ILIT? A. Approaching 2 million. Plus 9,000 pro bono hours, no pay. Q. 9,000 pro bono hours over how many years? A. Three. Q. Three?

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How many hours have you investigated this for Mr. Bruno and other plaintiffs' counsel? A. Probably approaching a couple of thousand. Q. And how many hours do you teach? A. During what period of time? Q. During this three-year period. A. I've taken two sabbatical leaves, which means I'm not teaching. Q. Not teaching at all? A. That means essentially devoted full-time to this effort: Weekends, nights, holidays including Christmas. Q. Pretty much have to be to add up to those numbers. A. Yes, sir. Because I log those hours; I don't guess at them. Q. There are white spaces going on right here because I'm looking through these, because quite a few of these we've discussed before, and I don't want to go over them again. A. You're doing a marvelous job. Q. We don't need to do that. Okay. I'm on page 20, but I don't think it matters.

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Once again, you talk about the hurricane neutral MRGO conditions. A. Very important. It does matter. Q. Describe -- describe for me what is the hurricane neutral MRGO condition? A. Essentially, I have identified the deleterious effects brought to the system by the life cycle cycle of the MRGO. In construction of the neutral MRGO conditions, we mitigated all negative impacts from that life cycle cycle development. Q. Is it fair to say that the only way to do that is completely take the MRGO out of the picture? A. I'm sure there are other ways to do it, but eventually we had to do that to get parts of the neutrality characterized. Q. I don't understand that. A. For example, you couldn't leave the channel itself in place and correctly determine the wave action at the channel bank adjacent to the flood protection structures because the presence of the channel itself acts to increase the wave action. So in order to construct that resulting

picture, you have to erase the channel. Now, other analysts would say, no, we will understand the channel and we will subtract the waves that are caused by the channel. So there are different ways to characterize a complex system. Q. I think my question is just more basic than that. A. Okay. Q. It's very simple. How do you keep the MRGO in the system and establish a system that's completely MRGO neutral? A. I'll attempt to answer your question. You please stop me if I'm not being responsive to what you would like to know. For example, you could keep the channel in place and, say, the thing I'm attempting to mitigate would be the salinity influx. That would then say, "The way I will handle that is through the placement of a barrier at the intersection of the MRGO with the Gulf of Mexico to prevent the highly saline waters from being sucked in, flushed through that entire system to Lake Pontchartrain. Page 189

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Another way would be to say, well, the way you should think about it would be to say, well, what was the natural protective environment before we constructed the MRGO? We have pictures and photographs that help you understand what that environment looked like before we dug the ditch through it. So here are two alternative ways to go about characterizing that single aspect of the MRGO. If you were concerned with water influx into Reach 1, you could imagine the use of gate water control structures that would be put in place to keep the elevated surge from trying to propagate through the funnel into the throat into the Inner Harbor Navigation Canal. So there are a variety of ways you can go about mitigating the effects of the MRGO. Now, actually, we got an awful lot of assistance in going through that analysis from the U.S. Army Corps of Engineers' work associated with the closure of MRGO, because that's the kind of mitigation thinking they're having to do right now to make sure that what we do this time is not going to be a disaster.

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So we had to reach deeply and far to understand how to properly mitigate it. The discussions would carry us to ecologists and biologists, who would have to say, "Well, yes, this is a foreshore vegetation we have today. But if you didn't have the saltwater in the channel, this is what it would look like today." So we had to do a synthesis of input from a wide variety of experts before we could neutralize the negative effects of that engineered system. Q. So, basically, you're saying that you have to take the MRGO out of the picture to do your analysis? A. That's incorrect. I didn't say that, or didn't try to, sir. Q. But you do take it out? A. You take it out in different ways. Q. Okay. What other ways would you take the -- all right. Question's withdrawn. I'm struggling with this because I keep thinking that you're going to have the MRGO there, period. You have to deal with the MRGO. It's -it's Louisiana's and it's the federal

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government's, it's everybody's MRGO. A. It's everybody's, yes, please. Q. It was put in there for military purpose, also for the purpose of routing ships. A. Exactly. Q. Commerce -A. Had multipurpose. Q. It was a huge thing, and the government of Louisiana stood up in Congress and asked for it, didn't they? A. Correct. Q. So you got the MRGO there. A. And so did Leander Perez. Judge Leander Perez. Q. So you have the MRGO there? A. Yes. Q. What do you do with MRGO there and knowing it's there that makes it completely neutral? A. Gate it, lock it, establish the vegetation. The Corps of Engineers is doing such a thing in the Everglades today. Q. Then if you do all of that -A. Right. Q. -- the surge from the hurricane coming

across the MRGO perpendicular and hitting the levees isn't going to be affected by the MRGO? A. The surge isn't, but the waves are. Q. And the waves are still going to be affected? Well, how is that neutral? A. Well, they're going to be affected by the presence of the channel. Q. So you can't have a neutral MRGO? A. Of course you can't. Q. How do you have a neutral MRGO when you're still going to have waves affected by the width of the channel, in your opinion? A. Armor. Put in foreshore protection. This is a reactive thing that an engineer should do when they see the structures going to hell in front of them. You don't sit there and watch it. You react to it. That's how they deal with the airplane that you flew here on. They have cracks. They have defects in them. But they've got diligent inspectors and maintenance people and a regulatory authority that makes it safe to fly. Q. I still have a problem with this. A. Let me help you. Page 193

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Q. MRGO is not neutral if, in your opinion, the waves -- excuse me -- the surge from the hurricane coming across MRGO are still affected in such a way that the waves are different. Even if you have armoring on the levees, MRGO is not neutral? A. You're -- your question is confused me. It may be because I'm fatigued, but I would ask you to repeat and reform your question. Q. All right. Let me go back for a second. I know you've studiously stayed away from Scenario 3 -A. Yes. Q. -- that was developed by the Dutch. A. Didn't stay away. We actually used it in an attempt to understand the interactions of this complex hydrologic system. We were experimenting our way through. Q. Okay. What would happen to the -- the local environment, including wetlands, swamps, et cetera, if bank stabilization had been used, you'd had a gate down at the Gulf end of the MRGO and another barrier up at the other end of the MRGO. A. Right. Q. What would have happened to the local

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flora and fauna from that situation? A. It'd grow. Q. Grow. Okay. So if you're going to have a MRGO -A. Right. Q. -- and you have to have all of those things -A. Right. Q. -- and those are decisions to be made by Congress, aren't they? A. I won't agree to that, but keep with your logic. Q. Congress would make those decisions because Congress is going to have to pay for those? A. Okay. That's a congressional policy. Keep going. Q. You've got all of that done. A. Right. Q. Now, that means salinity is no longer a factor, right? A. Correct. And the flushing of the surge is gone. Q. The difference between the MRGO and its original fingerprint is that you have basically

