KTR00044

00001
1 UNITED STATES DISTRICT COURT
2 EASTERN DISTRICT OF LOUISIANA
4 PATRICK JOSEPH TURNER, CIVIL ACTION

INDIVIDUALLY AND AS
5 REPRESENTATIVE OF SIMILARLY
SITUATED PERSONS
6 PLAINTIFFS,
7 VERSUS NO. 05-4206
8
MURPHY OIL USA, INC. SECTION "L"
9 DEFENDANT MAGISTRATE 2
10
11 Deposition of U.S. ARMY CORPS OF

ENGINEERS, through its designated
12 representative, RICHARD VARUSO, Post Office
Box 60267, New Orleans, Louisiana
13 70160-0267, taken in the offices of Frilot
Partridge, LLC, 1100 Poydras Street, Suite
14 3600, New Orleans, Louisiana, on Tuesday,
the 22nd day of August, 2006.
15
16 APPEARANCES:
17
NEBLETT, BEARD & ARSENAULT
18 (BY: JOHN PAUL P. OVERTON, ESQ.)
2220 BONAVENTURE COURT
19 ALEXANDRIA, LOUISIANA 71309
20 - AND -
21 BRUNO & BRUNO

(BY: JOSEPH M. BRUNO, ESQ.) Richard
Varuso, Page 1
22 (BY: L SCOTT JOANEN ESQ )
00002
1 APPEARANCES CONTINUED:
2
LAMBERT & NELSON
3 (BY: HUGH P. LAMBERT, ESQ.)
701 MAGAZINE STREET
4 NEW ORLEANS, LOUISIANA 70130
5 - AND -
6 MARTZELL & BICKFORD

(BY: SCOTT R. BICKFORD, ESQ.)
7 338 LAFAYETTE STREET
NEW ORLEANS, LOUISIANA 70130
8
- AND -
9
LAW OFFICES OF DANIEL E. BECNEL, JR.
10 (BY: REBECCA F. TODD, ESQ.)
425 WEST AIRLINE HIGHWAY
11 LAPLACE, LOUISIANA 70068
12 ATTORNEYS FOR PLAINTIFFS' COMMITTEE
13
FRILOT, PARTRIDGE, KOHNKE & CLEMENTS
14 (BY: EDWARD F. KOHNKE, IV, ESQ.)
(BY: ALLEN J. KROUSE, III, ESQ.)
15 (BY: KERRY J. MILLER, ESQ.)
(BY: PAUL THIBODEAUX, ESQ.)
16 3600 ENERGY CENTRE
1100 POYDRAS STREET
17 NEW ORLEANS, LA. 70173-3600
18 ATTORNEYS FOR MURPHY OIL USA, INC.
19
U.S. DEPARTMENT OF JUSTICE
20 CIVIL DIVISION, TORTS BRANCH
(BY: ROBIN DOYLE SMITH, ESQ.)
21 POST OFFICE BOX 888
Varuso, Richard
BENJAMIN FRANKLIN STATION Page 2
00003
1 ALSO PRESENT:
2 JIM McCONNON
3 KARA MILLER
4 VIDEOGRAPHER:
5 JACK VERWOERDT
PROFESSIONAL SHORTHAND REPORTERS, INC.
6 601 POYDRAS STREET, SUITE 1615
NEW ORLEANS, LOUISIANA 70130
7
8 REPORTED BY:
9 PAT KENNEDY QUINTINI

CERTIFIED COURT REPORTER
10
11
12 * * *
13 EXAMINATION INDEX
14 PAGE
15
16 EXAMINATION BY MR. KOHNKE ......... 8
17 EXAMINATION BY MR. BRUNO .......... 302
18
19
20
21
22
Varuso, Richard Page 3
00004
1 * * *
2 INDEX OF EXHIBITS
4 Page
5 Exhibit No. 1 .................... 77
6 Notice of 30(b)(6) videotaped
7 deposition of the U.S. Army Corps of
8 Engineers
9 Exhibit No. 2 .................... 81
10 Document from Corps of Engineers
11 website titled: Better & Stronger, New
12 Orleans Hurricane Protection System
13 Exhibit No. 3 .................... 106
14 Defendant United States' Consent/Ex
15 Parte Motion for Leave to File
16 Memorandum in Support of Motion to
17 Dismiss in Excess of 25 pages
18 Exhibit No. 4 .................... 108
19 Document that was Exhibit 7 to
20 previously marked Exhibit No. 3
21 Exhibit No. 5 .................... 296
22 IPET Report, Volumes 1 and 3 through 8
23 Exhibit No 6 Varuso,
305 Richard Page 4
00005
1 Exhibit No. 7 .................... 310
2 Map from Design Memorandum No. 1-A
3 Exhibit No. 8 .................... 345
4 Figure 2.7: Map showing the design
5 flood state levels for selected
6 locations in the New Orleans Area
10
11
12
13
14
15
16
17
18
19
20
21
22
23 Varuso, Richard Page 5

00006
1 STIPULATION
2 It is stipulated and agreed by and
3 between counsel for the parties hereto that
4 the deposition of the aforementioned witness
5 is hereby being taken for all purposes
6 allowed under the Federal Rules of Civil
7 Procedure, in accordance with law, pursuant
8 to notice;
9 That the formalities of reading and
10 signing are specifically not waived;
11 That the formalities of filing,
12 sealing, and certification are specifically
13 waived;
14 That all objections, save those as to
15 the form of the question and the
16 responsiveness of the answer, are hereby
17 reserved until such time as this deposition,
18 or any part thereof, may be used or sought
19 to be used in evidence.
20 * * *
21 PAT KENNEDY QUINTINI, Certified
22 Shorthand Reporter, in and for the State of

Varuso, Richard
23 Louisiana officiated in administering the Page 6
00007
1 THE VIDEOGRAPHER:
2 This is the videotaped deposition
3 of Richard Varuso taken in the matter of
4 Patrick Joe Turner, et al. versus Murphy
5 Oil, Civil Action No. 05-4258, in the case
6 in the United States District Court, Eastern
7 District of Louisiana. This deposition is
8 being held at 1100 Poydras Street,
9 Suite 3800, in New Orleans, Louisiana, on
10 August 22, 2006. And the time on the video
11 is 9:18 a.m.
12 My name is Jack Verwoerdt with
13 Professional Shorthand. The court reporter
14 is Pat Quintini with Professional Shorthand.
15 Would the attorneys please
16 introduce themselves for the record.
17 MR. KOHNKE:
18 My name is Ned Kohnke. Together
19 with Paul Thibodeaux and A.J. Krouse, we
20 represent Murphy Oil, defendant in this
21 action.
22 MR. BICKFORD:
23 Varuso,
Scott Bickford representing theRichard Page 7
00008
1 John Paul Overton representing the
2 Class.
3 MR. JOANEN:
4 Scott Joanen representing the
5 Class.
6 MS. TODD:
7 Rebecca Todd for the Class.
8 MR. BRUNO:
9 And Joseph Bruno for the Class.
10 MR. SMITH:
11 I'm Robin Smith. I represent the
12 United States. With me is Jim McConnon and
13 Kara Miller.
14 Just for the record, I would like
15 to make it clear that this is not a
16 deposition of Richard Varuso. This is a
17 deposition of the United States Army Corps
18 of Engineers pursuant to rule 30(b)(6).
19 RICHARD VARUSO,
20 having been duly sworn by the above
21 mentioned court reporter, did testify as
22 follows:
23 EXAMINATION BY MR Varuso,
KOHNKE: Richard Page 8
00009
1 you have been designated by the Army Corps
2 of Engineers as its 30(b)(6) representative.
3 Do you understand that?
4 A. Yes.
5 Q. Have you ever testified as a
6 30(b)(6) representative before today?
7 A. No.
8 Q. Have you testified at all, either
9 personally or in any capacity, prior to
10 today?
11 A. Yes.
12 Q. What type of action?
13 A. It was a claim from a contractor
14 against the Corps of Engineers for just a
15 construction claim.
16 Q. And in what --
17 A. I was an expert witness for the
18 Corps of Engineers, New Orleans District for
19 that.
20 Q. You were designated as an expert
21 by your employer, the Corps of Engineers?
22 A. Yes.
23 Q Let me hand you a Varuso,

copy and Richard
I will Page 9
00010
1 the notice of 30(b)(6) videotape deposition
2 of the U.S. Army Corps of Engineers that we
3 filed in this case.
4 Have you seen that before today,
5 just now when I handed it to you?
6 A. Yes.
7 Q. When did you first become aware
8 that you would be designated as a 30(b)(6)
9 representative?
10 A. Approximately two or three weeks
11 ago.
12 Q. Since that time what have you done
13 personally to review historical documents or
14 to prepare yourself, such as reviewing
15 historical documents?
16 MR. SMITH:
17 I'm going to object to this line
18 of questioning. The way he's prepared for
19 the deposition is irrelevant. He has been
20 designated properly as a representative of
21 the Corps. He's informed to address not the
22 subjects that are in the notice of the

Varuso,which
23 deposition but only three subjects Richard Page 10
00011
1 Engineers has authorized Mr. Varuso to
2 address.
3 MR. KOHNKE:
4 Well, I understand that we have
5 either by agreement or by dictate limited
6 the deposition to those three subject
7 matters. And let me identify now which
8 those three subject -- which subject matters
9 we are talking about. Items 2, 3 and 8 of
10 the notice: Item 2 being the design of the
11 levees along the Mississippi River Gulf
12 Outlet (MRGO) in St. Bernard Parish; No. 3,
13 the construction of the levees along the
14 MRGO in St. Bernard Parish; and No. 8, the
15 performance of the levees along the MRGO in
16 St. Bernard Parish during Hurricane Katrina.
17 Those are the three areas.
18 However, in conducting an examination along
19 those three subject matters, I need to know
20 what this witness has looked at and I'm
21 entitled to know what this witness has
22 looked at to prepare.
23 MR SMITH: Varuso, Richard Page 11

00012
1 is not testifying of his own personal
2 knowledge. This is not a deposition of the
3 individual. This is a deposition of the
4 Corps of Engineers. He is informed and
5 prepared to address three subjects which
6 have been properly identified.
7 MR. KOHNKE:
8 Are you instructing him not to
9 answer?
10 MR. SMITH:
11 I am instructing him not to
12 answer.
13 MR. KOHNKE:
14 My objection is noted. We will
15 take that matter up with Judge Fallon.
16 EXAMINATION BY MR. KOHNKE:
17 Q. In the last two weeks have you
18 engaged in preparation to testify today?
19 MR. SMITH:
20 You may answer.
21 THE WITNESS:
22 Yes.
23 EXAMINATION BY MR Varuso,
KOHNKE: Richard Page 12
00013
1 previously asked you about, does that
2 include reviewing historical documents?
3 MR. SMITH:
4 You may answer.
5 THE WITNESS:
6 Yes.
8 Q. Have you likewise interviewed
9 other members of the Corps of Engineers,
10 that is, staff or employees or Army officers
11 in the Corps --
12 A. Yes.
13 Q. -- in order to prepare for today?
14 A. Yes.
15 Q. Okay. Tell me something about
16 your background, first starting with your
17 education.
18 MR. SMITH:
19 I'm going to object to that line
20 of questioning and instruct the witness not
21 to answer for the same reason I gave
22 previously. Mr. Varuso is not here to
23 testify as an expert He is aVaruso,

designeeRichard
of Page 13
00014
1 irrelevant.
2 MR. KOHNKE:
3 Well, I understand that he is a
4 designee, and I certainly understand the
5 purpose of a 30(b)(6) deposition. But in
6 order to measure whether the Corps has given
7 me the best witness for these three subject
8 areas or a proper witness for these three
9 subject areas, I'm entitled to know
10 something about what he does, where he
11 works, what his education is.
12 He's testified as an expert in a
13 previous case for the Corps. I think I'm
14 entitled to know something about that.
16 answer?
17 MR. SMITH:
18 I think you have misstated the
19 law. The Corps is not required to provide
20 the best witness --
21 MR. KOHNKE:
22 A knowledgeable witness.

00015
1 Well, I'm entitled to explore
2 that.
3 MR. SMITH:
4 The test of that will be the
5 questions you ask him of the subject matters
6 that have been designated.
7 MR. KOHNKE:
8 So I'm to understand that you are
9 instructing him not to answer?
10 MR. SMITH:
11 I'm instructing him not to answer
12 questions --
13 MR. KOHNKE:
14 Okay.
15 MR. SMITH:
16 -- concerning his personal
17 qualifications.
19 Q. When you testified in a previous
20 case, you say you testified as an expert?
21 A. That's correct.
22 Q. In what capacity were you
23 designated as an expert? Varuso, Richard Page 15

00016
1 answer this line of questioning for the same
2 reasons I gave. He is not going to be
3 qualified as an expert in this matter.
4 MR. KOHNKE:
5 Well, I didn't attempt to qualify
6 him. I'm simply asking in what area did he
7 qualify as an expert in that case. Not this
8 case, that case.
9 MR. SMITH:
10 And I understand that. But in
11 that case he was not a 30(b)(6) witness. In
12 this case, he is. And as such, that's not
13 relevant to this deposition today.
14 MR. KOHNKE:
15 But relevance is not your province
16 to determine. It's the judge's province. I
17 believe this is a properly noticed and --
18 deposition under the rules. It's a
19 discovery deposition. You are not to judge
20 and determine what is relevant. That is for
21 the judge. And if you are instructing him
22 not to answer, I must again caution you that

Varuso,
23 I'm going to ask for relief from Richard
the judge Page 16
00017
1 within the bounds of this deposition.
2 MR. KOHNKE:
3 Once again, this is a discovery
4 deposition. You are entitled to object but
5 you are not entitled to instruct him not to
6 answer.
7 MR. SMITH:
8 I am entitled to instruct him not
9 to answer questions beyond the three subject
10 matters that have been designated.
11 MR. KOHNKE:
12 Note my objection.
14 Q. Let me turn to the first area,
15 which is the design of the Mississippi River
16 Gulf Outlet levee along -- in St. Bernard
17 Parish. Post Katrina has the Corps of
18 Engineers engaged in an analysis and an
19 analysis of the failure of that levee
20 system?
21 A. Yes.
22 Q. Has the Corps done so separate and
23 apart from IPET and other Varuso, Richard

associations of Page 17
00018
1 Again I'm going to cut off this
2 line of questioning. This is not a
3 deposition about what the Corps has done to
4 explore the causes of the flood that
5 occurred last fall.
6 MR. KOHNKE:
7 Well, didn't No. 8 -- doesn't it
8 read: The performance of the levees along
9 the MRGO in St. Bernard Parish during
10 Hurricane Katrina? Now, how do I determine
11 what the performance of those levees were
12 unless I find out whether the Corps did an
13 after-Katrina analysis of those same levees?
14 MR. SMITH:
15 You can ask questions about the
16 performance.
17 MR. KOHNKE:
18 Well, that's what I just did. I
19 don't --
20 MR. SMITH:
21 You asked a question about the
22 Corps' examination. He is not here to

Varuso, Richard
23 testify about the Corps' investigation The Page 18
00019
1 subject that's not within the bounds of this
2 deposition.
3 MR. KOHNKE:
4 Listen to the question. You
5 didn't hear the question. Let me try to
6 repeat the question.
8 Q. Post Katrina has the Corps engaged
9 in an analysis of the failure of the levees
10 along the MRGO separate and apart from IPET
11 or any of these other associations of
12 experts?
13 MR. SMITH:
14 Again, whether the Corps has
15 studied this and in what fashion the Corps
16 has studied this is not a subject matter
17 this witness is prepared to testify to
18 today. He is prepared to testify to the
19 performance of the levees. If you have a
20 question about the performance of the
21 levees, he will attempt to answer that to
22 the best of his ability.
23 MR KOHNKE: Varuso, Richard Page 19

00020
1 the only question you are going to allow him
2 to answer, that the levees as a fact failed?
3 MR. SMITH:
4 You may ask the questions. He is
5 your witness.
7 Q. Has the Corps of Engineers done an
8 analysis of the performance of the levees?
9 A. Yes.
10 Q. In doing that analysis, did the
11 cause of failure come into focus?
12 A. Yes.
13 Q. In looking at the cause of
14 failure, what exactly did the Corps
15 consider?
16 A. Consideration --
17 MR. SMITH:
18 Now, I'm going to object to this
19 line of questioning. This is specifically
20 listed as one of the areas that you intended
21 to pursue --
22 MR. KOHNKE:
23 I am Varuso, Richard Page 20

00021
1 No. 9.
2 MR. KOHNKE:
3 This is No. 8. It's the
4 performance.
5 MR. SMITH:
6 Please. Let me read No. 9.
7 MR. KOHNKE:
8 You can read No. 9 all you want.
9 MR. SMITH:
10 COE's review, assessment and/or
11 evaluation of the reasons for the failure of
12 the levees along the MRGO. He is not
13 prepared to testify to that today.
14 MR. KOHNKE:
15 And that is because why? You all
16 have decided --
17 MR. SMITH:
18 He is not authorized --
19 MR. KOHNKE:
20 -- he is not going to?
21 MR. SMITH:
22 He is not authorized to. That was

Varuso,
23 the agreement that we reached Richard
pursuant to Page 21
00022
1 You are suggesting that Judge
2 Fallon has blessed your decision not to
3 allow him to testify; is that what you are
4 saying on this record?
5 MR. SMITH:
6 That was what happened at the
7 conference we had with the Judge, yes.
9 Q. Tell me what --
10 MR. KOHNKE:
11 Read back the last question,
12 please.
13 (Whereupon, the requested testimony was read
14 by the Court Reporter).
15 "Q. In looking at the cause of failure,
16 what exactly did the Corps consider?"
18 Q. Would you answer that question,
19 please?
20 MR. SMITH:
21 I'm instructing him not to answer.
22 That is plainly within the bounds of Area
23 No 9 Varuso, Richard Page 22

00023
1 entitled to pursue No. 8, which is -- deals
2 with the performance of the levees along the
3 MRGO in St. Bernard during Hurricane
4 Katrina. Now, unless somebody was there
5 watching, it has to be information that's
6 gathered after the fact, post Katrina. And
7 what I'm trying to do now is to find out
8 what that entailed, what that consisted of,
9 who did it, and what they did in order to
10 determine how the levees performed.
11 MR. SMITH:
12 I understand, Counsel, that you
13 are interested in that. You are interested
14 in all these subject matters. That's why
15 you noticed it up for a deposition. The
16 Corps has not authorized him to address
17 those subjects.
18 MR. KOHNKE:
19 Okay. Let's turn back to the
20 design of the levees.
22 Q. Are you familiar with the Flood
23 Control Act of 1965? Varuso, Richard Page 23

00024
1 place upon the Corps certain
2 responsibilities concerning the design of a
3 hurricane protection system for Lake
4 Pontchartrain and vicinity?
5 A. My knowledge of the document, I
6 wouldn't be able to answer that question.
7 Q. When did you first start working
8 for the Corps?
9 A. In 1992.
10 Q. From 1992 going forward, have you
11 become aware of any activities engaged in by
12 the Corps concerning the design and/or
13 construction of a hurricane protection
14 system for Lake Pontchartrain and vicinity?
15 A. Yes.
16 Q. What do you understand that that
17 design responsibility consists of?
18 A. We are given a -- given storm of a
19 given frequency, we refer to that as a
20 standard project hurricane. That standard
21 project hurricane will have a given
22 still-water level. That is, basically the
23 elevation of the water thatVaruso, Richard

we are going to Page 24
00025
1 levee or the crown of the levee, if you
2 will, is usually, give or take, two feet
3 plus or minus a foot in addition to wave
4 runup or settlement. We take these factors
5 into consideration.
6 And so the top of the levee crown
7 is typically two feet give or take a foot
8 higher than the still-water level. Once
9 that elevation is determined, given the
10 topography of the area and information that
11 we obtain from mooring logs and laboratory
12 tests, perform stability analyses to
13 determine the required stability berms and
14 required levee section to meet the global
15 stability.
16 Q. In determining the various factors
17 that go into the design that you just
18 testified about, was the Corps of Engineers
19 restricted in any way or controlled in any
20 way in determining what design it should
21 come up with?
22 A. I'm not sure I understand you.
23 Q Varuso,
I'm trying to find out whetherRichard
the Page 25
00026
1 adopted for the Lake Pontchartrain and
2 vicinity hurricane protection system?
3 A. I'm not sure. That's a tough
4 question to answer. If you have a
5 particular restriction, maybe I can answer a
6 question to a specific --
7 Q. No. I'm trying to find out --
8 A. -- restriction.
9 Q. I'm trying to find out whether the
10 Corps of Engineers was free to come up with
11 the best design that it could conceive of to
12 protect Lake Pontchartrain and vicinity?
13 A. It was free to determine a levee
14 section based on the still-water level that
15 was given that was based on the standard
16 project hurricane for which we were
17 authorized to design the levees to.
18 Q. Well, who determined the standard
19 project hurricane level or criteria? Who
20 made that determination? Was that the
21 Corps?
22 A. Well, I don't know that I can
23 answer that question Varuso, Richard Page 26

00027
1 A. The project manager at the time
2 would probably be able to answer that
3 question.
4 Q. Well, would it be fair to say that
5 the project manager at the time also was the
6 one who was ultimately in charge of
7 determining what the standard project
8 hurricane criteria would be?
9 A. That is correct.
10 Q. And is that the starting point for
11 the design to determine a standard project
12 hurricane?
14 Q. And isn't it true that the
15 standard project hurricane is determined by
16 looking historically at previous hurricanes
17 over some period of time?
18 A. That's part of it.
19 Q. And is there any limitation on the
20 project manager in terms of what criteria he
21 decides or relies upon in that exercise of
22 considering the past?
23 A Varuso,
As you said the only Richard
information Page 27
00028
1 data we had, which was based on existing or
2 previous hurricanes.
3 Q. There is no limitation placed on
4 the project manager as far -- insofar as the
5 Corps' ability to exceed whatever standard?
6 A. His limitation is based on -- it's
7 from Congress. We are authorized to design
8 the levee from Congress. We are given funds
9 and authorized to design a levee to sustain
10 that still-water elevation from a standard
11 project hurricane.
12 Q. Was there anything in the
13 Congressional mandate that said: Build --
14 for lack of a better way: Build an adequate
15 rather than the best hurricane protection
16 system that can be designed?
17 A. I can't speak to the exact wording
18 of what was in the document.
19 MR. BRUNO:
20 Excuse me, Ned. Forgive me. I'm
21 confused. Are we talking about the entire
22 Lake Pontchartrain system or are we talking

Varuso, Richard
23 about a portion of the system? Page 28
00029
1 MR. BRUNO:
2 Or are we talking about new levees
3 or are we talking about maintenance? This
4 is extremely broad, and forgive me, I'm not
5 able to follow.
6 MR. KOHNKE:
7 I have been addressing the entire
8 system. I have been using terms that would
9 encompass the entire Lake Pontchartrain and
10 vicinity hurricane protection system. I
11 will later on get into focus with the MRGO
12 levee, which is where I'm going to focus.
14 Q. Go ahead.
15 MR. SMITH:
16 I'm going to instruct him not to
17 answer the broader question, because that
18 again is beyond the scope of what he is
19 prepared to address. If you could ask him
20 about the MRGO levees, then that's fine.
22 Q. All right. Well, let me try to

Varuso,
23 come back and get into this Richard
more narrow area Page 29
00030
1 which is, of course, used in the 30(b)(6)
2 notice, do you know what I'm referring to?
3 A. Yes.
4 Q. Describe --
5 A. I assume you are referring to the
6 section of the levee that's south of Bayou
7 Dupre?
8 Q. I was going to say, describe for
9 us, so that we are all on the same page,
10 what the MRGO levee means to you, the Corps.
11 A. There is a control structure at
12 Bayou Bienvenu near the GIWW, the Gulf
13 Intracoastal Waterway. What I refer to the
14 MRGO levee would be the structure of levee
15 that extends south from Bayou Bienvenu past
16 the control structure at Bayou Dupre, until
17 we get to what we refer to as the return
18 levee at Verret. It's about 12 -- 12 miles
19 give or take of levee south of Bayou
20 Bienvenu.
21 Q. The stretch that you are referring
22 is to a 12-mile stretch beginning just south

Varuso,
23 from Bayou -- beginning at Richard
Bayou Bienvenu Page 30
00031
1 return levee at Verret?
3 Q. Now, in designing the levee system
4 over that 12-mile stretch that we will refer
5 to as the MRGO levee, were there any
6 restrictions placed on the Corps in terms of
7 the size, quality materials that it chose to
8 use?
9 A. The size was restricted by the
10 still-water elevation that was relative to
11 the standard project hurricane that we were
12 authorized to build the levee to.
13 Q. And the still-water elevation is a
14 product of assumptions that go into the
15 standard project hurricane, is it not?
16 A. Yes.
17 Q. And those assumptions are
18 assumptions made by the project manager of
19 the Corps of Engineers or folks at the Corps
20 of Engineers?
22 Q. And so if I put the question back

Varuso,
23 to you would you agree that Richard
the Corps of Page 31
00032
1 standard project hurricane?
2 A. I wouldn't refer to it as a
3 restriction. The elevation is based on
4 signs. The still-water level for that
5 standard project hurricane, we were
6 authorized to determine the still-water
7 level for that standard project hurricane,
8 authorized by Congress. The science that
9 went into determining that still-water level
10 for that given storm is based on the science
11 of previous hurricanes.
12 Q. Congress doesn't mention anywhere
13 in the 1965 act or any of the legislation
14 that followed the appropriations or
15 anything, it doesn't mention still-water
16 elevations, does it?
17 A. It mentions -- it mentions
18 standard project hurricane.
19 Q. And standard project hurricane is
20 a series of assumptions using historical
21 data that the Corps makes; isn't that right?
23 Q Varuso,
And assumptions are Richard
subjective? Page 32
00033
1 Q. Well, in this case --
2 A. Based on -- I will again say that
3 it's based on science and engineering. It's
4 based on hydraulic engineering and there is
5 literature and textbooks and whatever
6 information you want to try and determine is
7 what those hydraulic engineers use to
8 determine the still-water level. It wasn't
9 a subjective analysis. It's a technical
10 analysis. It's a --
11 Q. Let me turn to the construction of
12 levees for a moment. When did the
13 construction of the MRGO levee begin; at
14 what point in time?
15 A. Approximately 1967.
16 Q. And what was the design height of
17 the levee when construction began in 1967?
18 A. Approximately 15.
19 Q. Do you know exactly?
20 A. It varied from reach to reach. I
21 think it's -- again, it's also based on
22 hydraulic analyses. It was either between

Varuso, Richard
23 15 and 15 and a half I believe Page 33
00034
1 Excuse me.
2 MR. KOHNKE:
3 Go ahead, Joe.
4 MR. BRUNO:
5 So that we have a reference for
6 the record, the 15 feet is relative to what?
7 THE WITNESS:
8 Well, I was just about, okay, to
9 get into that.
11 Q. If you want to ask the question,
12 go ahead and ask the question as you
13 perceive it.
14 A. It's -- I should qualify that it's
15 elevation 15 to 15 and a half NGVD, National
16 Geodetic Vertical Datum. That datum is
17 relative to mean sea level back in 1967.
18 Zero NGVD would approximately equal mean sea
19 level.
20 Q. Now, post Katrina did the Corps of
21 Engineers discover that its use of old
22 vertical datum elevations were in error?
23 A Varuso,
I wouldn't use the term "in Richard Page 34
00035
1 Q. Well, all right. Let's say at any
2 time surrounding Hurricane Katrina,
3 including post Hurricane Katrina, has the
4 Corps come to the realization that the
5 vertical datum elevations that it had been
6 using to determine levee height and sea wall
7 height were, in fact, off because of the
8 source that it was relying upon?
9 A. I'm going to ask you to qualify
10 your question, because there is a difference
11 if you are talking about the design of the
12 1967 and if you're talking about the
13 existing conditions in 2005.
14 Q. Existing conditions in 2005.
15 A. Because of settlement and
16 subsidence, the elevation, the assumed
17 elevation or water level elevation based on
18 NGVD in 1967 would have been approximately a
19 half a foot lower than what they would be
20 now.
21 Q. Now, I understand that what you
22 are saying is because of subsidence there

Varuso,
23 would be a reduction in height of Richard Page 35
00036
1 Q. Is that what you are saying?
2 A. We are using that as an average.
3 Now, it depends on what -- the area you are
4 in. It's not a constant.
5 Q. Well, but that's a slightly
6 different response to the question I asked.
7 Let me come back to the question. I'm not
8 asking about the effect of subsidence on the
9 levee. I'm asking about the reference
10 points the Corps was using to measure the
11 height of the levee --
13 Q. -- to do a profile.
14 A. They have all subsided. It
15 depends on the area. Some areas may be
16 more, some areas may be less.
17 Q. So in addition to the subsidence
18 of the levee, the reference points that the
19 Corps was relying upon to measure subsidence
20 was also off because those reference points
21 themselves had subsided?
22 A. The whole area is under
23 subsidence Varuso, Richard Page 36

00037
1 Q. And when did this -- when did it
2 become apparent to the Corps that its use of
3 reference points was unreliable because the
4 reference points had subsided?
5 MR. SMITH:
6 I'm going to object to that
7 question. This, again, is getting into the
8 Corps' review. It's No. 9, Corps' review,
9 assessment and evaluation of the reasons for
10 the failure of the levees. To the extent
11 you have a question that goes back to when
12 the levees were designed or constructed,
13 it's a proper question. I'm going to
14 instruct him not to answer that question.
16 Q. Okay. In 1967 when construction
17 began, did the Corps of Engineers make a
18 determination as to the quality or makeup of
19 the soil where it was going to be placing
20 this MRGO levee?
21 A. Yes.
22 Q. Did it do so through soil
23 sampling? Varuso, Richard Page 37

00038
1 reach with respect to the suitability of the
2 soil to support a levee system? During this
3 12-mile -- everything relates to this
4 12-mile stretch --
5 A. I understand.
6 Q. -- that I'm referring to as the
7 MRGO.
8 A. I'm not sure I can answer the
9 question based on the suitability.
10 Q. Let me refine it.
11 A. Soil --
12 Q. Go ahead.
13 A. Okay. Soil conditions change from
14 location to location and the design of the
15 levee will be based on the information that
16 we obtain from those soil borings and
17 laboratory testing. One area isn't more
18 suitable than another area. There are just
19 different conditions and the levee needs to
20 be designed based on those foundation
21 conditions.
22 Q. Is the person who makes this
23 determination or analyzes Varuso,

that soil isRichard
that Page 38
00039
1 Q. Are you a geotechnical engineer?
2 A. Yes.
3 Q. And were you involved from --
4 1992, I believe, is when you began working
5 with the Corps -- were you involved in
6 analyzing soil along this 12-mile stretch?
7 MR. SMITH:
8 I'm going to object to that.
9 Again, it's irrelevant. He is here to
10 testify concerning those conditions.
11 Whether he discovered that in the course of
12 his employment or whether he learned that in
13 preparing for this deposition today is
14 irrelevant. And to be honest, strictly
15 speaking, it's beyond the scope. If you
16 have a question, he will testify to the
17 knowledge that he has.
18 MR. KOHNKE:
19 Well, note my objection again.
21 Q. In 1967 did the Corps of Engineers
22 rely upon geotechnical engineers to consider

Varuso,
23 the soil content and makeup before Richard Page 39
00040
1 Q. Did it determine in advance of
2 construction how many lifts would be
3 necessary in order to achieve the design
4 height?
5 A. Analyses are performed to estimate
6 that.
7 Q. All right. What was the estimate?
8 In 1967 when work began, what was the Corps'
9 estimate as to how many lifts were
10 necessary?
11 A. I don't know that I can answer
12 that exact question. I know they did place
13 three lifts in one area. They knew they
14 needed at least three lifts.
15 Q. What area would that one area be?
16 A. Between Bayou Bienvenu and Bayou
17 Dupre.
18 Q. And how many miles of the 12-mile
19 section would that consist of?
20 A. I believe it's 6.2.
21 Q. And what you are saying is you
22 know that they made three lifts?
23 A There is an originalVaruso,
lift We Richard Page 40
00041
1 Q. And there have been two subsequent
2 enlargements since the --
3 A. Since the first lift, that's
4 correct.
5 Q. When were those done? When was
6 the original lift done, first of all?
7 A. 1967.
8 Q. All right.
9 A. Between 1967 and 1968 the first
10 enlargement was -- the plans and specs went
11 out in 1970 -- I think it was approximately
12 1976 -- 1978, I believe. And then the
13 second enlargement was approximately 1983.
14 Q. And after each enlargement,
15 profiles were done to determine the height
16 of the levee?
17 A. Before each enlargement there are
18 surveys to determine the existing elevation.
19 Once construction is complete, the
20 contractor constructing the levee is
21 obligated to provide the Corps of Engineers
22 with as-built cross-sections, compliance
23 cross-sections Varuso, Richard Page 41

00042
1 A. Surveyors.
2 Q. Are those repeated annually or
3 only at each time a lift or enlargement is
4 performed?
5 A. They would have been performed
6 subsequent to each contract that was -- we
7 were authorized to build. In other words,
8 if we were given authorized funds to do a
9 second enlargement then at that time we
10 would have a survey party go out to the site
11 and perform those surveys.
12 Q. What was the surveyed height of
13 the levee following -- the second
14 enlargement was concluded in what year, by
15 the way?
16 A. 1983. These are approximate
17 dates, now, based on the contract plans and
18 specs.
19 Q. All right. In 1983 after the
20 construction of the second enlargement is
21 completed, a surveyor is sent out to
22 ascertain the height of the levee along
23 this what we are referringVaruso, Richard

to as a 6 2-mile Page 42
00043
1 Q. What was the height of the levee
2 measured in 1983?
3 A. Approximately 20 and a half NGVD.
4 Q. Since 1983 have any further
5 profiles -- I'm using the word "profiles" to
6 refer to the surveyed determination of
7 height -- were any profiles done of the
8 levee in this particular stretch?
9 A. In 19 -- In approximately 1991,
10 '93, in that time frame, in that 6.2-mile
11 stretch.
12 Q. What was the purpose of going out
13 in '91 to '93?
14 A. We were --
15 Q. Is there another enlargement
16 planned?
17 A. We were trying to get funds -- we
18 were trying to get authorization from
19 Congress to put a subsequent lift on that
20 section of levee.
21 Q. So another lift or enlargement was
22 planned, but you were awaiting funds and the

Varuso,
23 absence of funds had delayed Richard
this third Page 43
00044
1 Q. In 1991, '93, what sort of
2 elevation was measured?
3 A. I would have to -- I don't want to
4 give you an approximate elevation. I'm not
5 positive.
6 Q. Well, how can you become positive?
7 A. I'd have to look at the plans and
8 specs for that given set of plans and specs.
9 Q. Give me -- subject to what those
10 plans and specs will reveal, give me your
11 approximation as to what that height was.
12 A. I can give you an approximation
13 based on Lidar data. That's surveys that
14 were taken after Katrina. The sections of
15 levee along the MRGO that remained intact
16 after Hurricane Katrina, the elevations were
17 approximately 15.
18 Q. So after Katrina Lidar data was
19 obtained and you are saying that after
20 Katrina the elevations were approximately
21 15?
22 A. For the levee sections that
23 remained intact Varuso, Richard Page 44

00045
1 Q. Is this 6.2 miles between Bayou
2 Bienvenu and Dupre part of the intact?
3 A. There were sections of that --
4 there were sections of that stretch that
5 remained intact after the hurricane.
6 Q. Now, how can I get you to be
7 absolutely certain to look at the data that
8 you referred to in 1983 -- excuse me --
9 1991, '93? What do you have to do to find
10 that data?
11 A. I would just have to review the
12 set of plans and specs for that contract.
13 Q. Where are those plans and specs?
14 A. We have them at the Corps.
15 Q. And how long would it take you to
16 do that?
17 A. Not very long.
18 Q. At the lunch break can you arrange
19 to either go up there or have someone bring
20 them here?
21 MR. SMITH:
22 We can inquire at the lunch break.
23 MR BRUNO: Varuso, Richard Page 45

00046
1 descriptor to allow us to obtain it through
2 that process?
3 MR. SMITH:
4 Yes, certainly.
5 MR. KOHNKE:
6 Are you saying it is on the
7 website?
8 MR. SMITH:
9 No. I don't know. I said -- I
10 understood the question to be, if it's
11 available on the website, then we will
12 certainly provide that information to you.
13 MR. BRUNO:
14 Finally, Ned, may we learn what
15 would be the appropriate descriptor of these
16 plans and specs?
18 Q. Now, was all 12 miles of the MRGO
19 levee built to the design height prior to
20 Hurricane Katrina? 100 percent of it I'm
21 referring to.
22 A. Would you repeat your question?
23 Q Was 100 percent ofVaruso, Richard

the 12-mile Page 46
00047
1 design height?
2 A. They were built to the design
3 height after construction.
4 Q. I understand after construction.
5 Let me refine my question. Just prior to
6 Katrina, were all of the levees built to the
7 design height along the MRGO?
8 MR. SMITH:
9 I'm going to object to the
10 question. The form of the question is
11 vague, because I'm not sure you are saying
12 built, but just prior to Katrina.
13 MR. BRUNO:
14 We are talking about reach two,
15 are we not?
16 MR. KOHNKE:
17 Reach two?
18 MR. BRUNO:
19 Yes.
20 MR. KOHNKE:
21 I'm talking about that 12-mile
22 stretch that I'm referring to as the MRGO.

