1 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

3 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, )

ROTH FARMS, INC., and WEDGWORTH FARMS, INC., )

4 -and- )

FLORIDA SUGAR CANE LEAGUE, INC., and )

5 UNITED STATES SUGAR CORPORATION, )

-and- )

6 FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )

LEWIS POPE FARMS, W. E. SCHLECHTER & SONS, )

7 INC., and HUNDLEY FARMS, INC., )

)

8 Petitioners, )

)

9 vs. ) DOAH CASE NOS.

) 92-3038

10 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039

) 92-3040

11 Respondent, ) (Consolidated)

)

12 and )

)

13 MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

STATES OF AMERICA, FLORIDA DEPARTMENT OF )

14 ENVIRONMENTAL REGULATION, and FLORIDA )

WILDLIFE ASSOCIATION, )

15 )

Intervenors. )

16 ) _____________________________________________

HEARING BEFORE: HONORABLE J. STEPHEN MENTON

18 HEARING OFFICER

19 DATE: WEDNESDAY, MARCH 14, 1994

(10:06 A.M. - 1:00 P.M.)

LOCATION: HEARING ROOM 3, DESOTO BUILDING

21 1230 APALACHEE PARKWAY

TALLAHASSEE, FLORIDA

REPORTED BY: SUE HABERSHAW JOHNSON

23 CERTIFIED COURT REPORTER

REGISTERED PROFESSIONAL REPORTER

24 NOTARY PUBLIC

1 APPEARANCES:

2 Representing Petitioners, Sugar Cane Growers

Cooperative of Florida, Roth Farms, Inc.,

3 and Wedgworth Farms, Inc.:

4 WILLIAM H. GREEN, ESQUIRE (telephone)

CAROLYN RAEPPLE, ESQUIRE

5 ROBERT P. SMITH, ESQUIRE

Hopping, Boyd, Green & Sams

6 123 South Calhoun Street

P. O. Box 6526

7 Tallahassee, Florida 32314

(904-222-7500)

Representing Petitioners, Florida Sugar Cane

9 League, Inc., and United States Sugar

Corporation:

RICK J. BURGESS, ESQUIRE

11 ROBERT BLANK, ESQUIRE (telephone)

Earl, Blank, Kavanaugh & Stotts

12 One Biscayne Tower, Suite 3636

Two South Biscayne Boulevard

13 Miami, Florida 33131

(305-681-1900)

14 -and-

WILLIAM L. HYDE, ESQUIRE

15 Earl, Blank, Kavanaugh & Stotts

Suite 350

16 215 South Monroe Street

Tallahassee, Florida 32301

17 (904-681-1900)

18 Representing Petitioners, Florida Fruit and

Vegetable Association, Lewis Pope Farms,

19 W. E. Schlechter & Sons, Inc., and Hundley

Farms, Inc.:

KENNETH F. HOFFMAN, ESQUIRE

21 ROBERT DOWNIE, ESQUIRE

Oertel, Hoffman, Fernandez & Cole, P.A>.

22 Suite C

2700 Blair Stone Road

23 Tallahassee, Florida 32301

(904-877-0099)

1 APPEARANCES, CONTINUED:

2 Representing Intervenor, The United States

of America:

SUZAN HILL PONZOLI, ESQUIRE

4 THOMAS A WATTS FITZGERALD, ESQUIRE

Assistant United States Attorney

5 Southern District of Florida

Third Floor

6 99 Northeast 4th Street

Miami, Florida 33132-2111

7 (305-536-5477)

8 -and-

9 STEPHEN MACFARLANE, ESQUIRE (telephone)

KEITH A. SAXE, ESQUIRE (telephone)

10 STEPHEN BARTELL, ESQUIRE (telephone)

United States Department of Justice

11 Environmental & Natural Resources Division

General Litigation Section

12 Room 879, 601 Pennsylvania Avenue

Washington, D.C. 20004

13 (202-272-4016)

14 Representing Intervenor, Florida Department of

Environmental Protection:

LEE M. KILLINGER, ESQUIRE

16 Assistant General Counsel

Department of Environmental Protection

17 640 Twin Towers Office Building

2600 Blair Stone Road

18 Tallahassee, Florida 32399-2400

(904-488-9730)

Representing Respondent, South Florida Water

20 Management District:

21 R. BENJAMINE REID, ESQUIRE

Popham, Haik, Schnobrick & Kaufman, Ltd.

22 400 International Place

100 Southeast Second Street

23 Miami, Florida 33131

(305-539-7222)

1 APPEARANCES, CONTINUED:

2 Representing Respondent, South Florida Water

Management District:

RUTH P. CLEMENTS, ESQUIRE (telephone)

4 Assistant General Counsel

South Florida Water Management District

5 P. O. Box 24680

3301 Gun Club Road

6 West Palm Beach, Florida 33416-4680

(407-686-8800)

* * * * *

ALSO PRESENT:

BERNIE ROMAN (telephone)

INGUNA VARSLAVANE

PAM GARVIN

* * * * *

INDEX

ITEM PAGE

HEARING COMMENCED . . . . . . . . . . . . . . . . . . 5

HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 134

CERTIFICATE OF REPORTER . . . . . . . . . . . . . . .135

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 10:06 A.M.,

3 AT WHICH TIME MR. HOFFMAN, MR. MACFARLANE, MR. SAXE, AND

4 MR. BARTELL WERE ABSENT FROM THE PROCEEDINGS.)

5 HEARING OFFICER: Hello?

6 TELEPHONE OPERATOR: Hello. Mr. Menton?

7 HEARING OFFICER: Yes.

8 TELEPHONE OPERATOR: AT&T conference call. I have

9 your parties, with the exception of Mr. Macfarlane.

10 I reached Voice Mail for him, and so I left the 800-

11 number and the I.D. number. Would you like me to take

12 a roll call?

13 HEARING OFFICER: Please.

14 TELEPHONE OPERATOR: One moment. We'll just take

15 a short roll call. Ms. Clements?

16 MS. CLEMENTS: Yes.

17 TELEPHONE OPERATOR: Mr. Blank?

18 MR. BLANK: Here.

19 TELEPHONE OPERATOR: Thank you. Bill Green?

20 MR. GREEN: Here.

21 TELEPHONE OPERATOR: Bernie Roman?

22 MR. ROMAN: Here.

23 TELEPHONE OPERATOR: Is Steve Menton in the room?

24 HEARING OFFICER: Yes, ma'am.

25 TELEPHONE OPERATOR: Thank you for using AT&T.

1 The I.D. number is WR, as in William Robert, 67833.

2 Do you need our 800-number?

3 HEARING OFFICER: No. That's okay. I think we

4 have it from before.

5 Good morning. This is Steve Menton in Tallahassee.

6 Let's take an attendance list of people who are here

7 in Tallahassee, beginning with the petitioners, for the

8 League.

9 MR. HYDE: William Hyde and Rick Burgess on behalf

10 of the League and U. S. Sugar.

11 HEARING OFFICER: For the Cooperative?

12 MR. SMITH: Robert Smith and Carolyn Raepple.

13 HEARING OFFICER: Okay, and for the Fruit and

14 Vegetable Growers?

15 MR. DOWNIE: Robert Downie.

16 HEARING OFFICER: Okay. Let's move to the

17 District.

18 MR. REID: Ben Reid.

19 HEARING OFFICER: Okay, the U. S. Government?

20 MS. PONZOLI: Suzan Ponzoli and Tom Watts

21 Fitzgerald.

22 HEARING OFFICER: Okay, Department of Environmental

23 Protection?

24 MR. KILLINGER: Lee Killinger.

25 HEARING OFFICER: Okay. I don't know if Mr.

1 Lehtinen wanted to be part of this or whether Mr.

2 Guest, did anybody hear from them or know whether they...

3 MR. ROMAN: My name is Bernie Roman. I'm a law

4 clerk for Mr. Lehtinen. He told me to sit in on the

5 conference.

6 HEARING OFFICER: Okay. How about Mr. Guest?

7 Anybody hear from Mr. Guest or know what his status

8 is?

9 Okay. The hearing was established during the last

10 conference call, during which Mr. Guest was represented.

11 I assume if he intends to join us, I'm sure he will

12 find an appropriate way to get us.

13 MS. PONZOLI: Mr. Hearing Officer, I thought

14 that Mr. Saxe of the Department of Justice wished to

15 listen in, and I don't know. Is there any way to plug

16 him in? I guess we lost our operator.

17 HEARING OFFICER: We can call the AT&T number

18 and give them the conference...

19 MS. PONZOLI: I believe Mr. Saxe is 202-272-4016.

20 MR. HYDE: It might be easier for you to call him.

21 MS. PONZOLI: Fine. I'll go do that.

22 MR. HYDE: Get the 800-number and the...

23 COURT REPORTER: WR-67833.

24 MS. PONZOLI: I'll do that.

25 (WHEREUPON, A BRIEF OFF-THE-RECORD DISCUSSION WAS

1 HELD, AND MS. PONZOLI LEFT THE HEARING ROOM.)

2 HEARING OFFICER: Okay, for those of you who are

3 on the conference, Ms. Ponzoli has gone to see if we can

4 add Mr. Saxe onto the line.

5 Is there anybody else on the phone that needs to

6 state an appearance other than the names that were

7 called out by the operator?

8 Ms. Clements, is there anybody that you have with

9 you that's in appearance, or Mr. Green?

10 MR. GREEN: No, Your Honor.

11 HEARING OFFICER: Okay.

12 MR. FITZGERALD: Mr. Hearing Officer, there is at

13 least one very narrow issue we need neither Ms. Ponzoli

14 nor Mr. Saxe for, based on a request for further

15 entry into the Loxahatchee by the League. We can

16 address that to save some time and keep it moving.

17 HEARING OFFICER: Okay. That's fine. There was,

18 what is the status of the issue with respect to the

19 Cooperative's efforts to get into the Wildlife Refuge?

20 I think we talked about there had been some resolution

21 between the parties, but the wildlife issues were

22 still outstanding, as I recall from the earlier hearing

23 that we had.

24 MR. FITZGERALD: That's correct, Mr. Hearing

25 Officer. Ms. Raepple very kindly forwarded a copy of

1 some photos that had been taken by the consultants on

2 the date of the entry into the Park. They landed at

3 five sites out of the 10 selected, and I guess our

4 status has not changed with regard to Loxahatchee and

5 the entry program.

6 Because of the scope and the invasiveness of it

7 we still don't feel in a position to agree.

8 I had indicated to Ms. Raepple when last we

9 discussed it that were there any materials or anything

10 of that nature that their consultants felt would carry

11 the day and persuade us it was not something that would

12 pose any difficulty or potential harm within the scope

13 of controlling regulations and statutes covering the

14 designated habitat that we would be glad to receive

15 those and convey them to experts to review, but

16 we have heard nothing further, so I think we are at an

17 impasse.

18 MS. RAEPPLE: Mr. Hearing Officer, with regard to

19 the Cooperative's request for entry into the Loxahatchee,

20 as was mentioned to you at the last hearing we were

21 at that point about at the time in a critical path for

22 completing our work in advance of the deposition of

23 the Law Environmental experts, and they did conduct

24 entry into the Park and the further reconnaissance they

25 requested at that time and have determined that simply

1 they do not have the time at this time to go back and

2 do reconnaissance they would like to do into the

3 Loxahatchee and still be prepared to provide their

4 depositions at the end of the month.