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two barriers added? A. Right. Q. And is that -A. And you can train the channel to its original channel width. Q. And that takes care of your wetlands problems that are created by the MRGO? A. So far so good. Q. How would that circumstance not be a neutral -- it's still not going to be a neutral, MRGO, is it? A. No. It isn't. Q. You have to add armoring -A. And the foreshore protection and surface protection to the hurricane flood protection structure if you will include that with armor. Q. And this is the reason that you completely take MRGO out of picture? A. Yes. Q. And why do you do that? A. To properly characterize the incoming wave action. Because we deal with the flood protection structures as they were built. Q. Right. So after all of that, it comes down to

you have to change the flood -- the flood control structures, in your opinion? A. No, not themselves. Unless you include foreshore protection, vegetation between you and the incoming surge and waves called a {}batriture for river levees, that's one way to do it. You can armor the faces of the earthen protection surfaces. Many things beyond the channel itself can be done to mitigate the effects of the channel. Q. Okay. Now, would you agree with me that all of these things that you have listed would be new design requirements for either the MRGO or for the levees? A. Here might be a terminology problem. A design is done at the time of the start of the life cycle cycle. It's preceded with concept. The whole thing is much like the life cycle cycle of people. After I'm into operations, one of the functions is maintenance. Maintenance is attempting to detect, react correctly to the degradations that are being detected during the operation cycle. That's a different function than the original design. Page 197

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Q. A new gate at the mouth of the MRGO or somewhere around there, that would be a design issue, correct? A. Well, it could be. But if you didn't react or didn't see the effects until you were operating, then it would be a maintenance correction. We do it to automobiles, airplanes, refineries and everything. Q. It would have -- it would have to be designed for the purpose, and it would have to be a design that was applied to the MRGO, correct? A. At the time of the maintenance detection. Q. Okay. A. That's the corrective element. Q. Same thing at the other end of the MRGO. There would have to be a new design for that project that would be a barrier at that end of the MRGO. A. And those are the kinds of things being studied by the Corps at this very minute. Q. Right. And if the Corps, in its original design, established that it was going to treat the erosion in a particular way, then there

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would have to be a new decision of the Corps to treat it in a different way, correct? A. Correct. Q. Okay. A. And, in fact, they were attempting to do that relative to foreshore protection and protection of the earthen flood protection structures, that work and deliberation and consideration was going on right to the day of Hurricane Katrina. Q. Okay. Let's go back to earlier this morning. I know you're tired, everybody here is a little bit tired. I'm at quarter to 7:00, and I know Joe is. When the Corps built the levees, they knew that the MRGO did not have a barrier down to the south? A. Right. Q. They knew that MRGO did not have a surge barrier up to the north? A. Correct. Q. They knew that the design memorandum was going to allow the MRGO to erode to some extent? A. I don't know what they knew. Q. Well, you would expect them to look

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through those documents and determine that in an effort to figure out how to design levees that would correct any problems that might occur from MRGO, correct? A. Not correct. An example of -- if that's true, why didn't the Standard Project Hurricane change as a result of the MRGO? I could never detect that the Standard Project Hurricane had appropriately, properly or in any way recognized the presence of the MRGO. Q. Okay. So the decision to have a standard based on special project hurricane at whatever level it was made -A. Right. Q. -- is problematic for you? A. Correct. Q. Okay. Let's go back to what I'm talking about, though. If people are assigned to design the levees and they know that you don't have all these good things that you're talking about, you know, things that you think are absolutely necessary -A. Yes. Q. -- they know -- they know you don't have that, right?

A. I'm not sure. Would you repeat the scenario you're -Q. Okay. No problem. The designers of the levees would know that there is no barrier at the south end of the MRGO? A. Right, correct. Q. No barrier at the north end? A. Correct. Q. And that MRGO is eroding? A. Correct. Q. Now, that's a much worse situation than if you had a barriers and everything and had everything lined up? A. Yes, sir. Q. So in the much worse situation, this is -- I'm trying to stick with your scenario. A. I got you. Q. You would expect them at that time to design the -- the levees with armoring? A. I would expect that, yes. Q. Okay. So that's a failure of the design parameters for the levee construction, in your opinion, right? Let me just reword it, make it easier Page 201

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for you. A. Okay. Q. If the designers fail to use armoring at that time -A. Right. Q. -- it's a failure of the design for the levees, in your opinion, correct? A. No, that is not my opinion. Q. Okay. All right. Let me ask it a different way. All of these things that we've talked about were available for them to know? A. They were available. Q. Okay. And under your scenario, that's a much worse situation than if you had all of these fixes in place, let's call them? A. Correct. Q. So knowing that there's none of these protections -A. Right. Q. -- the levees are going to be built, then the problem to correct for in the design phase of building levees is supposed to be fixed in the levee building design, correct? A. Well, you'd hope it would be done

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through the entire life cycle cycle. Q. Well, the -- the -- the design of the levees -A. Right. Q. -- would be done in a way that would accommodate all of these problems that you've listed with the MRGO? A. You would hope so. Q. So the armoring should have been done at that time as part of the design phase and the construction, correct? A. Should have. Wasn't. Q. Okay. Are you familiar with the 1966 Bretschneider & Collins study? A. Yes. Q. And -A. Charlie Bretschneider was a good personal friend. Q. You've cited other things he's done. A. Yes. He's an excellent engineer/scientist. Q. Is it fair to say that they concluded that the MRGO did not have an appreciable effect on surge? A. Yes.

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Q. Okay. A. At a point. Q. At what point? A. Point that they were looking at, or the point inside the industrial canal. It did and does. So it depends on where you're looking. Q. So they were wrong, in your opinion? A. Well, no, that's not what I'm saying or attempting to say. They studied an area. And in this study that they performed, they arrived at a conclusion that for the area they were focused on in the, quote, funnel, but there was no substantial effect on surge. Q. Okay. Well, was it appropriate for the Corps to hire them to make this study? A. Personally, I think so. They were a very fine -- NESCO, that was the company, was a very fine company dealing in this type of thing. Q. And that would have been the information available to the Corps at that time; the outcome of their study would have been what the Corps would have been looking at to determine how to do things at that time? A. There was much more technology available

at that time. The Corps either didn't access it or whatever. But certainly there was more technology that was being used. Q. But what is that other technology? A. Well, the oil and gas industry worries about this constantly, and we're just down the block from them. And I'll call it -- there's a significant difference between the level of technology done through the oil and gas for all of its facilities at that time and what you are questioning at this point this time. Q. Yeah. Be more specific, please. What is the difference in the level of technology at that time for oil and gas industry -A. Modeling. MR. BRUNO: I think you got the last words out. Did you get that? THE WITNESS: Okay. I'm sorry. MR. BRUNO: He said, what is the difference between level of technology at that time for the oil and gas industry" -THE WITNESS: Right. MR. BRUNO: -- as opposed to the Corps. Page 205

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THE WITNESS: Right. That's what I picked. (Reporter interruption.) MR. BRUNO: Thank you for doing that for me and for Robin and for -THE WITNESS: And for me. MR. BRUNO: Anyway, the bottom line is -THE WITNESS: I got too interactive, and I apologize. MR. BRUNO: We still don't have it down right. The difference between the level of technology at that time as -- for the oil and gas industry as compared to the Corps of Engineers? And if I said that wrong, Richard, please do it again. MR. STONE: Q. Close enough. A. Level of technology was dramatically different as it applied to characterization of hurricanes, surge, waves, current, and the characterization of demand elements, wave force, current forces, erosion forces. And as it pertained to resistance factors, from factors of safety to formulations

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utilized to proportion structure elements of all types. Q. Were the standards for the oil and gas industry the same as the standards that applied to the Corps of Engineers at the time? A. No. Q. Okay. I understand that when you started that question, you were talking about technology, the -A. Correct. Q. -- level of technology being greater. A. Correct. Correct. Q. How was the level of technology as it applied to studying hurricanes and protecting against hurricanes different under the standard of the oil and gas industry than the standards of Corps -A. In terms of the basic hurricane characteristics, they were comparable. The difference was what you did with those characteristics. At that stage, we were using reliability-based design technology. That forces you to incorporate in a coherent way all of the uncertainties associated with the characteristics,

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the demand factors, and the resistance factors to develop a system that has an appropriate reliability at the end of design, end of construction, and through the end of the anticipated operating phase. Q. Is the technology for the oil and gas industry proprietary? A. No. It can't be. The U.S. Department of the Interior requires the oil and gas industry to, in this element, be transparent. The codes and guidelines are issued in the form of industrial standards. Those are publicly available at the American Petroleum Institute, Washington, D.C. Q. Were they in 1965? A. 1969. '65, it was underway. The committee was meeting, and I was leading the oceanographic conditions committee. Q. Were these standards -- I mean these technologies available in 1965? A. Yes. Q. I thought you said '69. A. That was when they went into print. Q. Okay. So they weren't available in print until '69?