00048
1 MR. BRUNO:
2 Is this 12-mile stretch less than
3 reach two?
4 MR. SMITH:
5 No. I think in the other
6 litigation it's generally been referred to
7 as reach two.
8 MR. KOHNKE:
9 I will refer to it any way you
10 want.
12 Q. I'm referring to it as the MRGO
13 levee, which is referred as the 12-mile
14 stretch commencing at Bayou Bienvenu,
15 proceeding south to the return levee at
16 Verret. And what my question is, was that
17 on the day before Katrina, or just before
18 Katrina hit on August 29 of 2005, was that
19 entire levee system at the design height,
20 not built but at the design height?
21 A. I understand your question now.
22 The answer would be no.
23 Q How do you knowVaruso,

the answerRichard
to Page 48
00049
1 explained previously.
2 Q. What parts were below the design
3 height?
4 A. There was no data available after
5 Hurricane Katrina that showed any section
6 was at the design elevation.
7 Q. Would it be fair to say that the
8 entire 12-mile section of levee known as the
9 MRGO was at a height below the design height
10 on the date Katrina hit this area?
11 A. Again, based on the Lidar data we
12 have, that's the only information we have.
13 And all that data showed the data that we
14 have for the remaining sections of levee
15 along that 12-mile stretch, all the
16 elevations of the intact levees were below
17 the design elevation.
18 Q. What is the greatest degree to
19 which it was below the design height
20 measured in feet?
21 A. Approximately five feet.
22 Q. Five feet. And what is the least

Varuso,
23 amount of measurement below Richard
the design Page 49
00050
1 just an average. I think five feet is an
2 approximate average. I think for the most
3 part everything was around elevation 15.
4 Not much difference. Now, there are
5 areas -- are you referring to areas that
6 were eroded away after --
7 Q. No. I'm just referring to --
8 A. -- the intact levee sections?
9 Q. Yes.
10 A. I would say 15 -- five feet is a
11 good approximation of an average.
12 Q. It's an average. Now, let me see
13 if I can understand, put this in a
14 perspective. Based upon measurements that
15 the Corps did after Hurricane Katrina using
16 the Lidar data that you earlier described,
17 the Corps has determined that just prior to
18 Katrina the levee system which protected --
19 which protected the St. Bernard area, I will
20 call it, that 12-mile MRGO levee, was at an
21 average of five feet below its design
22 height?
23 A That's correct Varuso, Richard Page 50

00051
1 system, this hurricane protection levee
2 during this -- along this 12-mile stretch
3 was, in fact, five feet or so below its
4 design height? Did you understand that
5 before Katrina?
6 MR. SMITH:
8 answer that. What the Corps knew and when
9 it knew it is the subject of this.
10 MR. KOHNKE:
11 That's part of the construction,
12 to know what you have constructed.
13 Item No. 2 -- excuse me -- 3 deals with
14 construction of the levees. Now, once you
15 have constructed, you can't walk away and
16 say: That's it, I have done it. You have
17 got to realize what you have constructed and
18 if it's changed, you have to understand that
19 it's changed.
20 MR. SMITH:
21 That's argument, Counsel.
22 MR. KOHNKE:
23 That's not argumentVaruso,

That's a Richard Page 51
00052
1 Q. I want to know whether the Corps
2 after building this levee walked away and
3 never again bothered to measure it, or
4 whether they did measure it prior to
5 Katrina?
6 MR. SMITH:
7 No. 7 in the list of subjects that
8 you listed for this deposition is any
9 assessment done prior to Hurricane Katrina
10 that indicated the existence of any problem,
11 issue or undesired condition. That's
12 exactly what you have just asked him here.
13 I'm going to instruct him not to answer the
14 question.
15 MR. KOHNKE:
16 All right. I object.
18 Q. Now, let me talk a little bit
19 about the, some more about the construction
20 of the levee that we have been discussing,
21 the MRGO levee. What is hydraulic fill?
22 A. Hydraulic fill is the way it was

Varuso,
23 constructed along the MRGO Like Richard
you are Page 52
00053
1 Q. No. Just generally speaking, what
2 is hydraulic fill?
3 MR. SMITH:
5 answer general questions unrelated to MRGO.
6 If you want to ask a question about the MRGO
7 levee and it has something to do with
8 hydraulic fill, that's perfectly fine. But
9 he is not here to testify as an expert what
10 hydraulic fill might be considered in the
11 abstract.
12 MR. KOHNKE:
13 Not in the abstract. I want to
14 know what the Corps of Engineers considers
15 hydraulic fill to be. I think that's a
16 perfectly legitimate question.
17 MR. BRUNO:
18 May we at least learn whether
19 these words put together are utilized by the
20 witness or by the Corps in the day-to-day
21 operations, and if they are used, what do
22 they mean to the Corps when they are used in

Varuso,
23 those day-to-day operations? Richard
It has nothing Page 53
00054
1 I am going to allow -- I am going
2 to allow him to answer because I know where
3 this is going and I think it's a proper line
4 of questioning.
6 Q. Okay, go ahead.
7 A. Hydraulic fill is essentially
8 material that would be disposed of after
9 dredging operations. They refer to it as
10 hydraulic fill because you are using water
11 pressure to bring up material into a dredge
12 and then pumped into a given area as fill.
13 Again, that's why they refer to it
14 as hydraulic fill, because there is water in
15 addition to the material that's being
16 dredged for use.
17 Q. Does the Corps of Engineers
18 utilize hydraulic fill in constructing
19 levees along the Lake Pontchartrain and
20 vicinity hurricane protection system?
21 MR. SMITH:
22 Again, are you restricting this
23 just to the MRGO levees?Varuso, Richard Page 54

00055
1 THE WITNESS:
2 They did. Yes, they did.
4 Q. When did the Corps make a decision
5 to first begin using hydraulic fill to
6 construct the MRGO levee?
7 A. That would have been during the
8 phase of design of the plans and
9 specifications for the first levee
10 enlargement, which would have been in the
11 middle -- mid '60s.
12 Q. Is the use of hydraulic fill, is
13 that problematic in terms of the type and
14 composition of the levee that results?
15 A. I wouldn't use the word
16 "problematic."
17 Q. What term would you use?
18 A. It's just a different process.
19 Q. What other types of soils in
20 addition to hydraulic fill, or materials in
21 addition to hydraulic fill was used by the
22 Corps in the construction of the MRGO levee?
23 A Varuso,
They used an adjacent borrowRichard Page 55
00056
1 Q. An adjacent borrow from where?
2 A. On the flood side.
3 Q. Define flood side. The open water
4 side?
5 A. Between the levee and the MRGO
6 channel.
7 Q. What type of -- let me back up.
8 Prior to beginning the
9 construction of the MRGO levee, what type of
10 analysis did the Corps do over the various
11 soils that it intended to use to construct
12 that levee?
13 A. Performed soil borings and
14 laboratory tests.
15 Q. Was there an object to try to
16 determine whether certain soil was suitable
17 versus non-suitable, unsuitable?
18 A. That would have been based on the
19 classification of the material.
20 Q. What are the different
21 classifications the Corps has for the
22 different soils?
23 A There is numerousVaruso, Richard

I don't know Page 56
00057
1 A. -- through all of them.
2 Q. Of the soils used in the MRGO
3 levee.
4 A. It would have been a combination
5 of clays, and now, each one of these is --
6 there are varying degrees of -- this is a
7 generic term now -- clays and silts and
8 silty sands.
9 Q. Is there something known as
10 peat --
11 A. Yes.
12 Q. -- that is sometimes used as well?
13 A. Right.
14 Q. What is peat?
15 A. Peat is also referred to as an
16 organic material, which is -- the best way
17 to describe that would be decomposed
18 vegetation that mixes with the existing
19 soil, which sort of looked like mulch.
20 Q. Is there a preferred material to
21 use in levee building in constructing a
22 hurricane protection system such as the MRGO
23 levee? Varuso, Richard Page 57

00058
1 type of material.
2 Q. And how do you monitor the
3 contractor in terms of what he or it uses?
4 A. We'll typically perform
5 classifications over -- it will usually be,
6 for a given amount of material placed that
7 varies from contract to contract, but for a
8 given amount of cubic yards placed he is
9 required to perform classification
10 laboratory tests to determine that the
11 material he is placing is meeting the
12 specifications.
13 Q. Is that done by the Corps going
14 out and doing sampling and sending it to a
15 Corps laboratory, or is there an outside
16 laboratory used for that?
17 A. It's an outside laboratory that
18 the contractor acquires.
19 Q. Now, the contracts that the
20 contractors, require that the contractors
21 use clays and silts. Of the two materials
22 is one better than the other?
23 A Varuso,
You may have to qualify yourRichard Page 58
00059
1 Q. For constructing a levee, a
2 hurricane protection levee such as the MRGO?
3 A. For construction, not necessarily,
4 no.
5 Q. For withstanding the effects of
6 overtopping, is one better than the other?
7 A. There is -- okay?
8 MR. SMITH:
9 Yes.
10 THE WITNESS:
11 There is numerous science of
12 erosion protection -- or erosion resistance,
13 some various studies. There's a new ASCE --
14 I'm sorry, an ASTM spec that determines the
15 method to be used to determine the
16 erodibility or the erosion resistance of a
17 given soil. There is a university that's
18 doing some similar testing. And the type of
19 material with respect to erosion resistance
20 is just one factor in the erosion resistance
21 of a levee section as a whole.
23 Q What is the numberVaruso, Richard

of this ASTM Page 59
00060
1 Q. Okay. And when was this spec
2 promulgated or made available by the
3 American Society of -- what is it -- Testing
4 Materials?
5 A. American Society for Testing and
6 Materials, that's right.
7 Q. When was this --
8 A. The late '90s. I couldn't give
9 you an exact date right now. I have to look
10 it up.
11 Q. Prior to the late '90s and prior
12 to the introduction of this specification,
13 what sort of conclusion did the Corps reach
14 with respect to the erodibility of the soils
15 that it was choosing to use for the MRGO
16 levee system?
17 A. Prior to?
18 Q. Prior to the introduction of the
19 ASTM spec that you just referred to, what
20 was the standard?
21 A. None that I'm aware of.
22 Q. There was no standard at all?
23 A Varuso, Richard
For erosion resistance? Page 60
00061
1 Q. Was there any understanding as to
2 the -- forget standard. Was there any
3 understanding on the part of the Corps that
4 some soils would be more erosion resistant
5 than others?
6 A. I have to answer that question
7 that our responsibility was to design a
8 levee to hold back water at a given
9 still-water elevation, not for overtopping.
10 Q. Now, I want to be clear about this
11 and I want you to be clear so that I'm not
12 confused. When you say your responsibility
13 was to design a levee that was not to be
14 overtopped, is that your conclusion or is
15 that your testimony on behalf of the Corps?
16 A. Any -- anything -- any monies that
17 we would have spent to prevent the levee
18 from erosion because of overtopping would
19 have been against the money that we were
20 obligated to -- excuse my terms here, give
21 me a second. Basically Congress allowed us
22 money to build levees to a given elevation.

Varuso,
23 Any monies we would have Richard
spent above and Page 61
00062
1 level based on that standard project
2 hurricane, we were not authorized to spend
3 money to do those types of improvements to
4 the levee.
5 If I can rephrase, if I assume the
6 levees overtopped, then I'm actually
7 assuming a still-water level higher than SPH
8 and we are not authorized to spend monies to
9 do that.
10 MR. KOHNKE:
11 I'm going to ask you to go back to
12 the previous answer given. And then I said,
13 I want to be clear, and then I asked another
14 question and got another answer. Would you
15 go back and read back the previous answer?
18 "A. I have to answer that question that
19 our responsibility was to design a levee to
20 hold back water at a given still-water
21 elevation, not for overtopping."
23 Q Varuso,
I want to go back to Richard
your previous Page 62
00063
1 levee to hold back water in a given
2 still-water elevation. Do you recall that
3 testimony?
4 A. Yes.
5 Q. When you say "still water," do you
6 mean water that is not producing waves?
7 What do you mean by still water?
8 A. The still water is basically the
9 hydraulic analysis for that standard project
10 hurricane. That is the elevation of the
11 water in NGVD of that given standard project
12 hurricane, the elevation of the water that
13 water -- that storm would produce.
14 Q. But define still water. That's
15 the part of your answer that I want you to
16 further define.
17 A. There is -- there is --
18 Q. What does still water mean?
19 A. It's the storm surge that they
20 assume for that given standard project
21 hurricane, and there are waves assumed in
22 that standard -- in that still-water level.
23 Q So it is not what it Varuso, Richard

sounds like Page 63
00064
1 the term we use.
2 Q. Now, let's get back to the design
3 as it relates to overtopping. I want to
4 understand. There was a design height of
5 the MRGO levee that was designed and
6 believed to be in place prior to Hurricane
7 Katrina; is that correct?
8 A. I'm not going to say believed to
9 be in place.
10 Q. You knew, in fact, it was not in
11 place?
12 A. I have to go back to seven, that
13 question.
14 MR. SMITH:
15 I think we are getting back into
16 the assessment.
17 MR. KOHNKE:
18 Okay. You're telling -- you're
19 instructing him not to answer the question
20 as to what the Corps knew prior to Hurricane
21 Katrina about the actual height of the
22 levee, not its design but actually as it
23 existed prior to Hurricane Varuso,

Katrina? Richard Page 64
00065
1 asking him about how it was designed --
2 MR. KOHNKE:
3 I'm asking him --
4 MR. SMITH:
5 -- or how it was constructed or
6 how it performed, you are asking him another
7 question.
8 MR. KOHNKE:
9 I'm asking him whether the Corps
10 understood prior to Hurricane Katrina that
11 the height of the levee that it had designed
12 was no longer at that height, it was at an
13 average of five feet lower than that height.
14 MR. SMITH:
15 Right. And I think I instructed
16 him not to answer that question previously
17 and I will instruct him again not to answer
18 that question.
20 Q. Would it be correct to say, sir,
21 that the design of a levee to hold back
22 waters assuming a certain still-water

Varuso,
23 elevation is no longer effective if thatRichard Page 65
00066
1 Again, this is an abstract
2 question unconnected to the subjects that he
3 is here to address today. That would be a
4 proper question to ask an expert in this
5 area. You haven't asked him anything about
6 the MRGO levees in that question, as I can
7 perceive.
8 MR. KOHNKE:
9 Okay. Well, let me try to make it
10 a MRGO question then.
12 Q. Is it true that the MRGO levee was
13 built to a design height at the time it was
14 constructed and additional lifts were made?
15 A. Yes.
16 Q. Is it true that sometime after the
17 second lift -- and no other lifts were made
18 after the second lift; isn't that right?
19 A. No.
20 Q. And after that second lift
21 subsidence occurred?
23 Q Varuso,
Is it also true that the effect ofRichard Page 66
00067
1 had been previously built?
3 Q. And is it true that the
4 assumptions about overtopping and erosion
5 assumes that a levee is not going to be
6 overtopped, the assumptions that the Corps
7 made at the time of its design?
9 Q. And those assumptions no longer
10 apply given that subsidence of five feet?
11 A. I would have to check the actual
12 still-water elevation and see what that was
13 with respect to the existing elevation at
14 the time. I'm not sure that even at
15 elevation 15, that that might have been
16 higher than the still-water level.
17 Q. We were talking about hydraulic
18 fill. Let me get back to the question.
19 Does the Corps consider hydraulic fill to be
20 clay or silt?
21 A. It could be a combination of both.
22 It depends on the area that you are
23 dredging Varuso, Richard Page 67

00068
1 put in place?
2 A. Not true.
3 Q. Not true. So for each yard or
4 each hundred yards the Corps knows in
5 advance how much silt and how much clay is
6 going to be dredged hydraulically and put in
7 place?
8 A. Well, you are asking me every
9 hundred yards?
10 Q. At what interval is the sampling
11 occurring?
12 A. Approximately every 500 to a
13 thousand feet.
14 Q. And there are assumptions being
15 made that if a sample produces a certain
16 type of finding, clay or silt or some
17 combination of the two, that that will
18 continue for some distance; isn't that
19 correct?
20 A. There is a geologic profile that's
21 based on -- from our geologists based on
22 their historical knowledge as well as the
23 information gathered fromVaruso, Richard

the borings on Page 68
00069
1 Q. And was there a degree of
2 tolerance or allowance as to how much sand
3 or silty sand, I think you referred to it
4 as, would be included or could be included
5 and still meet specifications?
6 A. The act of placing the hydraulic
7 fill tends to leave the clay material behind
8 in the area where they were going to place
9 the embankment. And the more granular
10 materials, the silts and the sands, tend to
11 wash away. So the act of constructing a
12 levee with hydraulic fill tends to leave
13 more clay behind in the levee section than
14 the silt and sands.
15 Q. Did the Corps determine at any
16 point after each one of these enlargements
17 or lifts that some portion or what portion
18 of the MRGO levee in the various sections
19 measured included silty sands or peat?
20 A. We performed soil borings prior to
21 each levee enlargement, the first and second
22 enlargements. I think I'm answering your
23 question Varuso, Richard Page 69

00070
1 going to be dredged, you are not.
2 A. No. I'm talking about the
3 existing embankment, the existing levee.
4 Q. I'm talking about after each lift
5 or enlargement, what did the Corps do to
6 determine the content of peat versus sandy
7 soil versus clay it had just lifted and put
8 in place?
9 A. That's what I referred to earlier.
10 I believe I answered this question, as the
11 contractor constructing the levee is
12 required to perform quality assurance
13 testing, quality control testing during the
14 placement of the levee section to determine
15 that the material being placed meets the
16 specifications.
17 Q. All right. Let me ask you some
18 questions about erodibility. How and why
19 does clay better resist erodibility when an
20 overtopping occurs?
21 MR. SMITH:
22 Go ahead.
23 THE WITNESS: Varuso, Richard Page 70

00071
1 that go into erodibility of a soil other
2 than just the soil type.
4 Q. What are those factors?
5 Compaction, is that one?
6 A. Compaction would be one.
7 Q. Is that something that the Corps
8 requires its contractors to do in building
9 the MRGO levee?
10 A. That material was uncompacted
11 fill.
12 Q. Uncompacted?
13 A. Yes.
14 Q. What do you mean by that?
15 A. That we don't monitor the
16 contractors' densities or moisture contents
17 in the soil as he is placing them.
18 Q. Why not?
19 A. There are various reasons for --
20 I'm not sure if you are asking me a general
21 question or if you are asking about the
22 actual MRGO levees.
23 Q Varuso, Richard
Well in light of counsel's Page 71
00072
1 levee, why not?
2 A. That would have been based on
3 location of the levee, the fact that they
4 were using hydraulic fill to place an
5 embankment, and the act of being able to
6 shape the levee using equipment. We were
7 confident that the, building the uncompacted
8 levee would sustain the still-water level
9 for that given standard project hurricane.
10 Q. Explain that to me. Why were you
11 confident of that?
12 A. Because there are uncompacted
13 levees built all over the country. It's not
14 an uncommon practice to build an uncompacted
15 levee. And they perform -- there is
16 evidence that they perform quite well to
17 hold back levee -- to hold back water below
18 the crown elevation of the levee.
19 Q. Of these uncompacted levees along
20 the 12-mile stretch of the MRGO, how many of
21 those levees performed and remained intact
22 post hurricane?
23 A What do you meanVaruso, Richard

by how many? Page 72
00073
1 the breaches, in other words?
2 A. I couldn't give you an exact
3 length. I mean, there were sections of --
4 there were sections of levee between in that
5 12-mile stretch that remained intact and
6 there were sections of levee in that stretch
7 that were eroded probably 10 feet below what
8 the existing levee crown was.
9 Q. Was hydraulic fill used in the
10 sections of levee north of Bayou Bienvenu?
11 A. I don't believe.
12 Q. How did those levee fare post
13 Katrina?
14 MR. SMITH:
15 I'm going to object because it's
16 not really about the MRGO levees.
18 Q. Were those levees compacted north
19 of Bayou Bienvenu?
20 MR. SMITH:
21 Again, he is not here to testify
22 about the other levees in the Lake

Varuso,
23 Pontchartrain vicinity of the Richard
hurricane Page 73
00074
1 Are you saying that the levees
2 north of Bayou Bienvenu are not part of the
3 MRGO levees?
4 MR. SMITH:
5 Not as you have defined them for
6 purposes of this deposition.
7 MR. KOHNKE:
8 Well, I'm talking about the MRGO
9 levees. That's what we are talking about.
10 Now, your witness at some point defined it
11 starting from Bayou Bienvenu south to the --
12 to Verret. I'm asking about the entire MRGO
13 levee system and we both know it extends
14 above or north of Bayou Bienvenu.
15 MR. SMITH:
16 But that's not in St. Bernard
17 Parish. That's in Orleans Parish.
19 Q. Are you prepared to answer the
20 question, sir?
21 MR. SMITH:
23 answer it Varuso, Richard Page 74

00075
1 is what?
2 MR. SMITH:
3 Because those levees are in
4 Orleans Parish.
5 MR. KOHNKE:
6 You don't believe that the
7 comparison of those levees is a consistent
8 way to look at compaction versus
9 non-compaction?
10 MR. SMITH:
11 I think you can discuss that with
12 your experts.
13 MR. BRUNO:
14 Can we take a break, please?
15 MR. KOHNKE:
16 Sure.
17 THE VIDEOGRAPHER:
18 Going off the record at 10:21.
19 (Whereupon, a brief recess was taken.)
21 We are back on the record at
22 10:37 a.m.
23 EXAMINATION BY MRVaruso,
KOHNKE:Richard Page 75
00076
1 if I could, to a previous statement or
2 previous question that you had asked.
3 Q. Sure. What was the question; do
4 you remember?
5 A. The question was asking how
6 much -- what the difference was essentially
7 between what the last design grade was from
8 the second enlargement to what it was
9 preKatrina. We had mentioned it was about
10 five feet --
11 Q. Yes.
12 A. -- was about the elevation
13 difference.
14 Q. Yes.
15 A. That was assuming the elevation of
16 20 which the levee was built to. The
17 elevation 20 has about two and a half feet
18 of sediment encompassed in that elevation.
19 In other words, the actual design we were at
20 17 and a half. We overbuilt it to 20
21 because we know the levee was going to
22 settle and we would eventually be back to 17
23 and a half Varuso, Richard Page 76

00077
1 two and a half feet.
2 MR. KOHNKE:
3 Okay. I have marked for
4 identification as Exhibit 1 the notice of
5 30(b)(6) videotaped deposition of the
6 U.S. Army Corps of Engineers and I would ask
7 that it be attached to the deposition and
8 made a part of the record.
9 (Exhibit No. 1 marked for identification.)
10 And I'm going to ask you to turn,
11 together with your counsel, Mr. Smith, to
12 turn to the various numbers. You will see
13 the subject matters designated where we have
14 requested the Corps to produce a witness,
15 No. 14.
16 And this is in response to
17 something you said, Mr. Smith, on the record
18 about an agreement and I want to go through
19 this real quickly.
20 Item No. 1 is the Corps' response
21 to Murphy's May 4, 2006 request for records
22 pursuant to the -- to FOIA, and this
23 particular Item No 1 was Varuso,

withdrawnRichard
by Page 77
00078
1 which you have produced this witness,
2 Mr. Varuso, to testify along with No. 8.
3 All of the other numbers, specifically 4, 5,
4 6, 7, 9, 10, 11, 12, 13 and 14, have the
5 notation that the Corps of Engineers has
6 made a final agency determination rejecting
7 Murphy's request to produce a Corps
8 representative to testify on this subject
9 area. There is no agreement that we have
10 reached. You have simply refused to produce
11 someone to testify on this area.
12 Now, do you have some contrary
13 information you would like to state on the
14 record?
15 MR. SMITH:
16 Did you say No. 5 was not
17 withdrawn? I think No. 5 was withdrawn
18 also.
19 MR. KOHNKE:
20 5 was withdrawn and 1 was
21 withdrawn. And with the exception of 2, 3
22 and 8, all of the others were objected to

Varuso,
23 and you have refused to produce Richard
a witness Page 78
00079
1 that you are not going to honor the request
2 to produce a witness.
3 MR. SMITH:
4 Yes. And I don't have any
5 contrary information to that.
6 MR. KOHNKE:
7 So there is no agreement with
8 respect to these others?
9 MR. SMITH:
10 No, that's fine. If I said that,
11 that was incorrect.
12 MR. BRUNO:
13 Excuse me. We have unfortunately,
14 I guess, the original notice which was filed
15 and date stamped June 27, 2006. Was there a
16 subsequent notice prepared?
17 MR. KOHNKE:
18 Yes, this is a third notice, and I
19 didn't do the notices, Joe, but I suspect
20 that there is a second or now a third
21 notice.
22 MR. BRUNO:
23 Can we have a copyVaruso,

A J ? Richard Page 79
00080
1 MR. BRUNO:
2 Maybe somebody could get us a copy
3 so we can follow along.
4 MR. KOHNKE:
5 I have one right here for you.
6 MR. BRUNO:
7 Thank you.
9 Q. What is Project Guardian?
10 A. Task Force Guardian?
11 Q. Task Force Guardian.
12 A. Task Force Guardian was the group
13 set up that was going to repair the levees
14 and flood walls damaged during Hurricane
15 Katrina.
16 Q. And when you say, "levees and
17 flood walls," does this include the MRGO
18 levee?
19 A. Yes.
20 Q. To repair -- does that suggest
21 merely bringing it back to the prehurricane
22 condition, preKatrina condition?

00081
1 MR. KOHNKE:
3 answer?
4 MR. SMITH:
5 Yes.
7 Q. Let me hand to you now an exhibit
8 that I will mark as Exhibit 2.
10 Something that I got off the
11 Corps', or actually someone else got off the
12 Corps' website, and ask you if you have seen
13 that before?
14 MR. BRUNO:
15 May we know whether the intent was
16 to repair to a particular height, or is that
17 outside of the scope?
18 MR. KOHNKE:
19 I'm going to try to get to that,
20 Joe, but I thought I would build to it.
21 MR. BRUNO:
22 May I just ask the court reporter

Varuso,
23 somehow to note on the record each Richard
time Page 81
00082
1 Okay, never mind.
3 Q. Do you recognize that?
4 A. Some of these -- some of these
5 pages.
6 Q. On the first page of that document
7 Exhibit 2 that I have just handed to you it
8 has the Corps -- what I will call the
9 trademark, which is the castle, and it has
10 the words "better and stronger." Now, does
11 better improve a different design, does that
12 suggest a different design when you say,
13 "better"?
14 MR. SMITH:
15 I'm going to instruct the witness
16 not to answer questions about Task Force
17 Guardian or repairs of the levee subsequent
18 to Hurricane Katrina.
20 Q. Further down in Exhibit 2 it has
21 underlined in bold letters "planned
22 improvements." Does improvements mean a
23 different design? Varuso, Richard Page 82

00083
1 not to answer.
3 Q. Below that there are four bullet
4 points and it says -- the first one says:
5 Rebuilding and raising levees and floodwalls
6 to their design height. Does that recognize
7 the fact that the levees in particular along
8 the MRGO were not at their design height at
9 the time of Hurricane Katrina?
10 MR. SMITH:
11 I'm instructing the witness not to
12 answer the question.
14 Q. Going to the second bullet point
15 it says: Incorporating state of the art
16 technology. Was state of the art technology
17 not incorporated in the original design and
18 construction?
19 MR. SMITH:
20 Object to the form of the
21 question. It's argumentative.
23 Q Varuso,
Answer the question please Richard Page 83
00084
1 objecting.
2 MR. SMITH:
3 Right.
4 THE WITNESS:
5 Repeat the question, if you would.
6 MR. KOHNKE:
7 Sure.
8 MR. SMITH:
9 It's an improper question and
10 answer.
12 Q. The second bullet point reads:
13 Incorporating state of the art engineering
14 and technology. Since this is under the
15 heading of a planned improvement, does this
16 mean that the original design and
17 construction did not incorporate state of
18 the art engineering and construction?
19 MR. SMITH:
21 answer the question about what this document
22 means. If you want to ask him about how the

Varuso,
23 levees were constructed you Richard
may ask him Page 84
00085
1 concerning this document. This document was
2 created after Katrina.
3 MR. KOHNKE:
4 When you look at the notice, let's
5 start with No. 2 and No. 3. It says: The
6 design of the levees along the Mississippi
7 River Gulf Outlet and the construction of
8 the levees. It doesn't relate to time, does
9 it, sir? Mr. Smith?
10 You want to limit me to preKatrina
11 questions. I'm entitled to ask him about
12 the design and construction of the levees
13 post Katrina.
14 MR. SMITH:
15 Okay. You can ask him about that.
16 MR. KOHNKE:
17 Well, that's what I just did and
18 you instructed him not to answer.
19 MR. SMITH:
20 No. You asked him a question
21 about this document.
22 MR. BRUNO:
23 Varuso,
Ned just for the record Richard
we just Page 85
00086
1 MR. KOHNKE:
2 It's Exhibit 2, Joe, and this is a
3 document, I think the witness has said --
5 Q. And I will ask you again, this
6 comes from the Corps' website, does it not?
7 A. Yes.
8 Q. And is this part of the Task Force
9 Guardian project, as I will call it?
10 MR. SMITH:
12 answer questions about this document. If
13 you have a question about the levees, he may
14 answer that question.
15 MR. KOHNKE:
16 Well, I do have a question about
17 the levee and I'm not asking him about the
18 document. I'm asking him whether the
19 information in the document is something
20 that's being incorporated into the levee by
21 planned improvements.
22 Now, the fact that your document

Varuso,
23 reads "planned improvements" Richard
doesn't Page 86
00087
1 MR. SMITH:
2 I agree. You may ask him
3 questions about the levee.
5 Q. All right. The third bullet
6 point: Correcting design and construction
7 flaws. Tell me how that is a planned
8 improvement. What correction of design and
9 construction flaws does that refer to?
10 MR. SMITH:
11 I'm going to object. That's a
12 question about this document.
14 Q. Answer the question, please.
15 MR. SMITH:
16 I'm instructing him not to answer.
18 Q. Before design flaws can be
19 corrected is it generally true that they
20 must be identified?
21 MR. SMITH:
23 the question Varuso, Richard Page 87

00088
1 answer a general question about correcting a
2 design flaw which the Corps admits that it
3 had in these levees, and he can't answer
4 whether before they can be corrected they
5 must first be identified; is that what you
6 are saying?
7 MR. SMITH:
8 That's correct.
10 Q. Were there any design or
11 construction flaws in the hurricane
12 protection levee known as the MRGO levee?
13 A. No.
14 Q. If the Corps is taking the
15 position post Katrina that there were design
16 or construction flaws, that would be
17 something that the Corps did inadvertently?
18 MR. SMITH:
19 Object to the question. I'm
20 directing him not to answer the question.
22 Q. Does Task Force Guardian in any

Varuso,orRichard
23 way rely upon outside information outside Page 88
00089
1 the Corps, I mean.
2 A. I'm going to ask you to ask the
3 question again, if you would.
4 Q. Sure. Sure. Project Guardian is
5 the -- Task Force, excuse me, Task Force
6 Guardian is the name of the entity that is
7 engaged in designing and constructing the
8 new and improved levees; is that correct?
9 A. You are referring to the terms
10 "new and improved."
11 Q. Yes.
12 A. I'm going to refer to that as the,
13 bringing the existing levees back to their
14 design grade.
15 Q. Only to the design grade, not
16 improved? Just to the original design?
17 A. There were improvements made.
18 Q. There were improvements. These
19 were planned improvements?
20 A. Now, that's a general term now.
21 If you are asking me about the levees along
22 the MRGO.
23 Q I am Varuso, Richard Page 89

00090
1 Q. Okay. There were no planned
2 improvements?
3 A. The improvements that were made
4 were bringing the elevation to elevation 20,
5 which is two and a half feet higher than the
6 existing design grade of 17 and a half.
7 Q. Was there a conscious choice or
8 decision to use a better grade of soil
9 material in constructing the levees post
10 hurricane?
11 A. They used -- what we used is an
12 adjacent borrow pit as opposed to dredging
13 in material.
14 Q. I didn't ask you where. I said:
15 Was there a conscious decision to use a
16 better grade of soil?
17 A. No. We use the -- we have the
18 same requirements that we did in 1967 as we
19 do now: Clays, high plasticity clays, low
20 plasticity clays and silts were allowed,
21 although they were not incorporated
22 consciously into this levee section.
23 Q Was hydraulic fill Varuso,

used? Richard Page 90
00091
1 A. This was a function of being able
2 to build it faster. We needed to be able to
3 build -- we had a certain window to build
4 the levee system in. There is no way we
5 could have used hydraulic fill to build the
6 levee back to design grade in the given
7 amount of time we had.
8 Q. Was compaction performed?
9 A. Yes.
10 Q. So that would be a planned
11 improvement, then, wouldn't it?
12 A. As I said earlier, an uncompacted
13 levee will hold back still-water level on
14 the flood side of the levee below design
15 grade.
16 Q. What about on the back side of the
17 levee? Will not a compacted levee hold back
18 water that overtops and reaches the back
19 side of the levee?
20 A. That depends, as I said before,
21 on -- there are a lot of factors that go
22 into erosion, not just compaction.
23 Q Well what was theVaruso, Richard

reason why the Page 91
00092
1 the MRGO?
2 MR. SMITH:
3 Asked and answered. Object.
5 Q. Answer the question, please.
6 A. The goal was to -- given the fact
7 that the levee did not perform as well as we
8 would have liked to have seen it during
9 Hurricane Katrina, we incorporated
10 compaction as a means of -- may I answer?
11 Q. Yes, I'm sorry, go ahead.
12 A. Given the performance of the levee
13 during Hurricane Katrina, being that it was
14 overtopped, we tried to incorporate
15 compaction as a means to prevent some
16 erodibility of the levee during a similar
17 storm.
18 Q. Was the erodibility on the open
19 water side or on the back side that you are
20 referring to now?
21 A. The vast majority of it would have
22 been on the protected side, the land side.
23 Q The protected side Varuso, Richard

And that's Page 92
00093
1 the back side, the protected side?
3 Q. So to prevent that failure from
4 reoccurring, this time the Corps elected to
5 use compaction or have its contractors
6 compact the levees that it's reconstructing;
7 isn't that correct?
8 A. Using semicompacted fills is
9 another means of --
10 MR. KOHNKE:
11 Would you read back my question?
12 I'm not asking about what means are
13 available or another means that are
14 available. I'm asking you about specific.
15 Listen to this question.
16 Please, read it back, Pat.
19 "Q. So to prevent that failure from
20 reoccurring, this time the Corps elected to
21 use compaction or have its contractors
22 compact the levees that it's reconstructing;
23 isn't that correct?" Varuso, Richard Page 93

00094
2 Q. Who is your superior that you
3 answer to at the Corps of Engineers? Who is
4 your senior?
5 MR. SMITH:
6 I'm objecting to the question and
7 instructing the witness not to answer.
9 Q. Who is John Jaeger?
10 MR. SMITH:
11 I'm objecting and instructing the
12 witness not to answer.
14 Q. Is John Jaeger a PhD and
15 professional engineer who has the title of
16 chief of engineering and construction?
17 MR. SMITH:
19 answer.
21 Q. Do you know who Jeremy Stevenson
22 is?

00095
2 Q. Is he an employee of the Corps of
3 Engineers based in Huntington, West
4 Virginia?
5 MR. SMITH:
6 The witness is instructed not to
7 answer.
9 Q. Who is Wayne Stroupe? Is he a
10 public affairs officer with the Research and
11 Development Center in Vicksburg?
12 MR. SMITH:
14 answer.
16 Q. Who's Reed Mosher?
17 MR. SMITH:
19 answer.
21 Q. Is he a PhD who's the technical
22 director of survivability and protective
23 structures? Varuso, Richard Page 95

00096
1 answer.
3 Q. Is Denise Martin a computer
4 scientist with the Information and
5 Technology Laboratory in Vicksburg?
6 MR. SMITH:
8 answer any of the questions that you are
9 posing, which appear to be taken from the
10 IPET report that was again one of the topics
11 on which --
12 MR. KOHNKE:
13 You are refusing to have him
14 testify about that?
15 MR. SMITH:
16 Yes. Concerning the IPET report.
17 MR. KOHNKE:
18 I understand that. But you also
19 understand that I'm going to make a record
20 for Judge Fallon?
21 MR. SMITH:
22 And I'm making a record too.