5 (WHEREUPON, MS. PONZOLI ENTERED THE HEARING ROOM.)

6 What we are doing at this time is that they are

7 proceeding with their work, and they are at this

8 point optimistic they will be able to generate the

9 map they are attempting to do without the entry, and

10 we don't know yet whether that is going to be successful.

11 If it is unsuccessful then I will be filing an

12 appropriate motion to delay the depositions, which I

13 don't think will in any fashion delay the hearing,

14 because this is not an issue that is likely to come up

15 in the early stages, but we have not yet determined if

16 we will need to pursue that remedy.

17 HEARING OFFICER: Okay, so at this point they are

18 trying to extrapolate from the information they gathered

19 from the Park into...

20 MS. RAEPPLE: From other location as well as they

21 did some reconnaissance previously over the Loxahatchee

22 at the regulation height, which is 1,000 feet or so,

23 so that they do have some information from the Loxahatchee

24 in that fashion. They have not yet determined if it will

25 be sufficient.

1 HEARING OFFICER: Okay.

2 MS. RAEPPLE: But they don't have time to go back

3 and go into the Loxahatchee and prepare for deposition

4 on our present schedule.

5 HEARING OFFICER: Okay, well, if it does need

6 to come back up, one of the things we have talked

7 about before was looking at a way to get around some

8 of the wildlife issues that Mr. Fitzgerald raised,

9 either by delaying it until the latter part of the

10 hearing or something like that, so those issues can

11 be looked at before we have to bring that back up from

12 the context of the hearing. I just wanted...

13 MR. RAEPPLE: Yes, if it does become a problem

14 then I will attempt to resolve it just between Mr.

15 Watts Fitzgerald and myself and only coming back to

16 you if necessary.

17 HEARING OFFICER: Okay, just so I understood

18 that you have been able to get into the Park and do some

19 of the ground truthing that you wanted to do, is that

20 right?

21 MS. RAEPPLE: Yes.

22 HEARING OFFICER: And that's completed?

23 MS. RAEPPLE: That's completed.

24 HEARING OFFICER: Okay. Now there is another

25 access issue, Mr. Fitzgerald, that you wanted to address

1 with respect to the League?

2 MR. BURGESS: Mr. Menton, we requested informally

3 through correspondence and letters and speaking with

4 Tom that ability to go back into the Refuge to the

5 area where there are two transects, one in the southern

6 part and one in the western part of the Refuge.

7 The transects in the area where we want to take

8 three additional cores on each transect for a total of

9 six are all within 2,500 feet of the canal in the

10 cattail area, what's been defined as the impacted area.

11 We are not asking for permission t fly over,

12 we're willing to do this by airboat access from the

13 canals, go 2,500 feet in, and take soil samples.

14 The reason, Mr. Menton, after we completed our

15 first round of sampling we were allocated a certain

16 number of cores that we could take, and we went further

17 into the interior to judge the impact, and we found

18 very quickly that soil phosphorus reached background

19 levels, and so we want to better define the impact

20 through soil phosphorus closer to the canals.

21 Our consultants have prepared isopleths of the

22 soil phosphorus readings around these areas where the

23 transects are located to be able to determine soil

24 phosphorus content at a distance from the canal to

25 determine impacts going into the center of the Refuge,

1 and we have cores from the two sets of transects, but

2 we are not able to fill in the line to better define

3 the area without taking some ciscrete other cores in

4 discrete areas.

5 I had been hopeful based upon our contacts with

6 Tom that this was gong to be granted informally through

7 the correspondence route.

8 We have gone down to the point now of providing

9 GPS coordinates for the areas that we want to go to.

10 We have defined the stations that we have been at before

11 and where we want to go and are willing to limit ourselves

12 to the one day and entry by airboat to better define

13 the areas.

14 We don't think there is any of the wildlife,

15 migratory birds, that might be attendant to a flyover

16 in a helicopter of other areas in the Refuge.

17 This is total phosphorus only, so it's not CZM

18 data, which takes a longer period of time. These are

19 things after the core is taken where you can have the

20 results back relatively quickly from the laboratory.

21 HEARING OFFICER: Just so I understand, you're

22 talking about in the Everglades, taking from the canal

23 into two different locations for three core samples at

24 each of three different locations?

25 MR. BURGESS: Right, within 2,500 feet of the canal.

1 HEARING OFFICER: You have identified specific

2 sites that you would like to take those samples from?

3 MR. BURGESS: Yes, GPS coordinates. In fact,

4 we have been all working with these when we have

5 exchanged our data samples as the locations of the

6 various sites, and this was in my last correspondence

7 to Tom.

8 This is the area in the south where we would like

9 to take and do our two stations of the LR-18 and

10 LR-19 and LR-21 for the record.

11 HEARING OFFICER: Okay, those are different sites

12 than the ones established during the first access

13 we established close to the canal?

14 MR. BURGESS: Those stations that I just read to

15 you are in fact the stations from the first entry,

16 from our first entry, but what we want to do is better

17 define the phosphorus gradient by sampling within

18 2,500 feet of the canal, at or near those sites.

19 I have my letter dated March 3rd to Mr. Fitzgerald,

20 telling the exact locations, numbers, and the GPS

21 coordinates, which I'd be happy to offer into the

22 record.

23 HEARING OFFICER: Okay. You are saying it's the

24 same sites you had used before, but there's a specific

25 location at those sites now that you want to measure

1 from the canals?

2 MR. BURGESS: Right. Here in the south where we

3 may have the sample at LR-21, and then which might show

4 elevated phosphorus, and then we go up to LR-23, which

5 is that background.

6 We know that somewhere between those two areas the

7 gradient decreases back to background, and we want to

8 define that area.

9 Between that area and that area we want to take

10 another core to define it, so we can draw the line of

11 the phosphorus impact.

12 HEARING OFFICER: All right. Mr. Fitzgerald,

13 what's the problem?

14 MR. FITZGERALD: Well, Your Honor, not arguing

15 disputed facts, I will stick to the procedural.

16 One of the concerns I had, although this is

17 arguably distinguishable from the Coop's proposal,

18 because it's less intrusive, takes less time, was the

19 appearance of not treating all petitioners in an

20 even-handed fashion, but after our last extended

21 conversation on this, as Mr. Burgess pointed out, he

22 provided me with correspondence identifying the

23 locations.

24 Once I had that I was able to give that to the

25 experts and have them look at whether it does pose

1 concerns that raise the environmental and ecological

2 difficulties because of the species.

3 As he points out, because they are heavily invested

4 cattail areas of marginal value to wildlife it does not

5 raise the same level of concerns.

6 We have checked the two areas and understand his

7 proposal is by airboat for one day. I'm sorry. Did I

8 say something humorous, Mr. Smith?

9 HEARING OFFICER: Let's just go forward.

10 MR. FITZGERALD: So a total of three additional soil

11 cores along those two transects going no further in as

12 indicated, the 2,500 feet from the canal, we are

13 not overwhelmingly thrilled about the idea, but we

14 don't have the same difficulties from the Resource

15 Manager's perspective as with the other proposal.

16 Accordingly I think we can agree to do that. It

17 does raise a couple of issues I guess we haven't

18 resolved, and although I understand that the data

19 would be available much sooner, whomever it is who will

20 employ the data may be deposed, and if so we have

21 the procedure of having to redepose people who may

22 be relying on it. I need that identified, because we

23 would not know that.

24 I would also like, as I said in the earlier

25 exchange, to have the raw data as soon as it becomes

1 available from whatever means.

2 The data I would propose for it, and it's key to

3 having a person there available to do it with them, and

4 we'll issue a special use permit under the same route

5 as before.

6 It would be two weeks from today, the 28th of

7 March.

8 HEARING OFFICER: This sounds like reasonable

9 conditions. Can you live with those?

10 MR. BURGESS: Yes, I think I can, other than what

11 we would have to do, the two consultants I think that

12 would in turn rely on it would probably be Dr.

13 Richardson and/or Dr. Patrick.

14 HEARING OFFICER: Dr. Richardson hasn't been

15 deposed yet?

16 MR. BURGESS: Right. Those are set for the 28th

17 or 29th. If we wait two weeks to take the sample we

18 will not have the results.

19 However, we believe that it's going to be

20 generally confirmatory in nature, and we would be

21 willing to provide that information to them at the

22 conclusion, at which time we will also have the soil

23 sampling results, and if it makes a difference to

24 their testimony and their opinions we would offer them

25 to be examined on those specifics and the narrow points

1 prior to the time.

2 MR. FITZGERALD: It may be if they view it as

3 something confirmatory that it can be explored at some

4 length during their depositions, and everybody can

5 evaluate the data and handle it in an interrogatory

6 and follow on and keep it to the absolute minimum.

7 HEARING OFFICER: Let's try to do it that way...

8 MR. BURGESS: Okay.

9 HEARING OFFICER: ...rather than postpone the

10 deposition, etal, because I think it's better to go

11 forward.

12 If there are any new conclusions reached as a

13 result of their test results you will be expected to

14 convey that immediately to counsel, and we'll make

15 whatever arrangements are necessary at that time.

16 MR. BURGESS: Only a limit of time. We are locked

17 into the 28th. If we can do it sooner it would be

18 better.

19 HEARING OFFICER: Okay, let's see if we can

20 work that out.

21 MR. BURGESS: Thank you.

22 HEARING OFFICER: Okay, that takes care of all the

23 access issues, is that correct?

24 All right. There are a couple of other leftover

25 issues from some of our prior hearings.

1 The first goes to the discussions we had last

2 week with respect to...

3 TELEPHONE OPERATOR: Pardon me. Mr. Macfarlane

4 is on the line and Mr. Bartell.

5 HEARING OFFICER: Welcome, Mr. Macfarlane.

6 MR. MACFARLANE: Thank you, Mr. Hearing Officer,

7 and I have Steve Bartell here with me.

8 HEARING OFFICER: We just resolved some issues

9 regarding access to the Refuge. I think we have taken

10 care of those. We were talking about some other

11 discovery issues. You haven't missed anything exciting,

12 yet.

13 MR. MACFARLANE: Thank you.

14 HEARING OFFICER: Okay, the next issue I wanted

15 to see where we stood on goes to the depositions from

16 the designees of the Department and from the Water

17 Management District. We discussed those last Wednesday

18 during our conference call.

19 As I recall from that conference call, Mr. Reid

20 was going to designate his Water Management District

21 representative to respond to the issues set forth in the

22 notice sent out by the Cooperative, and likewise

23 Mr. Killinger was going to designate a Department

24 representative, and we were going to try to proceed

25 with his witnesses if possible, and see where we stood.

1 Let me get an update.

2 MR. REID: Your Honor...

3 MR. SMITH: I initiated inquiries to both counsel

4 about taking the District's deposition on Wednesday

5 of this week, since Ms. Ponzoli and I will be in

6 West Palm Beach tomorrow to take Mr. Wedgworth's, and

7 I also asked the Department if they could submit the

8 Department's designee this afternoon or if that's too

9 early on Thursday.

10 That's the time, the schedule that I proposed.

11 I believe the matter that's left over is one of

12 six areas. I think the five areas are settled as to

13 the acreage question, the contingent 50 ppb Loxahatchee

14 discharge limitation, the Technical Oversight Committee,

15 and the moderating provisions I take it was not

16 postponed until today. That's settled.