A. That's correct. Q. Okay. A. That's the first edition. Q. Let's -- let's hear specifically what are the technologies that you're talking about? A. Those that pertain to hurricane characteristics, how you understand the uncertainties that are associated with those characteristics, that then connects to the specification and characterization of the demand functions, meaning forces in velocities and how they interact with potential structures. And then it's translated to the resistance characteristics of the structures that will be designed in the future. The objective is to have a coherent, connected system that will produce a structure that has a certain reliability and cost, both initial and future. Q. Are you talking about software programs or anything like that? A. I'm talking about an entire industry mobilized to get the right answer. Software and computer programs are a tool; they're not in the end. Page 209

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Q. This seems like generalization. A. I hope not. I'm trying to be as specific as I can. Q. What are the specific technologies, though? What are they called? What was used? It wasn't computer programs, was it? A. We had computer programs for every phase. We were in field tests. Prototype scale. Just as you did in the Atchafalaya and the '99 flood wall test. We were parallelling. In many cases, we were following you to learn from you. Your coastal engineering group was a wonderful group. We learned from you. How do you think we got to know Charlie Bretschneider so well? I'm trying to be as specific as I can. There was an interchange. Now, we sure as hell didn't stop, because the more we learned, the less we sort of understand we knew it all. So we continued the development evolution of the technology, and it happens to this minute. Q. I got the impression from the start that you were suggesting that the Corps wasn't open to this information and that they didn't have access

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to it and -- or didn't try to have access to it. But you've just said that you talked to them; they talked to you? A. Yes. Q. Free exchange of ideas and information? A. Dr. Don Resio, whom I hope is still here, was part of that development of collaboration. Q. All right. MR. STONE: Need a break? Okay. THE VIDEOGRAPHER: The time is 3:59 p.m., and we are off the record. (Whereupon, a recess was taken.) THE VIDEOGRAPHER: The time is 4:16 p.m. and we are back on the record. MR. STONE: Q. At the bottom of page 21, where you discuss the north and south breach of the IHNC, is that section -MR. BRUNO: What page? THE WITNESS: 21. MR. STONE: Q. Does that section essentially state that the north and the south breach of the IHNC on the east flood wall would have occurred under either the neutral or the as-was scenario?

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A. That's correct. Q. You know, there have been several things said in these reports about the levees not being proper levees, and they truly aren't hurricane protection system -- I mean -- they aren't hurricane protection levees. How long have those levees existed down in the New Orleans area up to the day before Hurricane Katrina? A. Since 1850. Q. Since? A. 1850 and before. The river built up naturally. Q. And the levees that we've been talking about this morning that were built along the MRGO have been in since -- they started building in '68, right? A. Correct. Q. So these levees have withstood hurricanes in the past; is that true? A. Which levees are you referring to? Q. The ones on the MRGO. A. Prior to Hurricane Katrina and after Hurricane Betsy? Q. Yes.

A. '65? Q. Right. A. Yes. Q. So '65 to 2005 is actually a pretty good run for a feature designed by people for protecting an area from hurricanes; wouldn't you have to say? A. No. Q. It's not? A. No. Q. Forty years is not -A. A test period that's appropriate for a system that would have a return period survivable of 10,000 years, certainly not. Q. I see. A. Not even for 100. The lifetime exposure has got to be a factor of approximately ten times that supposed design level. Q. What was the highest surge that had come across the MRGO before Hurricane Katrina? That's not a test question. It's one of your documents here. It's Betsy, right? A. I think we even drew the picture. Q. Ten feet, wasn't it? A. Yeah. Page 213

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Q. So that's the highest surge that these actually -- these levees didn't see Betsy because they came in after Betsy? A. Exactly. Q. But that's the highest surge in that area? A. For Reach 2, that's correct. Q. And here you're talking about maximum surges of 17, 18 feet coming across? A. Correct. Q. With up to six to seven feet of waves on top of those surges? A. Sure. Q. So you're essentially talking about a hurricane that exceeded a last major hurricane through that area that had the highest surge that came across there -A. That's correct. Q. -- by 100 to 150 percent? A. Yes. Q. Okay. A. So ... Q. I just am trying to get it all in perspective. A. Got you. Got you.

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Could I add something to help -Q. Yes. A. -- on that? Q. Go for it. A. So did the offshore industry. They're confronted with that same problem. Hurricane Betsy was one of the most severe hurricanes that have affected offshore industry to '65. However, as we considered the future, we did not exclude Hurricane Betsy from our data set because of a presumption that it was an outlier. We then had Hurricane Camille, and she taught some lessons. And because it was more severe, we didn't exclude it as an outlier from our statistical probabilistic analyses. So the question you ask is, well, how can science and engineering adequately project into the future with limited data sets information? The answer is, with great difficulty. Because here's where analytical models have to be employed judiciously, and their results analyzed judiciously. This is one of the differences I was

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referring to previously between what we perceive being done by the U.S. Army Corps of Engineers and what was happening just a few blocks down from them, in Shell's offshore engineering group, Chevron's engineering group, Techron/Texaco's engineering group. The information was being treated very, very differently. And it was because of a difference in philosophy. Our philosophy was we couldn't afford failure. The United States could react in a really negative way, and we would have to go and conduct business elsewhere. In addition, we had people's lives at stake. So we knew we had to open the doors to technology and new thinking. We didn't see quite the same open door with our colleagues down the street at the U.S. Army Corps of Engineers. Q. Did the oil and gas industry that you worked in build levees? A. Yes. Q. Do you have a reference to a document from that period of time that tells how those levees were built?

A. I don't, but I could certainly get it. Q. I'd ask that you provide that to me. Any time between -- any document between 1947 and 1978 that has to do with the way the -A. Oil and gas industry -Q. -- oil and gas industry built levees. A. You want me to obtain documentation and provide it to you? Q. Yes, sir. A. I will endeavor -Q. If you plan to rely on some oil and gas -A. Well put. Well put. Q. If you don't plan to rely on the oil and gas analogy that you're making here today -A. Right. Q. -- then -- do you plan to? A. I can't -- yeah, I think so. It's part of my experience. Q. Then I'd like to have the document. A. Yeah. I will endeavor to obtain them. MR. BRUNO: Anything that you want to use for that time frame is okay. We've seen it with Shell itself. MR. STONE: Q. You in your report here, Page 217

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at page 23, say the National Science Foundation sponsored the Independent Levee Investigation Team? A. Partially. Q. Were you provided any recompense from the National Science Foundation? A. No. Other than partial coverage of travel and field expenses. My wife covered the other part. Q. How much did that amount to that you were provided for that by the National Science Foundation? A. Round numbers, approximately $5,000 to cover field expenses. Q. In that paragraph 24, at page 30 -23 -MR. BRUNO: I'm sorry, Richard, page 24? MR. STONE: 23. THE WITNESS: 23. MR. STONE: Q. You list a number of failures there. And I guess this is like -A. Number of failures. Q. -- continuing along with what you've been saying about decision failures. This whole list here is -- let's start -- foresight,

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organization, funding, diligence, tradeoffs, management, synthesis, risk assessment, and manage -- risk assessment and management, again. Are any of these critical to your analysis of what caused the breaches of the levees? A. Yes. They're documented in the independent levee investigation team report of May the 14th, 2005, Chapters 11 and 12. They have also been published in peer-reviewed journals. Q. And your opinion is the same as the -in this section, you have stated the USACE led and directed an "organizational system that was fundamentally dysfunctional." A. Correct. Q. And where does the responsibility lie for a fundamentally dysfunctional organization? A. With -- in that time frame, Lieutenant General Strock. Q. Spell it. S-T-R-O-C-K? A. General Strock, S-T-R-O-C-K. Very brave man. Q. So what was his capacity at that time? A. At which time?