00097
1 so I'm going to ask the question. You can
2 instruct him and then we will ask for a
3 ruling.
4 MR. SMITH:
5 I just want to point out for the
6 record that you appear to be reading from
7 the IPET report --
8 MR. KOHNKE:
9 Well, let me --
10 MR. SMITH:
11 -- which was one -- which was one
12 of the subjects that was noticed to be
13 deposed upon. This witness is not
14 authorized to answer questions on that
15 topic.
16 MR. KOHNKE:
17 Meaning you are refusing to allow
18 it? I understand that.
19 MR. SMITH:
20 No, not me. The Corps has
21 designated the witness and has only
22 designated him to testify in certain areas,
23 not me Varuso, Richard Page 97

00098
1 leader, survey engineer, topographic
2 engineering center in Alexandria, Virginia?
3 MR. SMITH:
5 answer.
7 Q. Bruce Ebersole, is he a
8 professional engineer, chief of flood and
9 storm protection division, Coastal and
10 Hydraulics Laboratory in Vicksburg?
11 MR. SMITH:
13 answer.
15 Q. Donald T. Resio, is he a PhD
16 senior scientist Coastal and Hydraulics
17 Laboratory in Vicksburg?
18 MR. SMITH:
20 answer.
22 Q. Michael K. Sharp, is he a PhD,

Varuso,
23 engineer Technical Director of CivilRichard
Works Page 98
00099
1 MR. SMITH:
3 answer.
5 Q. Ron Moentenich, is he a
6 professional engineer with the Hydroelectric
7 Design Center in Portland, Oregon?
8 MR. SMITH:
10 answer.
12 Q. David Moser, is he a PhD chief
13 economist with the Corps of Engineers in
14 Alexandria, Virginia?
15 MR. SMITH:
17 answer.
19 Q. Is Jerry Foster a professional
20 engineer who is in headquarters, U.S. Army
21 Corps of Engineers in Washington, D.C.?
22 MR. SMITH:
23 Varuso,
The witness is instructed not toRichard Page 99
00100
1 Q. Are these 12 individuals whose
2 names I just read to you all authors of the
3 IPET report that Mr. Smith correctly
4 recognized that I was reading from?
5 MR. SMITH:
7 answer.
9 Q. What is the IPET report?
10 MR. SMITH:
12 answer.
15 involve itself in the creation of the IPET
16 report?
17 MR. SMITH:
19 answer.
21 Q. Has the Corps of Engineers
22 received the final draft of the IPET report,
23 which is what I'm reading Varuso, Richard

from which Page 100
00101
2 answer.
4 Q. And is it dated June 1, 2006?
5 MR. SMITH:
7 answer.
9 Q. Now, in addition to the IPET
10 report, has the Corps of Engineers done its
11 own, independent of IPET, analysis of the
12 failure of the MRGO levee post hurricane?
13 MR. SMITH:
15 answer.
16 MR. KOHNKE:
17 He can't answer the question as to
18 whether there is some other basis for the
19 work that's ongoing now through Task Force
20 Guardian other than IPET?
21 MR. SMITH:
23 answer yes sir subject toVaruso,

-- Richard Page 101
00102
1 you are not going to let him testify about
2 what IPET is, but it is clear that the Corps
3 is doing work through Task Force Guardian
4 that replies upon IPET. And you are going
5 to prohibit me from getting into what that
6 reliance is.
7 MR. SMITH:
8 Counsel, I don't know what is
9 clear to you.
10 MR. KOHNKE:
11 Let me tell you what is clear to
12 me. In the IPET report in the first volume
13 on Page 43 it reads: During the conduct of
14 the IPET studies, there has been continuous
15 interaction with the Corps of Engineers
16 entities in New Orleans responsible for the
17 repair and reconstitution of hurricane
18 protection in the region. These
19 organizations, Task Force Hope, Task Force
20 Guardian, and the New Orleans District, have
21 representatives embedded in the IPET teams
22 providing an effective two-way conduit for

Varuso,
23 information and rapid transfer Richard
of results Page 102
00103
1 be immediately made available to those
2 responsible for repair and reconstruction,
3 end quote.
4 What I'm now trying to find out
5 is, who those others are that the Corps is
6 relying upon in doing this reconstruction
7 that is currently going on through Task
8 Force Guardian.
9 Now, that's my question. It's not
10 IPET. And if I can't get into IPET, I'm
11 entitled to know what the Corps is doing in
12 the design and reconstruction of these
13 levees, these Items 2 and 3 of my notice,
14 and I'm entitled to know what they are
15 relying upon in order to do that design and
16 construction. Now, will you let him answer
17 those questions?
18 MR. SMITH:
19 I will.
21 Q. Tell me what information,
22 excluding IPET, the Corps relies upon in
23 determining how to designVaruso,

and how Richard
to Page 103
00104
1 incorporated.
2 A. As I mentioned before, our
3 interpretation of the reason that those
4 levees failed or did not perform as well as
5 we would have liked to have seen them during
6 Hurricane Katrina was erosion on the
7 protected side.
8 Q. That's on the back side?
10 Q. Okay.
11 A. Now, our design, we are using the
12 same analysis that is industry accepted all
13 over the country and the world, which is
14 global slope stability analysis to insure
15 the stability of the levee with water to its
16 still-water level. That analysis is the
17 same analysis that was performed in the
18 1960s as it is now.
19 The elevation of that still-water
20 level has remained the same, because we are
21 not authorized to design the elevation of
22 that levee any higher than the existing
23 standard project hurricaneVaruso, Richard

The global Page 104
00105
1 The difference between the levee
2 constructed in 1960s through the 1980s and
3 now, the only difference is the
4 semicompacted nature of the fill in the main
5 line levee section and on the flood side,
6 the flood side berms. Those sections were
7 semicompacted in 12-inch lifts. The
8 protected side berm is an uncompacted berm,
9 placed in the maximum of three-foot lifts
10 for the stability berm on the flood side.
11 In order to provide erosion
12 resistance, which is commonly done on levee
13 embankments, is to fertilize and seed the
14 levee section so that vegetation grows. And
15 again, industry standard and evidence
16 throughout our 40 or 50 years of designing
17 levees and constructing levees and seeing
18 them perform, not just in this area but all
19 over the country, is that vegetation on an
20 embankment provides significant erosion
21 resistance than just the earth and fill
22 itself.
23 Q Varuso,
Was clay trucked in Richard
to reconstruct Page 105
00106
1 Q. Barged in?
2 A. Yes.
3 Q. And these are the same levees that
4 were hydraulically created?
6 Q. Let me hand you a document that I
7 will mark for identification as Exhibit 3.
9 MR. KOHNKE:
10 Here is one for your counsel.
11 And, Joe, can you catch this?
12 That will look good on camera.
14 Q. This for the record is a pleading
15 filed by the Corps of Engineers in other
16 litigation and it contains various
17 attachments that the Corps elected to
18 attach. Those attachments are not complete.
19 That is, there are page selections made.
20 And I want to ask you first about that and
21 ask particularly Mr. Smith about that.
22 MR. KOHNKE:
23 Varuso,
Exhibit 7 to the deposition -- Richard Page 106
00107
1 Exhibit 7 to Exhibit 3 as Exhibit 4.
2 Now, I'm sure I have confused
3 everyone. Exhibit 3 is the Corps of
4 Engineers' pleading and attachments. It has
5 various attachments to it, one of which has
6 a typed page with the centered word
7 "Exhibit" and then the number seven. I have
8 made that particular Exhibit No. 4 to this
9 deposition, an exhibit to this deposition.
10 And I want to ask you, Mr. Smith,
11 when you turn the page to Exhibit 4 that I
12 have just handed you, it reads: Lake
13 Pontchartrain, Louisiana and Vicinity
14 Hurricane Protection Project Reevaluation
15 Study, July 1984.
16 MR. BRUNO:
17 I'm sorry, Mr. Kohnke. Let me
18 just catch up with you.
19 MR. KOHNKE:
20 This is Exhibit 7 to the
21 deposition exhibit I have just handed you.
22 MR. BRUNO:
23 Varuso,
Understood I just need to getRichard Page 107
00108
1 You are making it what?
2 MR. KOHNKE:
3 I'm making it Deposition
4 Exhibit 4.
6 MR. BRUNO:
7 Do I have that?
8 MR. KOHNKE:
9 You should, unless in collating
10 all this something got screwed up.
11 MR. BRUNO:
12 I have Exhibit 5, which is a
13 document which goes from Page 14.
14 MR. KOHNKE:
15 There are numerous pages missing,
16 and that's what I'm about to address.
17 MR. BRUNO:
18 Okay.
19 MR. KOHNKE:
20 Joe, I will hand this to you in a
21 moment.
22 Mr. Smith, will you agree to
23 produce what is referred toVaruso, Richard

as -- it's now Page 108
00109
1 attached exhibit to that pleading filed by
2 the Corps of Engineers and it bears
3 Exhibit 7. It's incomplete. And I would
4 like to have the complete exhibit. Will you
5 agree to produce that?
6 MR. SMITH:
7 That's publicly available. I
8 believe it's publicly available.
9 MR. KOHNKE:
10 The answer is you won't produce
11 it?
12 MR. SMITH:
13 No, I will. I will. It was
14 produced in the litigation to the Corps in
15 its entirety and to the plaintiffs.
16 MR. KOHNKE:
17 All right. There is also an
18 attached Exhibit 5 to the Corps' motion
19 which was, for the record, an ex parte
20 motion for leave to file a memorandum in
21 support of a motion to dismiss in excess of
22 25 pages. Will you also produce a complete

Varuso,
23 Exhibit 5 that is incomplete as I readRichard
it? Page 109
00110
1 exhibit.
3 Q. Let me turn to Page 16 of
4 Exhibit 5 to Exhibit 3, and ask you to do
5 that, please, Mr. Varuso.
6 MR. LAMBERT:
7 Exhibit 5 -- I'm sorry,
8 Exhibit 3 -- Exhibit 5 is now going to be --
9 MR. KOHNKE:
10 I'm not making it an exhibit.
11 It's Page 16. You got it?
12 MR. BRUNO:
13 I got it. I have the whole thing.
14 MR. KOHNKE:
15 Well, then you don't need to
16 produce it. I will get it from Mr. Bruno.
18 Q. Turn to Page 16, if you will,
19 Mr. Varuso.
20 A. Okay.
21 Q. This exhibit that Page 16 comes
22 from that is in turn attached to the United
23 States ex parte motion for Varuso, Richard

leave to file a Page 110
00111
1 erosion; is that not correct?
2 If you look at the top page, it
3 goes from the top page right to Page 14.
4 MR. SMITH:
5 I'm going to -- unless you can
6 explain what this has to do with the
7 subject --
8 MR. KOHNKE:
9 Well, I'm going to ask him a
10 question about it, but I'm trying to
11 identify what it is first.
12 MR. SMITH:
13 Because I'm having a hard time
14 finding it myself. I mean, I know what it
15 is, but I can't find it in here.
17 Q. This is the reconnaissance report
18 as it so states?
19 A. I'm acclimating myself to what
20 this report is.
21 Q. Are you on Exhibit 5?
22 A. Yes, I am. Okay.
23 Q Varuso,
It's a reconnaissance Richard
report and Page 111
00112
1 Q. And the next page to Exhibit 5
2 from that cover page is Page 14; is that
3 correct?
4 Turn the page. Turn the page.
5 What is the number at the bottom?
6 A. Oh, 14. I'm sorry. I was looking
7 at the page at the top. Okay.
8 Q. And then 15 and then 16?
9 A. Yep.
10 Q. Turn to Page 16, if you will,
11 please.
12 A. Okay.
13 Q. The last paragraph before the
14 heading at the bottom reads, and I quote:
15 Substantially more dredging in the inland
16 reaches of the MRGO has been performed for
17 other purposes than the channel maintenance.
18 A significant amount of dredging has been
19 performed to obtain construction material
20 for the Lake Pontchartrain and vicinity
21 hurricane protection levees. Between 1968
22 and 1983 an estimated 100 million cubic

Varuso,
23 yards of dredge material (33 million Richard
cubic Page 112
00113
1 The extraction of this quantity of fill
2 material has significantly reduced
3 maintenance dredging requirements between
4 mile 47 and mile 60.
5 Where is mile 47 to mile 60; can
6 you identify that for me?
7 A. I would have to look at a map.
8 Q. Well, it just so happens that
9 there is a map attached to this exhibit.
10 A. Okay.
11 Q. If you will turn to it, please?
12 And you will see along the dotted
13 line that is the location of the MRGO, you
14 will see some mile markers. Do you see
15 that, sir?
16 A. Yes, I do.
17 Q. Can you -- looking at that can you
18 tell me if mile 45 through -- excuse me --
19 mile 47 through mile 60 takes us into that
20 area of the MRGO approximating St. Bernard
21 Parish, Chalmette in particular?
22 A. Yes.
23 Q So the area we are Varuso, Richard

talking about Page 113
00114
1 are according to the map?
2 A. It appears to be along the MRGO
3 just south of Bayou Bienvenu.
4 Q. And it is -- we are talking about
5 a 13-mile stretch; is that correct?
7 Q. And that 13-mile stretch -- what
8 areas would you say in St. Bernard Parish
9 that 13-mile stretch is closest to? Would
10 it be Chalmette/Meraux area?
11 A. Yes.
12 Q. To continue with the quote: The
13 extraction -- well, to pick up: The
14 extraction of this quantity of fill material
15 has significantly reduced maintenance
16 dredging requirements between mile 47 and
17 mile 60. Thus, channel maintenance
18 requirements have been masked by fill
19 extraction for levee construction, end
20 quote.
21 Have I read that correctly?
22 A. Yes, you have.
23 Q What do they meanVaruso, Richard

when they say Page 114
00115
1 maintenance requirements?
2 MR. SMITH:
4 not to answer this question. Maintenance
5 was not one of the subjects he is prepared
6 to testify to today.
7 MR. KOHNKE:
8 Well, it's certainly part of
9 construction, Counsel, and I'm asking him a
10 question about that.
11 MR. SMITH:
12 He is instructed not to answer
13 questions about the maintenance.
14 MR. KOHNKE:
15 Well, let me talk about the cost
16 of construction and the design.
18 Q. Was it the original design to use
19 the available material rather than the best
20 material in order to reduce the costs to the
21 Corps of Engineers?
22 A. I wouldn't phrase it that way.
23 Q Varuso,
Well was there a cost savingsRichard
in Page 115
00116
1 A. Yes, there was.
2 Q. And that cost savings has now been
3 ignored in favor of doing it -- of
4 rebuilding the levee with barged-in clay?
5 MR. SMITH:
6 Object to the form of the question
7 as vague as to time.
9 Q. Currently today, as the -- and
10 previous to today, post Hurricane Katrina,
11 the MRGO levee is being repaired with
12 trucked-in or barged-in clay; is that
13 correct?
14 A. Not all of it. Portions of it.
15 Q. Well, the portions between mile 47
16 and 60?
17 A. Not a hundred percent of that
18 levee is being constructed with barged-in
19 material either.
20 Q. What percentage of that levee is
21 being constructed with barged-in material?
22 A. I would hesitate to give an exact
23 percentage Varuso, Richard Page 116

00117
1 estimate.
2 A. 50 percent.
3 Q. 50 percent. All right. Is it
4 more expensive to barge in?
5 A. Yes, it is.
6 Q. Particularly so when you are going
7 to have to be dredging the MRGO anyway, and
8 you are going to have to do something with
9 the spoil; it's a lot cheaper to use that
10 spoil to make a levee, isn't it?
12 Q. So today the cost savings is being
13 eschewed in favor of a more expensive
14 barging in of clay, for 50 percent, at
15 least, of the levee in question?
16 A. Yes, and there is a reason for
17 that.
18 Q. I'm sure there is. What is it?
19 A. Time.
20 Q. Time. Not having anything to do
21 with quality, only time?
22 A. Absolutely time, that's right.
23 Q Varuso,
Has nothing to do with Richard
quality? Page 117
00118
1 that have anything to do with time, too? Is
2 it cheaper -- excuse me. Is it a savings of
3 time to compact the levee as opposed to
4 leaving it uncompacted?
5 A. No.
6 Q. So the Corps is spending more
7 money to compact the levee than to leave it
8 uncompacted, which would be cheaper?
10 Q. And that has nothing to do with
11 time, that has only to do with quality?
12 A. Yes.
13 Q. Would it be fair to say that
14 preKatrina 100 percent of the levee between
15 mile 47 and 60 of the MRGO was dredged
16 material?
17 A. Yes.
18 Q. Would it be fair to say that post
19 Katrina zero percent of the levee between
20 mile 47 and mile 60 is dredge material?
21 A. I'm sorry?
22 Q. Zero percent?
23 A Varuso, Richard
Zero percent was dredged? Page 118
00119
1 Q. And your testimony today is the
2 only reason for not using dredge material to
3 rebuild the mile 47 to mile 60 is it's
4 quicker to barge in the material?
5 A. Well, that's not what I said.
6 Q. Okay. I just want to be clear
7 that's not what you are saying.
8 Now, how is the clay being
9 obtained? I'm sure from a borrow pit
10 somewhere.
12 Q. But where is that borrow pit?
13 A. North of the Lake Pontchartrain.
14 Q. Where north of Lake Pontchartrain?
15 A. I believe it's in Mississippi.
16 Q. Where in Mississippi?
17 A. Near Pearl River.
18 Q. And tell me the mechanism. Is it
19 there is a private landowner that the Corps
20 has acquired his land for purposes, or their
21 land for purposes of extracting the clay?
23 Q Varuso,
Do you know the name of theRichard Page 119
00120
1 know his name off the top of my head.
2 Q. How large a tract of ground has
3 been acquired?
4 A. I would have to look up that
5 information as well. I don't know the exact
6 acreage.
7 Q. What method is being used to dig
8 this clay out?
9 A. Excavators.
10 Q. There is a private contractor
11 doing this?
12 A. Yes.
13 Q. When you say, "excavators," this
14 is what type of crane? Is it a crane?
15 A. Well, it's a piece of equipment.
16 It's a long reach excavator.
17 Q. Is there one working or is there
18 more than one?
19 A. There is multiple working.
20 Q. Multiple workers. And when they
21 excavate a bucket of clay, what happens? Do
22 they then load it into a dump truck or into
23 a barge? Varuso, Richard Page 120

00121
1 get it from the land to the barge? How is
2 that happening?
3 A. I have not actually been at the
4 site to witness the exact operation, but
5 excavators are used to dig the material and
6 it's eventually placed into a barge and the
7 barge is shipped down to the MRGO.
8 Q. Well, I understand it's eventually
9 placed in a barge, but unless there is a
10 navigable waterway going right up to that
11 landowner's property, then there must be a
12 truck involved somewhere along the way?
13 A. I believe he is pretty near the
14 Pearl River. I don't think there is much
15 time between getting the material out of the
16 ground and into the barge.
17 Q. I'm not asking about the time.
18 I'm asking about the means. How does it get
19 into the barge?
20 A. I would have to find out what the
21 exact operation is.
22 Q. The answer is you don't know?

00122
1 conveyance and then brought to a barge and
2 loaded into a barge?
3 A. That's possible. I don't believe
4 it's taking that much time, though.
5 Q. And the barge is then, or a
6 flotilla of barges is then brought by
7 tugboat across Lake Pontchartrain -- down
8 Pearl River across Lake Pontchartrain into
9 the MRGO; is that what happens?
11 Q. And then brought up, and then
12 another crane then offloads the clay from
13 the barge to the levee?
14 A. Another excavator.
15 Q. Another excavator. And then a
16 compaction process takes place.
18 Q. Using what? Bulldozers?
19 A. Bulldozers.
20 Q. And you are telling me that that's
21 quicker than having a hydraulic dredge which
22 is operating in the MRGO adjacent to the

Varuso,
23 levee take dredge materials Richard
and putting it Page 122
00123
1 the levee section. In order to get the
2 moisture contents we need to get the
3 compaction that's in our specifications, you
4 have to process the material. You have to
5 draw the material out and process it. That
6 would take days.
7 Q. So if you weren't compacting it
8 the way the Corps constructed the levees
9 preKatrina, then it would be quicker to use
10 dredge materials?
11 A. I would have to put numbers to
12 that. I can't answer that question. I
13 would have to spend time with our cost
14 engineers and see how long it would actually
15 take and compare the two times.
16 Q. I'm not asking as a function of
17 cost. I'm asking as a function of time.
18 A. Well, that's what they do. They
19 determine project durations.
20 Q. Is the clay that's being brought
21 in more resilient to erosion and erosion
22 from overtopping than the dredge material
23 that had been used prior toVaruso,

HurricaneRichard Page 123
00124
1 Q. Not appreciably. How do you come
2 to that conclusion?
3 A. We ran erosion tests prior to
4 Katrina of the material being placed as well
5 as the existing embankment sections that
6 were still intact after Hurricane Katrina.
7 Q. Was the 20 Arpent and 40 Arpent
8 Canal levees, did they remain intact after
9 Hurricane Katrina?
10 MR. SMITH:
11 I'm going to object to the
12 question. It's beyond the scope of his
13 testimony here today and I direct him not to
14 answer.
16 Q. Isn't it true that the IPET report
17 compares the erosion that would follow
18 overtopping using various assumptions, one
19 being clay, one being sand and clay, and the
20 other being hydraulic fill?
21 MR. SMITH:
23 answer the questions aboutVaruso,

the IPETRichard
report Page 124
00125
1 would follow the hydraulic fill when
2 hydraulic fill is used when compared to
3 clay, isn't it more than a hundred percent
4 difference?
5 MR. SMITH:
6 I'm going to ask for the question
7 to be read back, because I didn't catch it.
10 "Q. Isn't the amount of erosion that would
11 follow the hydraulic fill when hydraulic
12 fill is used when compared to clay, isn't it
13 more than a hundred percent difference?
14 MR. SMITH:
15 You mean --
16 MR. KOHNKE:
17 I'm trying -- he says that it's
18 not appreciable, the difference is not
19 appreciable, and I'm trying to get him to
20 elaborate.
21 MR. SMITH:
22 We are going to allow him to

00126
1 material is plotted on, that the results of
2 the erosion tests are plotted on. And there
3 are five zones ranging from highly erodible
4 to high resistant to erosion and three zones
5 in between.
7 Q. What is most highly resistant to
8 erosion? Is it clay?
9 A. There are more factors than just
10 material type. You have to assume all the
11 same factors into account of the same --
12 Q. Assuming all the same factors, is
13 clay the most highly resistant to erosion?
14 A. A highly plastic clay would be
15 more resistant to erosion than --
16 Q. Than peat?
17 A. Yes.
18 Q. Than sandy soil?
19 A. Yes.
20 Q. Was peat and sandy soil used in
21 the hydraulic or dredged material that was
22 used to build the MRGO levee preKatrina?
23 A Varuso,
Based on the borings Richard
that were Page 126
00127
1 were tested along the center line of those
2 levees in 1981, give or take. The results
3 of those borings and testing showed very
4 little sands or silts in those borings.
5 Q. How about peat?
6 A. Very little peat. I don't recall
7 seeing any peat, actually, in the levee
8 sections in those borings.
9 Q. Now, you told me that the decision
10 to barge clay in to reconstruct the levees
11 post Katrina was a function of time. Do you
12 recall that testimony?
13 A. Yes.
14 Q. Harkening back to Page 16 of the
15 Exhibit 5 attached to what is now Exhibit 3
16 to this deposition, isn't it true that the
17 original decision to use dredged material
18 was a cost -- was because of the cost
19 savings that the Corps would enjoy?
20 A. I do not believe that was the only
21 reason.
22 Q. I didn't ask you if it was the
23 only reason Isn't that the Varuso, Richard

reason though Page 127
00128
1 Q. Not to your knowledge. What was
2 the principal reason for using dredge
3 material to construct the levees between
4 mile 47 and mile 60?
5 A. I believe there were environmental
6 concerns with using an adjacent borrow pit.
7 Q. Where do you get that information?
8 A. It's just historical --
9 MR. SMITH:
10 Object -- I'm going to object to
11 that question and instruct the witness not
12 to answer.
13 MR. KOHNKE:
14 Well, he has given me an answer.
15 He's obviously looked at historical
16 documents. I tried to get into what
17 historical documents he looked at and you
18 wouldn't let him do it, but you're going to
19 let him --
20 MR. SMITH:
21 Yes, it doesn't matter whether he
22 got it off of a flash card that was given to

Varuso,
23 him He is here to testify as a Richard Page 128
00129
1 MR. KOHNKE:
2 But I'm entitled to explore the
3 basis for the answers. This is called
4 cross-examination for a very good reason. I
5 don't just have to accept it. I get to
6 explore it in addition to hearing it.
7 MR. SMITH:
8 I didn't know this was
9 cross-examination.
10 MR. KOHNKE:
11 You didn't? You didn't know this
12 was cross-examination?
13 MR. SMITH:
14 This is a deposition.
15 MR. KOHNKE:
16 I see. Okay. In the
17 correspondence you didn't understand that
18 the purpose of this was to establish the
19 liability of the Corps pursuant to Article
20 2323 of the Louisiana Code of Civil
21 Procedure?
22 MR. SMITH:
23 I think I learned thatVaruso,

later Richard Page 129
00130
1 are adverse. That means this is
2 cross-examination.
3 MR. SMITH:
4 I believe we are adverse. I stand
5 corrected. Thank you.
6 MR. BRUNO:
7 Since that's been brought up, may
8 I know whether or not either Murphy -- has
9 it filed any third party complaint against
10 the United States of America through the
11 Army Corps of Engineers, or has the United
12 States Army Corps of Engineers received any
13 indication or notice of any third party
14 complaint that has been filed by Murphy in
15 this litigation? Inasmuch as they claim
16 that you guys are adverse, I'm not aware of
17 any third party complaint that's been filed.
18 MR. SMITH:
19 I agree. Your point is well
20 taken. We are not adverse in that sense.
21 MR. BRUNO:
22 Well, the answer to the question

Varuso,
23 is yes or no Has there been Richard
a third party Page 130
00131
1 None has been filed.
2 MR. BRUNO:
3 The United States of America has
4 received no such indication that one has
5 been filed; is that true, Robin?
6 MR. SMITH:
7 That's true.
8 MR. BRUNO:
9 Do you have any information
10 whatsoever that the Murphy Oil Company
11 intends to make claim against you for monies
12 of any kind?
13 MR. SMITH:
14 We have no indication of that.
15 MR. BRUNO:
16 Thank you.
18 Q. Turning back to the soil sampling.
19 What materials were -- you referred to some
20 soil borings in 1983. What materials were
21 found in those borings?
22 A. Primarily clays with some silts
23 and silty sands Varuso, Richard Page 131

00132
1 percent.
2 Q. And how many borings were done
3 between -- along this 12-mile stretch that
4 we have been referring to as the MRGO?
5 A. Approximately six to eight in the
6 stretch, in the five -- in the 6.2-mile
7 reach between -- I shouldn't say that. I
8 don't think it was federal reach. It was
9 broken up into a subreach. I would say in
10 the range of -- well, it may have been for
11 the whole reach for the 6-mile stretch.
12 Q. And you say six to eight borings.
13 And how is a boring done?
14 A. There is a drill rig that pushes a
15 sample into the ground, a five-inch diameter
16 sample. That sample is extruded and
17 typically the samples are taken 60 to
18 80-feet deep.
19 Q. So approximately every mile a
20 five-inch core was obtained?
21 A. Correct.
22 Q. And so over a period of 6.2 miles,

Varuso,
23 there was something on the order of Richard Page 132
00133
1 A. I suppose you could think about it
2 that way.
3 Q. And based on that, you conclude
4 that it was primarily clay that was being
5 dredged up by the various dredges when the
6 MRGO levee was --
7 A. Based on those borings.
8 Q. Based on that. Based on nothing
9 but that? How deep was the boring?
10 A. Approximately 80 feet deep.
11 Q. And how deep was the dredging for
12 purposes of obtaining spoil to create a
13 levee?
14 MR. SMITH:
15 You know, I'm confused. I thought
16 these were borings that were taken out of
17 the levee itself.
18 MR. KOHNKE:
19 That's correct.
20 MR. SMITH:
21 Are we changing subjects now, back
22 to the borings from the canal channel or --
00134
1 or outside of the levee where the spoil was?
2 A. Prior to the second levee
3 enlargement.
4 Q. Prior to the second levee
5 enlargement, borings were taken of what
6 area?
7 A. The levee section. The center
8 line of the levee.
9 Q. But what was done to determine
10 where the new spoil for the second
11 enlargement --
12 A. There were also borings taken in
13 those areas.
14 Q. And that would have been in the
15 area where the spoil was going to be
16 dredged?
17 A. Correct.
18 Q. How deep was that bored to?
19 A. Typically 20 feet.
20 Q. And how deep was the dredging?
21 A. Probably on the order of five
22 feet.
23 Q Varuso,
And of the bore samples that Richard
you Page 134
00135
1 each of those borings?
2 A. I would have to look back and
3 examine those borings more closely. If you
4 are referring to -- what I can tell you is
5 that if you are looking at the borings of
6 the center line levee, the center line of
7 the levee subsequent to the second
8 enlargement, the material that existed in
9 that levee section subsequent to that
10 enlargement showed mostly clay, indicating
11 that the dredge material that was used for
12 those two enlargements were also clay.
13 Q. Had IPET concluded that the reason
14 for the failure, one of the reasons for the
15 failure of the MRGO levee was that improper
16 or inadequate soils were being used, had
17 been used to construct the levee --
18 MR. SMITH:
19 I'm instructing the witness --
21 Q. -- particularly sandy soil and
22 peat?

00136
2 Q. All right. When the IPET -- the
3 IPET report has been produced in -- to date
4 three drafts; is that not correct?
5 MR. SMITH:
7 answer any questions about --
8 MR. KOHNKE:
9 I'm not asking about the contents
10 of it. I'm asking him whether it's been
11 produced in draft form.
12 MR. SMITH:
13 I understand. And I'm instructing
14 him not to answer questions about the IPET
15 report.
17 Q. Is it true that the Corps of
18 Engineers has embedded in the IPET team
19 various members or employees of the Corps
20 working with IPET?
21 A. We work with IPET during Task
22 Force Guardian.
23 Q Varuso,
Task Force Guardian Richard
again being Page 136
00137
1 A. Correct.
2 Q. And in order to properly redesign
3 and properly reconstruct, you have to know
4 what went right, what went wrong, what needs
5 to be changed; is that correct?
6 A. That's fair to say.
7 Q. Is it fair to say, without getting
8 into the specifics, that the Corps has
9 relied upon IPET and the information that
10 they have produced in the various drafts to
11 date?
12 A. I would use the term that we
13 worked with them rather than relied on them.
14 Q. Well, isn't it true that 13 of the
15 20 some-odd members of the IPET team are
16 Corps employees?
17 MR. SMITH:
19 answer.
21 Q. So if one were to look at IPET it
22 is, at least half of IPET is the Corps of

Varuso, Richard
23 Engineers; isn't that correct? Page 137
00138
1 answer.
3 Q. Have you looked at the first
4 volume of the final draft of the IPET
5 report?
6 MR. SMITH:
8 answer.
9 MR. KOHNKE:
10 The reason you are instructing him
11 not to answer is that you feel that the IPET
12 report is just a draft and not a final
13 report; is that correct?
14 MR. SMITH:
16 because he is not designated and authorized
17 to address that subject at this deposition.
18 MR. KOHNKE:
19 Will you produce a witness who
20 will testify about the IPET report and the
21 Corps' involvement in formulating the
22 conclusions expressed therein?

00139
1 not produce a witness to testify as to that.
2 MR. KOHNKE:
3 You will not produce a witness.
4 Okay. The Corps has made that
5 determination; is that what you are saying?
6 MR. SMITH:
7 Yes. And you received a letter to
8 that effect.
9 MR. KOHNKE:
10 I understand. I understand. I'm
11 just saying this for the record.
13 We're going off the record. It's
14 11:32. This is the end of Tape No. 1.
17 We are back on the record. This
18 is Tape 2. It's 11:52 p.m.
19 We originally read the action as
20 Case No. 05-4208 and it's really Civil
21 Action No. 05-4206. So 05-4206, for the
22 record, is the correct Civil Action number.
23 THE WITNESS: Varuso, Richard Page 139

00140
1 didn't have the answer for, but I have
2 recently found out. You were asking what
3 the elevation was of the levee subsequent to
4 the third levee enlargement.
6 Q. Yes, subsequent to the third or --
7 when was the third levee enlargement?
8 A. In 1994, 1993 time frame.
9 Q. I thought you only completed two
10 enlargements?
11 A. Actually this levee section was
12 south of Bayou Dupre, probably around mile
13 marker 55, and encompassed the last
14 portion -- the last maybe thousand feet of
15 the levee that we are referring to right
16 now, the MRGO levee, and encompassed a piece
17 of levee that extends from the MRGO to
18 Highway 46. The existing elevations in that
19 area were approximately 17 to 18.
20 Q. Now, you talked about the third
21 elevation. There was an initial one, and
22 then I thought you said a first and second?
23 A Varuso,
Right And there was a thirdRichard Page 140
00141
1 thousand feet before the return levee that
2 we referred to the Verret to Caernarvon.
3 The section that goes from --
4 Q. Mr. Varuso, let me turn back to
5 Exhibit 2, which is in front of you. The
6 third bullet point under Planned
7 Improvements reads correcting design and
8 construction flaws. And I want to separate
9 out what design and what construction refer
10 to here.
11 When you refer to correcting a
12 design flaw, what design flaws does this
13 allude to?
14 MR. SMITH:
16 answer questions about this document.
17 MR. KOHNKE:
18 Well, this is part of the
19 construction of the MRGO levee system. This
20 document relates to, in this particular
21 bullet point relates to correcting that
22 design and construction flaw.

00142
1 testified that there was no design or
2 construction flaw in the levee as
3 constructed prior to Hurricane Katrina. You
4 asked him about that and he testified as to
5 that. But now you are asking him the
6 question about this document.
7 MR. KOHNKE:
8 Yeah, I'm impeaching his prior
9 testimony with a Corps of Engineers document
10 that follows Hurricane Katrina and would
11 appear to certainly impeach any testimony
12 that there was no design or construction
13 flaw preKatrina.
14 MR. SMITH:
15 And I'm going to instruct him --
16 MR. KOHNKE:
17 That's what this is, impeachment.
18 MR. SMITH:
20 questions about this document.
21 MR. KOHNKE:
22 All right. Well, let me -- I

Varuso,
23 understand your instruction Richard
and I have to Page 142
00143
1 for the record.
3 Q. When the Corps of Engineers puts
4 out a document such as Exhibit 2, without
5 getting into the details of the content of
6 Exhibit 2, is there some approval process
7 before this language is incorporated on the
8 website?
9 MR. SMITH:
10 Instructing the witness not to
11 answer.
12 MR. KOHNKE:
13 I'm not asking about details. I'm
14 just asking about the creation and input
15 into Exhibit 2.
16 MR. SMITH:
17 I understand. And he is
18 instructed not to answer questions about
19 that exhibit, either the exhibit itself or
20 the process leading up to the creation of
21 that exhibit.
23 Q Varuso,
Can you tell me please whatRichard
the Page 143
00144
1 understand that is in draft form now and has
2 not yet been approved or adopted, but what
3 is that process?
4 MR. SMITH:
6 answer.
7 MR. KOHNKE:
8 Why is that?
9 MR. SMITH:
10 It's beyond the subjects upon
11 which he has been authorized to speak today.
12 MR. KOHNKE:
13 Who is the person who has done the
14 authorizations that you are referring to?
15 Is there such a person?
16 MR. SMITH:
17 You received a letter from the
18 Corps of Engineers, I believe it was signed
19 by Marc Cohen (phonetic), who is the
20 assistant chief counsel, if I recall his
21 title correctly.
23 Q Is it correct that theVaruso,

levees Richard Page 144
00145
1 breaches and were washed out over various
2 lengths there?
3 A. Yes.
4 Q. And these were the same levees
5 that were constructed using hydraulic fill?
7 Q. And you believe that -- well,
8 strike that.
9 There were other portions of the
10 levees that, in the overall New Orleans and
11 vicinity hurricane protection system that
12 survived intact; is that correct?
13 MR. SMITH:
15 answer.
17 Q. Is it true that the Corps
18 determined that those levees that had been
19 constructed of clay material as opposed to
20 hydraulic fill survived overtopping without
21 backside erosion in a much better manner
22 than the hydraulic fill constructed levees?