17 Those are areas of possible inquiry, and the

18 scope of today's discussion is the memorandum,

19 Mr. Reid's memorandum, which he handed me this morning.

20 HEARING OFFICER: I received a memo regarding the

21 NPDES permit this morning. I flipped through it

22 quickly. I did not have an opportunity to review it in

23 any great detail, and I did have that as another issue

24 to discuss, was exactly where the permit issue stood.

25 Let's just talk about the deposition first.

1 MR. REID: The answer is there will be no

2 designees, because in our view if you take away the

3 coercion part there are no topics that have not either

4 been covered by witnesses and documents previously

5 produced or scheduled to be produced.

6 There will be no independent witness who will be

7 designated as the most knowledgeable about these

8 matters. In our view all of this has been covered.

9 For instance, Mr. Whalen as we talked about

10 the notes of the meeting, not only was Mr. Whalen deposed

11 but every other single person with one exception.

12 I understand there is one attendee at that meeting

13 who was not scheduled for deposition. I have forgotten

14 which one it is. But all the rest either have been

15 deposed or are going to be deposed and have had the

16 opportunity to talk about everything at those meetings.

17 So far as why something is in the SWIM plan,

18 Mr. Whalen testified six days I think so far, and

19 this would go to any topic, any subject matter that

20 is covered in the SWIM plan.

21 Mr. Whalen's role was to take the material and

22 put it in the final form and put it together. So

23 Mr. Whalen was deposed about that.

24 With regard to the science that might

25 support this decision or that decision, all of the

1 people who have been deposed. That's what this case is

2 all about.

3 The only thing left would be the fact that the

4 Board of the South Florida Water Management District

5 by a vote which followed a submission of all of the

6 scientific material, a number of days of workshops,

7 several public hearings attended by all interested

8 parties, they made a decision.

9 To the extent why they made the decision, the issue

10 in this case is for the Hearing Officer to determine if

11 that was the right decision based on what they had to

12 rely upon, and that's the evidence before the Hearing

13 Officer.

14 So if you take away, and I went back through the

15 transcripts to try to get a better understanding of what

16 we were looking for, and what I see is, as I said the

17 other day, this entire issue, this entire notice is

18 really focused almost completely on this idea of

19 coercion, why you did it, and Mr. Smith said things

20 like, "I don't want to talk to people, underlings who

21 will give scientific testimony," etcetera, etcetera.

22 So our position will be that all of those

23 witnesses that would deal with the subject have been

24 deposed or are going to be deposed before we conclude

25 the proceeding.

1 HEARING OFFICER: Okay. I am very much at a loss

2 when we talk about this, because I haven't been through

3 the depositions, and I don't know what the testimony has

4 been, and I'm not familiar with the process by which

5 this SWIM plan was actually finally adopted, and so it's

6 difficult for me to understand exactly how all this

7 came about.

8 As I understood what Mr. Smith was looking for

9 was not a witness who could testify regarding specific

10 scientific issues but the ultimate determination as to

11 whether to go with one particular provision that may or

12 may not have been in the federal settlement agreement

13 or go with some earlier version that the Water Management

14 District was looking at.

15 MR. REID: There are two ways of making the

16 decision. Number one is the people who were scientists,

17 who had done the research, and made determinations,

18 perhaps they relied on some of the information and

19 data developed as part of the federal process. Maybe

20 not.

21 You certainly from the very beginning have said

22 people could ask questions about that part of the

23 settlement agreement, if you will. In other words, if

24 the District took positions on science and one position

25 one time and one position another, and the people who

1 took those positions are scientists have been deposed.

2 And that's really, that's been all the discovery in the

3 case about the science.

4 The other part of the decision is the ultimate

5 decision made by the collegial body which is exactly

6 what this whole process is designed to test, and you

7 don't test it based necessarily on the day they said,

8 "All in favor, say aye, and all opposed, say nay."

9 You test it on all of the stuff that they looked at,

10 which is the subject matter of the 200 depositions that

11 are being taken in this case.

12 I think I go back...

13 HEARING OFFICER: Let me see if I, I mean, I guess

14 I understand what you're saying, but again I don't

15 know exactly what Mr. Whalen has testified to, but you

16 said he's the one who pulled together al the

17 information and put it together?

18 MR. REID: Exactly.

19 HEARING OFFICER: I don't know whether he did that

20 on his own volition or whether somebody told him,

21 "Try to pull this information from these people, and

22 don't pull it from these people," or what.

23 MR. REID: For instance, you know, there have

24 been people for years that have done soil samples or

25 people who have taken rainfall measures. There are lots

1 and lots of articles.

2 If you look at the SWIM plan you will find pages

3 and pages listing all of the scientific studies that

4 were relied upon.

5 The SWIM plan was ultimately put together by

6 amassing all of that scientific data and coming up

7 with what we call the SWIM plan. They took the SWIM

8 plan and went through every line of the SWIM plan with

9 Mr. Whalen, what does it mean, why is it there. They

10 took everything they wanted to know about it from

11 Mr. Whalen.

12 They have then gone to the next level and

13 deposed all the people that did the scientific work

14 that led to it.

15 The reason I think we're having trouble is that

16 there's rally been sort of a change. This notice,

17 you tried to divide the notice to make it consistent

18 with the previous ruling, and you said parts about

19 coercion and so forth and so on would not be part of

20 this, but parts about science would.

21 Well, the problem is when you hear what Mr. Smith

22 said, and I've got about eight different places in the

23 hearing last week when he said what he was looking

24 for, he's looking for this same theme that he's been

25 presenting in this forum and the previous administrative

1 forum and all of the others that I went through last

2 time, and it's the same thing. It's "We did it, because

3 they told us we had to."

4 And he will not be happy I think until somebody

5 says, "Yeah, we did it because Mr. Walker, Dr. Walker,

6 or somebody at the federal government said you've got

7 to do it this way."

8 You know, we have had lots and lots of discovery

9 about the subject matter of the SWIM plan, the science

10 involved, and the decisions. The only other level

11 would be the Board level, and that would not be

12 appropriate, because they took a vote, and now you are

13 in effect deciding if the decision the Board made was a

14 proper decision.

15 So that's a problem that we have here, and, you

16 know, when you try to separate the coercion from the

17 other part it is very difficult, because there's been a

18 lot of testimony about whether it's 50 parts per billion

19 as the right number or the wrong number, why you

20 would say you want to have that there, why some people

21 would say their experts say they don't want to have it

22 in there, over and over and over.

23 So I have to say in good faith I cannot say that

24 we have a witness, certainly there is no witness that

25 will talk about the things that Mr. Smith defined when

1 we had the hearing.

2 And I think when we get to talk about the NPDES

3 permit you will see this is exactly the problem. I

4 mean, you will understand I think more clearly the

5 problem I'm having, because with regard to that you

6 are going to find that the theme areas, we're

7 litigating the SWIM plan here, but we have somehow

8 secretly gone over and agreed to adopt everything,

9 to commit ourselves to everything in the SWIM plan

10 through this permit over here, and you're going to

11 find out that's totally false when we talk about

12 what is going on in NPDES.

13 HEARING OFFICER: But I guess, you know, what

14 I have understood Mr. Smith to be looking for, and

15 I'm sure he'll tell me if I'm wrong, is that he wants

16 to understand the process by which the decisions were

17 made that certain things go into the SWIM plan, and

18 certain things don't go into the SWIM plan, or certain

19 studies that the District has conducted before are

20 not going to be included, but certain other studies

21 are going to be included, but that seems to me to be a

22 very legitimate area of inquiry.

23 MR. REID: The way to do that is to talk to the

24 people who did the work, and he's done that, but in the

25 case of all of the people and every document, you see,

1 we've been subjected to a huge public records

2 request contemporaneous with this proceeding, and

3 we have been producing on several different fronts,

4 and they have had the opportunity, the way you find

5 the answer to the question you raised is you go to the

6 people who did it, go to the scientists, go to the

7 District, staff people.

8 That's why, you know, we have had this enormous

9 argument about whether District employees are fact

10 witnesses or expert witnesses, and they said, "We want

11 to take every one of the District employees, because

12 we think there's some employee out there who

13 disagrees."

14 You know, they are fully and completely taking

15 discovery of everybody that had anything to do with

16 it.

17 There is no other person that somewhere, now let

18 me take that back.

19 Perhaps some staff person said, "Gee, I'm going

20 to make it 50 parts per billion, because Ms. Ponzoli

21 called me up and told me to." Well, they have deposed

22 that staff person, and they had to ask that staff

23 person that, because they have been deposed.

24 There has been no restriction on who they could

25 depose in the SWIM process.

1 And so I guess what I'm saying is if you depose

2 everybody that had something to do with this then

3 you've had your opportunity to ask for anything you

4 want to ask them, and for me to have to come back and

5 find a witness who is the witness, who is the

6 District designee to testify about why we made the

7 decision, either Decision A or Decision B, I'm saying

8 you can't do that. So that's, you know...

9 MS. PONZOLI: If I may...

10 HEARING OFFICER: Let me give Mr. Smith...

11 MR. REID: I think with the NPDES it will be

12 clearer, because there you are going to find it's

13 completely a different situation, totally.

14 HEARING OFFICER: Let me give Mr. Smith an

15 opportunity.

16 MR. SMITH: I'm surprised we are going over this

17 again. Mr. Reid spoke at great length last time and said

18 he wanted to submit specific objections about NPDES.

19 Now we are talking about all of the issues.

20 If Mr. Reid had come here with book, line, and

21 page of testimony by these underlings about why they

22 adopted thirty-four seven instead of 15,000 in acreage

23 I might be able to address it in the terms in which he

24 wishes to pose it.

25 You see, Mr. Menton, I think they took the

1 thirty-four seven instead of 15 because Mr. Lehtinen

2 got up on May 21st, 1991, and said, "That's what it's

3 got to be," and they could designate the Executive

4 Director of the District, just take a shot at the

5 Executive Director of the District to testify about

6 this.

7 HEARING OFFICER: Hasn't he been deposed? I mean,

8 the Executive Director, hasn't he already been

9 deposed?

10 MR. REID: Mr. Creel? I don't know. You haven't

11 asked for him, I take it.

12 MR. SMITH: Well, you see...

13 MR. REID: The Director, I mean, I think the

14 Director who was there at the time is dead.

15 MR. SMITH: He wasn't Director at the time? Well,

16 I don't know who the person is who knows at the highest

17 level why they adopted thirty-four seven. If they

18 want to produce a Board member who says, "I don't have

19 any other information; that's what was passed up to

20 us," then okay, but they made the same thing about

21 the contingent 50 parts per billion Loxahatchee

22 discharge.

23 All Mr. Whalen knows is he was at a meeting on

24 May 21 and May 24 in which Dr. Maffei demanded that,

25 saying the people up above him, and I don't know who

1 they were, say, "We've got to have it," and so it

2 comes in from that side, and we will depose

3 Dr. Maffei next week about that, but on the

4 District's side we don't know why they agreed to

5 that, except that Dr. Maffei says, "We've got to have

6 it, or we go back to federal court."

7 Now Mr. Reid would like to be the impresario

8 and be in charge of collating all of these bits and

9 pieces of underlings' testimony about why they did what

10 they did, but Mr. Reid is not a witness.