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Q. At the time you're talking about here. A. Oh, at the time that the investigation and those categories' dysfunctionality were evaluated and documented? Q. Yes. A. He was head of the U.S. Army Corps of Engineers, Washington, D.C. Q. You've used an analogy in here to the high level and the barrier plans for the flood control levees for what I call New Orleans Proper. That might not be a very good -A. The canals. Q. Right. The canals. And you state that, you know, the decision essentially is made, in part, because of $100 million cost -A. Yes. Q. -- to one of those systems over the other. A. Yes. Q. Who makes the hundred million dollar decision as to which type of levee protection to provide for those canals? A. Well, it's done collaboratively. The engineering technology teams have to develop and

evaluate performance characteristics including costs. That information is passed to decision-makers, to better enable them to make wise decisions concerning allocation of resources to achieve engineered systems to protect the public. Q. Do you recall any involvement in the state -- by the state and local authorities in the decision whether to go with the high level plan or the barrier plan? A. Of course. Q. What involvement do you remember? A. Of course, in one case, it was a legal interface. Q. That was brought by the -A. By a group of people. Q. And -A. Environmental interests. Q. Environmental interests? A. Right. But they weren't all environmentalists. In addition, of course, the local sewage and water board, the local parish groups, the state groups, by intent, are involved in the Page 221

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evolution -- development of decisions -Q. And the state and local authorities would have to come up with 30 percent of the cost of the -A. -- approximately. Q. -- project? A. Sure. Q. So they had a strong interest in trying to get the cheapest product; is that fair to say? A. Depends on how you define "cheap." Q. $30 million was a lot to those state and local industries at that time, wasn't it? A. Certainly. Q. A lot from their budget. A. Yes. Q. That's what I mean by it? A. Got you. Q. They have to make tradeoffs as to where they put their money, just like -A. We do. Q. -- the federal government does -A. And you and I do. Q. -- and you and I. A. Yes, sir. Q. You take issue with the Corps of

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Engineers no longer doing most of the engineering and construction work itself; is that fair to say? A. That's correct. Q. Okay. Now, whose decision is it to decide -- question's withdrawn. Whose responsibility within the organization is it to decide that certain activities are going to be outsourced, such as design, construction, maintenance, any of those decisions, or activities? A. Actually, it's an interactive decision development process that can initiate at a variety of locations, organizations. For example, if a perception by the Office of Management and Budget is the Corps is behind schedule, budgets are historically and continuously overexpended and have to be supplemented, then that organization institutes activities to encourage the responsible organization, in this case, the U.S. Army Corps of Engineers, to take corrective action. Congress has oversight groups that have the same functions. The Corps of Engineers themselves have groups that serve those same functions.

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The initiation of the reaction to perceived efficiencies can have a wide variety of sources. It can come from the legal industry because of perceptions that things are being done not in the public interest. It can come from the public who believe/feel that their interests are not being appropriately served. So it can have a wide variety of initiating sources. It has a wide variety of social and political factors that are involved. At the Corps, the Corps of Engineers, a primary consideration is to remain functional; to do good work. Now, we have to grapple with a large number of constraints. Money, people, those sorts of things. The perplexing distressing thing that we observed was the Corps was encouraged severely to become project managers. A good deal of their civilian force was directed in that area into maintaining reasonable organizational growth. We now have to outsource things that we previously did ourselves. In addition, we cut back things that our perception told us were not delivering their true

benefits, such as research. At that time, we then become focused on project management. Engineering is being given to outsiders. Research is not being encouraged to do what it can or should do. At that point, you can have what we would call "organizational dysfunctionality." We have seen this in organizations like NASA. I worked for NASA. Similar kinds of problems and similar kinds of attempted solutions to those perceived problems. Q. Have you noticed the trend here, Dr. Bea, at these places that you worked for have started to fall apart over -- I'm joking. You've laughed before. A. Bless you. The reason that you see me associated with them -- and the students at Cal Berkeley call me "Dr. Disaster." That's not meant to be disrespectful, but that I have worked on 50 major ones. And that's not because I want to smell doom and death and dig into things that are not good, but it's because I'm intent on not repeating the mistakes of history. Page 225

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Q. Let's go to your Declaration No. 1, July 11, 2008. And I think maybe we gave you a copy of that this morning, or did we? A. Yes, I've got it. Thank you. Q. Okay. A. Technical Report 1. Q. No. Do we have a copy down there of his Report No. 1? I'm sure we do. Page 8. A. Thank you. Q. Paragraph 15. A. Page 8, paragraph 15. Got it. Q. It says here, "I am a registered professional civil, structural and geotechnical engineer, retired, in Louisiana, Texas, Florida, California, Washington, Oregon and Alaska." A. Correct. Q. Are you still a licensed engineer in any of these states? A. I am licensed retired, which means my -or my license for practice is no longer active. Q. The reason I ask is I've looked at the web sites for these places -A. Of course.

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Q. -- and I can't find a lot of this. So I'm just asking. A. That's exactly right. When you achieve the emeritus style, you no longer have to pay the annual registration fees. So you're still a registered professional engineer, but the state does not want you to practice engineering without an active license. Q. The state -- okay. Then the distinction here is not -- you do not have an active license -A. Exactly. Q. -- in any of these states? A. Thank you. Yes. Q. So you're not testifying in the state of Louisiana as a licensed -- currently licensed engineer? A. Well put. Q. Okay. Just bear with me for a second or two here, because, as I said, I will now go home tonight and try to sort through this and make sure that we're okay. Page 17. A. Yes, sir. Q. You mentioned that -- or you state that

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the Reach 2 levees and -- yeah, the Reach 2 levees were breached in much the same way as a sandcastle. A. Yes. Q. All right. Now, is it your opinion that front side of wave -- question's withdrawn. Is it your opinion front side wave attack alone could cause these levees to breach in much the same way as a sandcastle? A. No. Q. Okay. As we go through your report, we'll get into more detail about your analyses and the basis for those. But why is it that front side wave attack alone is not sufficient to cause these to breach in much the same way as a sandcastle? A. The front side wave -- waves are being transported on and by water. So the waves -- we will term it the mean water level are inexorably connected and, hence, as the tide comes up and attacks my sandcastle, what's transporting the waves and the breaching action to the sandcastle is a combination of the tide and the waves. Q. So surge and waves and the element of surge that matters and wave height --