00146
1 MR. KOHNKE:
2 Why?
3 MR. SMITH:
4 As I understand it, it pertains to
5 neither the design construction or
6 performance.
7 MR. KOHNKE:
8 Actually it's all three. The
9 design -- when a decision is made to use
10 hydraulic fill versus clay, that's part of
11 the design. And I'm asking about the
12 performance of that design when I ask this
13 question.
14 MR. SMITH:
15 Well, I did not understand your
16 question. You are asking him something
17 about the way the MRGO levee was designed?
18 MR. KOHNKE:
19 And how that design performed by
20 comparing the two different designs.
21 MR. SMITH:
22 There is no other design.

00147
1 and there are portions that are not and I'm
2 asking him to compare those portions.
3 MR. SMITH:
4 I will allow him to answer that.
5 I think it's fair.
7 Q. Mr. Varuso?
8 A. You are attempting to make a
9 distinction or a separation between
10 hydraulic fill and clay material. That is
11 not true.
12 Q. You are saying it is the Corps'
13 judgment or it's the Corps' testimony that
14 there is no distinction between -- along
15 this 12-mile stretch of the MRGO levee as to
16 how the levees performed one portion to
17 another depending upon --
18 A. What I'm saying is you are asking
19 the difference between clay fill and
20 hydraulic fill. Hydraulic fill is a way, a
21 means of placing the material, not a
22 different material type.
I understand the distinction I Page 147
00148
1 constructing the levee, let's just talk
2 about the type of soil used in the process.
3 Is it true that those portions of the levee
4 where the levee consisted more of sandy silt
5 and peat, that overtopping and backside
6 erosion was greater than those portions of
7 the levee that consisted primarily of clay?
8 MR. SMITH:
9 Again, this is limited just to the
10 MRGO levees. That's the premise of your
11 question.
12 MR. KOHNKE:
13 That is the premise.
14 THE WITNESS:
15 We have not yet taken borings --
16 between the time that the post Katrina, we
17 did not take borings in the areas where the
18 levee remained intact and in areas where the
19 levee had failed. To make a distinction
20 between what that levee -- what the primary
21 consistence of section of levee would have
22 been. In addition, I don't know where we
23 would get the data from toVaruso,

see what Richard
the Page 148
00149
1 washed out. There is no data. The material
2 is gone.
3 Q. Has the --
4 A. So I don't know how we would make
5 that comparison because there is no sample,
6 there is no soil sample to take.
7 Q. Didn't the material that
8 constituted the levee, didn't it get spread
9 on the back side after the overtopping and
10 breaching? Isn't there -- don't the aerial
11 photographs tend to show that material as
12 having spread towards the back side, from
13 the top towards the back?
14 A. There is material there. Now, to
15 say that that is a hundred percent of -- all
16 that material that is there is all levee
17 section, you can't make that determination
18 because there are sediments within the storm
19 surge, as the hurricane approached,
20 encompassed in that storm surge and that
21 material was spread out within the levee
22 section, in the marsh area, and actually in
23 the neighborhoods Varuso, Richard Page 149

00150
1 effect that some portion, significant
2 portion of the breaches that occurred along
3 the MRGO was the result of sandy soil being
4 used to construct the levee and overtopping
5 of that sandy soil?
6 MR. SMITH:
8 not to answer questions about the post
9 Katrina analysis and sources of information.
10 MR. KOHNKE:
11 No. 8 is the performance of the
12 levees along the MRGO in St. Bernard.
13 MR. SMITH:
14 Right. You asked questions about
15 information.
16 MR. KOHNKE:
17 Well, in order to know how the
18 levee performed there has to be an analysis
19 post event of that performance. I'm asking
20 about that analysis. Once again, I'm not --
21 I know that no one from the Corps -- at
22 least I assume no one from the Corps was
23 present during the momentVaruso,

when theRichard
hurricane Page 150
00151
1 analysis of performance has to be after the
2 fact and I'm asking about after-the-fact
3 information.
4 MR. SMITH:
5 All right. Restate the question.
6 You may be right about that.
7 MR. KOHNKE:
8 Would you go back and reread the
9 question?
12 "Q. Has the Corps of Engineers received
13 information from any source to the effect
14 that some portion, significant portion of
15 the breaches that occurred along the MRGO
16 was the result of sandy soil being used to
17 construct the levee and overtopping of that
18 sandy soil?"
19 THE WITNESS:
20 Not that I'm aware of.
22 Q. Without going into what the

Varuso,
23 reports say because your counsel hasRichard Page 151
00152
1 When you say, "not that I'm aware
2 of," are you speaking again for the Corps,
3 you are not aware of the Corps being aware
4 of any information to that effect?
5 A. Referring to the type of material
6 that existed in the levee post Katrina?
7 Q. I'm referring to the breaches, the
8 areas where the breaches occurred.
9 A. Okay.
10 Q. Having been a direct result of a
11 type of material being used to construct the
12 levee at that point when overtopping occurs.
13 A. There have not been any
14 significant soil samples, which is the only
15 way you could determine what the material of
16 the levee consisted of right before Katrina.
17 The only way you could get that would be the
18 existing levee sections that remained
19 intact. Borings have not been taken by any
20 entity that I'm -- by any entity to
21 determine what type of soil existed in those
22 levee sections.
23 Q So you are makingVaruso, Richard

the judgment I Page 152
00153
1 are the only way to determine what that
2 levee consisted of at that location where
3 the breach occurs?
4 A. Yes.
5 Q. Now, notwithstanding that
6 testimony, has the Corps received any
7 information from any sources that would
8 indicate that the levees there were made of
9 one type of soil versus another? At the
10 areas of these breaches I'm referring to.
11 MR. SMITH:
12 You have asked this, and I know
13 you are still trying to get an answer. You
14 don't feel like you have gotten an answer,
15 but I still feel like this is a little bit,
16 like, removed from the actual performance.
17 It seems like you are trying to probe what
18 other people may have said and I'm aware, as
19 you are, that other people have said what
20 you are positing in your question.
21 MR. KOHNKE:
22 Of course.

00154
1 Well, I'm asking has the Corps
2 received that information. You're aware of
3 it. I'm aware of it. I suspect the witness
4 is. But he indicates to me it's not
5 reliable. He doesn't say yes or no, I have
6 received it, he says it's not reliable,
7 which suggests to me, A, he's received it,
8 and B, he is making a value judgment about
9 what can be relied upon. So I understand
10 that, I have accepted that, I just want to
11 get back into what they received.
12 MR. SMITH:
13 All right. If you can answer that
14 question. I think that's fair.
15 THE WITNESS:
16 There have been judgments made or
17 comments made about what that levee may have
18 consisted of, what type of soil that levee
19 consisted of. I'm aware of that.
21 Q. And the consistency of -- the
22 materials where you are speaking of, the
23 materials that contribute toVaruso, Richard

the breach you Page 154
00155
1 Q. Okay. And that there are -- there
2 has been opinions offered that I'm referring
3 to now by way of information, there have
4 been opinions offered that, because the
5 material that was used to build the levee
6 was more sandy and less clay that that
7 overtopping produced backside erosion and
8 thus a breach.
9 Have I correctly stated what those
10 opinions conclude?
11 A. There is a lot of conclusions out
12 there. I couldn't say whether or not you
13 are paraphrasing that correctly.
14 Q. Well, let's start with the
15 proposition -- let's start with the
16 proposition that you do not accept those
17 opinions, the Corps does not. I'm only
18 asking about information the Corps has
19 received. We understand that that's the
20 arena in which I am speaking?
21 A. Okay.
22 Q. Now, let's talk about the

Varuso,
23 information There have been Richard
opinions Page 155
00156
1 MRGO -- let's start with how many there
2 were. How many major breaches were there
3 along the MRGO?
4 A. I don't think I could put a number
5 on it. A significant portion of the levee
6 between -- in that 12 miles.
7 Q. Have some opinions numbered up to
8 50?
9 A. There may have.
10 Q. Is that within a ball park, or is
11 it more like 200 or more like five?
12 A. It sounds reasonable.
13 Q. 50. Okay. Then with the
14 exception of a couple, that opinions have
15 been offered that all those breaches are the
16 result of sandy soil being used to construct
17 the levee which when overtopped eroded from
18 the back side?
19 MR. SMITH:
20 I'm sorry. I'm not sure I
21 understand the question. What is the
22 question?

00157
1 possession as part of the performance of its
2 levees that it designed and constructed in
3 the '60s through the '80s. And the question
4 is: Is that the opinions that the Corps has
5 received, although it may not accept for
6 whatever reasons it chooses to, is that of
7 those 50 some-odd breaches, almost all of
8 them are the result of the choice of soils
9 used to construct the levee?
10 MR. SMITH:
12 not to answer this question. I really do
13 think it's just more than one step removed
14 from the performance of the levees. If you
15 want to use that as a premise for a question
16 about the performance of the levees, I think
17 that would be fair. But just to inquire
18 about what information the Corps may have
19 received, I'm not sure if that really fits.
20 MR. KOHNKE:
21 Well, it gets back into the
22 construction. We have already established
23 that in the new design theVaruso,

new Richard Page 157
00158
1 I'm doing now is I'm trying to establish why
2 that decision was made to barge in and
3 compact clay as opposed to use the more
4 readily available materials. And so I'm
5 assuming that the information the Corps
6 received post hurricane from whatever
7 sources led to that. And I'm exploring that
8 design and construction decision.
9 MR. SMITH:
10 Well, why don't you just ask that
11 question. That would be a fair question.
12 MR. KOHNKE:
13 Okay. Okay.
15 Q. We have established, sir, that the
16 Corps is today barging clay in, using clay
17 to construct the levees along the MRGO; is
18 that a fair statement?
19 A. Portions of it, yes.
20 Q. Portions of it. And clearly,
21 let's be clear for the record, what portions
22 are we referring to?
23 A There was a small Varuso, Richard

portion south of Page 158
00159
1 of the levee, whether it be the flood side,
2 stability berm or the mainland section of
3 the levee between Bayou Bienvenu and Bayou
4 Dupre.
5 Q. Okay.
6 A. Not all that levee impacted
7 section but there are portions within that
8 reach that are using the barged-in material.
9 Q. Of the portion of the levee
10 between Bayou Bienvenu and Bayou Dupre,
11 roughly how many breaches, major breaches
12 occurred in that stretch?
13 A. Maybe 25.
14 MR. BRUNO:
15 May I ask a favor, please, for me
16 for this record? Mr. Kohnke, may we learn
17 the definition of the words "overtopping"
18 and "breach"?
19 MR. KOHNKE:
20 Good idea. Sure, let's do that.
22 Q. Define overtopping.
23 A When the elevationVaruso, Richard

of the water Page 159
00160
1 Q. When overtopping occurs, some
2 amount of water -- assuming the levee
3 remains intact, some amount of water will
4 cross the levee to the protected side; is
5 that correct?
7 Q. Now, contrast that with a breach.
8 A. A breach is when the section of
9 the levee erodes away or is washed away and
10 no longer exists or you no longer have the
11 levee crown elevation you had prior to the
12 storm surge.
13 Q. Is that sometimes referred to as a
14 catastrophic failure?
15 A. That's a subjective term, I
16 suppose.
17 Q. The Corps may not use it, but it
18 would aptly describe what the process is?
19 A. It's a subjective term, I think.
20 Q. You say it's an objective term or
21 subjective? I did not hear you.
22 A. Your opinion.

00161
1 Objective.
3 Q. Objective?
4 A. Objective. Maybe I'm using the
5 term in the wrong way.
6 Q. I think you are, but I will accept
7 it.
8 MR. SMITH:
9 I thought he said -- did you say
10 "objective" or "subjective"?
11 MR. KOHNKE:
12 He said "objective."
13 MR. SMITH:
14 No, he said "subjective."
16 Q. Let's clear it up. You used
17 the --
18 A. Objective -- subjective meaning
19 one's opinion.
20 Q. Okay. Okay. A levee is supposed
21 to hold something back particularly at a
22 time of flood, is it not?
23 A Yes Varuso, Richard Page 161

00162
1 through, would that be a failure of the
2 levee?
3 A. Yes.
4 Q. And when it floods 80 percent of
5 the City of New Orleans, would that be a
6 catastrophic failure?
7 MR. SMITH:
8 I'm going to object.
9 MR. KOHNKE:
10 Well, if you lived here you
11 wouldn't object.
13 Q. All right. Now, let's get back to
14 my question. I know that today the Corps is
15 barging in a different type of material than
16 was used before. We have established that,
17 correct?
18 A. Yes.
19 Q. I know that today the Corps is
20 mandating that compaction occur. That was
21 not done before; is that correct?
23 Q And I assume that Varuso, Richard

the decisions to Page 162
00163
1 this hurricane -- since Hurricane Katrina?
2 MR. SMITH:
3 Object to the form. You may
4 answer now.
5 THE WITNESS:
6 The information received was the
7 fact that the levee did not perform as well
8 as we would have liked it to.
10 Q. Fair enough. Fair enough.
11 A. Not from other entities.
12 Q. And even though the Corps may not
13 have acted on it, the Corps did receive
14 information from other entities that the
15 reasons for these breaches was the type of
16 soil that was being used?
17 A. This is well after our plans and
18 specifications and the contract was already
19 on ground.
20 Q. That may be and I accept that.
21 But the Corps did receive information to the
22 effect that clay should be used and it

Varuso,
23 should be compacted to construct Richard
a hurricane Page 163
00164
1 is a means of constructing a levee.
2 Q. Does the Corps agree with those
3 opinions?
4 A. We incorporated that into -- but
5 before those opinions were made, we
6 incorporated those into our plans and
7 specifications well before those opinions
8 were brought to our attention.
9 Q. But those weren't opinions that
10 apparently the Corps had back in the '60s
11 through the '80s because it neither used
12 clay nor did it use compacted material?
13 A. It used clay.
14 Q. Well, it happened to pick some
15 clay up when it dredged, but it wasn't --
16 A. The act of placing hydraulic fill
17 in the manner in which it was told to do by,
18 to the contractors as part of our plans and
19 specification, the act of placing the
20 hydraulic fill in that manner tends to wash
21 away most of the sands and silts and what
22 remains are clay balls in the area where the

Varuso,
23 levee section would be built Richard
So what Page 164
00165
1 clay.
2 Q. And that was the Corps' method for
3 making sure that the levees that it was
4 constructing to protect the Chalmette and
5 Meraux area were going to primarily be
6 constructed of clay?
8 Q. Is that the most foolproof method
9 of insuring that the levees used to protect
10 Chalmette and Meraux are going to be
11 primarily constructed of clay, or would a
12 better method be to excavate clay from a
13 borrow pit and to barge it in and put
14 nothing but clay there rather than whatever
15 you happen to dredge out of the bottom of
16 the water?
17 MR. SMITH:
18 I'm going to object and instruct
19 the witness not to answer. He is not here
20 to testify as an expert concerning the best
21 way to construct levees.
22 MR. KOHNKE:
23 Okay Varuso, Richard Page 165

00166
1 this is construction. I'm asking which is
2 the better method, to dredge whatever comes
3 up and hope that the sand and silt washes
4 away leaving you with balls of clay, or to
5 specifically target clay reservoirs in a
6 borrow pit and to excavate that and use that
7 and only that? That's my question.
8 MR. SMITH:
9 Right. But I think you have
10 explored this in relationship to how they
11 have constructed MRGO preKatrina and post
12 Katrina. And now you are trying to get an
13 abstraction from him.
14 MR. KOHNKE:
15 No. I'm trying --
16 MR. SMITH:
17 I'm not going to allow him to
18 answer abstractions. If you want to ask
19 him -- you have asked him several times
20 about the differences between preKatrina and
21 post Katrina construction.
22 MR. KOHNKE:
23 Varuso,
I'm asking him which is betterRichard Page 166
00167
1 protect these communities. That's all I'm
2 asking. It's not an abstraction. To make a
3 choice, to pick which one is the better
4 method.
5 MR. SMITH:
8 MR. KOHNKE:
9 How is it -- why? Because it's an
10 abstraction to ask him which is the better
11 method?
12 MR. SMITH:
13 I won't -- I take that back. I
14 will allow him to answer that question with
15 respect to the MRGO levees. Yes, that's a
16 fair question.
18 Q. Okay. Which is the better method
19 to insure that you are left with a clay, a
20 levee constructed of clay?
21 A. In part of your question you made
22 the comment that you use hydraulic fill and

Varuso,
23 take whatever you get which is whatRichard
is left Page 167
00168
1 It's not a hope, roll of the dice that you
2 get the material you are looking for.
3 As I explained before, that method
4 is used and has been used in various levees
5 throughout the country, using a compacted
6 hydraulic fill and it works quite well to
7 make sure you are left with clay material.
8 In addition to that, quality
9 assurance and quality control is performed
10 throughout the levee construction to make
11 sure that the material that remains is what
12 we are looking for and meets the plans and
13 specifications. It's not a hope.
14 In addition to that, our post
15 construction borings for the two subsequent
16 levee enlargements since that show
17 predominantly clay materials in those
18 levees.
19 Q. Okay. Which is the better method?
20 A. One is not better than the other.
21 They both can be performed quite well and
22 you can get the levee section you're looking

Varuso,and
23 for as long as the quality assurance Richard Page 168
00169
1 Q. Your testimony is if everything
2 falls into place in terms of quality control
3 and quality of construction that one is not
4 better than the other?
5 A. Given the same material for
6 borrow, yes.
7 Q. And then again, the quality
8 control you are referring to -- well, you
9 have testified as to what that quality
10 control is.
11 So if the quality control is in
12 place and if it's up to the quality that
13 it's supposed to meet and you are obtaining
14 the material that you are anticipating
15 meeting and if the sand and if all the stuff
16 washes off as it should, then the two
17 methods are equal?
18 A. Well, what I'm saying is that you
19 can have the same result of an uncompacted
20 levee section by either method, meaning
21 meeting the same spec requirements.
22 Q. Now, when obtaining hydraulic fill

Varuso,
23 material this is done through what? Richard
A Page 169
00170
1 Q. A dredge. So that bucket goes
2 down and picks up -- down to what, five feet
3 below the bottom of the MRGO; is that right?
4 A. I'm not sure if the dredge used a
5 bucket or if it's a siphon or what the
6 actual type of dredge was used at that time.
7 I couldn't answer that question.
8 Q. A siphon would be another name for
9 a suction barge -- suction dredge?
10 A. Yes.
11 Q. So the crane operator doesn't know
12 what his bucket is going to do, he just
13 knows that he is going down five -- going
14 down to the bottom of the MRGO and he is
15 dredging a bucketful of mud and he plops it
16 up wherever it's intended to be placed.
17 That's how it's done if it's a crane
18 operator?
19 A. I don't believe it was done in
20 that manner, but I would have to -- if it
21 was used with a bucket, I'm not sure if it
22 was a suction dredge. I would have to find

Varuso,
23 out the exact method that was used inRichard
the Page 170
00171
1 like a big stinger or feeler going across
2 the bottom side to side sucking up whatever
3 comes up; is that correct?
4 A. The existing material that's
5 there. We know what it is. We know what it
6 is based on, based on our geologic knowledge
7 of the area.
8 Q. And based upon soil sampling?
9 A. Right.
10 Q. And that soil sampling you have
11 already indicated in a six-mile area was
12 approximately 10 inches of total diameter?
13 A. The borrow borings are typically
14 taken more often than that.
15 Q. How often?
16 A. I would have to find out what the
17 frequency of the borrow borings was in that
18 area. I don't recall that.
19 Q. You don't know what they are?
20 A. What the spacing was? I would
21 have to find out.
22 Q. So you don't know what the spacing

Varuso,
23 is but you are confident based uponRichard
that Page 171
00172
2 MR. BRUNO:
3 May we have a definition of the
4 phrase "borrow borings"?
5 THE WITNESS:
6 It's a soil sample taken typically
7 15 to 20 feet deep in the area where the
8 borrow material -- the borrow material is
9 the material that's taken from one location
10 to be used to construct the levee section.
11 We refer to that material as borrow,
12 borrowing from one site to construct the
13 levee. So the borings we take to determine
14 what the material is in that area we refer
15 to those as borrow borings.
16 MR. BRUNO:
17 Thank you.
19 Q. Now, each year the MRGO -- was it
20 each year or every other year? How often --
21 on what intervals was the MRGO dredged for
22 navigational purposes?

00173
1 MR. KOHNKE:
2 The only thing I'm trying to do is
3 I'm trying to get to the quality of the
4 material. I'm not interested in the
5 navigational aspects of the MRGO.
6 MR. SMITH:
7 Well, perhaps you could rephrase
8 your question.
10 Q. Was there an interval at which
11 dredge materials were used? I read to you a
12 portion of a reconnaissance report from 1988
13 that indicated the dredge materials were
14 being used as part of the maintenance of a
15 channel. Do you recall that?
16 A. Yes.
17 Q. Of the channel, MRGO channel. And
18 I'm trying to find out at what interval that
19 was done?
20 A. I would have to find that out.
21 Q. What was causing the MRGO to fill
22 back in to need to be dredged?

00174
2 Q. Well, if the top five feet was
3 silt that was coming back from the marsh or
4 sinking in, then it would be silt being used
5 to build the levee? Whatever the top five
6 feet was that was what was being used; is
7 that correct?
8 A. Whatever the top five feet was,
9 was what was being used, yes.
10 Q. Do you know what silt is?
11 A. Sure.
12 Q. What is silt?
13 A. It's a classification of soil with
14 a given plasticity index and some other soil
15 parameters that classify it as a silt.
16 Q. At the other end of the MRGO is
17 Chandelier and Breton Island and Gozer
18 Island and Kerlew; isn't that correct?
19 A. That sounds about right, yes.
20 Q. Those are sandy islands, aren't
21 they?
22 A. I couldn't answer that question.
23 What exactly it's made of Varuso,

I couldn't Richard
answer Page 174
00175
1 end of the MRGO?
2 MR. SMITH:
3 I know where you are going with
4 this, but --
5 MR. KOHNKE:
6 For the record, what I want to
7 establish is that there is sand at the other
8 end of the MRGO. And hurricanes and tidal
9 movements and others may move that sand.
10 Vessels that are dragging bottom or stirring
11 it up and tide moves it, and that every so
12 often when the MRGO is dredged sand is what
13 is on top, and that's what I'm exploring.
14 MR. SMITH:
15 Right. I understand your theory
16 of the case. And it's something you can
17 develop with your experts at trial, but he's
18 testified that they know what is in the
19 channel bed because they do borings.
20 MR. KOHNKE:
21 Well, and I want to cross-examine
22 him on that because I believe that his

Varuso, Richard
23 statement as to his knowledge Page 175
00176
1 account.
2 MR. SMITH:
3 I appreciate that.
5 Q. When hurricanes that preceded
6 Katrina would move in -- during '65 there
7 was Betsy; is that correct?
9 Q. '69 was Camille. There were a
10 number of hurricanes that would hit the Gulf
11 Coast particularly to the east of us; isn't
12 that right?
13 A. I'm not sure what the exact
14 hurricanes were or where they struck.
15 Q. There has been surges that have
16 come into Louisiana since 1965?
17 A. Sure.
18 Q. Would it be logical, are you not
19 aware that it is necessary to redredge the
20 MRGO from time to time to maintain a certain
21 depth because it tends to fill in?
22 A. Yes.
23 Q And it fills in with Varuso, Richard

a variety of Page 176
00177
1 A. And possibly some clays.
2 Q. Possibly some -- where would these
3 clays come from?
4 A. Well, let me rephrase my answer.
5 There would still be clays existing in
6 whatever material they are dredging.
7 Q. But covered over by other
8 materials that --
9 A. Yeah, it would be a mix.
10 Q. -- are deposited?
11 A. It would be a mix of materials.
12 Q. Okay. But the clays, if they were
13 there to begin with, they would be at the
14 bottom if they are then being covered over
15 by other materials?
16 A. Possibly.
17 Q. And if you are going to dredge the
18 first five feet, you may not get down to the
19 clay; you may be dredging what's been
20 deposited since you last dredged?
21 A. Then we would continue to dredge
22 until the clay material was uncovered and
23 placed Varuso, Richard Page 177

00178
1 A. That would have been the
2 intention.
3 Q. But in 1988 you saw the intention
4 was not to get to clay, but rather, to
5 maintain a navigable channel, and that's
6 what was being used -- that's the material
7 being used to create the levee?
8 MR. SMITH:
9 I am going to object to that
10 question, because that's not what the
11 document says. You may answer. You may
12 answer.
13 THE WITNESS:
14 The document is referring to using
15 the barge, the dredge material for borrow
16 for other sections of the Lake Pontchartrain
17 hurricane vicinity levees, 100 million cubic
18 yards. 100 million cubic yards, that's
19 going to be well more than the five feet
20 that would be on the top of the borrow area.
22 Q. That's over how many years, sir?
23 Read it Varuso, Richard Page 178

00179
1 you have got a quick back of the envelope,
2 maybe not even on an envelope, maybe in your
3 head calculation of the length of the MRGO,
4 the number of years and the depth to which
5 that dredging occurred? By using --
6 starting with the cubic number of yards?
7 A. I can get a pretty decent feel of
8 what it's going to take to get a hundred
9 million cubic yards.
10 Q. Did the hydraulic fill material
11 that was being sucked from the bottom of the
12 MRGO, from the base of the MRGO, include
13 from time to time shell, shell materials?
14 A. I'm not aware of any boring that
15 indicates that significant amounts of shell
16 were being dredged from the bottom of the
17 channel.
18 Q. Are you aware of observations made
19 by individuals in the wake of Hurricane
20 Katrina that shell materials had been spread
21 over these deposited or redeposited levee
22 systems; that is, as the soil spread out,
23 there were shell among it?Varuso, Richard Page 179

00180
1 was before the hurricane.
2 Q. Fair enough.
3 A. You cannot say whether or not that
4 was actually part of the levee section
5 before the hurricane storm surge impacted
6 the levee.
7 Q. So the shell, you are saying, may
8 have come from something other than the
9 contents of the levee itself?
11 Q. Has the Corps done anything to
12 rule in or rule out the conclusion that
13 these levees were constructed using
14 shell-like materials?
15 A. There is no evidence in any of the
16 preexisting borings among the center line of
17 the levee that shows any significant amount
18 of shell in that levee section.
19 Q. Now we are talking about the
20 center line borings of the levee system.
21 Let's talk about, in this 6.2 miles I think
22 that you referenced earlier, there were six

Varuso,
23 or so borings each one about Richard
five inches Page 180
00181
1 Q. Five inches in diameter?
2 A. 80 feet deep.
3 Q. And you are saying there was no
4 shells in any of these six borings?
5 A. I wouldn't say there was zero
6 percent, no.
7 Q. When the borings are obtained,
8 what sort of stratification within this
9 column is observed? What kind of reference
10 is made as to what exists in the first five
11 feet, the second five feet and so on? What
12 differentiation?
13 A. It's based on classification of
14 the soil. If they run from one material
15 type to the next, they will denote that with
16 a given symbol in the boring log.
17 Q. And that is a standard that the
18 Corps requires that these borings --
19 A. It's an industry standard.
20 Q. That's my question. What does the
21 Corps require? When a boring is done it's
22 done by a contractor, right?
23 A Varuso,
At this time we may have hadRichard
our Page 181
00182
1 time frame?
2 A. Between the '60s and the '80s when
3 these borings were taken.
4 Q. Have you looked at any of those
5 boring samples?
6 A. Yes.
7 Q. Which ones?
8 MR. SMITH:
9 The samples or the logs of the
10 borings?
11 MR. KOHNKE:
12 Whatever he has looked at. What
13 has he looked at?
14 THE WITNESS:
15 Well, that's a correct
16 distinction. The boring logs, the samples
17 are obviously no longer around.
19 Q. When did you do that?
20 A. Recently.
21 Q. Why?
22 A. Since Hurricane Katrina.
23 Q Why? Varuso, Richard Page 182

00183
1 our decision on putting together the plans
2 and specifications for the new levee section
3 as well as in preparation for this.
4 Q. As well as in preparation for
5 this. Identify for me what years you have
6 looked at and what sections you have looked
7 at. I want to know what logs.
8 A. The dates are approximate. I
9 haven't memorized the dates, but essentially
10 in the early '70's and in the early '80s new
11 borings were abstracted from these areas and
12 tests performed, and those are the boring
13 logs that I have looked at in the 12-mile
14 stretch.
15 Q. How many different logs have you
16 looked at during that period for that
17 stretch?
18 A. Including the existing borings
19 that were taken in 1960 before the first
20 levee lift was placed, probably 40 give or
21 take.
22 MR. KOHNKE:
23 Varuso, Richard
Mr Smith is this information Page 183
00184
1 I don't know whether it is or not.
2 MR. KOHNKE:
3 I would -- in the event it is not
4 and accepting your statement that you don't
5 know one way or the other, let me assume
6 that it's not and ask would you agree to
7 produce it, these logs, so that my expert
8 can review the same material?
9 MR. SMITH:
10 If you would serve us with a
11 subpoena duces tecum? I would be happy to
12 comply with that. I don't see any problem.
13 MR. KOHNKE:
14 And I will include in the subpoena
15 anything else that I can't locate in the
16 public domain --
17 MR. SMITH:
18 That's fine.
19 MR. KOHNKE:
20 -- in the way of exhibits to these
21 pleadings that I have referred to and made a
22 part of the deposition.

00185
1 Q. Does the clay material that you
2 are referring to have shell in it?
3 A. My recollection of the boring logs
4 was just -- I don't know if I can put a
5 number on it, you know, just a small number
6 of small samples within the boring logs that
7 indicate there may have been some shell
8 present. Nothing that I would consider or
9 that the Corps would consider appreciable.
10 Q. Is there a threshold that is
11 objectively stated somewhere as to what is
12 appreciable or what is a level of concern in
13 terms of shell content?
14 A. Our specifications, referring to
15 the placement of levee fill, say that there
16 is no -- less than one percent of
17 objectionable material should be placed in
18 the levee section. That's in our current
19 specification.
20 Q. Objectable?
21 A. Objectionable. Excuse me,
22 objectionable material.
23 Q And what would beVaruso,

includedRichard
in Page 185
00186
1 sort of --
2 Q. Is sand an objectionable material?
3 A. Sand is not something that's
4 allowed in our current specification for
5 levee construction.
6 Q. So sand is something that's not
7 currently allowed in your levee
8 specification. When was it first not
9 allowed or disallowed, sand that is?
10 A. I would have to check to see if it
11 was ever allowed. I'm not positive that we
12 ever allowed sand to be a portion of the
13 levee section. I wouldn't imagine that it
14 was.
15 Q. Where would you check to find that
16 out?
17 A. Historical documents. I would
18 have to check the specifications from the
19 1967, '68 plans and specifications.
20 MR. KOHNKE:
21 Mr. Smith, can you include that?
22 I include that in my request, and if I serve
23 you with a subpoena ducesVaruso, Richard

tecum will you Page 186
00187
1 MR. SMITH:
2 I'm not sure this is really -- I
3 know you are getting into Area 10, which is
4 the differences between pre and post Katrina
5 standards and manuals, which is something we
6 didn't agree to testify concerning.
7 MR. KOHNKE:
8 Actually, I see this as in the
9 first three. It is part of the design.
10 It's certainly a standard that is part of
11 the design. Then the question deals with
12 whether that design was met in the
13 construction, which is what the logs are
14 going to look at. And ultimately those two
15 things will determine how -- help me
16 determine how the levees performed.
17 MR. SMITH:
18 I think -- you know, we can't say
19 for sure whether those manuals, historical
20 documents exist, but we will -- if you serve
21 us a subpoena, we will certainly search for
22 them.

00188
1 and ask.
3 Q. It's your understanding, having
4 been an employee of the Corps since -- you
5 started, I think, in '92, I think you
6 said -- that there is a standard that
7 relates to objectionable materials. You
8 defined objectionable materials as being
9 shell, logs and the like, but you initially
10 left out sand. And I'm now asking you:
11 Does objectionable materials include sand or
12 not, as far as you understand?
14 Q. It does. Okay. So it more
15 than --
16 A. It's not a soil type that's
17 allowed in our current spec for construction
18 of levees.
19 Q. You went too fast and I was about
20 to ask a question.