11 We need to have the reason, we need to have the

12 reason stated in that of the person at the highest

13 level of policymaking by the District, because they

14 are now committed to something that that person can

15 testify to, and we need to explore the interest, the

16 motive, and the credibility of their continuing to vouch

17 for this.

18 This is the nub of it, that as the Hearing Officer

19 said at last week's hearing, this is a continuing,

20 a prospective enterprise, the development of this

21 SWIM plan. When you allocated to the District and

22 the Department the burden, as I believe you did, of putting

23 on a prima facie case, they are vouching for their

24 SWIM plan. They are privileged at this moment to

25 withdraw it, to put in something else, I suppose.

1 But they are vouching for it, and these questions

2 go to the credibility and the interest and to the

3 motive of these agencies in vouching for it, and

4 it's not satisfied by breaking it apart into these

5 little sections.

6 HEARING OFFICER: Well, this goes back to what I

7 said earlier. I have a difficult time understanding it,

8 putting it all in context, because I haven't sat through

9 the depositions and I don't know what the testimony has

10 been, but it certainly seems to me that the petitioners

11 have the right to inquire of the chain of command and

12 figure out when this was put before the District and

13 why it was put there.

14 MR. REID: Mr. McVicker is the number two person

15 who was there at the time, who has been deposed. I

16 don't know if you finished him or not, but he was

17 deposed.

18 With regard to the size of the STAs, he talks

19 about there's an attachment to the SWIM plan, either

20 "E" or "F", I can't remember which one, and he goes

21 through calculations as to how it was adopted.

22 The person who prepared that attachment, Dr. Fontaine,

23 was deposed.

24 That's my point. Everybody that's on here has

25 been deposed about all of these subjects.

1 HEARING OFFICER: Okay, and again...

2 MR. REID: I don't know who else to produce.

3 MR. BURGESS: Do you know when he was deposed?

4 MS. PONZOLI: Wasn't it begun?

5 MR. BURGESS: It wasn't, I'm sorry, then he was

6 deposed, it's been set for next week.

7 MR. REID: He was deposed for three days in the

8 Sunshine by settlement and by the same lawyers, and he

9 was deposed for three days about why, about the

10 settlement, whether it violates Sunshine, and in great

11 detail about all of these same meetings, by the way,

12 but he'll be deposed in this case.

13 That's my point. All the people that have done

14 this, all the District people up the ladder, are

15 available for deposition, and it's...

16 HEARING OFFICER: Let me see if I can get

17 a clarification as to how the process came about.

18 I would assume like with any broad decision that

19 I have ever seen happen that staff got together, put

20 together recommendations and put together a suggestion

21 and put it before the Board.

22 The person who was primarily responsible for

23 putting that agenda together and assembling documents

24 and what was presented to the Board would seem to be

25 very knowledgeable about how that came up.

1 MR. REID: He was deposed for six days, Mr.

2 Whalen, and everybody else on, all the people whose

3 stuff he relied on were deposed or were going to be

4 deposed.

5 I'm not saying, I started out obviously I think,

6 well, the coercion, you see, coercion...

7 MR. SMITH: Collusion. Give credit to my

8 formulation, please.

9 MR. REID: Mr. Smith, he admits it. That's the

10 point. He has, you said it's irrelevant, and he's

11 admitting over and over that's what he wants to do it

12 for.

13 HEARING OFFICER: Let me see if I can try to get

14 to the bottom of this.

15 When you start talking about terms like collusion,

16 coercion, etcetera, those are all subjective terms,

17 and those are something that is going to be in the eye

18 of the beholder, whether it be the petitioners or the

19 respondents or me ultimately. I mean, if you start

20 trying to color a witness' knowledge or attitude that

21 way I think you're asking for trouble.

22 I do think you're entitled to inquire into the

23 decision making process that occurred in the adoption

24 of the SWIM plan. I have never tried to preclude

25 you from doing that.

1 I don't know what depositions have been taken or

2 what has transpired, but I guess I'm struggling to

3 figure out what witnesses you are looking for, Mr. Smith,

4 that haven't already been deposed, and why isn't

5 Mr. Whalen's deposition satisfactory.

6 MR. SMITH: Because Mr. Whalen simply attended the

7 meeting and passed the information up the line. He

8 did the mechanical work of using his computer scanner

9 to take sections of the settlement agreement and put it

10 into the SWIM plan. Who told him to do that, and why?

11 HEARING OFFICER: I agree you're entitled to know

12 that.

13 MR. SMITH: All right. So I'll take half a day,

14 Mr. Hearing Officer. I'll take half a day with whomever

15 they produce.

16 MR. REID: My problem is I cannot designate a

17 witness based on that designation. I have produced

18 everybody. I have produced the people up the line.

19 This is all done in the open, in the Sunshine. They

20 know everybody that every put their fingers on any part

21 of the SWIM plan and had the opportunity to ask for it,

22 and in most cases they have asked for the depositions.

23 The problem I have is going back and taking

24 somebody again, a separate deposition, like let's say

25 Mr. McVicker. He is obviously above Mr. Whalen. If he

1 says Mr. Whalen kicked it upstairs, then it ultimately

2 had to get up to Mr. McVicker. He can be deposed.

3 The problem is he wants me to go out and try to

4 find a person who I will then represent as the person

5 who made the decisions, and I can't do that. I'm saying

6 take everybody's deposition and ask a lot of these

7 questions. That's my problem.

8 HEARING OFFICER: Is there anybody in Mr. Whalen's

9 deposition who was identified as having been one

10 to whom he was reporting or who instructed him?

11 MR. SMITH: I don't have any memory. I suppose if

12 Mr. Reid were contending it was he, he would bring us a

13 name and citation to the page. It's like a shell.

14 Mr. Reid says it's there, and then he says it's not

15 there.

16 HEARING OFFICER: Well, Mr. Smith...

17 MR. SMITH: All right.

18 MR. REID: We have had six days of depositions.

19 He could have asked any questions he wanted to ask.

20 I don't know, I wasn't there, I haven't heard any

21 motions that go to the point that he was told not to

22 answer anything, and so...

23 HEARING OFFICER: All right. From the standpoint

24 of the District was there one person who was primarily

25 responsible for assembling the documentation for the

1 preparation of the SWIM plan and presenting a

2 recommendation?

3 MR. REID: Mr. Whalen pulled, assembled and pulled

4 together the materials.

5 HEARING OFFICER: Okay, and Mr. Whalen has been

6 deposed. Now if there are references in Mr. Whalen's

7 deposition to someone directing him, then clearly you're

8 entitled to produce those witnesses.

9 That's what I'm having a hard time in the abstract

10 of deposing. The District is telling me now Mr. Whalen

11 was the primary person responsible for assembling the

12 documentation. If you want to pursue who gave

13 Mr. Whalen his direction, then I think you're entitled

14 to do that, but the District from what I'm gathering is

15 saying Mr. Whalen is the designee most knowledgeable

16 about how these matters were pulled together.

17 So where do we go from here? I mean, what does

18 Mr. Whalen say, and why, is it Mr. McVicker who's the

19 one he was told or given his marching orders by?

20 MR. SMITH: You're asking me questions, Mr. Hearing

21 Officer, that only the District knows the answers to.

22 HEARING OFFICER: Well, I don't know why Mr.

23 Whalen wasn't asked. I mean, I would assume he was

24 asked in his deposition.

25 MR. SMITH: As to who he reported to? I think

1 Mr. Whalen conceded his work was strictly mechanical,

2 and the fact that he wasn't asked or if he wasn't

3 asked doesn't preclude our asking the District to

4 identify that person today, and produce that person.

5 Are you saying it's Mr. McVicker?

6 HEARING OFFICER: Well, he's not saying that.

7 MR. REID: I'm saying I can't.

8 HEARING OFFICER: He's saying Mr. Whalen was

9 the one primarily responsible to putting together that

10 information.

11 MR. REID: If they think it's mechanical, they

12 spent six days taking his deposition about every single

13 line in the SWIM plan practically.

14 I'm saying they have taken everybody's deposition

15 that they want to take, and within that group of people

16 and within that population have got to be the people.

17 I know, I don't know that I can find a person who

18 said, "I decided 50 parts per billion." I don't know

19 that I can find a person who can ever say that.

20 I'm saying among the population of people that

21 had anything to do with this there's got to be one of

22 these people, and they have deposed them all.

23 MR. SMITH: I think if we start at the other end

24 of the line and rather than from going from the bottom,

25 if we start at the top and go down we'll get to the

1 answer, so I respectfully ask that they bring us

2 Allan Milledge, the then Chairman, who would be a

3 logical person to designate.

4 "Mr. Milledge, do you have any knowledge as to

5 why you chose thirty-four seven instead of 15,000?"

6 "I haven't the slightest idea. That came up from

7 Mr. Whalen." If that's the way it is, that's the way

8 it is.

9 We've got to identify this way. Mr. Reid says

10 we have identified it. We've got to.

11 Did Mr. Whalen exercise all discretionary power

12 invested in the District? If that's so, the Hearing

13 Officer is confronted with a different kind of case

14 than if the Board sid, "Well, shall we apply the

15 moderating provisions or not?" And there's this to be

16 said and that to be said, and we think under the,

17 because of the information we have been given by Mr.

18 Whalen that we should not apply the moderating

19 provisions in the Loxahatchee.

20 HEARING OFFICER: We're arguing about a lot of

21 things that I really don't know there's a dispute over.

22 I mean, it seems you are entitled to inquire into

23 how these issues came about.

24 Now maybe the dispute is whether you start at the

25 top and go down or start at the bottom and go up. I

1 don't know what the depositions have shown, but it seems

2 to me what you want to do is track that through, how the

3 information got there.

4 The most logical way to do that is to go up the

5 ladder and figure out who the decision maker was.

6 MR. SMITH: Or if it's a matter of discretion I'd

7 say you start at the top and go down the ladder. If

8 they have delegated all the powerful discretion down to

9 Mr. Whalen, then we've got a very simple case, and

10 I want to see who is the person at the top, who takes

11 responsibility for the District exercising these...

12 HEARING OFFICER: Well, the District Board, the

13 District Board voted as a collegial body to adopt the

14 SWIM plan. That's the way the process is set up.

15 Once that decision is made, that's the decision of the

16 Board.

17 Now that's based upon a recommendation I would

18 assume of staff that put together something to be put

19 before them, so, you know, I think you're entitled to

20 inquire as to how that staff recommendation came about,

21 who was responsible for making a determination that

22 in that recommendation where they came from. You are

23 entitled to inquire into all that, and if Mr. Whalen

24 is the person who was primarily responsible for

25 putting together the staff recommendation, which I don't

1 know, but I'm gathering from Mr. Reid that he is, then

2 I think you're entitled to inquire from him as to where

3 he got his information from and what prompted him to

4 make the decisions that he made. That's certainly very

5 ripe for inquiry into this case.

6 MR. SMITH: Well, then I would say if Mr. Whalen

7 is that person all they'd have to do is bring him

8 back and let us ask him that question.

9 MR. REID: And I object to bringing people

10 back who have been deposed with six days of depositions

11 already when they had every, I don't even know if anybody

12 from the District was there. I wasn't there. I think

13 it's completely inappropriate to require us to start

14 bringing witnesses back when they had six days of a

15 person for a deposition, and Mr. Smith has been making

16 these same arguments, and why weren't they asked?

17 HEARING OFFICER: I can't believe these questions

18 weren't asked.