A. Correct. Q. -- is what adds to the overtopping? A. It's crucial. Q. And that is crucial to the failures? A. You used the term "overtopping." You may have crenellation happening without significant overtopping. Q. Now, if you've looked at Dr. Ebersole's photos -- we will get to them, but we can pull them up now if you want -- there seem to be only one photograph where there's evidence that still exists of this crenellation effect that you're talking about, and that seems to be a very high crest levee, 17-plus feet, right? A. Yep. Q. Okay. How do you -- why would that levee show the crenellation and none of the other failures show it? Well, the others are washed away, so you don't have any evidence from them, do you? A. Correct. In addition, the photographs that Mr. Ebersole refers to are spot photographs at specific locations. As much as I have been able to determine, those photographs are actually video Page 229

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frame captures from surveys that were made continuously on two occasions, both north and south, along the Reach 2 EBSBs. You -- you develop very different interpretations of the information as you begin to look at this continual stream of video. Most remarkable are the audio observations that have been recorded during the performance of surveys made by the surveyors and the pilots. One of the chilling descriptions was essentially that the levees had disappeared like a pile of sand. We found that a photograph taken at a certain time of day, at a same point, different photographs taken from different angles showed different features. One of the things that you got to be really careful of here is this confirmation bias thing. If your brain is telling you you're going to see overtopping breaching as you look through the thing, unintentionally, the brain is trying to corroborate that preconception. It's only when challenged with information from other sources that you begin to

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say maybe not. So what we've done or attempted to do is use information like Mr. Ebersole has used, but gather information from other sources to tell us, yes, that's an appropriate conclusion or, no, or maybe not. Q. Based on Mr. Ebersole's report, have you reevaluated your 35 percent and 47 percent that we talked about earlier? A. Yes. Q. Okay. What are the differences? A. The percentages I quoted this morning are the current percentages. 55 percent, that we would now conclude due to back-to-front breaching; 45 percent due to front-to-back breaching. Those percentages apply to the breached areas, not total length. Does not include sheet piles and hard structures. I tend to mumble. Q. And your earlier numbers dealt with 35 percent front side erosion, and the -- the rest -- or at least 47 percent of the rest of it was due to both front side and overtopping? A. Correct. Q. But these numbers now, the 55 percent,

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is overtopping back to front? A. Well, it involves more than overtopping is the reason that I'm hesitating in answering your question in the way you framed it. As Mr. Ebersole correctly, we think, observes and concludes, overtopping also includes the pulses of energy associated with wave action. So it's not just one without the other. It's a question of who's doing the most damage, when, where. Q. And the 55 percent, the most damage was done by the overtopping? A. Back side erosion. That's why I call it back to front, front to back. It's easy to communicate. Q. Okay. And can -- when we get to the pictures, can you associate this 55 percent with those pictures? A. Which pictures? Q. The ones from Mr. Ebersole's report. A. I would prefer not to. I would rather refer to the pictures that we have provided you, together with the supporting analyses and the expert report of January the 29th, 2009. We have done specifically and exactly

what you have asked us to do. Q. On this 55 percent, did you analyze the velocities that occurred on the back side of the levee? A. In several cases, we did. Q. Okay. And what kind of numbers did you come up with for that? A. Ten feet per second; 20 feet per second. Q. For what elevation levee crest? A. What elevation levee crest? In the range of 16 to 15 feet. Q. And what -- what overtopping condition? What was the surge plus the wave height on top? A. As documented in the report, we have relied in these analyses on the results provided by the Netherlands team. And the surge height graphs are documented in both their expert reports and our -- my expert reports. Q. So it's numbers like 18 feet? A. Correct. Q. Plus six to seven feet of waves? A. As low as two to three. Q. Okay. Two to three? A. Yeah. As low as. Q. As low as two and as high as seven? Page 233

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A. I think that's correct. Q. Okay. A. That's a table we've provided. Q. And the farther you move up toward the north, the higher, and the farther you move down to the south, the lower, as far as waves and surge? A. Not necessarily. Q. Okay. Which way does it go, if at all? A. The surge tends to increase toward the neck of the funnel, close to the Parish Road Bridge. Waves vary or are different depending on the environmental conditions east of the bank of the MRGO. So if they're changing, so are the waves that are able to arrive at the face of the earthen protection structures. The other thing that has to be taken into account are the geometric characteristics of the channel, wide or narrow. And very importantly are the vegetation between the channel and the face of EBSBs that occupies the wave berm in front of the EBSBs. Q. Let's stick with the MRGO Reach 2 levees.

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With the wave -- do the waves on top of the surge tend to increase to the south or to the north in height? A. There's no, quote, general tendency. They can increase in one direction and they will decrease, depending on the effects that I've cited. Q. They're irregular waves? A. That's correct. And they're irregular both in terms -- we'll call it a directional wave propagation, and longitudinally perpendicular to that primary direction. Q. Is there any -- anything that you can say that would specify where you would see the 2-feet wave as opposed to the 7-feet waves on top -- let me cut to the chase. Wave 3 in this report, Wave 3 from the Dutch -A. Wave 3, I've never used a Wave 3. Q. Maybe I'm using the wrong term. MR. BRUNO: Scenario. MR. STONE: No. There's a Wave 3 and a Wave 4. MR. BRUNO: Ray. MR. STONE: Ray 3, Ray 4. There we go.

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THE WITNESS: Now, we go. Thank you sir. Now we're making sense. MR. STONE: Q. In your Ray 3 -A. Well put. Q. -- I think the surge that's coming into the north -A. Right. Q. -- has the higher waves; is that fair to say? A. For that -- right. Q. And how about south of there? A. It various. If you look at the Ray results -- and that's the correct terminology -it's variable as you move up and down Reach 2. And that variability is reflecting effects of the bottom bathymetry, or the nature of the bottom, and the -- I'll call it loosely -- wetlands vegetation that's between the MRGO channel and the Lake Borgne. Q. And in order to evaluate the energy of these waves and what kind of damages it does -A. Yes. Q. -- is it important to know that these waves are coming from these different directions with different energy sources?

A. Yes. Q. Okay. Page 26. Bottom of paragraph 23, you talk about, "The catastrophic erosion of the EBSBs is not surprising since this section that was so exposed to severe unprotected storm waves was only about 14 feet high." That's the first clause. MR. BRUNO: Another field trip. MR. STONE: Q. Do you -- do you still stick with that number, 14 feet high? A. I'm trying to find out where you're reading from, sir. Q. I'm in your Declaration No. 1. A. This one (indicating)? Q. Not the technical report. A. Picture? Q. Yeah. A. And you're -Q. It's the last full sentence in that paragraph. A. No. That's -- repeat your question. Q. Is 14 feet high -A. Right. Q. -- is that -- is that an accurate assessment of those -- and I think there -- the Page 237

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frontage along Reach 2 of the MRGO, so is that an accurate assessment of the levee crests along there? A. It would be representative of probably a low spot. The crest elevation of the EBSB are well characterized in Dr. Resio's expert report. So they're variable along the length of the Reach 2. And that variability is an important part of what discerns -- determines front-to-back or back-to-front erosion. Q. Is it fair to say that a higher levee crest, if evaluated for front side erosion, is more likely to have front side erosion? A. That will depend on the soil characteristics and the characteristics of the incoming waves. Q. Okay. Well, how does the levee crest height enter into your analysis of front side erosion, if at all? A. It does because it's a levee crest height that's being used as the index for crenellation, penetration of that front side. And it's at that point the crest elevation lowers locally. And that's because of