Varuso,
23 "A It's not a soil type that's allowedRichard
in Page 188
00189
2 Q. When did our current specs become,
3 quote, current specs? Post Katrina?
4 A. Oh, no. This is before Katrina.
5 Q. How long before Katrina?
6 A. Like I said, I would have to go
7 back and see how far it's been since -- if
8 the spec has ever changed. I'm not aware
9 that it's ever changed since its current
10 form.
11 Q. Why do you use current if you are
12 not aware that it ever changed?
13 MR. SMITH:
14 I object to that. That's
15 argumentative. Because he doesn't know
16 whether it's changed. That's why he used
17 it.
18 MR. KOHNKE:
19 Well, then why -- that's why I
20 asked him why he used current. If he
21 doesn't know, he's using current as if he
22 does know. That's what I'm --

00190
1 know whether it's ever been different.
3 Q. When you use current, you may be
4 using current without any reason at all,
5 because as far as you know, there has never
6 been a change?
7 A. I'm using the word "current"
8 because that's what it is today.
9 Q. Okay. Okay. And you are not
10 aware of a change?
11 A. Since I have been there in 1992
12 that's what the spec has been.
13 Q. Now, according to the spec that's
14 always been there as far as you know, if
15 more than one percent of this levee consists
16 of sand at any given point -- strike that.
17 One percent content of sand would be
18 objectionable?
19 A. I would have to -- honestly, I
20 think I would have to discuss that with
21 somebody else to see -- I know that the term
22 "objectionable" typically is referring to

Varuso,
23 large stumps material that's Richard
essentially Page 190
00191
1 I can testify to that. I can also testify
2 to that our current spec does not allow sand
3 at all in the levee section.
4 Q. Your current spec does not allow
5 any sand in the levee section at all,
6 meaning any? You are pausing. Did I just
7 say it correctly?
8 A. It's not allowed, that's correct.
9 Q. It's not allowed. Okay. Now,
10 your current spec has been in effect, you
11 don't know for how long, but it's as long as
12 you know. There has never been a previous
13 spec that you are aware of; is that right?
14 A. Right.
15 Q. So does that include the 1960s
16 when you refer to the current spec?
17 A. As I said, I'm not aware if it had
18 ever changed from the 1960s until now. I
19 would have to go back and see what the spec
20 was.
21 Q. In 1988 when the report indicated
22 that dredge materials were being used to

Varuso,
23 make the levee was that spec Richard
in existence Page 191
00192
1 the spec that was in place for that set of
2 plans and specs in the 1980s when that
3 subsequent enlargement was put in place.
4 Q. Well, can you get that by a phone
5 call just like you got during the last
6 break, you called the office?
7 A. It would probably be more
8 difficult to get than just by a phone call.
9 The plans are more readily available than
10 the specifications are.
11 Q. Why is sand not allowed or
12 disallowed in the construction of a levee?
13 A. To answer that question
14 completely, I would have to talk to some
15 other people to discuss the history of the
16 specifications.
17 Q. I don't want a treatise. All I'm
18 looking for is a reason. Is it good or is
19 it bad to have sand? I assume it's bad if
20 it's not allowed.
21 A. There are sands placed in levees
22 in different locations with clay caps on
23 top So to say that a sand Varuso, Richard

could never be Page 192
00193
1 occasions where you can place sand in the
2 levee section and then cover it with clay.
3 Q. Is the reason why you don't want
4 sand is because sand is not resistent to
5 erosion and does not offer the same
6 stability as less permeable materials such
7 as clays?
8 A. I wouldn't say less stable but
9 because of the erodibility, the ability to
10 hold back water at that given still-water
11 level.
12 Q. So the reason why sand is not
13 allowed is because of its inability to hold
14 back water, and the other reason was what?
15 A. Erodibility.
16 Q. Erodibility. Now, erodibility
17 occurs when you have overtopping. That's
18 one of the things that happens on the back
19 side of this?
20 A. Yes.
21 Q. So if you have a sand-constructed
22 levee with overtopping, you have a greater

Varuso, the
23 probability of erodibility occurring Richard Page 193
00194
1 Are you asking him that question
2 about the performance of the MRGO levees
3 now?
4 MR. KOHNKE:
5 No. The design and construction
6 of those levees from the '60s through the
7 '80s.
8 MR. SMITH:
9 Since he's testified that there
10 wasn't any sand in these levees, I'm not
11 sure how that's a question about these
12 levees.
13 MR. KOHNKE:
14 I'm sorry. What did you say,
15 Mr. Smith?
16 MR. SMITH:
17 He's testified that there wasn't,
18 to his knowledge, any sand in these levees
19 so I fail to see how that could be a
20 question about these levees.
21 MR. KOHNKE:
22 Well, because just in the offhand

Varuso,
23 chance that somebody concludes Richard
there was Page 194
00195
1 their levees to be built to so that the
2 trier of fact can decide, if there is sand,
3 whether that standard was met. I think I'm
4 entitled to that.
5 MR. SMITH:
6 I think so too, through your own
7 experts. I'm going to instruct him not to
8 answer the question.
9 MR. KOHNKE:
10 And the question you are
11 instructing him not to answer is?
12 MR. SMITH:
13 The reporter can read it back.
14 MR. KOHNKE:
15 Well, then, let me ask a new one
16 and see if you give him a similar
17 instruction.
19 Q. When sand is used in the
20 construction of a levee, it renders that
21 levee more susceptible to erosion?
22 MR. SMITH:
23 Varuso,
I'm instructing him not Richard
to answer Page 195
00196
1 MR. KOHNKE:
2 Well, I understand you may not
3 have thought they were and I understand you
4 may not have that wanted them to be, but you
5 do understand they may very well turn out
6 factually to have been constructed with
7 sand.
8 MR. SMITH:
9 Right.
10 MR. KOHNKE:
11 And so in that event, you don't
12 have to worry about it if it's not true. If
13 you say it didn't happen, it didn't happen
14 and you don't have to worry about it. But
15 in the event there is any sand in the levees
16 I'm entitled to find out what his
17 expectations would be.
18 In other words, why do you have
19 the design characteristic or the design
20 requirement that there be no sand. That's
21 where I'm going.
22 MR. SMITH:
23 Varuso,
You've already asked him thatRichard
and Page 196
00197
1 MR. KOHNKE:
2 Well, I'm entitled to this
3 information. If they have a standard that
4 prohibits sand, I need to know the reasons
5 why, because it just may turn out factually
6 that there was sand.
7 MR. SMITH:
8 To the extent you are asking him
9 now, it's a hypothetical question, which is
10 not a proper question for this witness.
12 Q. What effect does wave action have
13 on a levee --
14 MR. SMITH:
16 answer. I'm sorry, I thought you were
17 finished.
18 MR. KOHNKE:
19 Well, go ahead.
20 MR. SMITH:
21 When you say what does it have,
22 that sounds to me like again, an expert type
23 question If you are askingVaruso,

him whatRichard
effect Page 197
00198
1 and answered.
2 MR. KOHNKE:
3 Yeah, but I want to ask him, what
4 effect does wave action have on a levee
5 constructed with sand?
6 MR. SMITH:
10 Q. If a levee has -- if there is wave
11 action which overtops a levee, does it
12 produce an accelerated force on the back
13 side?
14 MR. SMITH:
15 Again, I'm going to instruct him
16 not to answer.
18 Q. Does proper levee design take into
19 account the possibility of wave action which
20 overtops that levee?
21 MR. SMITH:
22 Again, I'm going to instruct him
23 not to answer Varuso, Richard Page 198

00199
1 related to the MRGO levee. Why are you
2 instructing him not to answer that?
3 MR. BRUNO:
4 For my purposes, forgive me,
5 Mr. Kohnke, may I know what you mean by wave
6 action?
7 MR. KOHNKE:
8 Well, maybe I should define it,
9 because I thought it was obvious. And if
10 anyone needs to ask me that, then clearly it
11 has other meanings, so I will assume that I
12 need to have it defined.
14 Q. Let me ask you. When a Corps of
15 Engineers representative refers to wave
16 action, the Corps of Engineers compares wave
17 action to the alternative which I believe is
18 still water; is that right?
19 What does wave action mean?
20 Compare it, contrast it to still water or to
21 any other condition that you have to take
22 into account when designing a levee.
23 A I would assume theVaruso, Richard

wave force that Page 199
00200
1 that we assume for a given wave for a given,
2 in this case, standard project hurricane.
3 And that wave, if there is a floodwall, that
4 force will be considered in the design of
5 that floodwall.
6 The same wave for a design of a
7 levee we will design a flood side wave berm
8 to dissipate the energy of that wave before
9 it reaches the crown of the levee.
10 Q. So the wave berm on the flood side
11 is another way of saying that's at the base
12 of the levee; is that correct?
13 A. It's a steep -- it's a shallower
14 slope than the main line levee section that
15 extends from the main line levee slope to
16 the crown to some distance down to natural
17 ground surface.
18 Q. Let me get back to my question. I
19 want you to try to define for me what wave
20 action is, if that is a definable term and I
21 want you to compare it to still water which
22 is another term used earlier in this
23 deposition Varuso, Richard Page 200

00201
1 to define terms as though he were an expert.
2 If you have a question about whether --
3 MR. KOHNKE:
4 I'm asking the Corps to do that.
5 MR. SMITH:
6 Okay. Whether the Corps --
7 whether this pertains to the design of the
8 MRGO levee, then why don't you ask him
9 whether they considered wave action in the
10 design of the MRGO levee.
11 MR. KOHNKE:
12 Well, the problem is it won't
13 answer Joe's question.
14 MR. BRUNO:
15 Excuse me. The reason I asked the
16 question, to be perfectly candid, is because
17 when I heard the word "wave action" I was
18 considering a large vessel traveling up or
19 down the MRGO and causing what I would have
20 called wave action against the levee. It
21 could also mean the wave action created by
22 wind, and I didn't understand, A, if there
23 was a distinction -- Varuso, Richard Page 201

00202
1 not trying to be too lawyerly here, is that
2 he has some expertise and I think it's
3 typical to try to draw upon his expertise,
4 but he is not really being presented here
5 today as an expert but as a fact witness.
6 You are attempting to get him to define
7 terms. Why don't you ask him a question.
8 Let him put it in his own words. If you
9 don't understand some of the words he uses,
10 you can certainly ask him to explain the
11 terminology he is using.
12 MR. KOHNKE:
13 Well, I have asked a couple of
14 times and I have been confused, and so I
15 thought following his lead may not work for
16 me. It didn't work for me before.
17 What I want to have done is I want
18 to break down a couple of pieces of what he
19 said. He talked about still water as part
20 of a process, of the design process, and I'm
21 trying to differentiate that still water
22 from what I think of as surge or wave

Varuso,
23 action which ultimately we Richard
know was brought Page 202
00203
1 question, but I need to understand what he
2 is using as part of his answer to refine my
3 question.
4 MR. SMITH:
5 I wonder if you could just ask him
6 a question about the performance of the MRGO
7 levees. It sounds like that's where you are
8 going here and maybe you could incorporate
9 that into your question. I think you could
10 get there, but I'm not -- I'm going to
11 instruct him not to answer the abstract
12 expert type of questions.
13 MR. KOHNKE:
14 All right. Well, I'm --
15 MR. SMITH:
16 To the extent that he needs to
17 define terms to explain an answer about the
18 performance of the MRGO levees, I think
19 that's certainly fair.
21 Q. With that instruction to the
22 witness in mind, let me ask you, because if

Varuso,
23 you instructed him not to answer Richard
then you Page 203
00204
1 that something that is capable of
2 definition?
3 MR. SMITH:
5 answer.
6 MR. KOHNKE:
7 I'm not asking him for the
8 definition. Come on. I'm asking is it -- I
9 want Judge Fallon to know whether this is a
10 term that can be defined or whether it can't
11 be. Because perhaps this is an academic
12 exercise. You are instructing him not to
13 answer something that he can't answer in the
14 first place. If he can answer it, then you
15 are instructing him not to answer something
16 he can and Judge Fallon can rule upon that.
17 MR. SMITH:
18 You can ask him factual questions.
19 He can either tell you whether he knows the
20 answer to the factual question you ask or
21 not. And if you want to know whether
22 certain terms have technical meanings within

Varuso, Richard
23 the industry or within the profession then Page 204
00205
1 MR. KOHNKE:
2 All right. I object to the
3 instruction that you are giving the witness
4 not to answer and the instruction you are
5 giving me as to what I can or can't do. But
6 I'm not going to beat my head against the
7 wall any longer. Let me go ahead and
8 formulate some questions, but I in no way
9 waive my objections. Let me come back and
10 try and ask some questions to comply with
11 Mr. Smith's limitations that are being
12 placed upon me.
14 Q. When designing the MRGO levee
15 system, did the Corps of Engineers take into
16 account that that levee might be overtopped
17 at any point in time when a hurricane came
18 into our area?
19 A. No. We are not authorized to do
20 so.
21 Q. You are not authorized to assume
22 that the levee will be overtopped?
23 A Varuso,
That assumes a greater Richard
amount of Page 205
00206
1 hurricane.
2 Q. When you say the Corps is not
3 authorized, give me the name of the entity
4 that prevents the Corps from taking
5 overtopping into account. What is the
6 higher authority that prevents you?
7 A. It's a function of -- I can't
8 state the exact document, but when we were
9 given authorization to design and build the
10 MRGO levee, we are told that you will design
11 this levee for the standard project
12 hurricane. That's what we are authorized to
13 build the levee to.
14 Q. Who gave you that instruction?
15 A. This comes from Congress.
16 Q. Congress gave you an
17 instruction -- Congress gave the Corps of
18 Engineers an instruction that they were to
19 utilize design criteria that did not take
20 into account the possibility that the levee
21 that was going to be built by the Corps
22 would be overtopped?
23 A Varuso,
Making the assumption Richard
that the Page 206
00207
1 the question?
2 Q. Yeah, but you are changing my
3 question. You are saying making the
4 assumption. I didn't ask you to make the
5 assumption. I said to take into account a
6 possibility. There is a big difference
7 between making an assumption when you are
8 designing something versus taking into
9 account a possibility. That's what I'm
10 asking you.
11 A. I don't see the distinction there.
12 Q. Maybe so, but let's get it clear
13 for the record. Do you understand what my
14 question is?
15 A. You're asking me -- the question,
16 as I understand it, is asking did we take
17 into consideration that the levee may be
18 overtopped, that the levee elevation would
19 be overtopped by some given storm.
20 Q. Did you take that into
21 consideration? That's the question.
22 A. You are going to have to define
23 the word "consideration " Varuso, Richard

I'm not sure what Page 207
00208
1 occur and the consequences if it did occur
2 considered or thought about and discussed,
3 part of your design criteria?
4 A. It's not part of the design
5 criteria.
6 Q. Okay.
7 A. And the reason is, if I assume
8 that the levee is overtopped, if I assume
9 that the water elevation is greater than the
10 top of the levee and I take that into
11 consideration or into account in my design
12 calculations, then I am inherently assuming
13 that the water elevation is higher than the
14 still-water level for which I'm authorized
15 to design the levee for.
16 MR. KOHNKE:
17 Could you read back the last half
18 of what he just said. Just read back the
19 whole answer. And then I suggest we take a
20 lunch break.

Varuso,
23 "A It's not part of the design criteriaRichard Page 208
00209
1 water elevation is greater than the top of
2 the levee and I take that into consideration
3 or into account in my design calculations,
4 then I am inherently assuming that the water
5 elevation is higher than the still-water
6 level for which I'm authorized to design the
7 levee for."
9 Q. Does the still-water level --
10 strike that.
11 In assuming a still-water -- what
12 is a still-water level? Define that for me.
13 A. That's the elevation of the water
14 from a given storm surge from that given
16 Q. So you assume a water level from a
17 given storm -- a standard project hurricane,
18 not a given storm, a standard project
19 hurricane?
21 Q. And based upon that still-water
22 level, which is the ultimate height of the
23 water; is that correct? Varuso, Richard Page 209

00210
1 hurricane you then design a levee height,
2 design a levee, and that includes the height
3 of the levee?
5 Q. And you are designing a levee that
6 will not be overtopped, because if you know
7 the height of the water through the
8 still-water elevation and you then design a
9 levee, you are not going to design something
10 below that, you are going to design
11 something to meet and defeat that
12 still-water elevation, aren't you?
13 A. The defeat, as you call it, is
14 going to consider.
15 Q. To protect, to protect, not
16 defeat, to protect.
17 A. Okay. And that additional height
18 is going to be based on the eventual
19 settlement --
20 Q. Of course.
21 A. -- and subsidence, that's why the
22 elevation is higher than what the
23 still-water level is Varuso, Richard Page 210

00211
1 different things, are they not?
2 A. Yes.
3 Q. You are assuming that you will be
4 left with a levee height that will not be
5 overtopped by the still water that your
6 model --
7 A. For that given standard project
8 hurricane, yes.
9 Q. For that given standard project
10 hurricane. And if you have made all of your
11 assumptions, if all of your assumptions are
12 correct and if no hurricane exceeds the
13 standard project hurricane, then you expect
14 no topping?
16 Q. Now, in point of fact the levee
17 was some several feet below the height at
18 which it was supposed to be to meet the
19 requirements of the standard project
20 hurricane still-water elevation?
21 A. In some locations.
22 Q. Along the MRGO it was on average

Varuso,
23 of what two or three feet below Richard
the amount Page 211
00212
1 Dupre, that's the approximate elevation.
2 The reason why, there was a section of
3 levee --
4 Q. So you anticipate that, at least
5 along that stretch, there would be
6 overtopping if a standard project hurricane
7 comes along?
8 A. Well --
9 Q. Yes or no?
10 A. Well, during the lunch break I'm
11 hoping to get what that still-water level
12 was. I don't have all of these numbers
13 memorized. Now, it's quite possible that
14 the elevation of the top of the levee may
15 have still been above what I assume the
16 still-water level was.
17 Q. It's possible but if, in fact,
18 your levee is two to three feet below what
19 you wanted it to be because of subsidence
20 and settlement and if the standard project
21 hurricane comes along, then it is two to
22 three feet below that level needed to --
23 A Varuso,
It's two to three feet Richard
below the Page 212
00213
1 Still-water level is probably -- is
2 approximately 15.
3 Q. If the --
4 A. The design grade is 17 and a half.
5 That's how we were short the two and a half
6 feet.
7 Q. Say that again.
8 A. The two and a half feet that we're
9 short is the elevation, approximately 15 in
10 some of the areas that we've seen, based on
11 the Lidar survey data -- that's the existing
12 elevation based on the Lidar survey data
13 that we have post Katrina --
14 Q. 15 --
15 A. -- of the levee sections remaining
16 intact.
17 Q. So you measured post hurricane
18 using Lidar data?
19 A. We have an elevation on average of
20 15.
21 Q. On average of 15. Okay.
22 A. The design grade of the levee is
23 17 and a half Varuso, Richard Page 213

00214
1 A. Of two and a half feet.
2 Q. -- or the settlement and
3 subsidence.
4 A. Approximately. The still-water
5 level for the standard project hurricane is
6 not 17 and a half.
7 Q. What is it?
8 A. It's something less than that.
9 Q. What is it?
10 A. It's approximately 15, but I will
11 get the exact number for you hopefully
12 during lunch.
13 Q. And the number you are going to
14 get for me will be a number that is
15 incorporated in the standard project
16 hurricane criteria -- not criteria, but
17 conclusions, the formula?
18 A. The elevation -- it's the
19 still-water elevation developed from the
21 Q. Now, has the Corps of Engineers
22 been criticized for the adoption of the
23 standard project hurricaneVaruso, Richard

information that Page 214
00215
1 Is the information that goes into
2 the standard project hurricane used by the
3 Corps of Engineers, has it been criticized?
4 MR. SMITH:
5 Objection, and instruct the
6 witness not to answer.
8 Q. When was that standard project
9 hurricane calculation arrived at? When was
10 the still-water elevation part of it arrived
11 at?
12 A. In the mid 1960s.
13 Q. Was it ever updated?
14 A. No. We are not authorized to
15 update it.
16 Q. I didn't ask you that, did I? I
17 asked you was it ever updated?
18 A. No.
19 Q. Now, who prevents you from
20 updating it?
21 A. The Corps of Engineers needs to be
22 authorized by -- I'm answering your
23 question Varuso, Richard Page 215

00216
1 president, the Congress, the Secretary of
2 the Army, but if it isn't that simple, go
3 ahead.
4 A. We are authorized by Congress to
5 change elevations or to increase design
6 criteria for any portions of the project
7 that we are currently working on.
8 Q. Did the Corps of Engineers have
9 communication with the National Weather
10 Service throughout your tenure?
11 MR. SMITH:
12 I am going to object, and instruct
13 him not to answer.
15 Q. The National Weather Service has,
16 I think as part of it the National Hurricane
17 Center in Miami; is that correct?
18 MR. SMITH:
19 I'm going to instruct you not to
20 answer.
22 Q. Did you ever try to get scientific
23 data incorporated into the Varuso, Richard

standard project Page 216
00217
1 MR. SMITH:
2 I am going to object as vague.
3 I'm not really sure --
5 Q. What is the wind speed and the
6 barometric pressure of the standard project
7 hurricane that the Corps used?
8 MR. SMITH:
10 answer.
11 MR. KOHNKE:
12 He is relying upon the standard
13 project hurricane to tell me that the
14 still-water elevation may not have been
15 above the height of the levees as they
16 existed on August 28, yet I can't get into
17 the accuracy or the wisdom of reliance upon
18 that data?
19 MR. SMITH:
20 Correct.
21 MR. KOHNKE:
22 Okay.
00218
1 still-water elevation then the Corps would
2 expect there to be overtopping in areas
3 where that condition exists?
4 A. Yes.
5 Q. And if there is overtopping and if
6 the levee consists of sandy material it
7 would be an expectation that that sandy
8 material would erode much more rapidly than
9 acceptable material such as clay?
10 MR. SMITH:
12 answer.
13 MR. KOHNKE:
14 Let's take a lunch break.
16 Going off the record. It's
17 1:03 p.m.
18 (Whereupon, a recess was taken for lunch).
20 We are back on the record. It's
21 2:18 p.m.
23 Q Mr Varuso let meVaruso, Richard

return to the Page 218
00219
1 think they are called?
3 Q. And you thought you looked at
4 approximately 40 of them over a period of
5 time -- looked at 40 of them recently, but
6 they covered a period of time starting in
7 the mid to late '60s?
9 Q. And in looking at the logs, what
10 specifically were you looking for?
11 A. Material types, moisture contents,
12 and material classification.
13 Q. Was that it?
14 A. Essentially.
15 Q. And how do these logs read? Tell
16 me what they look like. Is it a column of
17 numbers?
18 A. Column is a good way to phrase it.
19 It's a -- I guess, if I was going to sort of
20 narrow it down for you, it would be a
21 drawing of a long rectangle, which would
22 indicate the diameter of the boring. And as

Varuso,
23 you go down with depth you Richard
would notice Page 219
00220
1 materials. And those different symbols
2 would indicate different material types.
3 Q. So the material type, moisture
4 content, and what other -- what is the third
5 category?
6 A. Well, I said soil classification,
7 which is essentially material type.
8 Q. Soil classification which is
9 essentially material type and moisture
10 content at various stratas?
11 A. Correct.
12 Q. And they use symbols on these
13 things?
15 Q. What is the symbol used for sand,
16 or is there one?
17 A. There is a symbol for sand.
18 Q. What is that?
19 A. It would just be a series of dots.
20 Q. And what for peat?
21 A. A wavy line, that would sort of
22 indicate like, almost like water, I guess

Varuso,
23 you -- typical people would use that Richard
as a Page 220
00221
1 subparts, or is it simply a single symbol?
2 A. Two material types essentially for
3 clays, CH which stands for a highly plastic
4 clay and CL which is a low plasticity clay.
5 Q. You want highly -- highly plastic
6 would be better than low plastic for levee
7 construction?
8 A. They are pretty similar. I
9 wouldn't really discern much difference
10 between the CH and the CL.
11 Q. Well, if you had to choose which
12 is the better for levee construction
13 material, which would be the better?
14 A. It would really depend on some
15 other characteristics of the CH and the CL,
16 other than material type. The moisture
17 content and some other characteristics would
18 come into play. I wouldn't be able just off
19 the cuff to say a CH is much better than a
20 CL.
21 Q. And these borings all go to an
22 identical depth; that is, a similar length
23 and bore? Varuso, Richard Page 221

00222
1 the same time, they were taken at the same
2 elevation.
3 Q. What is the average depth of the
4 boring?
5 A. Approximately 80 feet in the
6 center line of the levee.
7 Q. Now, this is all -- everything you
8 have been describing is along the center
9 line of the levee?
10 A. Correct.
11 Q. And what type of -- and that is a
12 boring that's done after the levee has been
13 constructed, or what is the word you used,
14 when the layers -- what is the word?
15 A. Oh, the enlargements.
16 Q. Enlargements. That's after the
17 three enlargements?
18 A. And there was also a series of
19 borings, a series of borings taken prior to
20 the first lift in the 1960s, which gives us
21 an idea of what the foundation conditions
22 are. And that is used in the stability
23 analysis Varuso, Richard Page 222

00223
1 was, generally speaking, a spoil bank from
2 the original dredging of the MRGO?
3 A. There may have been some -- I
4 would imagine there would have been some
5 spoil in that area.
6 Q. And now, what would be the purpose
7 of sampling the sea bed along the MRGO where
8 dredge material was going to be removed and
9 used to make the levee?
10 A. To determine material type.
11 Q. Why?
12 A. And moisture content.
13 Q. Why?
14 A. For the purposes of making sure
15 that the material types being placed in the
16 levee are what we are looking for.
17 Q. And the moisture content is part
18 of that. You want a low moisture content?
19 A. Well, when you are hydraulically
20 dredging, I guess, the moisture content
21 would really give us an idea of how long
22 it's going to take for that water to

Varuso,
23 reside -- to subside essentially Richard
That's Page 223
00224
1 a compacted levee, because it takes so long
2 for that moisture to leave the levee section
3 before you could continue to pump in
4 additional fill, shape the levee and get it
5 to its grade.
6 Q. Now, the third lift was done what
7 year, the last one?
8 A. The third enlargement was done in
9 the early '90s and that was essentially,
10 approximate station 945 to approximately
11 station 1200. I'm approximating the station
12 numbers. But that's south of Bayou Dupre,
13 down past where the return levee is, and
14 then the return levee down to Highway 46.
15 Q. And the enlargement, the last
16 enlargement done north of Bayou Dupre?
17 A. Would have been in the early '80s.
18 Q. What took so long to add these
19 enlargements? Certainly it doesn't take ten
20 years, 15 on average for the settlement to
21 occur sufficient to add to a levee.
22 A. It's funding.
23 Q Funding Okay Varuso, Richard Page 224

00225
1 100 percent complete as you described it,
2 I'm not going to go back into it, that was
3 also due to funding?
4 A. Repeat your question if you would.
5 Q. Sure. When I asked you an earlier
6 question, was the MRGO levee 100 percent
7 completed to its design height, you
8 indicated no. And I thought you indicated
9 that there was some small percentage of that
10 levee or portion of that levee left to be
11 completed, added to.
12 A. Yes.
13 Q. Where was that?
14 A. Between Bayou Bienvenu and Bayou
15 Dupre, between those two structures, and
16 then approximately 20,000 feet south of
17 Bayou Dupre.
18 Q. So let's go back to what your
19 original testimony was about the design of
20 this levee and the design heights and so
21 forth. If I understand correctly, using a
22 standard project hurricane analysis or an
23 analysis of what a standardVaruso,

project Richard Page 225
00226
1 elevation. That still-water elevation is
2 the determining factor for the height to
3 which the levee is going to be designed. Am
4 I stating that correctly?
5 A. It's part of it. Over the break I
6 established that the still-water elevation
7 was between 12 and a half -- between
8 elevation 12 and a half and 13 along the
9 MRGO levee that we are discussing today.
10 Q. Okay.
11 A. The additional elevation for
12 that --
13 Q. This is by design?
14 A. This is by --
15 Q. Using the standard project
16 hurricane as a criteria for establishing a
17 height?
18 A. There is a hydraulic analysis that
19 takes place to determine what that elevation
20 is based on that standard project hurricane.
21 Q. 12 and a half to 13 feet?
22 A. Correct.
23 Q This would be the Varuso, Richard

entire length of Page 226
00227
1 Q. And you had earlier said in the
2 deposition, I thought, that the still-water
3 elevation was 15 feet?
4 A. I said it was approximate. I
5 wasn't quite sure of the exact number but I
6 have established that it's 12 and a half to
7 13.
8 Q. Okay. And then I think you said
9 that the levee was actually built, and I
10 don't mean designed but initially built to
11 20 feet, and then because of settlement and
12 subsidence there was an expectation that it
13 would settle to a lower elevation. Did you
14 say that?
16 Q. So the design level that was
17 anticipated you would arrive at after a
18 20-foot levee is initially constructed
19 through subsidence and settlement would be,
20 I thought you said, 17 and a half feet?
22 Q. So what name do you give the 17
23 and a half feet? Is that justVaruso,

a design Richard Page 227
00228
1 design grade.
2 Q. Design --
3 A. Grade.
4 Q. -- grade. Now, I had earlier
5 asked you some questions about could the
6 Corps have done more to prevent overtopping
7 and so forth, and I forget exactly at what
8 point this information came in, that's why I
9 vaguely reference the question. But you
10 indicated that the Corps was prohibited, or
11 if not prohibited, you said you were
12 restricted in your abilities to build the
13 levee higher than a certain height and I
14 thought the reference you used was the
15 still-water elevation.
16 A. I believe your question was
17 whether or not we could design it for
18 overtopping, not the elevation of the levee.
19 Q. Correct. That probably was it. I
20 think it was. Go ahead. Give me the answer
21 that you gave in answer to that question.
22 Could the Corps have designed the levee in

Varuso, Richard
23 such a way as to prevent overtopping? And I Page 228
00229
1 that what you said?
2 A. We were limited in the elevation
3 of the levee based on that being one of the
4 criteria, the still-water elevation, which
5 is a function of the standard project
6 hurricane in addition to whatever wave loads
7 that they assume, whatever wave lot that
8 they assume, which is also a function of the
9 wave berm design. So those two factors come
10 into play.
11 Q. You are saying the Corps of
12 Engineers was limited in the design height
13 or the design grade to what height? What
14 number are you saying?
15 A. 17 and a half is the design grade.
16 Q. But where does the still-water
17 elevation come in? Is that a limitation in
18 any way?
19 A. It's a function of the design.
20 I'm not sure I understand --
21 Q. Let me try to back up and give you
22 this information.
23 A I want to make sureVaruso,

I answerRichard
your Page 229
00230
1 Corps could have and should have anticipated
2 overtopping. And we ended up getting into
3 an area where you said: We built the levee
4 to a height that would take into account
5 still-water elevation.
7 Q. And the implication of your answer
8 to me was, and if I'm wrongly assuming tell
9 me now, that we couldn't go higher than that
10 without some specific authority from
11 Congress.
12 A. Let me rephrase my answer to the
13 question and see if I can clarify it for
14 you.
15 Q. Please.
16 A. The first variable that comes into
17 play in determining what that design grade
18 is, which is 17 and a half, the MRGO, the
19 one variable is the still-water elevation,
20 which in this case is elevation 13. In
21 addition to that, we have to assume that the
22 storm, this standard project hurricane will
23 produce some wave The Varuso,

differenceRichard
between Page 230
00231
1 It's an additional four and a half feet for
2 wave runups. So from 13 to 17 and a half,
3 that's four and a half feet for wave runup.
4 So our design grade is 17 and a
5 half for that given still-water level with
6 the wave load for that given standard
7 project hurricane.
8 Q. Okay.
9 A. Okay. In addition to that -- and
10 those are basically hydraulic
11 considerations, hydraulic concerns of how
12 high the water will be and how much wave do
13 we expect from that given storm.
14 Q. Is the expectation of wave height
15 or wave runup also a part of the standard
16 project hurricane calculation? In other
17 words, is it one of the numbers that is
18 produced when you come up with the standard
19 project hurricane?
20 A. That's right.
21 Q. Or is that a separate assumption?
22 A. No. It's based on the standard

Varuso,
23 project hurricane Hydraulic Richard
engineering Page 231
00232
1 Q. Okay.
2 A. So those are the hydraulic
3 considerations that go into the design grade
4 of 17 and a half.
5 In a perfect world, if I was -- if
6 we could build the levee in an area where it
7 would never settle and never subside, then
8 we could leave the levee at 17 and a half
9 and then walk away. But that doesn't
10 happen. We know the levee is going to
11 settle. The day after we leave or the day
12 after they finish constructing the levee, we
13 will start seeing settlement. Because of
14 that, we add the additional two and a half
15 feet.
16 Q. To get the 20.
17 A. To get the 20, because we want to
18 have some time for settlement. We don't
19 want to basically build the levee to 17 and
20 a half and six months later be deficient.
21 So the geotechnical considerations for the
22 levee elevation is the two and a half
23 additional feet we need forVaruso, Richard

settlement Page 232
00233
1 the design. If I'm to consider that the
2 levee will be overtopped, then in order for
3 the levee to get above -- over and above 17
4 and a half or even 20, for that matter, then
5 the still-water level -- in other words, the
6 20 encompasses settlement and wave runup on
7 top of the still-water elevation.
8 Those things in mind for that
9 storm, that water should never overtop the
10 levee. The only way for water to overtop
11 that levee would be for the still-water
12 level, which is the base elevation -- the
13 base elevation, if you will, of our analysis
14 of how high the levee will be, that
15 elevation has to be higher in order for that
16 to overtop, to make the same additions.
17 So now, in order to get above
18 elevation 20, let's say, the still-water
19 level would have to be, say, 15 and a half
20 and then wave runup on top of that would
21 give me above and beyond 20.
22 Q. Correspondently higher and so
23 forth Varuso, Richard Page 233

00234
1 would be overtopped was that the base
2 elevation for that storm would be higher
3 than elevation 13.
4 Q. And I know you personally have no
5 knowledge and you are not here to talk about
6 your personal knowledge anyway, but someone
7 or some entity at the Corps made a decision
8 on what data to use to formulate the
9 standard project hurricane; is that a fair
10 statement?
11 A. Yes.
12 Q. And that was done in what year?
13 The one that ended up controlling the design
14 of the MRGO levee.
15 MR. SMITH:
17 not to answer.
18 MR. KOHNKE:
19 Well, this gets right to the heart
20 of design. When you design a hurricane, the
21 most critical thing, it seems to me, is to
22 assume certain factors that go into a
23 standard project hurricaneVaruso, Richard Page 234

00235
1 answer.
2 THE WITNESS:
3 The exact year, I can't say. What
4 I can tell you is that the original sets of
5 plans and specifications for that levee was
6 done in 1967. So somewhere just prior to
7 1967 those analyses would have been
8 performed.
10 Q. And in 1969 Hurricane Camille hit
11 the Gulf Coast. You are aware of that, I
12 believe.
13 A. Yes.
14 Q. And Hurricane Camille was a
15 category five, I believe, when it struck.
16 We now know through the Simpson-Saffir
17 rating, whatever you want to call it,
18 categorization, it is now -- it is -- it was
19 rated today, maybe back then they had that,
20 I don't know, but hurricane five; isn't that
21 correct? Category five.
22 MR. SMITH:
23 I'm going to instructVaruso,

him not toRichard Page 235
00236
1 authorized to speak today.
3 Q. In 1965 Hurricane Betsy hit the
4 New Orleans area, did it not?
5 A. Yes.
6 Q. And that same year is when
7 Congress passed the Flood Control Act of
8 1965?
10 Q. That gave rise to the Lake
11 Pontchartrain and vicinity hurricane
12 prediction system?
14 Q. Was the hurricane of 1965 known as
15 Hurricane Betsy used to calculate the
16 standard project hurricane?
17 A. It was considered. It wasn't the
18 only consideration, but that was part of the
19 hydraulic analysis.
20 Q. So the standard project hurricane
21 considered a number of previous hurricanes,
22 did it not?
23 A To my knowledge Varuso,
yes Richard Page 236
00237
1 hurricanes that was put into the mix, its
2 meteorological conditions, track, all of the
3 measurements taken in '65 were also
4 included?
5 A. I'm not a hydraulic engineer, so
6 to say what exact data went into that
7 analysis, I wouldn't be able to answer that
8 question.
9 Q. But essentially what the standard
10 project hurricane does is it attempts to
11 look forward in time and predict what sort
12 of forces we need to design a hurricane
13 protection system to meet?
14 MR. SMITH:
16 answer this question. This is another area
17 that I know you have an interest in. It's a
18 specifically identified area.
19 MR. KOHNKE:
20 Well, look, I will give you some
21 credit here. There is some overlap in the
22 notice. But when one is designing a

Varuso,
23 hurricane system I don't know Richard
any way I can Page 237
00238
1 of the things that I'm asking him is, is the
2 standard project hurricane, that was at the
3 core of the design, in fact, it determines
4 the design, whether that is an attempt to
5 predict what future forces will hit the
6 area.
7 That, to me, is -- not only is it
8 at the core of this case, but it's also at
9 the core of Question No. 2 that we have
10 agreed upon this witness is here to testify
11 about. Let me --
12 MR. SMITH:
13 Can you just -- yeah, can you
14 reread the question?
15 MR. KOHNKE:
16 I don't think there is any sharp
17 edges on this question.
18 MR. SMITH:
19 Okay. I understand. Could you
20 just restate the -- could you read back the
21 question, please.
23 Varuso, Richard
by the Court Reporter) Page 238
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1 look forward in time and predict what sort
2 of forces we need to design a hurricane
3 protection system to meet?"
4 THE WITNESS:
5 Again, not being a hydraulic
6 engineer, I don't know that I would say you
7 are looking forward in time. You are
8 actually looking back in time and developing
9 data, historical data to determine what --
11 Q. To predict a design?
12 A. Well, to come up with an elevation
13 of what is expected to --
14 Q. You're looking back --
15 A. What is reasonable, what would be
16 a reasonable storm to hit the area based on
17 historical data.
18 Q. All right. You said it better
19 than I can. Let me see if I can restate
20 what you just said. You are looking back in
21 time to predict what sort of reasonable
22 storm one can expect in the future in order

Varuso, Richard
23 to in the present build a hurricane Page 239
00240
1 yes.
2 Q. All right. Now, and the reason
3 why we look back in time is because there is
4 certainty in looking back, whereas in
5 looking forward you are only trying to
6 predict the future, which is uncertain?
7 A. Safe to say.
8 Q. Would it be feasible as events
9 unfold into the '60s and '70s and '80s, and
10 as more information is obtained, to include
11 that new certain information in your
12 modeling or in your assumptions so that any
13 future protection you are seeking to design
14 for is, in fact, suitable?
15 A. It would be, but we would have to
16 be authorized to do so.
17 Q. By whom?
18 A. By Congress.
19 Q. That sort of gets us back to where
20 I was in the beginning.
21 Now, have you personally -- have
22 you personally gone back and looked at any

Varuso,
23 of the authorizing legislation any ofRichard
the Page 240
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1 I'm going to instruct him --
2 MR. KOHNKE:
3 Well, wait.
4 MR. SMITH:
5 -- not to answer that question.
6 MR. KOHNKE:
7 Robert, let me address this.
8 Mr. Varuso has at various times said: We
9 are not authorized by Congress. And I hear
10 his testimony. It's part of the record.
11 What I want to do now is to find out the
12 basis for that statement. It may be that he
13 has a very good basis. It may be that he
14 has no basis, but I believe I'm entitled to
15 find out the basis for that statement.
16 We've heard it a number of times.
17 What I want to do is find out what
18 he's looked at to know that that's a true
19 and accurate statement. I didn't ask him
20 about it. He brought that out as a reason
21 why something isn't being done that I did
22 ask about.
00242
1 MR. SMITH:
2 Before you answer it --
3 MR. KOHNKE:
4 It's just been suggested to me
5 that Mr. Varuso has on a number of occasions
6 cited that mandate or that restriction as a
7 limitation on their design abilities at the
8 Corps of Engineers. And so for these
9 reasons I think I have to explore this. And
10 I think in fairness I should be allowed to.
11 MR. SMITH:
12 I will allow him to answer.
13 MR. KOHNKE:
14 Thank you.
15 THE WITNESS:
16 I have not personally looked at
17 the mandate.
19 Q. Fair enough. What, then, do you
20 rely upon in answering the question as you
21 have?
22 A. I would phrase it as general

Varuso,inRichard
23 knowledge of employees involved the Page 242
00243
1 People involved in designing the different
2 levee lifts, enlargements and whatnot, it's
3 general knowledge that we have through the
4 different project managers that that is the
5 case.
6 Q. Okay. So different project
7 managers in conversation have mentioned to
8 you, suggested to you that the Corps is
9 limited in its design abilities to what
10 Congress has mandated?
11 A. That we're -- those conversations
12 relate to the fact that we are authorized to
13 design the levees to a given elevation based
14 on that standard project hurricane and
15 nothing more.
16 Q. Have you specifically heard from
17 any source or learned from any source by
18 conversation or written word or any other
19 way that Congress has actually gone on
20 record in some fashion as saying that these
21 are the criteria for you to use in
22 establishing a design for the hurricane