19 MR. REID: I can't either, and I guess if I'm

20 required I'll go back and read the whole six days and

21 show that they were, but I can't, either, but they

22 certainly had the opportunity whether they were

23 asked or not, because Mr. Smith has been making this

24 same argument before this proceeding was even filed.

25 He made this argument in the BMP, and that's the one

1 that went up on appeal, and we made it in the state

2 courts all over Florida, and now we're making it

3 here.

4 It wasn't anything new that came up after Mr.

5 Whalen's deposition, the federal coercion and why

6 the things got there.

7 In fact I'd have to check the dates, but I guess

8 Mr. Whalen was deposed since we had the first hearing

9 back in November, is that correct?

10 MS. PONZOLI: I don't have that.

11 MR. REID: I believe you made a distinction about

12 what was proper and what was not proper the first time we

13 had this argument.

14 I would object vigorously to having to bring back

15 witnesses. If we start that, what's the end?

16 HEARING OFFICER: Ms. Ponzoli, you had your hand

17 up before. Did you have something you wanted to speak

18 to?

19 MR. FITZGERALD: If I could comment, I have to

20 meet with people to prepare for something else, so

21 I beg your indulgence if I can be excused.

22 (WHEREUPON, MR. FITZGERALD LEFT THE HEARING ROOM.)

23 MS. PONZOLI: I guess, Mr. Hearing Officer, I

24 wanted to address the issue of Mr. Smith's referral to

25 the people who participated in the meeting specifically

1 in the question about the exhibit.

2 Four of them were Ph.D.s, and a significant

3 number of them don't have Ph.D.s and probably know

4 more than Ph.D.s.

5 They aren't underlings. They are scientists

6 making decisions.

7 I think that's part of the problem, is how

8 decisions are made, and I think he's looking for

9 something, he's looking for a magic decision maker in

10 government, entities that don't exist.

11 A large number of decisions were made right

12 there with those four Ph.D.s, and people who know more

13 than the Ph.D.s. And that's just a problem. He doesn't

14 like that answer, but that is the answer.

15 HEARING OFFICER: Okay. Let me to this. Mr.

16 McVicker is scheduled for deposition next week, is that

17 correct?

18 MR. BURGESS: Yes.

19 HEARING OFFICER: Okay. I think at that time you

20 can inquire into these areas obviously, since he was

21 Deputy Director of the Water Management District.

22 We may get further clarification as to how some of these

23 issues came about.

24 In the meantime I think you need to go back and look

25 at Mr. Whalen's deposition and determine whether he

1 made reference in that deposition or the questions

2 were asked as to how that process occurred, or whether he

3 took instructions from someone, and who that

4 someone was, and how it all came about.

5 As I'm understanding what the District is telling

6 me now, if they had to designate someone responsible

7 for pulling together the information to Mr. Whalen,

8 if you feel that the answers Mr. Whalen gave were not

9 adequate to explain the decision making process you

10 need to demonstrate to me why that is, and we'll take

11 it from there.

12 I agree with you that you're entitled to inquire

13 into the decision making process and how it came about.

14 What I'm hearing from the District is all that has been

15 done, so, you know, I need to understand why it

16 hasn't been.

17 Take Mr. McVicker's deposition, go back through

18 Mr. Whalen's deposition, and if there are specific

19 areas in Mr. Whalen's deposition that you can point

20 to me that there are some mystery witness that he

21 either identifies or doesn't identify, then let's take

22 that up, and the witness should be deposed.

23 I think that's the only way to deal with it.

24 I don't know what happened in all these depositions,

25 and I'm, you know, agreeing with you in concept that

1 you have a right to explore the decision making

2 process, but I'm hearing from the other side that

3 that's already been done.

4 So we're wasting a lot of time arguing about this.

5 If it hasn't been done show me why it hasn't been

6 done and where it is evidenced in the record.

7 MR. SMITH: We will never be able to show you

8 Mr. Whalen claimed to have decision making authority.

9 He didn't. Mr. Reid is attributing that to him, and

10 if they are saying Mr. Whalen made the decision to

11 adopt this SWIM plan...

12 MR. REID: No.

13 MR. SMITH: ...in these respects, that's what I

14 want to hear.

15 MR. REID: I'm not saying that for the record.

16 MR. SMITH: That's what I want to hear.

17 MR. REID: I'm not saying that.

18 HEARING OFFICER: The Board made the decision.

19 MR. REID: Correct.

20 HEARING OFFICER: I don't know if it was amended

21 from suggestions put together by staff, but it's typical

22 in any collegial body that the staff probably assembled

23 the documents, put together a recommendation, and put

24 it before the Board.

25 You're entitled to explore from the staff how they

1 came about with that recommendation and what that

2 recommendation included and why they made the choices

3 they made in reaching that recommendation,and I guess

4 Mr. Whalen was the person who put together the staff

5 recommendation, and then it's up to the Board to vote

6 whether to go with the staff recommendation or not.

7 MR. REID: Mr. Menton, the NPDES is a separate

8 issue, because it's a relevance issue...

9 HEARING OFFICER: Okay.

10 MR. REID: ...as opposed to the other notice

11 issues.

12 HEARING OFFICER: Okay. I quickly reviewed your

13 motion this morning, and there were a couple of

14 matters in my mind in reviewing it, and specifically

15 one of the problems, and this is a very difficult

16 issue in administrative law, and I think it's one that

17 comes into play in a lot of matters in connection with

18 this case, but on page four of your memorandum you

19 indicate that all matters pertaining to the NPDES

20 permitting of the ENR project occurred subsequent to the

21 formulation of the March 13, 1992, SWIM plan and, ipso

22 facto, could not have had any impact on the strategy

23 or conclusions that are in the SWIM plan.

24 I guess the thing that struck me in reviewing

25 that statement is that it appears that what you are

1 suggesting there is that the whole purpose of this

2 120.57 proceeding is essentially to sit in an appellate

3 capacity to review the decision that was made in

4 connection with a status SWIM plan that was adopted

5 at the time of the presentation to the Water Management

6 District Board.

7 And let me just say that I think that the purpose

8 of the 120.57 proceeding is really different than that.

9 I think that the purpose of a 120.57 proceeding is to

10 serve as a forum in which parties can come in and

11 present evidence regarding the factual assumptions that

12 are included within the SWIM plan, and also the

13 overall advisability of the adopting a course of action

14 that's set forth within the SWIM plan.

15 So by nature it's more a dynamic process, and

16 essentially what we're trying to do is provide a forum

17 to resolve issues so that the final policy of the

18 Water Management District can be concluded.

19 As a consequence there will be some changes that

20 occur from the time the particular agency action that is

21 proposed, that particular date and the date that we go

22 to hearing, and it gets to be a very difficult issue.

23 I'm not, I'm reluctant to begin to even get

24 into it, but I do think that if there is evidence that

25 has come to light subsequent to the date the initial

1 policy was adopted it's not necessarily precluded from

2 this simply because it came to light after the date

3 that the plan was adopted.

4 MR. REID: This was done rather hurriedly. Perhaps

5 I should have expounded a little more at the end, and

6 I apologize.

7 I understand exactly what you're saying about the

8 ongoing situation, but if you think back to the

9 discussions you had about what has some to be known as

10 the technical mediated plan, there was an attempt made

11 to get into that, because it relates to the same body

12 of water and a lot of things in general, and the ultimate

13 decision was made it would not be part of this

14 program, because it was not adopted, and the Board had

15 not changed or revoked the SWIM plan we're litigating,

16 and this is somewhat analogous in some respects.

17 The problem is, and again in the shortness of

18 time it created part of the problem, for a period of

19 time it was not thought that an NPDES permit would be

20 required. Here we're talking about...

21 HEARING OFFICER: For the ENR or the...

22 MR. REID: For the ENR. This was, we are only

23 talking about the ENR. That's really where it has come

24 to issue.

25 MR. SMITH: We take issue with that.

1 MR. REID: Ultimately the ENR is going to be part

2 of the STAs.

3 MR. SMITH: The ENR is the hook by which this

4 colors everything under the settlement agreement.

5 MR. REID: The ENR is part of STA No. 1. It's

6 designed to be part of that.

7 The EPA took a position during the settlement

8 discussions during that time period that an NPDES

9 permit they thought would be required.

10 Because of the exigencies of the circumstance,

11 there was a lot of water that needed to be discharged

12 and problems, the District applied for such a permit,

13 reserving its right, taking the position they didn't need

14 one, but contesting jurisdiction.

15 Now that process has started in the federal system,

16 and there has been a draft permit which I think is

17 probably equivalent to the notice of proposed action in

18 the state context.

19 And we are in the period where the record is

20 being made, and it will go to EPA, federal hearings, and

21 so forth, and the permitting process will take place.

22 At this point the District in addition to

23 reserving its right, taking a position, we're filing

24 this under duress, but we're taking a position that

25 jurisdiction is all we have to. We have not filed a

1 very thick document contesting in many respects

2 portions of that permit. You would have to go through

3 all of that to see what we're doing.

4 That process is not anywhere close to being over.

5 There may never be a permit. There may be a permit

6 that's exactly like the draft permit or one that's

7 different.

8 The reason it comes into this case is that

9 Mr. Smith takes the position that we have made this

10 proceeding a sham, because we have secretly gone over

11 and agreed with the federal government under

12 permitting under the guise of an NPDES permit, have

13 agreed to certain requirements, certain levels, limits,

14 whatever, we have agreed to the same things we're

15 litigating here.

16 Because the permit does look in some respects

17 like the SWIM plan he says that filing a permit means

18 we have agreed, we have committed to that.

19 HEARING OFFICER: You're saying the permit looks

20 like the SWIM plan, for what, for the ENR?

21 MR. REID: Some of the approach in the salinity

22 limits and so forth, not the SWIM plan in general, but

23 some of the technical requirements.

24 HEARING OFFICER: Okay.

25 MR. REID: He's saying we have gone over and we

1 have committed, and he says that over and over in the

2 papers, and last week he said it at the hearing.

3 But he says therefore he's entitled to know why have

4 we sold out the state, so to speak. It's part of the

5 coercion, why have we gone over in the federal context

6 of this permit and agreed to everything that is now

7 going to bind us over here ultimately, and this

8 proceeding is a sham.

9 That's his position. That's why it's relevant.

10 I'm saying it's not relevant, because, number one, it's

11 premature. It's not going to have any, if that permit

12 goes away, if they decide we're right on jurisdiction

13 and that they don't require a permit, then nothing is

14 going to happen.

15 What he's asking you to do is to bring the whole

16 administrative procedure, federal administrative procedure

17 into this case, and that's the problem.

18 HEARING OFFICER: I don't want to litigate the

19 federal standards.

20 MR. REID: We have no choice, because we're

21 going to have to come in and show what we're doing and

22 why we're doing it in the federal context.

23 HEARING OFFICER: Well, I guess the question that

24 I have in this regard is, and I don't know if this is

25 true or not, but if there is a federal permitting

1 requirement applicable with respect to the ENR which

2 may not be resolved at this time, isn't it arguable

3 that such a permitting requirement would also be

4 applicable to the STAs? And if that is in fact the

5 case doesn't that by necessity bring in the question

6 whether or not the SWIM plan would be able to be

7 implemented in its current form if there are certain

8 federal issues that are out there that are

9 unresolved, and isn't that pertinent?