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the trench being eroded by the incoming water. And that's far before we think the peak of the surge. Wave action is rushing through, together with the mean level of the water. As erosion goes, the elevation continues to drop, the process reinforces, and you breach front to back. Q. How does the crest elevation affect your analysis without crenellation? You have a -- you have a front side wave attack -A. Right. Q. -- but you don't have crenellation. A. Got you. Q. Is it more likely to be greater on a lower levee of the same materials than it is on a higher levee of the same materials? A. Yes. And the work by Mr. Ebersole and Dr. Resio show that. Q. I don't read it that way, so that's why I'm asking the question. I read it that the water's rising, and as the front side wave attack continues, it continues rising up -A. It does. Q. -- through what I think they call the

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surf zone. A. Right. Q. And so if the waves are -- if the water is rising fast enough -A. Right. Q. -- it will overtop a short levee pretty fast. A. Correct. Q. And then that short levee will immediately start to fail from the back side, and the front-to-back erosion will occur. That's the way I read it. A. I think you're exactly right. Q. Did I say back-to-front erosion? Okay. Back-to-front erosion. A. Thank you. Q. Is that correct? A. You're home. Q. Okay. So -- so in this latest version of your reports, have you taken that kind of crest elevation activity, I'll say, into consideration? A. Yes, sir. Q. Okay. Well, why don't you help me out here. It's five minutes to 5:00. Why don't you tell me, if you can,

what's the difference between what I got here that I've been looking at for a period of time now and what you gave me today, 600 pages' worth, that's different. I want to know what's practically and appreciably and critically different. I'm going to deal with what you've got here until I find something in there that I think is worth reading. A. Good for you. I'll do the best job I can to appropriately and properly outline your homework for tonight. On the Reach 2 EBSBs, we revisited our evaluation of breaching of the earthen flood protection structures. We call this Phase II analysis. What you have in July was Phase I analysis. The second thing I would commend to your study is a direct response to the defense experts' concerns for validations of all parts of the wave and overtopping breaching analyses. We address both internal and external validation processes used in engineering, and we addressed all of the criteria in the {}Talberg tests. The second thing I would commend to your Page 241

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homework tonight would be to look at the updated evaluations of the breaching developed at the Lower Ninth Ward, period. Q. That seems like pretty much everything that I've already been looking at. A. I hope not, because we also addressed the breaching on the New Orleans East -- the New Orleans East Back levee. There is a very long list and a table provided there for -- for these other critical breaches. That will keep you busy tonight. Q. Let me just ask you right now, without looking at any of your documents, what do you reference that says that LS-DYNA is validated, verified, tested, approved and used in the industry for the purposes you are using it for here? A. Which industry? And approved by whom? We have validated each of the steps and components involved in the analyses, both theoretically, laboratory experiments and field experiments, in comparison with other established techniques, to make such evaluations, including those developed by our esteemed Netherland colleagues.

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Q. Let me ask you, do you know that the esteemed Netherland colleagues have a test that's applicable to advection and dispersion? A. Yes. Q. You do? Have you used it -- have you used it to analyze the soil samples that you collected from 497? A. To respond diligently to your question, I'd have to know the specific tests to which you are referring. We have obtained test data from them that specifically addresses front side wave erosion, both information gathered in the field during previous storms, and information gathered in the large scale flume test run in Delft. D-E-L-F-T, like the china. Q. But you're not aware of a particular model or test that the Dutch have available to determine how soils are advected and dispersed? A. No, I didn't say that. What I was responding to was I don't know specifically the test you're referring to. The test information that we have accessed from them cover everything from front

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side to back side to advection to other mechanisms for development of breaching in earthen flood protection structures they commonly call dikes. All of that information was provided to you this morning on CDs. All of the information is cited by reference in my expert report of January the 29th, 2009. Q. Let's go back for a second to my original question. The question was -- well, before we go, it's fair to say that you haven't applied any test by the Dutch that deals with advection and dispersion? A. I find that question difficult to answer because all of the tests involve those mechanics. Q. If the Dutch have a test that deals with sediments and advection and -- have you -- have you applied that test at all? A. I'll have to know which test you're referring to, sir. Q. Well, if you've applied any kind of test like that. A. Yes, we have. And that's documented in the reports. Q. Okay. I'll find it in there.

A. Thank you. Q. All right. Okay. Let's go back to my original question. A. Did I finish answering you for the Lower Ninth Ward? Q. I don't know. But we're fine for now. A. Be sure and read it, because we studied two-dimensional and three-dimensional seepage. Previously, we had studied solely two-dimensional. Three-dimensional surprised us. The effects of the seepage hydraulic conductivity increases by 30 to 50 percent. Q. You're talking about the IHNC east flood wall? A. That's correct. So be sure and -Q. But your opinion is still -- I thought you said earlier that your opinion is still that under either scenario, those flood walls would have breached. A. That remains unchanged. Q. Okay. A. It's the mechanics. Q. All right. Let's go back to validation and verification -A. Very important. Page 245

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Q. You said that you've validated it -A. Yes. Q. -- for the purpose that you are using it for. A. Correct. Q. Where is there a peer-reviewed article where someone else has validated it for the purpose you are using it for? A. Three are cited in the publication, the American Society of Civil Engineers, Journal of Waterways, the Japan Coastal Engineering Society and the American Society of Civil Engineers, Geotechnical Division. Q. Why did you not provide these to us in your original report? A. Because we were still developing them. They were still going through peer review. Q. Now, how -- we'll look at those reports, but do you have copies attached with the disk? A. Yeah. They're on the disk. Q. Okay. How do you -A. Even though they're publicly available. Q. How did you verify that the LS-DYNA was appropriate for use for your application in this case?

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A. We used a variety of tests. For example, we would take the analytical formulations provided in the U.S. Army Corps of Engineers coastal engineering manual that will give you a way to compute uprush and downrush velocities. So we would use that. Then we would move to ways to validate and verify how, given the velocities, what the erosion characteristics would be. That could be laboratory or comparison with other established techniques used by industry, principally in Europe and Japan. And we would progressively move through the analytical process, testing all of the major components, but, very importantly, judging their integrated effect to predict breaching distances. So we check the parts, we check the results with all the data we could obtain. And we publish the results in peer-reviewed journals. Q. Do you have the technical report in front of you? A. Which one? Q. Your Volume I, Technical Report No. 1 that you sent out on July 11th. A. Got it. Yes, sir. What page?