Varuso,
23 protection levee down in St BernardRichard Page 243
00244
1 limitations of its design shall be? Have
2 you heard that, is what I'm asking?
3 A. Well, the limitations on the
4 design, and I assume you are again referring
5 to elevations of still water with respect to
6 the standard project hurricane.
7 Q. Yes, that's fair enough.
8 A. That is based on, obviously
9 Congress is not going to tell us: You are
10 going to design it to elevation 13. They
11 are going to say: You need to take the data
12 you have, and they are going to rely on the
13 hydraulic engineers and their knowledge of
14 the science to determine what that elevation
15 is going to be.
16 Q. Who is going to rely upon the
17 hydraulic engineers?
18 A. Congress would.
19 Q. Congress would.
20 A. In other words, they are
21 instructing the Corps of Engineers, or they
22 are authorizing the Corps of Engineers to

Varuso,
23 build a levee protection system Richard
that would Page 244
00245
1 Engineers to determine what criteria goes
2 into the standard project hurricane.
3 Q. Did Congress actually, as far as
4 you have been made aware, actually make
5 reference to a standard project hurricane,
6 or did they say protect the area from
7 hurricanes?
8 A. To my knowledge, the word
9 "standard project hurricane" is used in
10 the -- to my knowledge.
11 Q. Okay. Now, let me get back to --
12 I got a little bit afield here, but when I
13 talked about the borings that were done of
14 the center line of the levee, you mentioned
15 that at each strata or stratum there are
16 these symbols that indicate the content. Is
17 there a moisture symbol?
18 A. There is a moisture number,
19 moisture content associated with that.
20 Q. Now, once these samples are
21 taken -- well, let me back up. Was there
22 any sample taken along the 12-mile stretch

Varuso,
23 that indicated from the borings Richard
that there Page 245
00246
1 A. Not to my knowledge of the ones I
2 have seen, not sand.
3 Q. Of course, the amount of moisture
4 and the amount of sand in 80 feet wouldn't
5 be as great a concern as in one foot, would
6 it?
7 A. Are you referring to the upper one
8 foot?
9 Q. Upper one foot versus the bottom
10 of the boring, which is at a depth of
11 80 feet.
12 A. Well, with respect to erosion, no.
13 Q. With respect to erosion. Okay.
14 Now, when you say you have looked
15 at these borings and some 40 of them
16 somewhat recently, were you focused on all
17 80 feet or were you focused on the top?
18 A. 20 feet.
19 Q. 20 feet.
20 A. Essentially the top 20 feet, which
21 would have been the fill that was used to
22 create the levees.
23 Q Varuso,
What would happen Richard
when a boring Page 246
00247
1 the Corps specified allowable?
2 A. Again, I don't recall seeing any
3 of the borings that showed any symbol for
4 just -- just sand, which would be a symbol
5 that showed just --
6 Q. Pure sand.
7 A. -- the dots as pure sand. I don't
8 recall seeing any sample that indicated pure
9 sand in the levee section.
10 Q. Did you recall seeing some that
11 indicated a mixture of sand and other
12 materials?
13 A. There was some mix of sand and
14 silt -- I mean, excuse me, clays, silts and
15 I believe there might have been one or two
16 borings that showed a silty sand.
17 Q. Now, when it showed a silty sand,
18 was that remediated in some way after the
19 boring was done?
20 A. The subsequent lift would have
21 been placed and for the next enlargement.
22 So the ones I'm referring to may have been

Varuso, Richard
23 prior to the second enlargement Page 247
00248
1 A. Between the first and the second
2 enlargement about -- I think it was about
3 five years.
4 Q. And the --
5 A. No. I'm sorry, probably closer to
6 ten years I believe.
7 Q. All right. So for ten years there
8 was a levee in place with perhaps sand at
9 the top indicated by the boring that was
10 going to be remedied with the next
11 enlargement?
12 A. Well, I'm not sure if I would use
13 the word "remedied." You are referring
14 to --
15 Q. Well, remediated.
16 A. Well, you need to keep in mind
17 that you need to look at the levee section
18 as a whole. If the majority of the section
19 shows all or mostly clay, predominantly
20 clay, then I wouldn't expect to have an
21 issue with the levee if it's predominantly
22 clay.
23 Varuso,
In the areas where we saw the Richard Page 248
00249
1 enlargement, they would have placed clay
2 material on top of that section and covered
3 that, those silty sands and silts.
4 Q. Where did these first and second
5 enlargements come from?
6 A. The same area, the flood side of
7 the existing levee section.
8 Q. Dredged materials?
9 A. I believe so, yes.
10 Q. And we are talking now between
11 Bayou Bienvenu and Bayou Dupre?
12 A. And also south of Bayou Dupre.
13 Q. Okay. And there was a third
14 enlargement at the southernmost end of this
15 MRGO?
16 A. Correct.
17 Q. And that was between where and
18 where?
19 A. Like I said, it was around station
20 945, I believe is the station number. It's
21 about four miles south of Bayou Dupre. From
22 that location down to that return levee that

Varuso,
23 I referred to and then there Richard
is a section Page 249
00250
1 And that levee intersects Highway 46. That
2 was a stretch that was raised to elevation
3 20 in 1993.
4 Q. Now, earlier in the deposition,
5 before lunch, I had asked you about how much
6 sand was allowable and at one point you
7 indicated that no sand, according to the
8 specifications that you recall that the
9 Corps had for its contractors, that no sand
10 was allowable. Have you checked over lunch
11 to determine whether that was a correct or
12 an incorrect statement?
13 A. I was trying to get my hands on
14 those specs and I have not had any luck with
15 that.
16 Q. All right. So to the extent that
17 those regulations provide for some sand that
18 is allowable in the construction of a levee
19 versus no sand, you don't know --
20 A. I know since approximately 1982
21 the spec has not changed to not allow sand
22 materials in a levee section.
23 Q Varuso,
Since 1982 sand has not beenRichard Page 250
00251
1 Q. And the last --
2 A. That's pure sand now, I'm talking
3 about. It would be symbolized as an SP in
4 those boring holes.
5 Q. You are talking about pure sand?
6 A. Yes.
7 Q. But some percentage of sand would
8 be allowed, is that what I understand?
9 A. I would say that engineering
10 judgment would have to be used to see
11 whether or not there was an issue with that.
12 Q. What is the percentage that is
13 allowable, or is that subjective?
14 A. Like I said, I think you have to
15 use engineering judgment.
16 Q. And whose engineering judgment
17 would that be?
18 A. The engineering judgment of
19 whatever engineer is working on the --
20 Q. Someone at the Corps?
21 A. Right.
22 Q. And would one engineer -- has the

Varuso,
23 same engineer been involved in the Richard Page 251
00252
1 A. No.
2 Q. So we are talking about how many
3 different individuals have been involved?
4 A. It would be hard to say.
5 Q. And each one of them might have a
6 different judgment about that, if there is
7 no standard that's been published?
8 A. Well, let me clarify that then.
9 The Corps of Engineers' position behind this
10 with respect to their guide specifications
11 for levee construction since 1982, as I
12 said, did not allow sand to be placed in the
13 levee sections.
14 Q. Can I interrupt you? Where do I
15 find this?
16 A. The guide specifications?
17 Q. Yes.
18 A. We have them.
19 Q. Is that in the public domain? Is
20 that publicly available?
21 A. If it's on the web --
22 MR. KOHNKE:
23 Mr Smith can you Varuso, Richard

answer that? Page 252
00253
1 MR. KOHNKE:
2 You can't. Okay.
4 Q. Why don't you go ahead and try to
5 answer that.
6 A. I don't know whether or not it's
7 on the website, that we've been referring
8 to, but it's available.
9 MR. KOHNKE:
10 Joe, you got it? My Mexican
11 friend seems to have it.
12 MR. BRUNO:
13 Yes.
14 MR. KOHNKE:
15 Si.
16 MR. BRUNO:
17 Si.
18 THE WITNESS:
19 All right. So during the
20 construction of the levee, and I referred to
21 this before too, that the quality assurance
22 and quality control is in place during the
23 construction of the levee toVaruso, Richard

insure that Page 253
00254
1 part of the levee -- part of the
2 specifications and contract requirements
3 since 1982.
5 Q. Okay.
6 A. And the engineers, construction
7 engineers and the design engineers would
8 have done everything they could have working
9 with the contractors to insure that the sand
10 was not placed in the levees.
11 Q. That's the way it's supposed to
12 work?
13 A. That's the way it typically does
14 work.
15 Q. Now, going back to the standard
16 project hurricane and the design grade of
17 the levee in question, the Corps would build
18 a levee -- the levee along the MRGO to a
19 height of approximately 20 feet anticipating
20 settlement and subsidence, correct?
21 A. Correct.
22 Q. And that anticipated settlement
23 and subsidence was goingVaruso, Richard

to then bring the Page 254
00255
1 A. At some point.
2 Q. At some point. So the two and a
3 half feet of height that was originally
4 built was expected to disappear over a
5 period of time because of subsidence and
6 settlement?
8 Q. That period of time is not an
9 exact amount of time, is it?
10 A. We estimate it. Using soil
11 laboratory test data, we make an assessment
12 of what we expect the settlement to be.
13 Q. What was that assessment in the --
14 during the time that these enlargements were
15 made?
16 A. I would have to look at those
17 because I don't have those particular
18 numbers.
19 Q. Was it measured in --
20 A. Again I would say that it's around
21 two and a half feet, that's where the two
22 and a half feet came from. From the 17 and
23 a half to elevation 20 theyVaruso,

expected Richard
about Page 255
00256
1 was the Congress aware of the fact that the
2 Corps was building a levee to a height of in
3 excess of the 17 and a half foot design
4 grade because of this anticipated settlement
5 and subsidence?
6 A. I'm not sure whether they were
7 aware of that or not.
8 Q. But clearly there was an ability
9 of the Corps to actually construct a mound
10 of dirt constituting a levee in excess of
11 the height of 17 and a half feet, albeit for
12 some limited period of time until settlement
13 occurs?
14 A. That's correct. As I said before,
15 in a perfect world if we know -- we would
16 not have expected any settlement, then we
17 build it to 17 and a half and we could walk
18 away. But we can't do that, because we have
19 to maintain that at least elevation of 17
20 and a half.
21 Q. In the aftermath of Katrina, did
22 the Corps of Engineers grade the performance

Varuso,
23 of the MRGO levee following Richard
that hurricane? Page 256
00257
1 Q. Well, after the hurricane the
2 Corps obviously had to go out and assess the
3 performance of the levee system.
4 A. Okay.
5 Q. Was some written report created
6 within the Corps of Engineers to establish
7 the performance of the levee at various
8 locations, or conversely, the failure of the
9 levee at various locations, an internal
10 Corps document?
11 A. Internal to our district?
12 Q. Internal to the Corps.
13 A. Well, the Corps of Engineers
14 New Orleans District or the --
15 Q. No. If you want to limit it to
16 the New Orleans District in initially
17 answering, fine, but I'm asking about the
18 Corps of Engineers generally.
19 I assume, because it's a
20 government agency and it is the Army, that
21 some written report was created in the
22 aftermath of Katrina reporting on this event

Varuso,
23 and the successes or failures of whatRichard
had Page 257
00258
1 written document, that thing that talks
2 about performance.
3 A. With the exception of the IPET
4 report, I'm not aware of another report.
5 There could be, but I'm not aware of one.
6 Q. I don't want to get into IPET now
7 because I would like to keep going. But
8 IPET came together at a later point in time.
9 Before it comes together and begins whatever
10 it begins to do, the Corps had to go out or
11 send somebody out to make an assessment, an
12 immediate assessment with the possibility of
13 additional hurricanes coming as to what was
14 the status of the levee along the MRGO.
15 A. Yes.
16 Q. Did that happen?
17 A. Yes.
18 Q. Did that person only come back and
19 verbally report what he saw or did --
20 A. There was a report. I believe
21 it's referred to as a PIR, project -- I'm
22 forgetting the acronym.
23 Q You have got a lot Varuso, Richard

to deal with Page 258
00259
1 is basically what we use to -- in the
2 various areas to justify the funds we needed
3 to repair the various areas, whether it be
4 flood walls or levees. So in the area of
5 the MRGO, there would have been a report put
6 together saying: This is the condition of
7 the levee as exists post Katrina. This is
8 what we plan to do to repair the section
9 with certain costs and whatnot in place.
10 Q. And in order to get to the second
11 half of what you just talked about, this is
12 what we plan to do, get that plan
13 formulated, get formulated within the Corps
14 prior to and independent of whatever IPET
15 was doing?
16 A. Yes.
17 Q. What written document attends that
18 plan of what you had planned to do. Is that
19 also called a PIR, or is there another name
20 for it?
21 A. Well, the specific documents would
22 be the contract plans and specifications
23 that were put together for Varuso, Richard

the different Page 259
00260
1 contracts, I mean sets of plans and
2 specifications between Bayou Bienvenu and
3 Bayou Dupre and then south of Bayou Dupre.
4 So the specifics in the designs would have
5 been the plans and specifications for those
6 two contracts.
7 Q. What input went into -- what is
8 the source of input that went into those
9 plans and specifications for those two
10 contracts?
11 A. What do you mean by the source?
12 What source of --
13 Q. Well, somebody -- someone at the
14 Corps, I presume, had to put together those
15 specifications for bidding?
16 A. Correct.
17 Q. And somebody had to decide at some
18 point, this time we are going to use clay,
19 we are going to barge it in, and we are
20 going to compact it. What is the source of
21 those decisions?
22 A. Just to qualify your question, you

Varuso,
23 said: This time we are going Richard
to use clay Page 260
00261
1 A. Okay.
2 Q. We are going to use clay from
3 Mississippi along the Pearl, near the Pearl
4 River as opposed to dredged materials.
5 A. Okay. Well, that decision also
6 came later in the construction of the levee.
7 Q. When did that decision get made?
8 A. That was a function, again, of
9 realizing that we did not have time to, A,
10 hydraulically construct the levees out of
11 hydraulic fill.
12 Q. But when is my question?
13 A. December time frame, December,
14 January.
15 Q. December of 2005, January of 2006?
17 Q. Who was involved -- was the
18 decision to use clay that comes from the
19 Mississippi -- from the Pearl River area of
20 Mississippi, put it into barges and to bring
21 it to the site where the work was going to
22 be performed, was all of that decision made

Varuso,
23 about that source of material Richard
within the Page 261
00262
1 Q. That was obviously made sometime
2 before December when the bids -- when the
3 specifications were written?
4 A. It would have been made after the
5 plans and specifications were written. The
6 decision to barge the material is what you
7 are asking me. The plans and specifications
8 were put together in October.
9 Q. Did the plans and specifications
10 specify that the clay was to be obtained
11 from Pearl River?
12 A. No.
13 Q. It just said clay?
14 A. We did a borrow pit, an adjacent
15 borrow pit on the protected side of the
16 levee alignment for both contracts, for
17 Bayou Bienvenu to Bayou Dupre and south of
18 Bayou Dupre. We gave the contractor what we
19 call a borrow pit.
20 Q. You gave them a borrow pit, what
21 does that mean? You designated a
22 complete --
23 A Varuso,
We designated an area Richard
we took a Page 262
00263
1 showed what material existed in that area to
2 be excavated.
3 Q. Where was that area physically,
4 geographically?
5 A. On the protected side of the levee
6 embankment approximately 200 to 300 feet
7 away from the center line of the levee.
8 Q. On the, I guess it would be on the
9 west side of the levee? Well, actually --
10 A. I prefer to call it the protected
11 side.
12 Q. Protected side.
13 A. The land side of the levee.
14 Q. That would be essentially
15 marshland?
16 A. Essentially.
17 Q. It would be between the 40 Arpent
18 and the -- well, what would it be between?
19 Define it for me if you can.
20 A. It's between the non-federal levee
21 that protects the -- St. Charles where there
22 are public stations along that same

Varuso, Richard
23 allotment So there is a non-federal levee Page 263
00264
1 But you are better off just
2 understanding that it's approximately 200 to
3 300 feet away from the center line of the
4 levee alignment along the MRGO.
5 Q. Fair enough. And when the bid was
6 written that way or when the specifications
7 were written that way, somehow or another
8 the contractor who was retained to do this
9 work, somehow or another that contractor is
10 obtaining the clay, the borrow material from
11 Pearl River. How did that happen? Why
12 didn't they use that designated borrow pit?
13 A. They used both, as I mentioned
14 before.
15 Q. I missed that.
16 A. Not a hundred percent of the levee
17 was built out of the material from
18 Mississippi.
19 Q. I missed that. Okay.
20 A. Okay. So a great portion of that
21 levee, protected side berm and main line
22 levee section -- maybe I will back up a

Varuso,
23 little bit more The levee was built inRichard Page 264
00265
1 plus 10 NAVD now. It's North American
2 geodetic data. It's the new data that we
3 are using since Hurricane Katrina. NAVD.
4 Q. What is the significance of that?
5 A. This is the --
6 Q. AVD you said?
7 A. NAVD.
8 Q. Okay. What is the difference
9 between NAVD and the other --
10 A. This is just taking the subsidence
11 of the overall area into account and
12 reestablishing new elevations for those same
13 benchmarks.
14 Q. I understand. I earlier had
15 questioned you about that, right?
16 A. So we bring -- the first phase is
17 to bring everything to elevation ten. The
18 next phase was to build the protected side
19 stability berm. The third phase was to
20 build the embankment up to a design grade of
21 17 and a half. The fourth phase was to put
22 the additional two and a half feet for

Varuso,
23 settlement The contract was to buildRichard
in Page 265
00266
1 from Phases 2 to 3, the realization was made
2 that we are not going to have time to
3 process the material.
4 Q. Process means what?
5 A. Because of the moisture content.
6 Q. Process means what? Dry it out?
7 A. To reduce the moisture content,
8 essentially our specifications allow, if the
9 material is a CH material.
10 Q. CH stands for?
11 A. High plasticity clay. I'm using
12 that as an example. The material used is a
13 CH, and the material is classified as a CH,
14 then the moisture content has to be below a
15 certain number before it can be placed in
16 the levee section and compacted. If the
17 moisture content is relatively high, say, on
18 the order of 90 to a hundred percent, that
19 would take longer to process to get it down
20 to the number we are looking for than if the
21 material was, say, 50 percent.
22 So this processing time to get the
23 material out of the borrowVaruso, Richard

pit and then Page 266
00267
1 essentially had between December time frame
2 and June 1st to rebuild the levee section.
3 So in order to speed up the process, we
4 brought material in that did not have to be
5 processed. It was already at this optimum
6 moisture content. So it could be offloaded
7 from the barge and placed directly in the
8 levee section.
9 Q. The specification actually recites
10 that CH, that soil, or that type of clay --
11 A. CH, CL and ML, which is high
12 plasticity clay, low plasticity clay, and ML
13 is silt was allowed.
14 Q. In any proportion, those three in
15 any proportion, as long as it's only those
16 three?
18 Q. So because of that moisture
19 content and time problem, another source,
20 another borrow source was obtained and that
21 was the Pearl River source?
22 A. Rephrase your question if you
23 would Varuso, Richard Page 267

00268
1 that that created drying out of that clay, a
2 second source with less moisture was
3 obtained --
5 Q. -- that being Pearl River. Okay.
6 Now, have you gone back and looked
7 at the specifications that in the '80s,
8 when the -- that your contractors were
9 required to meet when the -- these lifts or
10 elevations, the second and third elevations
11 were placed on this MRGO levee, whether it
12 required CH, CL or ML?
13 A. The specification hasn't changed
14 since the early '80s. I would say that --
15 Q. So the same specifications were in
16 place?
17 A. Same specifications.
18 Q. Same moisture content as well?
19 A. That's correct. They may have
20 given -- let me quantify that too. There
21 are two very -- there are two options that
22 the contractor is allowed.
23 Q Varuso,
We got a five minute Richard
note just a Page 268
00269
1 A. I can make it a one-minute answer.
2 Q. Go ahead.
3 A. The contractor, there is two
4 methods of testing. He can either test the
5 moisture content or he can test the actual
6 density of the material. And there are
7 correlations between the two. So if the
8 spec was written as such for moisture
9 content back in the '80s, then that number
10 would not have changed from now until then.
11 MR. KOHNKE:
12 Okay. Let's change the tape.
14 Going off the record. It's 3:06.
15 This is the end of Tape 2.
16 (Whereupon, an off-the-record
17 discussion was held.)
20 3:15. This is the beginning of Tape No. 3.
22 Q. I have just a few more minutes to

Varuso,
23 go and then I'm going to turn Richard
you over I Page 269
00270
1 2005 and January of 2006 which led to the
2 work along the MRGO post Hurricane Katrina
3 to restore those levees. And I have been
4 asking you about the decisions with respect
5 to soil source and soil composition. Let me
6 now switch to the decision to use compaction
7 for those same soils.
8 When was that decision arrived at
9 that: We are going to this time compact the
10 soil used along this levee?
11 A. Prior to the preparation of the
12 plans and specifications, which would have
13 been October of 2005 time frame.
14 Q. The time frame for the decision
15 would have been around October of 2005?
17 Q. And not by name but generally by
18 job title or job description, what people at
19 the Corps arrived at that conclusion?
20 A. The engineers.
21 Q. You and who?
22 A. The engineers.
23 Q Varuso,
The engineers I thought youRichard Page 270
00271
1 to reach that conclusion?
2 A. Well, typically other levee
3 sections we will design for semicompacted
4 fill if the situation allows, and that is
5 using an adjacent borrow.
6 Q. You are saying other levees, what
7 other levees?
8 A. Let me preface that by saying
9 there are other levees, hurricane protection
10 levees within our system that we have
11 designed with that type of fill.
12 Q. I think that the counsel does not
13 want you talking about anything other than
14 MRGO.
15 A. Okay.
16 Q. And I have tried to limit myself,
17 although I don't choose to, I would like to
18 go compare it to other levees.
19 A. I understand.
20 Q. So we have to play by the same
21 rules.
22 A. I understand.
23 Q Okay Go ahead Varuso, Richard Page 271

00272
1 established as part of the plans and
2 specifications, the act of, or the ability
3 to have that adjacent borrow allows for the
4 ability to build the levee with
5 semicompacted fill.
6 Q. Why is that?
7 A. Because of the process. Because
8 you are not dredging the material and
9 pumping it in and building an uncompacted
10 levee. You are actually -- you are casting
11 the material adjacent and using dozers to
12 construct a levee. So the act of using the
13 dozers to build the levee section almost
14 inherently allows for compaction.
15 Secondly, using the semicompacted
16 method, as I referred to before, gets the
17 water out faster. Actually building the
18 semicompacted levee may have actually been
19 faster to build than an uncompacted levee,
20 because you are getting the water out
21 faster.
22 Q. Now, you are referring to

Varuso,
23 semicompacted versus -- and Richard
uncompacted Is Page 272
00273
1 utilizing data that we have for laboratory
2 tests on the materials that we will use for
3 preparation of the levee for inclusion into
4 the levee section. That material will
5 have -- there is a curve that's developed,
6 and for a given amount of energy you will
7 get a certain degree of compaction. A
8 hundred percent compaction would be -- I
9 guess, we would refer to that as full
10 compaction. You would actually compact it
11 to the maximum density. When I refer to
12 density, that's the unit weight, how much a
13 given sample of soil weighs for a certain
14 volume, that's the density.
16 have -- I'm trying to get back to this
17 rather simple question.
18 A. Well, I'm --
19 Q. Maybe it can't be answered simply.
20 A. That's what --
21 Q. But the only thing I want to know
22 is: Do they have compacted levees as
23 opposed to semicompactedVaruso,
levees? Richard Page 273
00274
1 degrees of compaction, but there is no
2 category of compacted meaning more than
3 semicompacted?
4 A. Correct. Semicompaction, if I
5 could just quantify this --
6 Q. Go ahead.
7 A. -- gets us to between 90 and
8 95 percent of the maximum density. The
9 maximum density, I guess if you could refer
10 to something that's fully compacted, that
11 would be --
12 Q. 100.
13 A. -- 100 percent of the maximum
14 obtainable density of the material. And we
15 usually construct it somewhere between 90
16 and 95 percent.
17 Q. Now, you said the decision to
18 semicompact the materials that were being
19 used to reconstruct the MRGO levee was made
20 by the Corps of Engineers sometime in
21 October of 2005. And was that decision made
22 in part because those same engineers
23 concluded that the failure Varuso,

to compactRichard
these Page 274
00275
1 A. I would say that the decision was
2 made because that may have been one factor.
3 We tried to encompass all possible factors.
4 Q. And that --
5 A. And that may have been one. That
6 was one of the reasons that we decided to
7 compact the levee.
8 Q. One of the things that I haven't
9 asked you about, that I hear about from a
10 lot of different sources is armoring. Do
11 you know what armoring is?
12 A. Sure.
13 Q. Are there instances in which
14 armoring aids or -- aids a levee in the
15 sense that it retards erosion and failure?
16 MR. SMITH:
17 Any -- go ahead.
18 THE WITNESS:
19 We use armoring on the flood side
20 of the Mississippi River levees as a means
21 of armoring that side of the embankment due
22 to the high velocities that the river may
23 see from time to time Varuso, Richard Page 275

00276
1 levee, Mississippi River levee on the back
2 side there is armoring too, particularly
3 where there are flood walls, aren't there?
4 A. I have to look at specific
5 instances. I can't think of one.
6 Q. Well, let me -- is there ever
7 armoring on the back side of a levee?
8 A. Not usually.
9 Q. But the question was ever.
10 A. There could be.
11 Q. Well, the question is, if there
12 is, why? What is the reason to armor the
13 back side of a levee?
14 A. Again, I'm not aware of any levee
15 section that we have that has armoring on
16 the protected side.
17 Q. In designing a levee, if there is
18 going to be overtopping -- and I understand
19 you say that the Corps did not design any
20 levees with an expectation that there may be
21 overtopping; is that a correct statement?
22 A. Yes.
23 Q Varuso,isRichard
But if there is overtopping it Page 276
00277
1 mechanism for the erosion? And I know you
2 are not saying that happened, but I'm just
3 asking you.
4 A. Yes, there was -- well, I would
5 probably phrase it as a greater wave energy
6 on the protected side as the water drops and
7 impacts the levee slope. There is an energy
8 that needs to be dissipated by that levee
9 section.
10 Q. Is the name for the product of
11 that, is that called scalloping?
12 A. I'm not sure.
13 MR. BRUNO:
14 Scouring.
15 THE WITNESS:
16 Scouring.
17 MR. KOHNKE:
18 I know, but specifically I'm
19 asking scalloping.
20 THE WITNESS:
21 I don't know that I have heard
22 that term before.
00278
1 A. Okay.
2 Q. I think I understood everything
3 you had to say about the design grade of
4 17 feet and why it was built to a higher --
5 levees were built to a higher elevation
6 because of the expected subsidence down to
7 17 feet, all of which was assuming a
8 still-water elevation of 13 feet.
9 A. Between 12 and a half and 13,
10 depending on the location along the
11 alignment.
12 Q. So the formula would read, using
13 the standard project hurricane criteria that
14 was developed in the '60s, I guess, or
15 '50s -- when was that developed? In the
16 '50s or '60s?
17 A. '60s -- are you referring to the
18 original plan?
19 Q. Standard project hurricane.
20 A. It would have been the '60s.
21 Q. So according to that criteria, if
22 you have a 13-foot-high still-water
23 elevation assumption -- Varuso, Richard Page 278

00279
1 17 and a half feet?
2 A. Right.
3 Q. And as built it was 15 feet?
4 A. Not as built.
5 Q. Not as built. As --
6 A. Existing condition.
7 Q. -- settled -- as settled and
8 subsided it was 15 feet on average?
9 A. On average.
10 Q. And so that wave runup that you
11 talked about, which had it been -- had it
12 been maintained at design grade would have
13 given you two and a half foot protection
14 against overtopping. You now have -- you
15 don't have that two and a half protection --
16 two and a half foot of protection, do you?
17 A. For the standard project
18 hurricane?
19 Q. For the standard project
20 hurricane. Okay. So then given that same
21 wave runup expectation, you are going to
22 have overtopping, aren't you?
23 A Varuso,
Again you are making a Richard Page 279
00280
1 A. -- for that assumed storm?
2 Q. Yes, so for the assumed storm,
3 forget Hurricane Katrina, for the assumed
4 storm with the wave expectations in a
5 standard project hurricane, you would have
6 overtopping with a levee built to 15 feet --
7 not built to but existing at 15 feet?
8 A. If that -- if that levee were to
9 actually experience that particular storm,
10 then it would have been -- there would have
11 been some overtopping of that levee.
12 Q. Did the Corps attempt to
13 determine, calculate whether Katrina met or
14 exceeded the standard project hurricane in
15 terms of both still water and the wave
16 runup?
17 A. Yes, it did.
18 Q. And what was the answer?
19 A. It's been approximated to be the
20 still-water level for, or the height of the
21 water for Hurricane Katrina was about
22 elevation 22.
23 Q Varuso,
So it was significantly larger Richard
or Page 280
00281
1 than what the design grade was of 17 and a
2 half.
3 Q. Both?
4 A. Correct.
5 Q. But even if Hurricane Katrina had
6 not had that surge height, and I don't know
7 if there is a better name for it, but had it
8 not been that height, had it been down at
9 the still-water elevation with the wave
10 runup that comes on top of still-water
11 elevation, there would have been overtopping
12 even at that height?
13 A. I think you're asking if Katrina
14 was equal to the standard project hurricane?
15 Q. Yes, a better way to say it.
16 A. Then you would have had some
17 overtopping. The degree of overtopping is
18 hard to determine because you have to keep
19 in mind that the hydraulic analysis of what
20 the wave will be is -- it's based on science
21 but it's not an exact science. So to say
22 that it would absolutely have overtopped,
23 it's hard to say Varuso, Richard Page 281

00282
1 small degree of overtopping.
2 If I can elaborate on that
3 question.
4 Q. Yeah, go ahead.
5 A. In addition to that, if the
6 still-water elevation is 12 and a half to 13
7 and we are at average elevation of 15, you
8 do have some wave runup protection still
9 left, if you will.
10 Q. Yes.
11 A. And the amount of waves left over,
12 you cannot -- I don't think you could say
13 whether or not you would still have the same
14 amount of erosion. I would probably venture
15 to say that you would not have had the same
16 amount of erosion as experienced if more
17 significantly overtopped.
18 Q. You are assuming a level -- a
19 level -- a levee construct of what
20 materials, of all the materials that the
21 Corps requires in their specifications?
22 A. I'm just basing it on the existing
23 levee that was there now Varuso, Richard

I'm just making a Page 282
00283
1 happened if Katrina was actually the
3 Q. Is there a correlation that has
4 been established between the degree of
5 breaching that follows overtopping and the
6 materials that are used? Is there any kind
7 of a correlation that one can establish --
8 the Corps has established?
9 A. We have performed the erosion
10 tests, as I had mentioned, and we did
11 erosion tests on the new replaced material
12 and the newly placed material since
13 Hurricane Katrina, the repaired sections.
14 And existing levee sections still intact
15 after Katrina and made comparisons between
16 those two.
17 Q. What do those comparisons show?
18 A. That there was -- it would really
19 help to show it on the figure. It's kind of
20 hard to kind of --
21 Q. Articulate it?
22 A. -- articulate this without looking

Varuso,
23 at the figure But the material being Richard Page 283
00284
1 Q. Now, was any attempt made to go
2 into the areas where the breaches occurred
3 and to sample those materials and compare
4 those materials to the ones that are now
5 being constructed with the new clay
6 materials?
7 A. Again, because of the breached
8 areas, and again, even the areas that were
9 remaining, I don't think you can say that
10 the surface materials, if you would take a
11 sample of the surface materials that
12 existed, someone were to come up and take a
13 grab sample of some material and try to
14 perform some erosion tests on that, I don't
15 think there is any way you could say with
16 any certainty at all that the materials that
17 you'd sample were actually existing levee
18 materials.
19 Q. How do you account for the fact
20 that at various portions of the MRGO levee,
21 the levees remained intact and other places
22 there were complete destruction in the

Varuso, Richard
23 form -- in the nature of a breach? Page 284
00285
1 Q. Soil placement is not an exact
2 science, meaning different types of soil?
3 A. You are not going to have -- for
4 the 12 miles of levee section that we are
5 discussing, you will not have one uniform
6 where it's all exactly the same --
7 Q. Soil.
8 A. -- soil for every hundred feet.
9 Q. And would it be a logical
10 extension of that answer to say that in the
11 areas of the breaches there was more sand
12 than where the levee remains intact?
13 A. I don't know that you can make
14 that quantification.
15 Q. What is the explanation that the
16 Corps has for that, for those breaches
17 occurring in approximately 50 locations and
18 the levees remaining intact in some other
19 number of locations?
20 A. There is a lot of forces being
21 placed on the levee at that time. It's hard
22 to say whether or not the exact same force

Varuso,
23 is being placed on those different Richard
sections Page 285
00286
1 area scouring earlier than another one, and
2 that's where the water tends to go.
3 Q. In listing the could-have-beens,
4 one of the explanations could have been that
5 there was greater soil -- there was greater
6 sand used in the soil of the area -- in the
7 areas of the breach than in the areas where
8 the levees remained intact?
9 MR. SMITH:
10 Are you asking if that's what the
11 Corps concluded?
12 MR. KOHNKE:
13 Yes. Well, no, he is giving me
14 some of the could-bes and I'm asking is that
15 one of the could-bes.
16 MR. SMITH:
17 All right. I will allow this to
18 be forward because I thought you were
19 exploring the performance of the levee.
20 MR. KOHNKE:
21 I am.
22 MR. SMITH:
23 Go ahead Varuso, Richard Page 286

00287
1 on whether or not one area had more sand
2 than another, in my opinion, without a
3 doubt, is to look at the existing borings,
4 the last set of borings taken, which would
5 have been in the early '80s, which to my
6 knowledge doesn't show any pure sand
7 existing in any of the borings.
9 Q. And the total borings done along
10 this stretch was six?
11 A. Roughly.
12 Q. So the only sure way to know what
13 the content of the levee was, was to look at
14 six five-inch samples and determine the top
15 20 feet of those soil samples or borings?
17 Q. And is that going to explain to
18 you what the other six miles looks like?
19 A. It's as representative as we have.
20 Q. That's as good as you got, but
21 it's not truly going to explain the content
22 of the soil 500 yards away. It just gives
23 you a five-inch picture sixVaruso, Richard

times every two Page 287
00288
1 Q. Well, let's do the math real
2 quick. This is important enough to.
3 A. Okay.
4 Q. The distance we are traveling or
5 traversing from first sample to last sample,
6 the total distance between samples is how
7 much?
8 A. Six miles, approximately.
9 Q. Six miles. And there are six
10 samples or five samples? What are they?
11 A. Like I said, it's six to eight,
12 somewhere in that range.
13 Q. So for every mile of levee a
14 five-inch section was bored?
16 Q. And, of course, these levees were
17 placed -- were created in two or three
18 different layerings, or what is the name? I
19 keep forgetting the name you used. What is
20 the name?
21 A. Enlargements.
22 Q. Enlargements. Over a period of

Varuso,
23 years using the top five feet of the Richard Page 288
00289
1 Q. And certainly there are going to
2 be variations within a given mile of the
3 types of soil within that mile, won't there?
4 A. There may be.
5 Q. And all you know is you have a
6 five-inch picture for each mile?
8 Q. And other than that, there is no
9 way for the Corps to explain -- assuming
10 that does explain --
11 A. Keep in mind you are leaving out
12 the picture that when the levee is being
13 constructed, we have a set of plans and
14 specifications that allow certain materials
15 to be placed in the levee section, that
16 being clays and silts, not sands. So even
17 though we don't have a boring showing,
18 depicting what was placed in between these
19 borings, we have the act of quality control
20 during construction that does not allow sand
21 to be placed.
22 Q. And that quality control is --