10 MR. REID: I would say no. We would be getting

11 ahead of ourselves.

12 In other words, there may be a lot of reasons

13 unrelated to the SWIM plan that something might happen.

14 There may be the Legislature. The funding may never

15 get done.

16 I mean, there are a lot of other reasons. We're

17 here to litigate the SWIM plan. Once you find the

18 SWIM plan to be appropriate, there may be other reasons

19 that will confound the District being able ultimately

20 to do what the SWIM plan said, things that are

21 completely permissible that would be allowed.

22 They are saying one of these confounding,

23 potential confounding issues might be this NPDES permit,

24 and I'm saying we shouldn't have to come and show you

25 that we're going to be able to get the NPDES permit,

1 and it's going to look like the SWIM plan you're going

2 to approve, if you approve it. I shouldn't have to go

3 around to these other issues.

4 HEARING OFFICER: Even if you don't have to go in

5 and show to me that you can get the permit doesn't

6 Mr. Smith have the right to come in and show that the

7 SWIM plan is not feasible because...

8 MR. REID: The federal government won't agree?

9 He would never say that.

10 He'd be saying in effect that the state process

11 is subservient to the federal permitting decisions.

12 He would say that, "No, no, no, we can't let the feds

13 tell us what to do. You have to decide if this SWIM

14 plan is right under state law, and once you decide

15 that there may be something else over here that might

16 have an effect on it or might not."

17 It's all premature, because if tomorrow that

18 process ended, there would be no, you would not get

19 to it. It's speculative.

20 (WHEREUPON, MR. HYDE LEFT THE HEARING ROOM.)

21 MS. PONZOLI: If I may, Mr. Hearing Officer,

22 I think it's even more problematic than that, because

23 if as Mr. Reid reflected the EPA has taken the position

24 that they believe an NPDES permit is appropriate for

25 the ENR, the District filed for one, but under

1 reservation.

2 But you need to realize there may be potentially

3 at some point in the future litigation over these

4 issues.

5 Mr. Smith will be a litigant in that litigation,

6 and I am very afraid that he is going to come after my

7 federal people to do his discovery for the federal

8 litigation inside this SWIM proceeding. In fact,

9 there have already been indications, because he's asking

10 for my policy people who made NPDES decisions. That

11 is totally inappropriate discovery in these SWIM

12 challenge proceedings.

13 We have run down a lot of different avenues, and

14 when they wanted to do the science subgroup, I let them

15 come and do my people. We have gone down a lot of

16 avenues to satisfy their needs and their discovery

17 needs, but we are going into wholly new territory

18 here.

19 HEARING OFFICER: Mr. Smith, where are you going

20 with this?

21 MR. SMITH: I'm going to discover that the

22 District knowingly has committed itself to dispense

23 with the moderating provision in the S5-A structure.

24 (WHEREUPON, MR. HYDE ENTER THE HEARING ROOM.)

25 Although that is an outing before the Hearing

1 Officer, they have knowingly committed under duress,

2 if he doesn't like the word coercion, and in order to

3 get along with their federal counterparts to insert as

4 a condition of a permit that their own lawyer, Mr. Reid,

5 told them EPA had no jurisdiction to require of them,

6 to commit to elements of the SWIM plan and to

7 particular elaborations or more stringent elaborations

8 of it, and we're not trying to litigate that permit,

9 but we're trying to litigate the credibility of the

10 witnesses that they bring here for the SWIM plan.

11 HEARING OFFICER: You can inquire as to how the

12 District reached its decisions regarding the application

13 of the moderating provisions to any particular point.

14 I think that's wholly appropriate within this case.

15 But if it's framed that way I don't have any problem

16 with it.

17 But what I don't want to do, I would assume

18 Mr. Reid doesn't have any problem with asking those

19 questions.

20 MR. REID: No, and I assume once again he deposed

21 everybody around. The moderating provisions are covered

22 in the SWIM plan, by the way. I assume they have

23 asked that. I assume they will as the people all about

24 them.

25 HEARING OFFICER: All right, so where is the dispute

1 here? What is it that you are asking for, Mr. Smith,

2 that they are not giving you?

3 MR. SMITH: I want the person in the policy

4 making decisions to say why did they agree to this

5 draft permit that has these specific conditions in it.

6 HEARING OFFICER: Okay. Let me hold you right

7 there.

8 As I understand what mr. Reid is saying, they haven't

9 agreed to it. They filed a permit application with a

10 reservation to contest jurisdiction.

11 Why do we even need to get into that?

12 MR. SMITH: Because, you see, you never get to

13 it under Mr. Reid's scenario. I would like to ask why

14 they didn't object in December, in January, or in

15 February, or thus far in March.

16 If Mr. Reid thinks they've got the opportunity to

17 object in April, May or June that's fine, and we're

18 asking that the hearing, whether they objected, but

19 what we're saying is this District has moved from a

20 SWIM plan to SWIM plan number two, which is an

21 elaboration of the SWIM plan with particular elements

22 more stringent on farmers than even those proposed in

23 the SWIM plan.

24 As long as this does not become the litigation of

25 the federal issue and as long as this is concentrated

1 upon the credibility of the witnesses who the District

2 brings here and the United States brings here and the

3 Department brings here to vouch for this SWIM plan,

4 I believe we're entitled to wide latitude, and we do

5 not have to worry about where the thing is going.

6 You shut it off when it becomes a feature of the case

7 overpowering in its influence, the central inquiries

8 about the SWIM plan.

9 It doesn't mean you shut it off before it ever

10 gets started. It means you shut it off when it becomes

11 a feature of the case.

12 MR. REID: Maybe we're dealing with semantics

13 here. there's certainly nothing wrong with talking

14 to witnesses about the subject of moderating provisions

15 as it's manifested in the SWIM plan.

16 The problem is it goes to a level that they're

17 saying, "You agreed on the federal government in a p

18 permit not to have moderating provisions, so why did

19 you commit to not having moderating provisions in that

20 permit over there?"

21 MR. SMITH: Yes.

22 MR. REID: That's what he wants. That's beyond

23 the scope, because that gets to the whole issue of why

24 we did what we did, and we are going to have to come in

25 and talk about everything we did that led to the NPDES,

1 that decision, and there were Board meetings on it,

2 and on and on.

3 MR. SMITH: I'll tell you why they did. I'll tell

4 you why they did, because the feds threatened them

5 with prosecution. That's what I expect to prove.

6 HEARING OFFICER: but if the SWIM plan provisions

7 are adequate under Florida law and they simply have

8 carried over the SWIM plan provisions into the federal

9 permit, what does it matter?

10 MR. SMITH: Because they haven't just done that.

11 Now you're just going to have to take my hypothesis

12 of what discovery is going to show. You just don't shut

13 out discovery of their motives.

14 I represent to you, sir, that they haven't just

15 taken the SWIM plan and put it into the federal permit.

16 What they have done is taken the settlement agreement

17 and put it into the federal permit, and they have not

18 mentioned the SWIM plan in the federal permit, and they

19 have not mentioned these as having any influence.

20 They have not made these conditions of the federal

21 permit subject to what may come out of it. It is a

22 direct obstruction of the settlement agreement.

23 I represent that to you, sir. Why did they do

24 that? Why did they agree to something that so

25 undercuts the authority and autonomy of the SWIM plan?

1 HEARING OFFICER: Why does it have anything to do

2 wit the validity of the SWIM plan?

3 MR. SMITH: because it shows their interest and

4 their motive in vouching for the SWIM plan at present,

5 and its prospective adoption. It shows they are

6 standing behind it, despite the influence of the

7 possibility of changing their mind under Florida law,

8 which the APA process is designed to promote.

9 Despite that being in place they cannot change

10 their mind. They have got Big Brother looking over

11 their shoulder saying not only does the settlement

12 agreement get adopted by Mr. Menton, through everything

13 that you can bring about, but a particular interpretation

14 of it in the Loxahatchee means that "Instead of fixing

15 the Class 3 standard by reference to the internal

16 large stations where the testing is taking place, as

17 specified in the SWIM plan, we are going to do it at

18 the end of the pipe, at S5-A and S6, and if the Class 3

19 standards are not being satisfied as the Technical

20 Oversight Committee determines them to be at the end

21 of the pipe, then we're going to revoke your permit,

22 and we're going to discipline you, and we're going to

23 do other bad things to you in consequence," and they are

24 driven by this duress even now.

25 HEARING OFFICER: Well, Mr. Smith, I'm going,

1 the problem I have is if we get into all of these

2 issues I'm going to have to sit down and try to figure

3 out what are the applicable federal standards and

4 whether they have been properly applied.

5 I mean, this case is already so complex I have

6 great doubts about my ability to be able to pull it

7 all together. How when you start pulling in all these

8 extraneous issues as well am I going to try to figure

9 out what the appropriate federal standard is and how

10 it interplays...

11 MR. SMITH: No, no, no. All you have to decide is

12 the believability of their witnesses. That's all you

13 have to decide. "How much credence should I give

14 this witness?" That's the point of this. "How much

15 credence should I give this witness?"

16 Who is the man they now say is the point person,

17 here comes Mr. McVicker. Mr. McVicker is going to

18 testify, they're going to bring him on to testify, I

19 suppose they'll bring him on in the prima facie case,

20 that "This is our SWIM plan, and we are proposing this,

21 and we stand behind it because of this, this, and this,"

22 and I'm suggesting to you that the real reason he's

23 standing behind it is because thought the science is

24 bad he's suffering under this I say coercion, I say

25 collusion, Mr. Reid says duress, of a collateral

1 proceeding that their very position is we ought not to

2 be subjected to this, but they have subjected themselves

3 to it.

4 It's a question of degree, and I think in

5 discovery we are entitled to if it may lead to the

6 discovery of relevant evidence we ought not to be

7 throwing ourselves at it, but you ought to be looking

8 towards conducting this hearing and listening to the

9 witnesses and deciding on their credibility and what

10 their interest was.

11 If they are paid lots of money, you take that into

12 consideration. If they have a 10-year project funded

13 by the federal government you take that into

14 consideration in evaluating their testimony.

15 I say you also take into consideration when the

16 District and the Department come here vouching for

17 this SWIM plan even now, two years after they have

18 adopted it, when they know there are some very serious

19 things wrong with it. You take into consideration

20 the duress they suffer under in consequence of the

21 collateral federal demands. That's all.

22 MR. KILLINGER: Mr. Menton, could I leap in here

23 just a second? I think we are making more out of this

24 than we need to.

25 HEARING OFFICER: That's not unusual.

1 MR. KILLINGER: It seems to me this is exactly

2 the same situation we have in a third-party permitting

3 challenge where a third party comes in and says, "Wait

4 a minute. DEP cannot grant this permit because this

5 guy is going to need a Corps permit, and the Corps

6 will not grant him one."

7 It comes up routinely all the time. It's simply

8 not an issue to be dealt with in these proceedings

9 any more than the issue of title to real property is

10 something the Department considers in determining

11 whether or not to give a permit. It's not something

12 that normally gets done.

13 It think that what we're doing here is angling for

14 a delay in the proceeding by saying we have to wait

15 and see what the Corps or EPA decides about the NPDES

16 permit before we can get on with this proceeding, because

17 that may ultimately derail it down the road.