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Q. Page 145. A. Got it. Yes, sir. Q. You state that, "No detailed site-specific model calibration was performed for this study due to the lack of actual data during Hurricane Katrina." A. Correct. Q. End quote. What does that mean as far as your model calibration goes? A. Look -Q. It appears to me that as of July the 11th, you had not verified -- you had not calibrated the model or -- if you haven't calibrated the model, how have you verified it and validated it? A. That's because there's an erroneous premise included in your question. Q. I don't doubt that. A. Erroneous premise is that you had not validated at this time. We were validating continuously as we moved through the development evolution of this analytical modeling process. MR. STONE: Okay. He's about out of

tape. You guys want to call it quits for today and come back tomorrow? MR. BRUNO: Yes, sir. MR. STONE: I'm going to tell you, Joe, I'm not going to guarantee I'm going to be able to complete with this witness tomorrow with 600 new pages. And if you think you can hold me to that with the magistrate, I will bet you some money on it, and I don't have much money. MR. BRUNO: Well, the problem with that is that if we go down that road, then I want to redo -MR. STONE: I don't want to -MR. BRUNO: I'm -(Reporter interruption.) MR. BRUNO: Richard, I'm not faulting you. I'm not criticizing you. I'm just saying to you: We still don't have all of your supporting data for Ebersole. We don't have it for Westerlink. We have to find a way. We also have a Daubert deadline next week. MR. STONE: Right. I believe everybody on our side is trying to cooperate with you the Page 249

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best we can. I know I am. MR. BRUNO: We don't have a deposition set before that date, and we have to have accommodation. We'll work with you as much as we can. I promise you that. MR. STONE: We'll have to deal with this at the end of the day tomorrow. MR. BRUNO: That's fine. Nothing we can do with that now. MR. STONE: Off the record. THE VIDEOGRAPHER: This marks the end of Disk No. 3 of 3 and concludes today's deposition of Dr. Robert Bea. The time is 5:07 p.m., and we are off the record. (Whereupon, the deposition adjourned at 5:07 p.m.) --oOo-I declare under penalty of perjury the foregoing is true and correct. Subscribed at _________________________, California, this ____day of ____________ 2009. ________________________________ ROBERT GLENN BEA

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CERTIFICATE OF REPORTER I, KATHLEEN A. WILKINS, RPR, CRR, CRP, Certified Shorthand Reporter, hereby certify that the witness in the foregoing deposition was by me duly sworn to tell the truth, the whole truth and nothing but the truth in the within-entitled cause; that said deposition was taken down in shorthand by me, a disinterested person, at the time and place therein stated, and that the testimony of the said witness was thereafter reduced to typewriting, by computer, under my direction and supervision. I further certify that I am not of counsel or attorney for either or any of the parties to the said deposition, nor in any way interested in the event of this cause, and that I am not related to any of the parties thereto. DATED:__________________________, 2009

__________________________________________ KATHLEEN WILKINS, CRR, RPR, CRP, CSR 10068

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79:19 80:9 81:9 209:9 Atmospheric 28:19 attach 6:18 attached 245:19 attack 67:6 138:17 142:9 143:1,7,9 143:18 144:24 148:7 160:17 174:12 180:7,13 180:13 227:8,15 238:10,22 attacked 143:17 attacking 85:23 180:10 attacks 227:21 attempt 144:16 188:14 193:16 attempted 224:10 230:2 attempting 112:3 153:3 188:18 196:21 198:5 203:9 attendant 21:18 42:20 attention 153:15 157:5 attorney 3:14,15,20 3:21,22 4:3,9 5:21 250:15 attribute 135:22 attributed 26:8 136:10 audio 117:5 229:7 August 138:1 authorities 49:13 113:1 161:24,24 220:9 221:2 authority 192:23 authorization 21:10,13,20,21 22:8,20,22 110:10 authorized 21:23 22:4 48:2 102:18 109:19

automobiles 197:8 available 53:11 103:21 105:20 107:3,5 109:6 120:3 155:14 173:24 174:3 201:12,13 203:21 203:25 207:13,20 207:24 242:19 245:22 Ave 3:22 Avenue 4:4 average 22:23 164:24 avoid 72:21 aware 72:11,18 73:4 76:10 111:20 113:14,19 242:18 awful 189:19 A&M 169:13 170:8 A-M-O-R-I-N-G 156:23 a.m 3:3 5:1,5 44:16 44:19 96:11 173:4 B b 44:24 55:11 58:14 back 18:21 37:10 44:19 57:9 65:7 65:12 69:24 70:5 74:7,12,22 84:6 89:23,24 93:2,3 96:17 99:10 100:10,25 103:1 117:8,23 128:13 131:11 135:10 136:8 137:14 139:10,15 144:19 145:17 148:23 151:3,4 158:11 163:11,12 168:11 169:3,6 180:5 182:22 193:10 198:11 199:17 210:15 223:24 231:1,13,14,14

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Borgne 47:4 59:14 69:4 235:19 boring 104:7,18 borings 103:2,4,8 103:12,18,19 104:5 borrow 55:13,18 56:7,12,17,22 57:1 94:23 95:2 99:25 100:20 bottom 37:12 82:18 82:19 86:8,20,23 87:6 96:2 174:5 205:7 210:16 235:16,16 236:2 bound 152:4,5 box 84:19 137:10 boxes 84:20,20 bracket 166:3 brackish 68:3 126:9 132:15 brain 183:10,11 229:20,22 brains 112:13,14 brainstorm 112:9 brainstorming 112:11 BRANCH 3:20 brave 218:22 breach 14:1 16:12 91:24,25 92:14 93:14 115:19 132:8 136:6 150:8 156:8 176:12 178:19 181:11 182:3,4 210:17,23 227:8,16 238:7 breached 35:1,2 136:8,10 155:10 155:23 157:21 182:5,8 227:2 230:16 244:19 breaches 1:4 5:11 17:17 35:6,7 45:8 93:21 109:14 114:22 115:6,20

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cause 3:10 21:18 74:12 86:6 91:22 109:13 136:14 227:8,15 250:8,17 caused 34:20 76:9 82:6,9 83:18 86:5 91:12 94:21 115:20 132:8 135:11 142:10 180:7 183:15 188:4 218:5 causes 19:5 45:7 143:6,8 causing 115:5 CDs 7:23,25 243:5 center 3:5 5:16 23:3,9 25:24 36:21 56:14 central 35:17,23,25 36:3,6,15 certain 23:2 52:8 86:12 122:3 208:18 222:7 229:15 certainly 32:4 38:17 40:7 42:7 49:16,21 50:2,6 53:24 68:14 73:1 90:2 116:22 123:5 134:9 143:19 165:3 204:2 212:14 216:1 221:13 CERTIFICATE 250:1 Certified 3:7 250:4 certify 250:4,14 cetera 44:24 67:18 170:13 193:21 Chad 141:14 chaff 144:16 chain 178:6,7 challenge 185:17 challenged 229:24 Chalmette 26:13 26:25 27:7,21

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Citrus 100:25 civil 3:20 5:11 30:11,14 41:5 118:21 225:15 245:10,12 civilian 223:20 claim 120:16 130:9 clarification 87:14 class 14:20 87:20 clause 106:3 114:18 153:14 157:4 236:7 clauses 114:18 clay 95:24 96:1 151:22 clays 100:23 101:4 101:8,9 clear 60:11 64:5 85:22 107:19 clearing 94:5 95:17 clearly 29:20 41:15 90:23 close 83:21 205:18 233:11 closest 140:13,17 140:20 closing 84:11 closure 48:21 178:14 189:22 coastal 99:13 107:16 108:5,17 108:21 109:2 160:18 209:13 245:11 246:4 coastline 77:24 coated 134:18 codes 207:10 coherent 30:4 53:18 206:24 208:16 cohesive 148:8 149:18 150:5,10 150:19,25 151:7 collaborate 162:9 collaboration 122:17 162:11

210:8 collaboratively 219:24 collapsed 40:22 colleagues 215:18 241:25 242:2 collected 27:18 146:22 176:23 177:3 242:7 Collins 202:14 color 44:5 combination 114:17 180:8 227:23 combinations 151:25 157:13 come 46:19 50:17 60:4,7,25 62:22 63:2 68:24 78:1 110:18 116:4 126:24 144:19 148:23 164:18 173:7 212:19 221:3 223:3,5 232:7 248:2 comes 47:16,22 59:24 68:1,4,6 87:12 195:25 227:20 coming 59:18 61:24 127:3 137:20 141:21 143:12 154:21 191:25 193:3 213:9 235:5,24 comma 54:18 commencing 3:3 commend 240:17 240:25 Commerce 191:6 committee 119:16 119:17 120:2,19 207:17,18 commonly 98:9 243:3 communicate