Varuso,
23 does the Corps put an employee Richard
a staff Page 289
00290
1 Q. -- not 24, because it's working 12
2 hours a day.
3 A. While it's working, there is an
4 inspector on site.
5 Q. 12 hours a day?
6 MR. SMITH:
7 Let me caution you. Let him
8 finish the question before you answer.
10 Q. Who is this inspector, not by name
11 but by training? What kind of person is
12 this? Is he an engineer, first of all?
13 A. Not always.
14 Q. He is not usually one?
15 A. I would say he is not usually one.
16 Q. Okay. He is an hourly worker
17 working for the Corps?
18 A. Everybody is based --
19 everybody's -- well --
20 Q. What I mean to say is he is not an
21 Army officer, he is not an engineer?
22 A. He is a civilian employee.
23 Q Varuso,
He is a civilian employee Richard
who is Page 290
00291
1 Q. And what does he do to --
2 A. In addition -- in addition to the
3 inspector, his supervisor, which makes
4 frequent trips to the locations and monitors
5 his efforts would be an engineer.
6 Q. What does he do to make sure that
7 the buckets of, or the dredge materials that
8 are coming out of the bottom of the MRGO
9 have enough clay and not too much sand?
10 What does he do?
11 A. He monitors the contractor to
12 insure that his quality control --
13 Q. What does that mean, monitor?
14 A. It's taking samples of the
15 material being placed meets the
16 specifications.
17 Q. What does he do to make sure that
18 happens? What physically does he do? Does
19 he eyeball it? Does he get a test tube and
20 fill it? What does he do?
21 A. He knows that -- I believe the
22 specification may have said something along

Varuso,
23 the lines of that the samples need to Richard
be Page 291
00292
1 500 to a thousand cubic yards of placed
2 material, the contractor should take a
3 sample and perform the appropriate test, so
4 he knows approximately -- obviously, you
5 know --
6 Q. The contractor takes a sample --
7 I'm trying to make sure -- he watches the
8 contractor take a sample every 500 yards?
9 A. Right. And an independent lab
10 will run the testing on that sample.
11 Q. That sample consists of what? A
12 bucket, a glass, a test tube, little
13 styrofoam -- I'm not -- what is --
14 A. It varies. It's just a -- it's
15 just a hand sample. It's not an undisturbed
16 sample, if you would, that we would use a
17 cylinder to push it to, although sometimes
18 they do push little sample tubes down and
19 retrieve the sample.
20 Q. Okay.
21 A. Essentially it's a sample that's
22 taken and the moisture content is

Varuso,
23 determined And in addition to that Richard Page 292
00293
1 Q. I don't want to get recent. I
2 want go back when these things were built
3 in --
4 A. Okay.
5 Q. -- the '60s through the '80s.
6 A. Okay.
7 Q. There are logs for these samples?
8 A. No. There is not a log.
9 Q. Where and when are the samples
10 read?
11 A. In the field.
12 Q. From the 1960s to the 1980s what
13 happens? These samples are taken and
14 they're -- what happens to them?
15 A. In a bag probably.
16 Q. Okay. What happens next?
17 A. They are brought to a lab and they
18 are classified and moisture contents are
19 performed.
20 Q. Where is the lab?
21 A. It's probably an independent lab
22 that the contractor --
23 Q Have you looked atVaruso, Richard

any of those Page 293
00294
1 Q. Yes.
2 A. No, I have not.
3 Q. So what you are talking about is a
4 procedure that you believe to have been in
5 place in the '60s through the '80s?
7 Q. But you have not personally
8 verified that that, in fact, was done?
9 A. No.
10 Q. Now, you believe that's being done
11 today?
12 A. It was done.
13 Q. Okay. You know it was done today,
14 but now you are talking about 40 years ago?
15 A. Correct.
16 Q. And you have no way of knowing
17 other than to go through records, historical
18 records to see if that sampling was indeed
19 taken and then analyzed and acted upon?
20 That would be the only way for you to know
21 today about 40 years ago?
23 Q Varuso,
And you haven't done that? Richard Page 294
00295
1 date for anyone?
2 A. I couldn't say.
3 Q. It's not something -- do you fish
4 in Louisiana, south Louisiana?
5 A. Yeah.
6 Q. You ever pull up an anchor?
7 A. Sure.
8 Q. You can look at what is on the
9 bottom of the anchor and it's kind of hard
10 to tell. Unless it's white sand or black
11 gumbo mud, there are a lot of variations.
12 You can't eyeball it and say that's sand,
13 that's clay unless you are at the extremes;
14 isn't that right?
15 A. I'm not too sure I would say that.
16 Q. Well, if you can eyeball it there
17 would be no reason to send it to a lab,
18 would there?
19 A. Well, I wouldn't think of an
20 eyeball as contractual -- you couldn't hold
21 somebody to a contract to something that you
22 could eyeball. That's why we perform the

Varuso,
23 testing to make sure it is what Richard
it is but Page 295
00296
1 very good about eyeballing material and
2 classifying just by looking at it.
3 MR. KOHNKE:
4 Okay. I think I got it. The only
5 thing I want to do is, subject to objection,
6 I want to attach to the deposition and make
7 it an in globo exhibit the IPET report. I
8 understand there is objection to my using it
9 to question you. It exists. It is the
10 proverbial 800-pound gorilla. And to the
11 extent that it does exist and it says what
12 it says, I make it a part of the record for
13 Judge Fallon's consideration.
14 I am seeking to reserve the right
15 to come back and question the Corps of
16 Engineers on the IPET report, and maybe I
17 will get that chance, maybe I won't. But in
18 any event, I want to make that attachment
19 and offer it at this point Volumes 1
20 through 8 as Exhibit 5.
22 There is no Volume 2, I'm advised,

Varuso,
23 because I certainly don't have Richard
it in this Page 296
00297
1 There will be no need, I'm certain
2 to -- for the court reporter to duplicate
3 copies of those exhibits. We will just
4 attach those to the original, if that's okay
5 with you, Mr. Smith.
7 Q. One last question I thought of
8 that I intended to ask and I forgot to. We
9 talked about the design height of the levee
10 and we talked about standard project
11 hurricane and how that design height is
12 determined. I did not ask about width.
13 Does the standard project hurricane
14 calculation lead to a conclusion as to the
15 proper width of a hurricane protection
16 levee?
17 A. That's a function of the global
18 stability analysis.
19 Q. And is that part of the standard
20 project hurricane analysis?
21 A. The water level at the still-water
22 elevation with the standard project
23 hurricane is assumed as a Varuso,

variable inRichard
the Page 297
00298
1 design a hurricane protection levee -- the
2 Corps had the ability to design it wider
3 than it was actually built?
4 A. What I can say is that --
5 Q. In other words, the design that it
6 came up with could have included a wider
7 design and then it could have been built to
8 a wider degree?
9 A. The analysis used to determine the
10 global slope stability, and that would
11 entail a stability berm on a protected side,
12 which basically determines this width you
13 are talking about, the base width of the
14 levee embankment.
15 Now, the Corps of Engineers uses
16 the same industry standards for that
17 analysis as for the rest of the industry.
18 It's a science. It's engineering. And that
19 process was followed in determining an
20 adequate factor of safety and required
21 stability berm to obtain that factor of
22 safety.
23 Varuso,
The act of constructing Richard
the levees Page 298
00299
1 levee fill, because of the resulting soil
2 parameters that are derived from that type
3 of construction that would have given you a
4 more critical slope stability analysis.
5 So to answer your question, the
6 base width of the levee section based on
7 hydraulically uncompacted fill would have
8 given you the largest section that anybody
9 in the industry would have calculated based
10 on those same standards.
11 Q. Now, you talked about uncompacted
12 levees. Are there any uncompacted levees
13 that the Corps has designed using hydraulic
14 fill which are also subjected to storm surge
15 other than the MRGO?
16 A. I'm not sure. I would have to
17 look through all the different various
18 design memorandums to see where those
19 situations occurred.
20 Q. The Corps does not have internal
21 guidelines or standards as to when an
22 uncompacted levee can remain uncompacted

Varuso,
23 versus when it should become Richard
a semicompacted Page 299
00300
1 semicompacted and uncompacted levees are
2 allowed by our engineering manual, which is
3 one of the design guidelines that we use for
4 the design of the levee sections.
5 Q. And those allowances exist without
6 regard to whether or not that levee is going
7 to be subjected to storm surge --
8 A. Storms --
9 Q. -- versus an inland waterway?
10 A. I would imagine that all the
11 hurricane protection levees are assumed that
12 there will be storm surge up against them.
13 Q. Is the newly built MRGO levee
14 built to the same width as the preKatrina
15 levee?
16 A. I'm not sure if I can answer that
17 question as you have stated it. I know the
18 sections are somewhat different than they
19 were.
20 Q. Why are the sections different?
21 A. Well, we've got one particular
22 location where there were -- there was a

Varuso,
23 sheet pile wall that no longer exists Richard
We Page 300
00301
1 were taken --
2 Q. Clearly that's different.
3 A. That's why I'm saying, it's a hard
4 question to answer because there are
5 different reaches that we put together based
6 on the borings that we have.
7 I would say in general, I think,
8 the levee section is the same as it was
9 prior to Katrina. The reason that the levee
10 sections may have changed and actually
11 gotten bigger -- and let me back up and say
12 that the levee section bases are larger now
13 than they were prior to Katrina. The reason
14 for that is because of that protected side
15 borrow pit that I was referring to. The act
16 of digging that borrow pit down ten to
17 20 feet to retrieve the borrow affects the
18 stability of the levee.
19 Q. Okay.
20 A. So a larger stability berm is
21 required because we have dug the adjacent
22 borrow pit which did not exist prior to
23 Hurricane Katrina Varuso, Richard Page 301

00302
1 A. Say, for the entire levee.
2 Q. Well, the entire levee isn't
3 subjected to stability issues except in the
4 area where the borrow pit exists?
5 A. The borrow pit extends across the
6 entire levee section.
7 Q. Oh, it does?
8 A. Yes.
9 Q. A 12-mile borrow pit?
10 A. Yes.
11 Q. Okay. I didn't know that.
12 MR. KOHNKE:
13 Pass the witness.
14 EXAMINATION BY MR. BRUNO:
15 Q. Sir, both and you Mr. Kohnke have
16 during these past hours used the word
17 "levee." Would you please define for me
18 what is a levee?
19 A. Define that as an earthen
20 embankment constructed of a given
21 cross-section that would withstand a given
22 water elevation, possibly encompass or

Varuso,
23 entail a wave berm to reduce Richard
the energies of Page 302
00303
1 the levee section.
2 Q. Is that word defined in writing
3 somewhere on documents produced by the
4 United States Army Corps of Engineers?
5 A. I would imagine that it probably
6 is in one of our engineering manuals.
7 Q. But in any case, can I assume that
8 your description is a description that is
9 generally understood to be the meaning of
10 the word "levee" as it's used within the
11 United States Army Corps of Engineers?
12 A. Yes, I may have -- I may have
13 paraphrased it a bit from where it's
14 officially written.
15 Q. Now, I have heard, and I certainly
16 may be incorrect, that in terms of the size
17 of this earthen embankment as you describe
18 it, that a levee ought to be for each one
19 foot of height four feet wide. Is that in
20 any way accurate?
21 MR. SMITH:
22 Are you asking him about the way

Varuso, Richard
23 the MRGO levees were constructed? Page 303
00304
1 to that. I don't know if this is true or
2 false?
3 MR. SMITH:
4 Is this part of the design of the
5 MRGO levees?
6 MR. BRUNO:
7 Yes, it is.
8 THE WITNESS:
9 I would say that the base width
10 would be a significant portion or a
11 significant length greater than four times
12 wider than it is high.
14 Q. Okay.
15 A. Essentially what you are saying is
16 there would be a one-on-four slope and you
17 would assume the crown elevation at
18 elevation 20, assuming that slope of
19 one-to-four on one side, there would be no
20 stability berm. That's just one generic
21 slope, one-on-four down to ground surface.
22 The levee section is significantly wider

Varuso,
23 than that based on the wave Richard
berms and the Page 304
00305
1 Q. May I also please understand, what
2 is a wave berm? Could you describe that
3 term?
4 A. The wave berm is -- it's a -- I
5 guess you have to try and imagine this, I
6 suppose.
7 Q. Would it be helpful if you drew it
8 on a piece of paper?
9 A. I could do that.
10 Q. Please mark that as Exhibit 6.
12 Thank you. And one more thing,
13 please for me, would you indicate if you are
14 able or if it's appropriate to, what part of
15 that drawing would be called the toe of the
16 levee?
17 A. (Witness complies.)
18 Q. Could you please pass that back to
19 me?
20 Do the United States Army Corps of
21 Engineers' specifications for the
22 construction of a levee as they existed in

Varuso,
23 1965 call for the construction of a Richard Page 305
00306
1 A. I would have to know the exact
2 section. I would imagine there was a
3 stability berm there. I'm not sure what the
4 extent of that berm would have been.
5 Q. I guess what I want to know is,
6 does every levee need to have a stability
7 berm?
8 A. No.
9 Q. Can you give me some sense of when
10 it is included and when it is not included?
11 A. That's a function of the global
12 stability analysis that I was referring to.
13 If the forces causing the instability of the
14 failure are greater than the resisting
15 forces, which would be the weight of the
16 soil and the shear strength of the soil on
17 the protected side, if those forces are not
18 equal, given a factor of safety, then a
19 stability berm is required to insure that
20 factor of safety.
21 Q. Thank you. Same question with
22 regard to a wave berm. Did the

Varuso,
23 specifications after 1965 include the Richard Page 306
00307
1 A. There was a wave berm attached to
2 that particular levee section, yes.
3 Q. And similar to the question with
4 regard to the stability berm, must one be
5 included or are there circumstances where
6 one may not be included?
7 A. If no significant waves are
8 anticipated to impact the levee section for
9 the given storm event, then no wave berm
10 would be necessary.
11 Q. Now, referring to a document which
12 I believe is a part of the opposition by the
13 government to -- in a different litigation,
14 but it's called the Mississippi River Gulf
15 Outlet, St. Bernard Parish, Louisiana
16 Reconnaissance Report on Channel Bank
17 Erosion. I have it here. Are you familiar
18 with this document?
19 A. No, I'm not.
20 Q. I have only one copy and I will
21 ask counsel's indulgence to just let me
22 read --

00308
1 Was that one that's Exhibit 3?
3 Q. Unfortunately, you don't have all
4 of the pages.
5 MR. KOHNKE:
6 What is the date, Joe? I might
7 have that.
8 MR. BRUNO:
9 February 19th. This is the
10 document that you said you did not have.
11 MR. KOHNKE:
12 Well, I got one at lunch. It's a
13 July '84 Reevaluation Study --
14 MR. BRUNO:
15 No. This is February of '88.
16 MR. KOHNKE:
17 Okay.
19 Q. At Page 34 of the document there
20 is a section called Bank Protection
21 Structure Options. It's really not
22 necessary for you to see it. I just want to

Varuso,
23 understand if you can describe Richard
this for me Page 308
00309
1 reaches of the MRGO. All unlevee'd reaches
2 of MRGO, the north bank from mile 60 to mile
3 23 and the south bank from mile 47 to mile
4 23.
5 My simple question to you is: In
6 fact, before Hurricane Katrina there were no
7 levees on those areas of the MRGO; isn't
8 that true? And I can read it to you again.
9 A. Read it to me again if you would.
10 Q. I tell you what, I have this map
11 here.
12 MR. SMITH:
13 I would like copy the document if
14 you don't mind.
15 MR. BRUNO:
16 Do we have an extra one of these?
17 MR. SMITH:
18 He has one.
20 Q. Page 34 is where I started at the
21 bottom. And I guess what I want to simply
22 confirm is this, maybe I can do this easier

Varuso,ofRichard
23 for both of us There are portions the Page 309
00310
1 Could you just wait a minute until
2 he gets a chance to look at this document?
3 THE WITNESS:
4 It's under Structural Option 3, is
5 that where you are reading?
7 Q. Yes, sir. As I said, my question
8 really -- maybe we can approach it from a
9 different perspective.
10 MR. SMITH:
11 Could we wait, since you have
12 premised your question on a document?
13 THE WITNESS:
14 I was trying to, because I think
15 some of the previous chapters were
16 important.
17 MR. BRUNO:
18 I'm going to mark this map as
19 Exhibit 7 while the witness is reading.
20 This is apparently an exhibit within an
21 exhibit previously marked as --
22 MR. KOHNKE:
23 I think 3 Varuso, Richard Page 310

00311
3 Q. Again forgive me.
4 A. It's okay.
5 Q. I didn't mean that to be a
6 horribly difficult exercise. What I would
7 like to do is to first confirm that there
8 are certain portions of the bank on the
9 Mississippi River Gulf Outlet immediately
10 before Katrina that had no levees; isn't
11 that true?
12 MR. SMITH:
14 him not to answer, because this concerns
15 sections of the levee that aren't in
16 St. Bernard Parish.
17 MR. BRUNO:
18 It matters not to me. Remember
19 now, the notice of deposition regards, I
20 thought, the design of the levees along the
21 Mississippi River Gulf Outlet in St. Bernard
22 Parish, so before I can get to those levees,

Varuso,
23 I need to know where the levees are Richard
not Page 311
00312
1 And you are right, perhaps they
2 all are in St. Bernard, but I don't know
3 that, Robin. I just want to confirm for the
4 record I --
5 MR. SMITH:
6 Ask him about the levees in
7 St. Bernard Parish. That would be a way to
8 find out.
9 MR. BRUNO:
10 But I want to also, for example --
11 it's just -- Robin, it's just easier.
13 Q. On the northern bank of the MRGO,
14 or I guess other folks may refer to it as
15 the eastern bank of the MRGO, there are no
16 levees; isn't that true?
18 Q. Now, on the southern bank, or I
19 suppose some folks would call it the western
20 bank, the entire stretch of the MRGO is not
21 levee'd. Some of it is, some of it's not.
23 Q And so just so we Varuso, Richard

can get a frame Page 312
00313
1 about levees, and I want to make sure this
2 record is crystal clear as to what we have
3 been talking about. Okay?
4 A. Okay.
5 Q. The MRGO stretches from its
6 junction with the Mississippi River Gulf
7 Outlet at the north end and then the south
8 end is the Gulf of Mexico, right?
9 A. The GIWW, you're referring to?
10 Q. Yes.
12 Q. To the extent that there is a
13 levee on this southern or western shore,
14 does it start where the MRGO intersects the
15 Intracoastal Waterway?
16 A. Well, there is one continuous
17 levee section that encompasses St. Bernard
18 Parish.
19 Q. Right.
20 A. Part of that levee system is
21 actually the Mississippi River levee and
22 there is a ring levee around the entire
23 St Bernard Parish I don'tVaruso, Richard

know where you Page 313
00314
1 Q. I was referring -- no, I wasn't
2 referring to all the levees, now. I'm
3 referring to the southern or western bank of
4 the MRGO --
5 A. Right.
6 Q. -- which I understand to be a ship
7 channel that goes from the Intracoastal
8 Waterway to the Gulf of Mexico.
9 A. Right.
10 Q. Right? It's just one long line,
11 if you will, right? And along that line
12 there are some levees and there are, along
13 that line there are no levees?
14 A. Okay.
15 Q. Maybe if I could ask you simply to
16 mark on that diagram, where are the levees
17 on that line?
18 A. It's a pretty old map. I don't
19 know if I could actually verify exactly
20 where that begins.
21 Q. I'm not asking you to. I don't
22 want you to pinpoint to the foot.
23 A Sure okay Varuso, Richard Page 314

00315
1 Q. Red pen would be good.
2 A. Okay.
3 Q. I just want to get some general
4 sense of what we are talking about. We do
5 agree that this dotted line on Exhibit 7
6 represents the Mississippi River Gulf
7 Outlet, right?
8 A. Right.
9 Q. Okay. Fair enough. And if you
10 look at it, it indicates miles. This is 10,
11 20, 30, 40, 50 and 60?
12 A. Right.
13 Q. And again --
14 A. It roughly begins at the GIWW.
15 Q. Okay.
16 A. Or you may want to refer to that
17 as the -- I mean, where Bayou Bienvenu is
18 here.
19 Q. All right.
20 A. It's almost the same location.
21 Q. Put an X, though. You've made
22 an -- with Bayou Bienvenu to distinguish it
23 the other one Varuso, Richard Page 315

00316
1 A. There, and I would say
2 approximately -- this is about 12 miles
3 here. That's where the return levee begins
4 in this direction.
5 Q. Okay. Now, it just so happens
6 that you have drawn your southerly X at or
7 about what has been marked on the map as 30,
8 which I take it to be 30 miles from the --
9 A. Oh, this is miles. I'm thinking
10 feet. I apologize. That's incorrect. This
11 is actually -- we are going to be in this
12 area, because it's about 12 miles. We are
13 somewhere --
14 Q. Right.
15 A. We're somewhere --
16 Q. Which would be about, by my
17 reckoning, 48 miles from the inlet to the
18 MRGO from the Gulf of Mexico?
19 A. Yes.
20 Q. Fair enough.
21 A. Okay.
22 Q. Now, so all of the conversations
23 that you have had with MrVaruso, Richard

Kohnke about Page 316
00317
1 between this X at approximately 48 miles and
2 this X, which the map has an arrow saying
3 "turning basin."
4 A. Yes.
5 Q. Okay. Fair enough?
6 A. Uh-huh, fair enough.
7 Q. All right. Good.
8 Now, does this levee have as
9 designed and built, that is the first lift,
10 did it have a stability berm?
11 A. I believe it did.
12 Q. Did it have a wave berm?
13 A. I believe it did.
14 Q. Now, that levee we have learned, I
15 think from some of your testimony, was built
16 with some of the material that had been
17 dredged as a result of the construction of
18 the MRGO channel; is that not correct?
19 A. Yes.
20 Q. In fact, then, the MRGO channel
21 was authorized by Congress at a different
22 time and under a different act than that

Varuso,
23 authorization which allowed Richard
the Corps to Page 317
00318
2 Q. And, in fact, the Congressional
3 authorization for the construction of MRGO
4 was so that the -- I'm sorry. The MRGO was
5 originally conceived and approved as an aid
6 to navigation; isn't that true?
7 MR. SMITH:
9 answer questions about MRGO.
11 Q. Fair enough. Let me at least do
12 this, if I may. I just want to see if I can
13 understand when in time it was begun. Do
14 you know when it was begun? And then I will
15 ask when it was finished and I will move
16 away from the MRGO, if you know.
17 And by begun, I mean first
18 excavation, that is, you know there is
19 equipment out there and they are digging.
20 MR. SMITH:
22 answer questions about MRGO proper. You can

Varuso,
23 ask him questions about the Lake Richard Page 318
00319
1 St. Bernard Parish.
3 Q. The act which authorized the
4 construction of the levee was Public Law
5 298, 89 Congress, first session, approved 27
6 October 1965; is that correct?
7 A. That sounds right.
8 Q. And the title of that act was the
9 Lake Pontchartrain and Vicinity Hurricane
10 Protection Act; is that not correct?
11 A. Sounds about right.
12 Q. And while we are on it, there was
13 some discussion about the standard project
14 hurricane elevation. I show you --
15 MR. BRUNO:
16 Robin, this is something called
17 Lake Pontchartrain, Louisiana and Vicinity
18 Design Memorandum No. 1, Hydrology and
19 Hydraulic Analysis, Part 1, Chalmette,
20 August '66.
22 Q. Does that allow you to confirm the

Varuso,
23 project hurricane still-water height? Richard Page 319
00320
1 MR. KOHNKE:
2 Joe, are you going to attach this
3 to the deposition?
4 MR. BRUNO:
5 I hadn't intended, because it
6 becomes so much paper.
7 MR. KOHNKE:
8 The only reason for my asking is
9 it will save me from having to try to
10 otherwise obtain it if I can get from you.
11 MR. BRUNO:
12 I'll give you -- we will let you
13 copy it before I leave.
14 MR. KOHNKE:
15 Okay.
16 THE WITNESS:
17 Yes.
19 Q. Again, for the record, can you
20 just state then -- well, first of all, do
21 you know what this piece of paper is that
22 you're looking at?
23 A This is an approvalVaruso, Richard

from the chief Page 320
00321
1 Valley Division in 1966 approving the design
2 of the hurricane protection levees in the
3 Chalmette area to standard project hurricane
4 surge of elevation 13.0 as it appears
5 reasonable and is approved for subject to
6 the future studies.
7 Q. All right, good. So, in fact, the
8 number is 13?
9 A. Yes.
10 Q. And as you have already testified,
11 that number comes from a review of past
12 experience with hurricanes, right?
13 A. It's a hydraulic analysis that
14 takes that into consideration, yes.
15 Q. Now, one of the things that is
16 taken into consideration is the degree to
17 which the marsh, as it then existed, is able
18 to reduce the storm surge; isn't that
19 correct?
20 MR. SMITH:
21 Are you asking him whether that
22 was taken into consideration in constructing

Varuso,
23 the MRGO levees in St Bernard Richard
Parish in Page 321
00322
1 I was asking it generally first,
2 and then I was -- I always like to ask it
3 generally and then ask the question was it
4 considered, because I guess that's the way I
5 have always done it. I don't know that it's
6 right.
7 MR. SMITH:
8 We are under tight reins here,
9 maybe we could just --
10 MR. KOHNKE:
11 I think the question related more
12 to the standard project hurricane.
14 Q. It did. And again, I don't need
15 to plow ground that Mr. Kohnke plowed. We
16 have already established that the standard
17 project hurricane was the basis for the
18 still-water height, and I'm just curious to
19 know, since you said that it was a standard
20 number based upon experience in the region,
21 can we not confirm that one of the things
22 that is considered in establishing the

Varuso,
23 still-water height is the degree Richard
to which Page 322
00323
1 MR. SMITH:
3 answer that question that's in the air.
4 It's the same sort of question that started
5 out with this deposition this morning. I
6 would like you to frame a question in terms
7 of the design of these levees, if you can,
8 please.
10 Q. Okay. Fine. In fact, in the
11 design of the levees for the greater
12 New Orleans hurricane protection system, the
13 number 2.7 miles per foot value was used
14 based upon the then existing wetlands?
15 A. That would have been taken into
16 consideration, yes.
17 Q. You answered my first question,
18 not the second question. Thank you, very
19 much.
20 Obviously the Corps took that into
21 consideration. Because of counsel's
22 objection, I was wanting to see if I could
23 confirm the actual numberVaruso,

Do you Richard
know what Page 323
00324
1 a healthy marsh or at least the marsh as it
2 existed back in the 1960s would have slowed
3 or reduced the storm surge?
4 A. I don't know the number off the
5 top of my head, no.
6 MR. KOHNKE:
7 The number is expressed in
8 horizontal distance of marsh to vertical
9 distance of storm surge, isn't it? Isn't
10 there a ratio of the two?
12 Q. The standard measure -- and maybe
13 you will allow me to at least try to confirm
14 this, if I'm wrong, I'm wrong. The standard
15 measurement for wetland impact on storm
16 surge is that for every three to four miles
17 of healthy wetlands storm surge is reduced
18 by one foot. Is that generally accurate?
19 I'm not going to hold you to the precise
20 measurement.
21 A. To be honest with you, it's not my
22 area. I couldn't answer that question.
23 Q Varuso,
Fair enough But at least we Richard
can Page 324
00325
1 A. I believe it does, but again, this
2 is more in the area of hydraulic analysis
3 and a little bit out of my area of
4 knowledge.
5 Q. Okay. All right. In 1965 there
6 were no levees on the MRGO, right?
7 A. Yes, there were no.
8 Q. There were no levees?
9 A. Right.
10 Q. The performance of the levees that
11 were in existence in St. Bernard at that
12 time was similar to the performance of the
13 levees as built by the United States Army
14 Corps of Engineers as a result of Hurricane
15 Katrina; isn't that true?
16 MR. SMITH:
17 Could you have the question --
18 could you repeat the question?
19 MR. BRUNO:
20 Yes, I will. And let me give you
21 some context.
23 Q Varuso,
While I recognize that there Richard Page 325
00326
1 St. Bernard Parish in 1965 when Hurricane
2 Betsy hit, correct?
3 MR. SMITH:
4 You can posit that, if you want to
5 posit that. He is not here to testify to
6 the existence of other levees.
8 Q. Well, I'm just wondering, here is
9 the question because one of the areas of
10 inquiry is the performance. There was in
11 existence in 1965 the levee on the 40 Arpent
12 Canal among other levees. Is it not a fact
13 that the levees in 1965, after Hurricane
14 Katrina -- excuse me, Hurricane Betsy,
15 performed in a very, very similar fashion to
16 the way that the levees performed after
17 Hurricane Katrina, the one that was on the
18 MRGO?
19 MR. SMITH:
21 answer that question, because you are really
22 asking about the performance of other levees
23 in another event Varuso, Richard Page 326

00327
1 the performance of the levees on the MRGO
2 were similar to anything?
3 MR. SMITH:
4 There is no factual basis for any
5 questions about performance of other levees.
6 MR. BRUNO:
7 There is a factual basis. We did
8 have a hurricane. We all know it happened
9 in 1965. We know it was called Betsy.
10 MR. SMITH:
11 Not in this deposition, there is
12 not.
13 MR. BRUNO:
14 I just -- I just -- if he doesn't
15 know the answer, Robin, it's fine.
16 Mr. Kohnke has asked a variety of
17 questions about performance. He's asked
18 about evaluation and such. He asked if the
19 United States Army Corps of Engineers
20 evaluated performance. He said yes.
21 Perhaps I can ask a different way.
23 Q Varuso,
Did the United States Richard
Army Corps Page 327
00328
1 been impacted by Hurricane Betsy? And if
2 they didn't, they didn't.
3 MR. SMITH:
4 He's already testified to the
5 performance of the MRGO levees after or
6 during the Hurricane Katrina event.
7 MR. BRUNO:
8 I say not, but still.
9 MR. SMITH:
10 Well, if he hasn't, then perhaps
11 you want to ask him a question about that.
12 MR. BRUNO:
13 I am. I'm just wanting to know if
14 I -- I mean, if he doesn't know the answer,
15 it's easier -- there is a rule of law that
16 if the answer is no, you don't fight about
17 something where the answer is no. So if he
18 doesn't know, let's get that over with. If,
19 however, he has an answer that you believe
20 he shouldn't give, then that's something for
21 the judge to decide.
22 MR. SMITH:
23 It's not a question ofVaruso, Richard

whether he Page 328
00329
1 today.
2 MR. BRUNO:
3 Performance.
4 MR. SMITH:
5 Ask him the question.
6 MR. BRUNO:
7 I just did.
9 Q. Did the MRGO levees perform in a
10 similar manner that the levees performed
11 after Hurricane Betsy in St. Bernard Parish?
12 That's the question.
13 MR. SMITH:
14 If you know.
15 THE WITNESS:
16 I'm not aware of any analysis that
17 was done or anything written about the
18 performance of levees during Hurricane
19 Betsy.
21 Q. That's fine. Now, you talked
22 about the idea that Congress authorizes the

Varuso,
23 Corps of Engineers to build Richard
to a certain Page 329
00330
1 that the Corps was authorized to build to
2 was 17.5 feet, correct?
3 A. Yes.
4 Q. And did the MRGO itself, the
5 channel itself affect -- and I'm talking
6 about over time now, not just during the
7 hurricane. Did the MRGO channel affect the
8 way the MRGO -- the levees on the southern
9 or western side of the MRGO performed?
10 THE WITNESS:
11 Can I answer that?
12 MR. SMITH:
13 No. I'm going to instruct him not
14 to answer that question, because you said
15 over time, not with respect to Hurricane
16 Katrina, and that's not the subject that
17 he's been designated to testify to here
18 today.
20 Q. All right. If the existence of
21 marshes affected the still-water height, and
22 if those marshes were gone as of the passing

Varuso,
23 of Hurricane Katrina would Richard
you believe that Page 330
00331
1 MR. SMITH:
2 Again I'm going to instruct him
3 not to answer that question.
4 MR. BRUNO:
5 Why not? That's about
6 performance.
7 MR. SMITH:
8 I didn't hear anything about the
9 performance of the levees. I heard a
10 question about the impact of marshland on
11 storm surge. I didn't hear anything at
12 all --
13 MR. KOHNKE:
14 Isn't it clearly a design
15 question, because the design assumes certain
16 storm surge, and if the underlying
17 assumptions change --
18 MR. BRUNO:
19 You are exactly right. And I
20 mean, I can do this the long way. I prefer
21 to it the short way.
23 Q Varuso,
The long way is again Richard
having Page 331
00332
1 there is a height which the Corps decides on
2 as the appropriate height based upon
3 expected storm surge, right?
4 A. Yes.
5 Q. And that expected storm surge is
6 based upon the amount of marshland that was
7 then extant is when the calculations were
8 made, right?
9 A. One factor.
10 Q. One factor. I didn't mean to
11 suggest otherwise.
12 So that if some 30 or 40 years
13 later the marshes are no longer there, then
14 obviously one can expect a higher surge
15 which might affect the performance of the
16 levees?
17 MR. SMITH:
19 him not to answer. He is not here to
20 testify about hypotheticals, what might have
21 been if something else happened.
23 Q Well let's try it thisVaruso,

way Richard Page 332
00333
1 Robin, you are misinterpreting
2 this question.
4 Q. I think you have already testified
5 that you design the levee to a certain
6 height and that height is based upon your
7 expectation of surge. If the surge happens
8 to be higher, regardless of what the cause
9 of the higher surge, you have built the
10 levees the way you are supposed to have
11 built them, right? Does it make any sense?
12 A. Supposed to, as based on our
13 authorization.
14 Q. Precisely. In other words, you
15 haven't done anything wrong --
17 Q. -- if the water goes higher,
18 right?
19 A. I suppose I'm understanding your
20 question -- let me see if I can paraphrase
21 it in my own words, if that's all right.
22 Q. Sure.
23 A Varuso,
We were authorized to designRichard
the Page 333
00334
1 Q. Correct.
2 A. The levees were designed to
3 withstand a storm surge at that elevation
4 and they were maintained up until the mid
5 '80s, in some areas late '90s, to that
6 elevation as much as we were given
7 authorization and funding to do. The fact
8 that Hurricane Katrina was above and beyond
9 that storm surge, I'm not sure what your
10 question is with respect to that, but our
11 indication is, and the evidence that we have
12 is that the still-water level in the storm
13 surge related to Hurricane Katrina was far
14 greater than the standard project hurricane
15 for which those levees were maintained.
16 Q. Right. Bottom line is you didn't
17 design those levees for Hurricane Katrina,
18 right?
19 A. No.
20 Q. And you weren't required to design
21 them for Hurricane Katrina, right?
22 A. In 1967, we didn't know what
23 Hurricane Katrina was Varuso, Richard Page 334

00335
1 three lifts, as you called them?
2 A. They were up to the three
3 enlargements of the levee section.
4 Q. Let's just again -- for the
5 record, I hate to keep doing this to you,
6 but tell me what a lift is?
7 A. Okay. A lift and an enlargement,
8 sometimes those words are used kind of hand
9 in hand. With respect to the way the GDM,
10 the general design memoranda were referred
11 to on these levees, the first placement of
12 the levee section in the early -- mid 1960s,
13 mid 1960s, they refer to that as the first
14 lift. That was bringing the original levee
15 to grade. Since then up to two more
16 enlargements were performed on those levee
17 sections.
18 Q. All right. Forgive me. I don't
19 mean to interrupt you or slow you down in
20 any respect, but let's talk about what we've
21 already established. Before '65 there was
22 no levee?