18 I have seen that tried a number of times in

19 permitting cases with a regular dredge-and-fill permit

20 where they say, "The Corps won't permit it, so let's

21 wait and see what the Corps does," or "The county

22 won't permit it, so let them condemn the land or

23 something." They need to get title to it, so you have

24 to wait until that happens.

25 I don't think it's something we need to deal with.

1 I think it's exactly as Mr. Reid argued, that if

2 something down the road intervenes in this and prevents

3 the District from effectuating what it has thrown on

4 the table as a non-self-executing plan that that is

5 a problem but it's a problem to be considered at the

6 time it arises and not now.

7 HEARING OFFICER: Well, I guess the one area that

8 causes me a little bi of problem in talking about

9 the permit is if there is a requirement for a federal

10 permit that impacts upon the SWIM plan and whether it

11 can be implemented, then I think that, and it wasn't

12 considered, I mean, I think that that can be brought out

13 in the scope of this proceeding as to whether or not

14 it should have been considered and whether or not it

15 impacts upon the process and whether or not the SWIM

16 plan can be implemented as it's proposed to be, but

17 I don't want to get into a whole rigmarole as to

18 what the federal permit requires.

19 MR. REID: I don't think, I mean, if he's going

20 to come in and say, "You're doing all this bad stuff

21 because of your actions in the federal permit," then

22 my defense is to come in and bring the whole thing in

23 here and show wy we did it, what we did, and all the

24 requirements and on and on.

25 I think it's very analogous to the situation that

1 he was making, that there may be other contingencies

2 some day that might make a difference. You know,

3 Florida may secede from the Union.

4 HEARING OFFICER: Well, I mean, don't you think

5 it's appropriate for him to be able to ask a witness,

6 "Did you consider whether you needed a federal permit

7 at the time you drafted the SWIM plan?"

8 MR. REID: I suppose he could ask the witness

9 that in the course of the discovery.

10 HEARING OFFICER: Right. I think that's an

11 appropriate question. If the witness says no...

12 MR. REID: I assume they have asked if they wanted

13 to know about that. I mean, they have had all the

14 witnesses, as I said before.

15 But now they're asking for a designee to explain

16 why we did what we did and all that.

17 HEARING OFFICER: I don't think you need to explain

18 why you went and applied for the federal permit or

19 what all took place in those discussions.

20 MR. REID: You see, this whole issue is again

21 because of the Sunshine requirements of the process.

22 This whole issue was discussed in open meetings of the

23 Board. The whole decision, everything, the decision to

24 apply for the permit or not apply, there was talk

25 about filing a suit against EPA to get like a

1 declaratory action, it's all in the public record,

2 and hey were all there at the public meetings and

3 had transcripts, I'm sure.

4 So this is certainly if anybody wanted to ask

5 about it they could have asked about it, but I have a

6 problem, number one, I think it's completely

7 irrelevant, but if they want to ask that question or

8 did back when the SWIM plan was adopted if it was in

9 somebody's mind, they could have asked them, because

10 they were asking them everything else.

11 HEARING OFFICER: Okay. Let me do it this way.

12 I don't think you have to produce a witness who

13 explains why you did what you did in a connection with

14 the application of the federal permit.

15 I don't think that we need to get into that whole

16 process.

17 But I do think that in connection with the

18 witnesses who were involved in drafting the SWIM plan

19 it is proper to ask someone if they considered that

20 the need for a federal permit and whether that was

21 taken into account, and if they haven't done it then

22 that stands on its face. They haven't done it. And

23 if that consequently makes it impossible to implement

24 the SWIM plan, then someone can come into the hearing

25 and demonstrate to me the SWIM plan isn't going to work

1 because they don't have a federal permit, and then

2 that's what my recommendation will be, to abandon the

3 whole thing and do what you need to do for the federal

4 permit and figure it out from there.

5 MR. HYDE: Mr. Menton, we'd like a clarification

6 in one small respect.

7 We also would like to be deposing the same witnesses

8 that are coming up, and it would concern the subject

9 matter of the NPDES permit but primarily in the context

10 of discovering what they are doing in that regard,

11 such as additional studies or various steps to

12 implement it.

13 I don't think we're trying to question whether it

14 should or should not be issued, but rather finding out

15 what they're doing.

16 Maybe they're doing a study or implementing a

17 program or something like that. That would have some

18 very direct relevance to this proceeding, because as you

19 can see from the argument we have heard so far they are

20 inextricably intertwined, and so we would like to not be

21 barred from making that inquiry.

22 HEARING OFFICER: Let me see if I understand

23 what you're discussing. You want to be able to inquire

24 into witnesses what they are doing in connection

25 with obtaining the federal permit for ENR? Is that

1 what you're saying?

2 MR. HYDE: Yes. For example, if they are, we

3 could pose a question to them, let's say one of the

4 subject matters has to deal with the ethicacy of the

5 proposed stormwater treatment area, whether they

6 have been generating new studies or generating a new

7 set of data to see just how well they're going to

8 work. That would be something clearly relevant to

9 this.

10 HEARING OFFICER: Well, I think if they're

11 generating new studies with respect to the STAs, yes,

12 that's a proper area, but if it's just being done in

13 connection with the federal permit requirement then...

14 MR. HYDE: I think it would have to obviously be

15 tied into the subject matter of the SWIM plan.

16 I gave you example. There could be other examples,

17 too, such as the alleged violations of state water

18 quality standards. That might be another that would be

19 an appropriate area of inquiry.

20 Another would be the limitations proposed for the

21 Loxahatchee Refuge in particular, which are part and

22 parcel of the NPDES permit, to my knowledge.

23 And so they, we don't want to have a situation

24 where simply because something is being done in the

25 NPDES permit it is somehow insulated from the remainder

1 of the discovery effort.

2 HEARING OFFICER: Well, I agree with that.

3 Because it's being done in the context of the NPDES

4 permit doesn't necessarily preclude it form being...

5 MR. REID: Obviously the way it could come up is

6 if they, it's hard to imagine, but if some subject

7 matter came up and we believed that it was solely

8 permit related and they didn't, we'd be back to talk

9 about it at the hearing. That's the way it would come

10 up, if we had a disagreement over it.

11 It's hard to imagine a hypothetical. We are doing

12 what you have to do under the federal APA to prepare,

13 and, you know, I guess the same is true, I guess they

14 will be parties to that as well. So I guess they're

15 doing studies for that.

16 MS. PONZOLI: Mr. Menton, I need to make clear

17 is he talking about discovery of the state or is he

18 talking about discovery of the federal people, because

19 I am getting very uneasy about discovery for what

20 will be federal litigation inside of this litigation.

21 That is very tricky territory.

22 So I need to be clear. Is Mr. Hyde talking

23 about deposing state people?

24 MR. BURGESS: I don't want to speak for Bill, but

25 I think Mr. Reid said earlier the whole area is premature.

1 I think that's where we are here.

2 We are confronted with this memorandum which

3 ostensibly I suppose is not in the nature of a motion

4 for protective order and is directed to Mr. Smith's

5 seeking to have the District nominate or designate

6 someone most knowledgeable on a certain subject here.

7 We are handed it here this morning and reading it

8 for the first time.

9 We most certainly do intend to inquire, for

10 instance, of Mr. McVicker as to the points that

11 Mr. Reid brought out with respect to the considerations

12 that went on before the District adopted a SWIM plan

13 as to the potential need for any additional permits,

14 such as the NPDES permits, but we also would intend

15 to inquire during the course of that deposition as to

16 what they have done since they have learned of EPA's

17 desire that they apply for an NPDES permit in the

18 context of assuring that the ENR, which is a part of

19 the STAs, it will be incorporated under present design

20 into STA 1, and that STA 1 is part of the SWIM plan,

21 and what they are doing, whether additional permits will

22 be required for the remainder of the STAs in addition to

23 STA 1, that is a process, part of the dynamic process

24 that you alluded to that they are undertaking at the

25 moment, and where that leads us with respect to

1 witnesses from EPA or NPDES we will meet that at that

2 time and possibly have to be back before you, but

3 trying to prejudge that interest or that inquire at

4 this point when clearly we think it would lead to

5 admissibility or relevant evidence I think is premature.

6 HEARING OFFICER: Mr. Reid?

7 MR. REID: This is so hypothetical I can't imagine

8 or respond at this point.

9 HEARING OFFICER: Do you disagree he should be

10 able to inquire of witnesses...

11 MR. REID: If we're doing something that impacts the

12 SWIM plan, obviously it's relevant, but you see I just

13 see this whole crack opening up if we are, things that

14 we are doing that we are required to do under the

15 permit that we're litigating about if we litigate the

16 federal APA, you know, there will be a line, and we

17 will have to deal with it as it comes along.

18 HEARING OFFICER: I don't know any other way to do

19 it other than, Ms. Ponzoli, if you feel that you're

20 getting into areas that jeopardize your preparation,

21 make your objections, get a hearing, and we'll try to

22 resolve them that way.

23 I mean, it has to be tied to the SWIM plan.

24 MS. PONZOLI: I don't have a much difficulty with

25 the questions they will be asking of people who are set.

1 My main difficulty is, as Mr. Reid said, the crack

2 becoming an avenue, and we set all these new

3 depositions when we have three weeks of brutal

4 depositions now on presumably highly relevant topics.

5 I mean, I think we are chasing rabbit trails in an

6 improper way. I will wait until that moment comes.

7 I will agree it is premature now until someone

8 asks me for a deposition that I think is just beyond the

9 pale.

10 MR. BURGESS: Maybe the clients should have

11 brought the requirement to light earlier in the SWIM

12 plan process, which would have allowed us time to make

13 the necessary discovery.

14 MR. PONZOLI: Well, I believe it was in fact the

15 industry that raised the NPDES for the first instance

16 and inquired of EPA whether or not a permit would be

17 required, so evidently you thought of it first, before

18 anyone else.

19 MR. BURGESS: And we were chagrined to find out

20 the District didn't ask first.

21 MR. REID: That's our position all along. We

22 don't think there's jurisdiction.

23 HEARING OFFICER: All right. We have taken care

24 of the permit issues. I had received from the

25 Cooperative...

1 MR. SMITH: Where does that leave me, Mr. Menton?

2 Will you give me a ruling?

3 HEARING OFFICER: Yes, sir, I think I indicated

4 I did not believe the District needs to designate a

5 witness to testify specifically regarding the NPDES

6 permit process for the ENR.

7 I think you can inquire from witnesses who are

8 being deposed as to the applicability of the federal

9 permit requirements and what steps have been taken to

10 try to comply with those requirements and how those

11 interplay with the SWIM plan, and if those inquiries

12 lead you to some other areas then bring them up at a

13 motion hearing, and we'll take them up from there.

14 MR. SMITH: Thank you, sir.

15 MR. KILLINGER: Mr. Menton, we haven't really

16 gotten to the Department's agency request for the same

17 issues that have been discussed with respect to the

18 District.

19 I will voice my support for the arguments that

20 have already been made about all of these issues.

21 About NPDES I think you recall last week I

22 objected to the District's having to designate somebody

23 without, I mean to the Department's having to produce

24 somebody knowledgeable about the District's decision

25 to submit an NPDES application.

1 I think if the the District doesn't have to identify

2 somebody, the Department should not have to, either,

3 and I am most concerned about whether or not we have to

4 go back and redepose those who have already been

5 deposed on that issue in case that question was not

6 asked before. I don't know if we have a resolution to

7 that.