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51:24 178:18 231:15 communicated 131:23,23 132:5 communicating 131:17 compact 151:4 152:23 153:4 compacted 100:16 100:17 148:8 compacting 151:19 152:11,16 170:21 171:10 compaction 100:19 151:22 152:14,20 153:2,7 171:14,20 171:21 company 108:14 108:21 203:18,19 comparable 206:19 compare 18:9 103:11,12,17,20 104:15,20,24 105:23 compared 32:19 35:5,10 104:6 105:10 205:15 comparison 104:8 241:22 246:10 comparisons 107:2 complaining 89:9 110:8 complete 15:3 102:22 109:11 248:6 completed 109:25 111:16 completely 73:7,14 75:20 94:24 118:25 187:13 188:12 191:18 195:18 completion 109:19 complex 10:23 125:4 145:6 188:6 193:17

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contacted 121:6,11 137:9,11 225:3,8 contacting 122:7 Corps 20:6,8,10,14 contacts 107:8 20:19 21:8,9,15 contain 132:24 21:23,25 22:5,8 contained 141:14 22:19,21 23:24 181:22 24:19 25:13 26:2 contains 10:11 26:23 27:19 28:18 contend 47:13 30:8 32:14 38:2,6 content 151:22 38:11 39:7 41:4 contingent 48:3 41:15,20,25 42:25 continual 229:6 46:18,22 47:17 continue 57:4 48:5 49:13,17,20 continued 4:1 52:8,12,18 54:1 209:20 56:8 58:10 61:3 continues 238:6,22 63:23 64:11,12,20 238:23 64:25 65:1,4,8,9,9 continuing 114:13 65:10,12 69:10,15 217:23 69:21 72:11,19 continuously 73:5,22 75:13,18 222:17 229:2 76:1,10 77:25 247:22 78:15 83:25 85:25 contract 10:25 91:3 93:25 94:4 contractors 111:22 95:20 98:6 101:19 contracts 10:13,19 101:23 102:7,9 10:19,21 11:4 103:5,20 104:19 contrasted 134:4 104:21 105:2,25 contribute 129:15 106:24,24 107:5,8 129:20 180:18 107:15 108:5,24 contributed 162:17 109:1,6,16 110:3 contributing 111:20 112:2,24 134:14 113:12,14,21 contributor 136:19 115:21 116:11 control 48:11 125:2 118:12 119:13,13 125:18 127:10 121:18 135:9 130:1 179:2,15,23 148:7 156:21 189:13 196:1 157:11 161:9 219:10 162:8 176:18 controlled 87:11 189:21 191:21 101:13 197:22,23 198:1 controls 72:3 198:15 203:16,21 cooperate 248:25 203:22 204:1,25 coordination 49:12 205:15 206:5,17 copies 7:22 44:14 209:24 215:2,19 245:19 219:6 221:25 copy 7:11 10:5 222:15,20,24 17:11 44:5,7 223:11,11,18

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167:22 177:22 228:6,12,17 237:23 238:9,12 crest 92:19 138:18 139:4 167:16 168:11 177:23 179:5 228:14 232:9,10 237:5,13 237:18,21,24 238:8 239:20 crests 237:2 criteria 106:12 166:21 240:23 criterias 106:23 critical 91:21 135:8 135:18 178:3,5 218:4 241:10 critically 240:6 criticizing 248:18 critique 12:2 critiqued 11:24 cross 146:17 CRP 3:6 250:3,24 CRR 1:25 3:6 250:3,24 crucial 121:16 175:20 228:3,4 CSR 1:25 250:24 cumulative 115:15 115:16 cure 110:17 curious 175:17 current 21:1 61:9 61:13,24 62:6 66:12 67:5 98:2 134:7 185:3,5 205:21,23 230:13 currently 107:3,4 226:16 currents 61:15 62:11 70:4 132:25 133:10 134:7 curtains 126:23 cut 60:24 94:18 175:16 223:24 234:16

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Johns Pendleton Court Reporters

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75:1 140:19 141:2 142:2 20001 4:4 20004 3:23 2001 104:5 111:16 2005 138:1 146:15 181:20 212:4 218:9 2006 173:4 2008 8:7 11:3 15:1 16:4,10,22 88:10 88:19,20 137:1 167:11 169:1 181:3 225:2 2009 1:10 3:3 5:1 5:15 11:9 16:6,14 119:25 142:18 2 167:13 180:20 2 1:5 8:11 9:25,25 181:23 231:24 12:20 16:12,16 243:7 249:21 18:23 37:12 41:17 250:20 45:9 57:13 59:7 2017 109:25 61:25 67:9 71:11 202 3:23 4:5 71:13 74:5 82:12 21 210:17,20 96:15 99:9 100:7 22nd 144:2 100:8 102:24 23 217:1,16,18,19 103:3,10 111:15 236:2 114:1,3,9 121:3 24 217:15,17 132:22 134:2 24th 3:5 139:16 142:20 25 64:23 159:22 163:5 258 75:4 140:6 167:14 169:12 26 236:2 174:11,15 175:7 27 18:13 175:10 177:9,15 27.6 23:15 180:6 185:20 28 18:5,6 213:7 227:1,1 2800 4:9 229:3 233:24 29th 16:6,14 235:14 237:1,8 119:25 142:17 240:12 144:2 167:13 2-feet 234:15 180:20 181:23 2.6 68:16 231:24 243:7 2:02 131:11 3 2:44 163:6 2:57 163:10 3 8:11 73:11 75:21 20 186:24 232:8 76:13 79:15 80:8 200 22:24 74:18 81:10 136:23

163:9 193:12 234:17,17,19,19 234:22,25 235:3 249:12,12 3:59 210:12 30 1:10 3:3 25:23 36:21 217:15 221:3 244:12 30th 5:15 31 5:1 33 185:13 346-4000 4:5 35 174:10,14 175:3 230:8,21 38 17:4 18:6 4 4 145:9,20 234:23 234:25 4:16 210:14 400 140:25 415 5:7 45 136:9 230:15 47 175:6 230:8,22 48 29:13 49 29:13,13 497 75:12 147:15 149:19 156:1,2,4 176:13 242:8 5 5 136:16 146:2 153:14 154:2 5:00 239:24 5:07 249:13,16 50 224:20 244:12 500 140:25 141:11 504 3:17 504-299-2100 4:10 525-3780 3:17 55 136:11 230:13 230:25 231:11,17 232:2

160:8 6:00 173:4 600 120:9 240:3 248:6 616-4291 3:23 65 207:16 212:1,4 214:9 650 86:13 68 211:17 69 207:22,25 692-3600 5:7 7 7 2:4,8 65:17 88:20 162:13 7th 16:4,10 88:19 7-feet 234:15 7:00 198:13 70112 4:10 70113 3:16 78 106:9 8 8 99:5 225:10,13 8:39 3:3 5:1 800 142:5 8002N 3:22 855 3:16 9 9 114:9 132:23 139:13 172:13 9,000 185:20,22 9:27 5:5 900 93:4 901 4:4 909 4:9 96 2:5 99 209:9

6 6 44:20 58:15 142:5

Johns Pendleton Court Reporters

800 562-1285