00336
1 right?
2 A. I don't know what the exact
3 elevation of that was, but there was
4 material there.
5 Q. There was material. First
6 question, was there material on both banks?
7 A. I don't think I can answer that
8 question.
9 Q. Do you know if there was any
10 intent with regard to the --
11 MR. BRUNO:
12 And forgive me, allow me a little
13 bit, Robin.
15 Q. But do you know if there was any
16 intent in the excavation of the ground,
17 digging the canal, to put the spoil on any
18 one of the two banks? In other words, was
19 it purposeful that it go on one bank versus
20 the other bank?
21 A. I couldn't answer that question.
22 Q. Okay. Now, but we do know that
23 when you were authorizedVaruso, Richard

to build the first Page 336
00337
1 A. Yes.
2 Q. What I want to understand is you,
3 the Corps of Engineers, completed the work
4 in connection with the original construction
5 by approximately what time?
6 MR. SMITH:
7 Construction of what?
8 MR. BRUNO:
9 The first levees.
10 MR. SMITH:
11 The first lift.
13 Q. The first lift.
14 A. It would be hard to give you an
15 exact date. I know using hydraulic fill,
16 the amount of time that it takes to
17 construct the levee because of the amount of
18 water associated with hydraulic fill
19 applications, probably took two years give
20 or take.
21 Q. Can you state with certainty that
22 the work that the Corps of Engineers did in

Varuso,
23 connection with the construction Richard
of the Page 337
00338
1 Q. And explain for me, please, what
2 happens when the Corps finishes the levee.
3 Does it assume the continuous obligation to
4 maintain or, in fact, is that obligation
5 passed to some other entities or
6 authorities?
7 MR. SMITH:
8 Go ahead.
9 THE WITNESS:
10 You are referring to maintenance?
11 Is that what you're --
13 Q. Yes.
14 A. Well, I suppose there is two types
15 of maintenance. One would be -- you know,
16 keeping the grass cut is part of
17 maintenance, which is -- we give that to the
18 local levee districts. Over time, and while
19 the levee is at grade, at or above grade,
20 the levee districts are responsible for the
21 maintenance and care of those levees. Were
22 it to become deficient, then the Corps of

Varuso,
23 Engineers requests additional Richard
funds from Page 338
00339
1 something greater than that to account for
2 that settlement, subsidence.
3 Q. Had the Corps of Engineers
4 received any indication or notice of any
5 deficiency with regard to its construction
6 of the initial lift resulting from the '65
7 authorization?
8 MR. SMITH:
9 Just vague as to time.
10 MR. BRUNO:
11 At any time, I guess.
12 MR. SMITH:
13 At any time subsequent to --
14 MR. BRUNO:
15 Yeah, I mean --
16 MR. SMITH:
17 -- completion of the first lift,
18 did they ever receive notice that it was
19 deficient?
20 MR. BRUNO:
21 Right.
22 THE WITNESS:
23 Noticed by? Varuso, Richard Page 339

00340
1 A. No, not that I'm aware of.
2 Q. All right, fine. Can I assume,
3 therefore, that the Corps' obligation with
4 regard to the construction of that levee,
5 the first lift only, had been completed by
6 1979?
7 A. Yes.
8 Q. Now, you have testified about a
9 second lift, right?
10 A. Yes.
11 Q. And I take it --
12 A. First enlargement as it was
13 referred to in the design memoranda.
14 Q. We have gone from lift to
15 enlargement?
16 A. Yes.
17 Q. As my friend Wendall would say,
18 breast argumentation, but that's another
19 subject.
20 What provoked the Corps to do this
21 enlargement?
22 A. I know what's on your mind.
I'm sorry sir Go ahead Page 340
00341
1 is that the original hydraulically-filled
2 levee was not part of the -- we were not
3 able to actually bring it to elevation of 17
4 and a half by the means of the construction
5 process of a hydraulic fill. As it was, it
6 took two years, give or take, to get it to
7 the original elevation, approximately 15.
8 Soon thereafter we got
9 authorization to build the first
10 enlargement, which would have been in the
11 early to mid '70s. That enlargement brought
12 it to elevation 17 and a half.
13 Q. Did that require another act of
14 Congress, or was it under the aegis of the
15 original '65 Flood Control Act?
16 A. I'm not sure exactly how the
17 funding process occurred between 1967 and
18 1971, '73.
19 Q. But the motivation for the Corps
20 to do this work was its own recognition that
21 you hadn't yet gotten to the height you
22 wanted to get it at?

00342
1 right?
3 Q. And the work was done on the
4 entire length of levee as you have marked on
5 that Exhibit 7?
6 A. It is different project plans and
7 specifications. They were broken up into
8 different contracts, different reaches done
9 at different times. But in the time frame
10 of early to mid to late '70s, those
11 contracts were let and construction began.
12 Q. Once again, similar question to
13 the first phase, if you will. Did the Corps
14 of Engineers complete the work in connection
15 with the enlargement of those levees before
16 1979?
17 A. It would have been -- before 1979
18 you said?
19 Q. '79.
20 A. It would have been close. It's
21 hard to say the exact date. I think
22 actually maybe some of the -- one of the

Varuso,
23 contracts may have actually been letRichard
in Page 342
00343
1 dated 1980.
2 Q. Can you confirm for me that the
3 work in connection with the enlargement, the
4 second phase, was all of that work completed
5 before 1987?
6 A. Yes.
7 Q. Now, you have testified that there
8 is a third lift or enlargement, right?
9 MR. SMITH:
10 You are referring now to the
11 second enlargement?
13 Q. You're right. Actually you are
14 correct. I am now referring to the second
15 enlargement or augmentation as my dear
16 Wendall friend would say.
17 MR. KOHNKE:
18 Anything after the first lift
19 would be an augmentation.
21 Q. That's right. The second lift,
22 second enlargement occurred approximately
23 when? Varuso, Richard Page 343

00344
1 Q. Now, as I understand your previous
2 testimony, this work was done on a very
3 limited portion of the MRGO levee on the
4 south or west side, correct?
5 A. I do believe we are getting a
6 little bit confused. Let me see if I can
7 clarify. And if I'm paraphrasing too much,
8 feel free to stop me. The MRGO first lift
9 construction of levee on virgin soil was
10 done 1967, 1968 time frame. Mid -- early to
11 mid '70s the first enlargement was conducted
12 for a great portion of the MRGO levee. The
13 second enlargement was done early to mid
14 1980s for a great portion of the MRGO levee.
15 There was only one third
16 enlargement, or there was only one second
17 enlargement, which would have been -- no one
18 third enlargement, one third enlargement,
19 which was done on a small portion of the
20 MRGO levee and a section of what we call the
21 Verret to Caernarvon levee which extends
22 from the MRGO to Highway 46. That was the
23 third levee enlargement inVaruso, Richard

the early 1990s Page 344
00345
1 A. Thereabouts.
2 Q. Now, I do need for you, and this
3 is important for this record, would you
4 please -- do we have a different color other
5 than red?
6 I would like for you, to the best
7 of your ability, to indicate on that map
8 this third enlargement and I do have an
9 orange pen. That's all I have. I'm sorry.
10 Robin gave it to me, so blame him.
11 A. I'm going to have to assume that
12 Highway 46 is probably -- let me see if I
13 can actually get a scale on this. This is
14 probably --
15 Q. Let me give you another map. I
16 have this map. I don't know if this helps
17 at all.
18 A. This is much better. I can use
19 this map?
20 Q. Let me mark it as Exhibit 8 then.
22 A. Okay. You want me to remark the
23 other spots with a red pen Varuso,

first? Richard Page 345
00346
1 couple of extra diagrams.
2 A. I have marked the same two red Xs
3 or two stars for the beginning and the end.
4 Q. Make them a little larger, if you
5 don't mind, so we can -- there is no
6 mistaking your marks.
7 A. (Witness complies.)
8 Q. Great. Yeah. Great.
9 A. Okay. The third enlargement would
10 have been the last mile or so, which is
11 approximately this distance here. I will go
12 from the star as an approximation down to
13 Highway 46 here. The orange doesn't make
14 much difference than the red.
15 Q. It sure doesn't.
16 A. But that's the section that had
17 the third enlargement.
18 Q. I'm going to tell you what I'm
19 going to do. I'm just going to make it
20 really obnoxiously large.
21 A. Okay.
22 Q. And I'm going to make this X a
23 circle Varuso, Richard Page 346

00347
1 MR. KOHNKE:
2 I would advise against that.
3 MR. BRUNO:
4 I was going to say, at your own
5 risk.
7 Q. Now, did the levee that you have
8 the heavy orange line perform any
9 differently from the other levees on the
10 MRGO after or through and after Katrina?
11 A. The portion of the orange line, I
12 guess we will call it west of that last red
13 star.
14 Q. Yes.
15 A. That levee remained more intact
16 than the other portion of the levee which is
17 along the MRGO.
18 Q. Okay. All right.
19 A. There was some minor scouring on
20 the protected side, but there were no full
21 breaches of the levee section from the star
22 that's indicated to Highway 46.
23 Q Varuso,
Does the United States ArmyRichard
Corps Page 347
00348
1 MR. SMITH:
2 It's a question about the
3 performance of the levee.
5 Q. It's performance.
6 A. Due to the direction that the
7 levee is facing, the portion of the levee
8 that faces the MRGO would have been subject
9 to the wave forces, direct wave forces
10 coming through Lake Borne, whereas the
11 section of levee along the -- between the --
12 where the bridge to Caernarvon levee begins,
13 that return levee did not face the direct
14 impact of Lake Borne.
15 Q. Meaning you had marshland
16 separating that levee and Lake Borne
17 where -- I should say actually more
18 appropriately, you had more marshland
19 available to protect that levee than you did
20 on other locations of the MRGO levee?
21 A. I think in addition to that, it's
22 the actual direction or azimuth where that

Varuso,
23 portion of the levee is facing Richard
due to the Page 348
00349
1 that the impact, the wave impact on this
2 portion of levee that actually faces the
3 MRGO is greater than the section of levee
4 that essentially runs perpendicular to the
5 MRGO.
6 Q. I'm sorry. We got ourselves a
7 little crosswise.
8 A. Okay.
9 Q. I was referring -- when I asked
10 the question, do the levees perform the
11 same, I was referring to that little tiny
12 portion here (indicating) that is on the
13 southern or western bank of the MRGO. I'm
14 comparing that little one mile stretch to
15 the remaining --
16 A. I understand.
17 Q. -- MRGO. Not the perpendicular
18 part.
19 A. All right.
20 Q. Let's just talk about that.
21 A. Okay.
22 Q. Let's start from the beginning.

Varuso,
23 Did that little one mile stretch Richard
perform any Page 349
00350
1 that question, because you are only looking
2 at one mile, you could probably take a half
3 a mile of any section on the MRGO and find
4 levees that remained intact. So I don't
5 know if you could make a comparison.
6 Q. Isn't it a fact that those
7 portions of the levee which had more marsh
8 next to them performed better than those
9 portions of the levees that had little or no
10 marsh next to them?
11 A. I would have to sit down with a
12 map and actually -- I don't know if you have
13 shown the breaches here.
14 Q. Well, I didn't show them but
15 someone did. There are breaches shown on
16 this map. However, how good it is, I don't
17 recall where this comes from.
18 A. I don't know that I can make that
19 determination. I would have to sit down
20 with a detailed map showing where all the
21 exact locations of the breaches were. I
22 could probably do it with the photos that we
23 have Varuso, Richard Page 350

00351
1 own, that is, where there is more marsh the
2 levees fared better?
3 A. I'm not sure who from the Corps of
4 Engineers you are referring to that said
5 that. I'm not sure if that's a written
6 document. If you are referring to IPET, I
7 mean, there are other levee sections that,
8 in different locations -- see, even along
9 the GIWW, which performed differently than
10 the ones along the MRGO. I don't know that
11 we made the blanket statement that marshes,
12 the existence of marsh is the main culprit
13 to greater breaches, greater number of
14 breaches.
15 Q. Well, in fact, your own -- this
16 better and stronger business, the long-term
17 solution does talk about an intent for there
18 to be an integration with Coastal
19 restoration efforts. Would that not
20 indicate the Corps' understanding of the
21 need to improve the, or to restore the
22 wetlands in order to improve the ability of

Varuso,
23 the levees to perform? It wasn't thatRichard Page 351
00352
1 That last phrase there, you had to
2 get that in.
3 MR. BRUNO:
4 That's for you.
5 MR. SMITH:
6 I understand.
7 THE WITNESS:
8 The Corps of Engineers is aware of
9 the importance of levee -- of marshes with
10 respect to reducing storm surge. There is
11 no question about it.
13 Q. Clearly less storm surge means the
14 levees don't have to work as hard; fair
15 enough?
16 A. I suppose if you want to phrase it
17 that way, that's one way to put it.
18 Q. Now, with regard to the
19 performance, why did the MRGO levees fail?
20 A. Overtopping. The storm surge was
21 greater than the existing elevation.
22 Overtopping caused scour and erosion.
23 Q Now again not toVaruso, Richard

belabor the Page 352
00353
1 half feet, which would give you about 15 and
2 a half feet, right?
3 A. Four and a half feet, actually,
4 for the wave runup. The design elevation
5 was 17 and a half.
6 Q. 17, I'm sorry.
7 A. That's okay.
8 Q. Now, weather reports before the
9 approach of the hurricane indicated a
10 potential of a surge of as high as 20 feet;
11 isn't that right?
12 A. It sounds approximately correct.
13 I have heard some varying numbers, but close
14 to 20 sounds right.
15 Q. I think you've testified that, in
16 fact, the Corps found surge as high as 22?
17 A. 22.
18 Q. And the Corps of Engineers
19 understood that if the surge was higher than
20 the designed height, that there would be
21 erosion of the protected side or land side
22 of the levee, right?
23 A Varuso,
There was a potential Richard
for it The Page 353
00354
1 designed to prevent an oil spill, was it?
2 A. The levee you said?
3 Q. Right.
4 A. No.
5 Q. Nor was it designed to suggest to
6 an owner of a refinery that he ought not
7 follow his own hurricane preparedness
8 procedures; isn't that true?
9 MR. SMITH:
10 If you know.
11 THE WITNESS:
12 The only way I can answer that
13 question is that, as I stated before, the
14 levee is designed for one thing and that is
15 to prevent a given storm surge from
16 overtopping that particular levee at the
17 still-water level of 13 plus the four and a
18 half feet of wave runup.
19 What happens to the people inside,
20 I mean, that's our focus and our goal is to
21 design the levee to that elevation.
23 Q And in making thatVaruso,

statementRichard
are Page 354
00355
1 preparations?
2 MR. SMITH:
4 answer that.
5 MR. BRUNO:
6 I took a shot.
7 MR. KOHNKE:
8 You did good. You did good,
9 Robin.
10 MR. BRUNO:
11 You see? Don't tell me you are
12 neutral either.
13 MR. KOHNKE:
14 That's a lawyer's way of saying
15 that's a solid objection.
17 Q. If this draws an objection we will
18 change it. What is wave runup?
19 MR. SMITH:
20 As he's used it to describe the
21 forces.
22 MR. BRUNO:
23 Well he hasn't usedVaruso,

the word Richard
he Page 355
00356
1 THE WITNESS:
2 I think I have used the term "wave
3 runup."
5 Q. Oh, you have?
6 A. Uh-huh.
7 Q. Okay.
8 A. That's the additional four and a
9 half feet above the 13 to get an elevation
10 of 17 and a half. It's basically to
11 dissipate the wave energy as assumed to
12 coincide with that standard project
13 hurricane.
14 Q. And again, this is simply to just
15 confirm, same document I showed you before
16 which describes the wave runup number.
17 Okay?
18 A. Okay.
19 Q. At Page 24 of the document it
20 shows the wave runup elevation there.
21 A. Right. It's between 4.3 and 4.7,
22 that's right.
23 Q Okay Varuso, Richard Page 356

00357
1 A. Okay.
2 MR. BRUNO:
3 Now, this is a different question,
4 Robin.
6 Q. Did the Corps make an
7 investigation as to whether or not the MRGO
8 affected the performance of the levee during
9 the hurricane?
10 MR. SMITH:
11 Is the question --
13 Q. Did the MRGO.
14 MR. SMITH:
15 -- does he know whether MRGO?
16 Because we can talk about whether the Corps
17 has knowledge as to the impact of MRGO on
18 the performance of the levee.
19 MR. BRUNO:
20 I will do it any way you want.
21 MR. SMITH:
22 I prefer that as opposed to

Varuso, Richard
23 getting into what sort of assessments they Page 357
00358
1 Q. All right. Well, do you know --
2 does the Corps have knowledge as to whether
3 or not -- I'm sorry. I'm going to ask it
4 exactly like you have it here.
5 Does the Corps have knowledge as
6 to the impact of the MRGO on the performance
7 of the levee?
8 A. Yes.
9 Q. What is that knowledge?
10 A. Well, knowledge and opinions are
11 two different things. Some of our knowledge
12 is other people's opinions. Some of the
13 knowledge is our own opinion based our own
14 observations after Hurricane Katrina.
15 Q. Is that one body of knowledge or
16 four or five?
17 A. It would be -- well, it's more
18 than two.
19 Q. It's more than two. All right.
20 Then may I ask that you share with
21 me those bodies of knowledge.
22 A. The evidence that we have seen
23 with respect to the amountVaruso,

of water Richard
the Page 358
00359
1 significantly -- the elevations, now, were
2 so significantly above the elevation of the
3 top of the levee and in addition to the
4 elevation of the top of the bank of the
5 MRGO, that the storm surge coming up through
6 Lake Borne would have completely overwhelmed
7 any effect of the MRGO with respect to storm
8 surge and overtopping of the levees.
9 The predominant scour areas were
10 on the protected side, maybe just a few
11 locations where we saw some scour on the
12 flood side of the MRGO levee prior to
13 Katrina indicating that significant
14 overtopping and wave action coming
15 perpendicular to the levee section caused
16 the overtopping and erosion. So that is the
17 opinions of most people from the Corps.
18 Q. Right. The only thing that I
19 believe is perhaps left out of that answer
20 is whether or not the MRGO itself
21 contributed to the surge?
22 A. If there is a specific analyses,

Varuso,
23 I'm not aware of any specific Richard
analyses that Page 359
00360
1 Borne. But again, the overall opinion is
2 that if you look at the just volume of water
3 able to come up through Lake Borne
4 comparative to the volume of water able to
5 come up the MRGO, any amount of water coming
6 up the MRGO would have been completely
7 overwhelmed by the volume of water produced
8 by Lake Borne, hence overtopping the MRGO
9 levee perpendicular to the levee section
10 causing the erosion on the protected side.
11 I hope I've answered your question.
12 Q. Yes, you have. Again, going
13 through some documents here just trying to
14 reconfirm some things. I'm looking at a
15 document entitled Review of Report
16 St. Bernard Parish, Department of the Army,
17 18 November 1969.
18 A. Okay.
19 Q. Are you familiar with this? I
20 only show it to you for this one reason and
21 that is at Page 18 under Protective Measures
22 Considered, it says: The spoil from the

Varuso,
23 excavation from the MRGO has beenRichard
confined Page 360
00361
1 A. Can I take a minute to read?
2 Q. Please do.
3 THE VIDEOGRAPHER:
4 We are going off the record. It's
5 4:52.
7 THE VIDEOGRAPHER:
9 5:07 p.m.
11 Q. We're back on the record, okay,
12 but before we broke we were just asking
13 whether that particular phrase assisted you
14 in any way with regard to my previous
15 question about whether the spoils during the
16 excavation of the MRGO were intentionally
17 placed on one bank or the other.
18 A. I don't know if that statement
19 clarifies that at all.
20 Q. Okay. No problem.
21 MR. BRUNO:
22 You are not going to let me ask

Varuso,
23 any questions about MRGO Richard
right Robin? Page 361
00362
2 Q. In terms of performance of the
3 levees, do you, you the Corps, believe that
4 the breaches of the levee, levee or levee
5 breaches in the levee of the MRGO, occurred
6 before or after the peak surge?
7 A. I don't know if we have the
8 knowledge of that. The only thing we could
9 say with certainty is that the levee was
10 overtopped by anywhere between five and six
11 feet above the existing elevation, if not
12 more in some locations, and that significant
13 amount of overtopping caused the erosion and
14 subsequent breaches.
15 I'm not sure if I answered your
16 question. Maybe you want to ask it again to
17 make sure I'm on the same page.
18 Q. Well, I'm advised that the B
19 analysis is that the scouring occurred
20 before peak surge and the Corps' analysis is
21 that the scouring occurred after the peak
22 surge as reflected by the IPET report. I

Varuso,
23 didn't know if that was accurate Richard
or not? Page 362
00363
1 average, we will call it elevation 15, give
2 or take, depending on where we are, we will
3 use 15. With the levee elevation at 15, and
4 we will say again, for the sake of argument
5 that the peak elevation was plus 22. It
6 could have very well been at elevation 19,
7 which is still above the standard project
8 hurricane still-water and design height and
9 above the existing elevation. We could have
10 seen overtopping and scouring of the
11 protected side before it got to elevation
12 22.
13 So I don't think we can answer the
14 question whether or not it occurred before
15 or after peak surge. It occurred somewhere
16 between overtopping the levee at elevation
17 15 and the peak surge of 22.
18 Q. Does the Corps believe that any of
19 the waters penetrated through or under the
20 levees on the MRGO?
21 A. No. No.
22 Q. It's all overtopping?
23 A Varuso,
There is no evidence of any Richard Page 363
00364
1 way the Corps constructs the water side of
2 the levee from the protected side of the
3 levee, is there?
4 A. There is.
5 Q. There is? What is the difference
6 in construction?
7 A. If you refer to that figure --
8 Q. Yeah.
9 A. -- I don't know whether it's six
10 or five, somewhere along those lines.
11 Q. There it is right there. That
12 would be great.
13 A. I will refer to this as the way it
14 was constructed post Katrina. Again, I'm
15 going to assume you are referring to the
16 construction of the MRGO levees that we are
17 discussing.
18 Q. Oh, yes, yes, yes, please,
19 absolutely.
20 A. Okay. The original levees were
21 all uncompacted fill, so there would have
22 been no difference between protected side

Varuso, Richard
23 and flood side prior to Katrina Page 364
00365
1 no difference between flood side and
2 protected side.
3 Q. All right. Why then would there
4 be more damage on the protected side than
5 the water side?
6 A. That's a function of how long it
7 takes for the storm surge to rise and
8 overtop the levee. There is no time to
9 develop scour on the flood side. The
10 wave -- storm surge comes in so fast, you
11 don't have that time to have the impact of
12 the wave surge against the levee section on
13 the flood side stability/wave berm before
14 it's overtopped.
15 In addition, the forces on the
16 protected side, once they are topped, would
17 be far greater than what the forces would be
18 on the flood side prior to the overtopping.
19 These velocities, as the water is
20 coming over and essentially falling down and
21 impacting the protected side berm, would be
22 greater than the force that you would
23 encounter during the stormVaruso,

surge as Richard
the Page 365
00366
1 that it takes for that storm surge to
2 develop.
3 Q. Did Katrina produce slow rising
4 tides, or did it produce fast rising tides?
5 A. I would assume fast rising tides.
6 Q. Given the constraints placed upon
7 me by counsel, that's all I have. I'm
8 sorry.
9 The Corps recognized, did it not,
10 at least with regard to the unlevee'd
11 portion of the MRGO, that the wave action
12 resulting from the movement of the big ships
13 was causing a lot of erosion?
14 MR. SMITH:
17 MR. BRUNO:
18 I need -- I need --
19 MR. SMITH:
20 It has nothing to do with the
21 levees.
22 MR. BRUNO:
23 It does because it isVaruso,

the Richard Page 366
00367
1 experienced on the levees.
2 MR. SMITH:
3 Right.
4 MR. BRUNO:
5 The documents are black and white.
6 They say that. Okay.
7 MR. SMITH:
8 I appreciate that, Joe, but I'm
9 going to instruct him just to answer the
10 question -- if you want to ask him -- ask
11 him the question about the MRGO levees, then
12 you can make your argument to the court or
13 the juries about what the documents say.
15 Q. I can do it this way. Did the
16 water side of the levees on the MRGO erode
17 in the same way as the unlevee'd banks of
18 the MRGO eroded as indicated on Page 30 of
19 the Department of the Army, Mississippi
20 River Gulf Outlet, St. Bernard Parish,
21 Louisiana, Reconnaissance Report on Channel
22 Bank Erosion dated February 1988 indicates?

00368
1 I think that's fair enough. We
2 have to see what that indicates.
3 MR. BRUNO:
4 Sure.
5 THE WITNESS:
6 I hate to make you do this, but
7 that was kind of a long-winded question.
9 Q. Blame your lawyer. I'm trying to
10 work within the system here.
11 A. Could you repeat the question?
12 Q. Okay. Oh, yeah. You want to --
13 MR. SMITH:
14 Why don't you read -- why don't
15 you read the description?
16 MR. BRUNO:
17 We're going to read that piece and
18 I'll tell you where it is. I started it
19 here and it may go onto the next page.
20 THE WITNESS:
21 Okay. All right. Give me a
22 minute to read this.
23 (Whereupon the requestedVaruso,

testimonyRichard
was read Page 368
00369
1 MRGO erode in the same way as the unlevee'd
2 banks of the MRGO eroded as indicated on
3 Page 30 of the" -- dah, dah, dah.
4 THE WITNESS:
5 When you say the water side of the
6 levee, you are referring to MRGO side, the
7 flood side of the levees?
9 Q. Yes, sir.
10 MR. SMITH:
11 You mean during Hurricane Katrina?
12 MR. BRUNO:
13 No. Whatever that's referring. I
14 don't think that's referring --
15 THE WITNESS:
16 The levee you are referring to the
17 erosion we have seen during Hurricane
18 Katrina.
20 Q. That's referring to erosion and
21 I'm supposing -- that's 1988 so it had to be
22 preKatrina.
23 A Varuso,
This is bank erosion This is Richard Page 369
00370
1 So you are not going to let him
2 answer my well drafted question?
3 MR. SMITH:
4 Well, I thought you were asking
5 him about during Hurricane Katrina, but you
6 are not, I take it.
7 MR. BRUNO:
8 No.
9 MR. SMITH:
10 Then I'm going to instruct him not
11 to answer.
12 MR. BRUNO:
13 Because that's 1988.
14 MR. SMITH:
15 I thought you were comparing what
16 happened in 1988 from ship wave action to
17 what happened during Hurricane Katrina.
18 MR. BRUNO:
19 No. In fairness to you, I am not.
20 I was asking him if that occurred.
21 MR. SMITH:
22 Then I will instruct him not to

00371
1 construction of the levee and even --
2 MR. BRUNO:
3 I don't know, Robin. I mean, I
4 have got documentation --
5 MR. SMITH:
6 Why don't you ask him a question
7 about that, then? Why don't you ask him
8 were they designed --
10 Q. Well, were the levees designed
11 with regard to any consideration for wave
12 action from the passing vessels that the
13 Corps anticipated will be utilizing the
14 water?
15 A. The distance between -- I will
16 refer to some prior testimony about the
17 slope stability and required stability berm
18 on the protected side as it pertains to the
19 borrow pit, the excavated borrow pit. That
20 excavation, that almost canal now, if you
21 will, affects the stability of the levee
22 section. The required stability berm is
23 based on the depth of that Varuso,

borrow pitRichard Page 371
00372
1 levee section then there may be some
2 jeopardy to the global stability of that
3 levee section even without a storm surge,
4 without -- you know, in a non-storm surge
5 event. If the bank is allowed to erode too
6 close then that would cause a potential bank
7 or levee stability problem.
8 So the bank protection that is
9 being discussed here, essentially rock berms
10 or some rock facing along the slope, is
11 designed to insure that that location of
12 where that bank begins remains intact.
13 I don't know if I'm answering your
14 question, but --
15 Q. Well, you are not because the
16 question was: Did they, the Corps, consider
17 this wave action in connection with the
18 design and construction of the MRGO levee?
19 In other words --
20 A. Which wave action are you
21 referring to?
22 Q. From the ships.
23 A From ships Varuso, Richard Page 372

00373
1 A. Okay. The wave action -- the wave
2 action from the ships, the draft that is
3 formed by these ships passing by, is
4 relatively small type wave. And it's going
5 to impact the bank of the MRGO channel
6 before it reaches the levee section. So the
7 bank itself, with the rock along the bank,
8 is designed to reduce the energy impact from
9 those wave --
10 Q. Reduce the what?
11 A. The wave. The energy, the energy.
12 The wave from those passing ships. The wave
13 berm that's actually incorporated into the
14 design of the MRGO levees is a function of
15 the wave that is anticipated from a storm
16 surge which is going to be far greater than
17 whatever wave action would be developed from
18 a passing ship.
19 Q. Well, there were no rocks on the
20 water side of the MRGO levee, were there?
21 A. There are some rocks along the
22 bank. It's not continuous, but there is

Varuso,
23 areas where the bank is faced Richard
with rock Page 373
00374
1 us.
2 Along that 12-mile section, can
3 you tell me whether or not the original
4 construction -- can you tell me whether or
5 not along the 12 miles of levees that were
6 built pursuant to the '65 act the
7 construction specifications called for
8 aligning the water side of the levee with
9 any kind of protective material, including,
10 but not limited to, rock, broken concrete or
11 other type -- any other type of armoring?
12 A. That's -- that's maintenance.
13 That's a maintenance issue for the MRGO
14 channel itself, not an issue for the levee
15 design. That was separate from the levee
16 design and construction. That's bank
17 stabilization for the MRGO channel. It's a
18 separate funding, separate maintenance
19 issue.
20 Q. All right. Now, but you would
21 agree with me that if there is no rock and
22 there's no stabilization of that shore that

Varuso,
23 it could impact the levee the Richard
stabilization Page 374
00375
1 stands now the distance between the existing
2 center line of the levee and the existing
3 top of bank or edge of bank of the MRGO,
4 that distance is significant to the global
5 stability factor of safety for the existing
6 levee section.
7 In other words, we would need
8 significant erosion of that bank before we
9 jeopardize the stability of the levee.
10 Q. Well, in fact, hasn't there been
11 extraordinary erosion? I mean, all the
12 reports are that it was a 600-foot channel
13 and now it's in some places it's 2,000 feet.
14 A. With respect --
15 MR. SMITH:
16 Has there been any erosion that
17 affected the MRGO; is that what you are
18 asking?
19 MR. BRUNO:
20 Yes.
21 MR. SMITH:
22 The MRGO levees.

00376
1 Given the erosion, given the
2 change in the geometry of the channel
3 between 1965, or before 1965 to now, there
4 has been some change in the geometry of the
5 channel. That change in geometry has not --
6 has not reduced the factor of safety for
7 global stability of the embankment below the
8 required factor of safety.
10 Q. How do you know that?
11 A. We performed analyses.
12 Q. When and --
13 A. On each one of the -- on each --
14 as we prepared the plans and specifications
15 for each one of the contracts that I was
16 referring to before in the '70s and the
17 '80s, stability analyses are performed to
18 determine those factors of safety and they
19 are analyzed both ways.
20 Q. Sure. But that's since the '70s
21 and '80s. It's 2005. 2005 for Katrina,
22 2006 now. What have you done between the

Varuso,
23 last time you worked on those leveesRichard
which Page 376
00377
1 A. Okay.
2 Q. Did you do any analysis to
3 determine whether or not --
4 A. Post Katrina we have determined
5 the distance as it stands post Katrina and
6 the location of that existing bank on the
7 south or west side of the existing bank is
8 not affecting the factor of safety for
9 global stability of that levee below the
10 allowed factor of safety.
11 MR. SMITH:
12 Just to clarify, you said south or
13 west. You meant south or east.
14 THE WITNESS:
15 Well, I say --
16 MR. BRUNO:
17 No. He is right, south or west.
18 THE WITNESS:
19 Some people refer to that as
20 south, some people refer to that as --
21 MR. SMITH:
22 That's the east side of the levee,
23 south side -- I got you Varuso, Richard Page 377

00378
1 some kind of a writing?
2 A. It's in the general -- the design
3 memorandum.
4 Q. For?
5 A. Each one of those -- each one of
6 those -- each time a set of plans and
7 specifications is put into place --
8 Q. This is post Katrina now. You got
9 me totally confused.
10 A. Oh, no, no.
11 Q. I thought what you said to me
12 was -- here is the question. The question
13 was: It's been, gosh, 25 years since the
14 second enlargement, augmentation, however
15 you want to call it --
16 MR. SMITH:
17 Enlargement.
18 THE WITNESS:
19 Enlargement.
21 Q. -- enlargement of the levee.
22 Okay? Right?
23 A That's right Varuso, Richard Page 378

00379
1 Q. The question I thought was on the
2 table was: Has the Corps of Engineers
3 performed any analysis, study, investigation
4 as to whether or not erosion of the banks
5 had any impact on the stability of the levee
6 in the 25 years after the second enlargement
7 but before Katrina?
8 A. On the one section that I referred
9 to that I drew an orange on this --
10 Q. The one mile?
12 Q. Anywhere else?
13 A. No.
14 Q. Post Katrina, has the Corps done
15 any analysis as to whether or not erosion of
16 the banks impacted the Global stability of
17 the other 11 miles?
18 A. Yes.
19 Q. Now, is that reflected in some
20 kind of a writing?
21 A. That's in the -- we are still in
22 the process of compiling all the data to

Varuso,
23 have one general design report or Richard Page 379
00380
1 There is a private engineering
2 firm that's done another report. And
3 between those two reports you can find the
4 stability analyses that show the global
5 stability toward the flood side with respect
6 to location of the bank.
7 Q. Both are published, as we speak?
8 A. The information is available.
9 Whether or not they are in an official form
10 of a GDM, I can't say that we have actually
11 put together an official GDM at this point.
12 Q. So they are not on the website?
13 A. Not that I'm aware of.
14 MR. BRUNO:
15 Robin, may I ask that you produce
16 that, then? I think it's relevant and I
17 can't get it on the website.
18 MR. SMITH:
19 I will look into it.
20 MR. BRUNO:
21 With that, that's all I have,
22 given the constraints, and we will visit

Varuso,
23 with the Judge tomorrow and Richard
see what his Page 380
00381
1 THE WITNESS:
2 Okay.
3 THE VIDEOGRAPHER:
4 This concludes the deposition.
5 It's 5:28 p.m.
7 (Whereupon, the deposition was concluded.)
9 * * *
10
11
12
13
14
15
16
17
18
19
20
21
22

00382
1
4 WITNESS' CERTIFICATE
7 I have read or have had the foregoing
8 testimony read to me and hereby certify that
9 it is a true and correct transcription of my
10 testimony with the exception of any attached
11 corrections or changes.
12
13
14
15
16
17 _____________________________
18 RICHARD VARUSO
19
20 PLEASE INDICATE
21 ( ) NO CORRECTIONS
22 ( ) CORRECTIONS; ERRATA SHEET(S) ENCLOSED

00383
1 REPORTER'S CERTIFICATE
3 I, Pat Kennedy Quintini, CCR, Certified
4 Court Reporter, State of Louisiana, do
5 hereby certify that the above-named witness,
6 after having been duly sworn by me to
7 testify to the truth, did testify as
8 hereinabove set forth.
9 That this testimony was reported by me
10 in the stenotype reporting method and
11 transcribed thereafter by me on computer,
12 and that same is a true and correct
13 transcript to the best of my ability and
14 understanding.
15 That I am not of counsel, nor related
16 to counsel or the parties hereto, and in no
17 way interested in the outcome of this
18 matter.
19
20
21
22 _____________________________
23 PAT KENNEDYVaruso, Richard

QUINTINI Page 383

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00001

1 UNITED STATES DISTRICT COURT

2 EASTERN DISTRICT OF LOUISIANA

4 PATRICK JOSEPH TURNER, CIVIL ACTION

7 VERSUS NO. 05-4206

11 Deposition of U.S. ARMY CORPS OF

21 BRUNO & BRUNO

6 MARTZELL & BICKFORD

12 ATTORNEYS FOR PLAINTIFFS' COMMITTEE

18 ATTORNEYS FOR MURPHY OIL USA, INC.

9 PAT KENNEDY QUINTINI

16 EXAMINATION BY MR. KOHNKE ......... 8

17 EXAMINATION BY MR. BRUNO .......... 302

5 Exhibit No. 1 .................... 77

6 Notice of 30(b)(6) videotaped

7 deposition of the U.S. Army Corps of

9 Exhibit No. 2 .................... 81

10 Document from Corps of Engineers

11 website titled: Better & Stronger, New

12 Orleans Hurricane Protection System

13 Exhibit No. 3 .................... 106

14 Defendant United States' Consent/Ex

15 Parte Motion for Leave to File

16 Memorandum in Support of Motion to

17 Dismiss in Excess of 25 pages

18 Exhibit No. 4 .................... 108

19 Document that was Exhibit 7 to

20 previously marked Exhibit No. 3

21 Exhibit No. 5 .................... 296

22 IPET Report, Volumes 1 and 3 through 8

2 Map from Design Memorandum No. 1-A

3 Exhibit No. 8 .................... 345

4 Figure 2.7: Map showing the design

5 flood state levels for selected

6 locations in the New Orleans Area

23 Varuso, Richard Page 5

2 It is stipulated and agreed by and

3 between counsel for the parties hereto that

4 the deposition of the aforementioned witness

5 is hereby being taken for all purposes

6 allowed under the Federal Rules of Civil

7 Procedure, in accordance with law, pursuant

9 That the formalities of reading and

10 signing are specifically not waived;

11 That the formalities of filing,

12 sealing, and certification are specifically

14 That all objections, save those as to

15 the form of the question and the

16 responsiveness of the answer, are hereby

17 reserved until such time as this deposition,

18 or any part thereof, may be used or sought

21 PAT KENNEDY QUINTINI, Certified

22 Shorthand Reporter, in and for the State of

2 This is the videotaped deposition

3 of Richard Varuso taken in the matter of

4 Patrick Joe Turner, et al. versus Murphy

5 Oil, Civil Action No. 05-4258, in the case

6 in the United States District Court, Eastern

7 District of Louisiana. This deposition is

8 being held at 1100 Poydras Street,

9 Suite 3800, in New Orleans, Louisiana, on

10 August 22, 2006. And the time on the video

12 My name is Jack Verwoerdt with

13 Professional Shorthand. The court reporter