8 HEARING OFFICER: We had talked last time about

9 the District, I mean the Department designating a

10 witness to speak to some of the other issues, the 50

11 parts per billion and so forth. I don't know what the

12 status of that situation is.

13 MR. KILLINGER: I can tell you. The person who

14 from what I can tell on inquiry would be the most

15 appropriate person to talk about some of these items,

16 were they formulated in a way we could actually designate

17 somebody, would be Richard Harvey, who is to be

18 deposed on that next week.

19 I will strenuously object, because he happens to be

20 just sitting there at the time, and we don't have the

21 time to produce Department witnesses to explore a lot

22 of avenues that are available, and they have already

23 had their shot at these things, and I will not have

24 it done again.

25 I also have to voice my objection again in the

1 way they were phrased, based on what I know about the

2 sizing as to the STAs in the settlement agreement,

3 and they want to talk about the 50 ppb in the SWIM

4 plan. I think that's a District inquiry, not a

5 Department decision. They want to know about the

6 settlement negotiations and the notes that they've got

7 attached.

8 Well, they have already had their shot at Richard

9 Harvey. I don't think any of these inquires are

10 relevant, and if we are going to have to produce

11 somebody it would be Richard Harvey, who's already

12 been deposed, unless he as the constant suggestion is

13 was the policy level person they want to call.

14 That's what they suggested last week. They tried

15 to get Dan Thompson, because they couldn't get

16 Carol Browner. They tried to get him as the policy

17 person instead.

18 I would suggest if he wants the policy person

19 he needs to depose Carol Browner. Not that I have any

20 control over her or that I am offering her up, because

21 I don't think it's appropriate for her to be deposed.

22 I would object probably to it.

23 But we have already had the person who we

24 would otherwise talk to, but they are technical persons,

25 and they said they don't want those, and they have

1 already had them anyway, so we are back to the

2 arguments on this that Mr. Reid made. We're in the

3 same place.

4 MR. SMITH: I'm saying you're taking representations

5 of these lawyers about something that just didn't happen

6 the way they are describing.

7 HEARING OFFICER: Well, again I'm not privy to

8 what happened...

9 MR. KILLINGER: Do you dispute the deposition was

10 taken?

11 MR. SMITH: I dispute that Richard Harvey made

12 the decision.

13 MS. PONZOLI: I think you have had a lot of

14 depositions, Mr. Menton, that they could show a pattern,

15 they could bring you a deposition and show you that

16 somehow we had evaded answering the questions, and if

17 they had that pattern to show you I think they would

18 have a more valid argument.

19 They are chasing things that don't exist. We have

20 to disprove negatives.

21 MR. KILLINGER: If you don't think Richard Harvey

22 made the decision, then try to get to the decision

23 maker. We have already talked about why we think

24 that's inappropriate to be Dan Thompson, and counsel

25 for the Department, and that as I read it leaves us with

1 one person, and that was the head at that time. She

2 is not a collegial body.

3 HEARING OFFICER: Again I'm at somewhat of a

4 disadvantage her not being familiar with what happened

5 in the development of the SWIM plan or the federal

6 settlement negotiations and not understanding what role the

7 Department played in all of that.

8 Certainly the SWIM statute contemplates a role

9 for the Department in terms of reviewing the SWIM plan

10 proposed by the District, and I don't know whether

11 the Department's witnesses who have been involved in

12 that process have been deposed.

13 Certainly they are entitled to depose witnesses

14 in this Department who were responsible for reviewing

15 the SWIM plan and reaching a determination as to whether

16 it met the requirements or the compliance with the

17 state water quality.

18 MR. KILLINGER: We have designated somebody from

19 the Department to talk about it, Mark Bibbler, if

20 that's what they want to talk about, statutory compliance.

21 They've got that person.

22 HEARING OFFICER: Okay. Certainly I think they're

23 entitled to the person who made the ultimate decision

24 in the process, and you're saying Mr. Bibbler is it?

25 MR. KILLINGER: I don't know if he ultimately made

1 the decision.

2 HEARING OFFICER: If he didn't make the ultimate

3 decision, then you can follow up with that and take

4 that person.

5 MR. KILLINGER: My point is we didn't adopt the

6 SWIM plan. It isn't necessarily our decision to make.

7 HEARING OFFICER: Right.

8 MR. KILLINGER: If we had known something about

9 what would have been involved in the District's

10 decision making process he's entitled to ask about

11 that.

12 HEARING OFFICER: So I think you are entitled to

13 inquire along those lines.

14 Now in terms of the federal settlement, nobody

15 has yet laid before me exactly what the Department's

16 role in that process was, and until somebody explains

17 that to me and shows me how that comes into play in

18 the context of this case, you know, I don't know what

19 you're seeking to do.

20 MR. SMITH: The way the Hearing Officer ought to be

21 informed about this is on specific questions addressed

22 to specific witnesses. That's the conventional way

23 for you to resolve it.

24 HEARING OFFICER: But you're seeking to...

25 MR. SMITH: And I asked for specifics, named

1 witnesses, and I said if you don't want them to testify

2 then name me somebody to testify.

3 HEARING OFFICER: Who did you ask for from the

4 Department?

5 MR. SMITH: I asked for Dan Thompson.

6 HEARING OFFICER: Okay.

7 MR. SMITH: And we have discussed the Assistant

8 Secretary. He could give a deposition as the Assistant

9 Secretary. And I'd ask him a question, and if he said,

10 "I can't answer that," I'd...

11 HEARING OFFICER: He wasn't Assistant Secretary at

12 the time when that occurred, thought, was he, as I

13 understood the testimony last week? I mean, he

14 wasn't Assistant Secretary, was he?

15 MR. SMITH: No. The United States could bring

16 Carol Browner here, of course. They want me to go up and

17 spend 10 days fruitlessly, getting permission from

18 somebody to depose Carol Browner, and those people

19 would say, "You ought to be able to get along without

20 Carol Browner. Take the next in charge."

21 It looks to me, Mr. Hearing Officer, you are taking

22 the representations of some lawyers here.

23 HEARING OFFICER: No, but, Mr. Smith, I think the

24 problem is you don't start at the top. You start not

25 with the President of the United States and try to take

1 his deposition. You're got to work your way up there

2 to demonstrate to me why you need to depose him

3 before you can do that.

4 That's what I was saying earlier. I'm not going to

5 preclude you if you can demonstrate to me and show me

6 that trial that leads here and how it's pertinent to

7 this proceeding, I'm not going to necessarily preclude

8 you from doing that, but I'm not going to let you

9 start at the top and work your way down.

10 You need to work up to how the decision was

11 made, and then we can take it from there.

12 MR. SMITH: It was not, what you just sid pertained

13 to all of these issues, is it my understanding, or are

14 you talking about the NPDES permit? You're talking

15 about all the issues?

16 HEARING OFFICER: Yes.

17 MR. SMITH: Now I heard you say, Mr. Hearing

18 Office, Mr. Reid and I hear different things in what

19 you say so I'm going to ask you to enter an order or

20 let's get an extract of this transcript and file it

21 so that we know so we can at least be looking at the

22 same material.

23 I understood you to say I can inquire as to the

24 applicability of the federal permit requirement and

25 how they interplay with the SWIM plan.

1 HEARING OFFICER: How the witnesses have, whether

2 they evaluated that and how that came into play with

3 development of the SWIM plan.

4 MR. REID: Whether they can get a permit.

5 MR. SMITH: That's something different. I will have

6 to ask you to make a ruling. You just said something

7 entirely different. We will live with it.

8 I want to be able next week in the deposition of

9 Mr. Harvey, be able to ask him a question that I know

10 is either within or without the range of permissible

11 inquiry.

12 I think I'm entitled to ask Mr. Harvey if he's

13 the person that's going to be there next week, or

14 Mr. Whalen if he should be deposed, or Mr. Bibbler,

15 "Are you committed now in any form, in any place, in

16 any way, shape, or form to dispensing with the

17 moderating provisions in the canal at S5-A and S6-A

18 structures in Loxahatchee? Sir, is the District

19 committed?"

20 HEARING OFFICER: You can ask him that question.

21 If he can answer it, fine.

22 MR. KILLINGER: I think just to bring it up

23 again we have already gone over this with Mr. Harvey in

24 multiple days, and I'm virtually certain those questions

25 were asked. I wasn't present, but I'm virtually certain

1 they were. If that area was explored I will object to

2 it as duplicative.

3 HEARING OFFICER: Then both of you take a look at

4 what happened at all of these depositions before and

5 determine whether that area has already been inquired

6 into, and if it has been then there's no need to go back

7 over it.

8 MR. KILLINGER: I just don't want to waste a lot

9 of time doing something we've already done.

10 HEARING OFFICER: I agree with that. We don't

11 have enough time to go over things that have been

12 covered in previous depositions.

13 If it's already been asked, then we don't need to

14 get back into it.

15 All right. Where does that leave us with respect

16 to the District's situation? I believe that's what we

17 were talking about. I believe Mr. Bibbler is going to be

18 deposed next week, and so is Mr. Harvey, right?

19 MR. KILLINGER: Yes, that's the way it is.

20 MR. HYDE: Those are both Department witnesses.

21 HEARING OFFICER: I apologize.

22 MR. KILLINGER: Like I said, to the extent that

23 either of those gentlemen can talk about the way what's

24 in here, the way it's phrased, you know, I think they

25 ought to be able to.

1 I cannot designate somebody any more easily

2 than Mr. Reid can to talk about duress, pressure,

3 or to speculate about the District's decisions that

4 were adopted pending for our review.

5 HEARING OFFICER: Well, I understand. As I

6 indicated, certainly the witnesses can be asked

7 regarding their review and evaluation of the SWIM

8 plan in accordance with the requirements of the

9 statute.

10 In addition, I don't know what the evidence has

11 shown, and I don't know what the role of the

12 Department was in the development of the SWIM plan.

13 It's a District determination or the District

14 decision to adopt the SWIM plan, but if there were

15 Department witnesses that were involved in the process

16 by which the SWIM plan was put together, their role

17 in the development of that is really ripe for inquiry.

18 MR. KILLINGER: Well, I guess what I'll say is to

19 the extent the Department witnesses have not already

20 been deposed on this I will allow inquiry next week

21 of Richard Harvey.

22 Frank Nearhoof has a role in this, who was

23 deposed. I'm going back.

24 If Mr. Bibbler was involved, his depo is coming

25 up, and it's wide open. That's their shot. That's

1 about as much as I can do right now, but I still

2 don't think it gets necessarily to what he's asking

3 for about the decision maker, and that may be the

4 agency, if that's what he wants. I'm just not sure.

5 HEARING OFFICER: He's entitled to inquire along

6 those lines to develop how that process is made and

7 what the role of the Department was, and then we just

8 have to take it from there.

9 Okay. All right. The Coop has also filed a motion

10 with me regarding commissions for depositions of

11 witnesses.

12 MR. REID: That's the guy on mercury?

13 MS. RAEPPLE: Yes, Carl Watress.

14 MR. REID: We're working on that, it's my

15 understanding. We don't object to the motion for the

16 appointment of a commission. We don't object to your

17 entering those motions.

18 HEARING OFFICER: All right.

19 MS. RAEPPLE: The appointment of a Commissioner?

20 HEARING OFFICER: Yes, we can do that. Those

21 came in. I reviewed them. I did not sign them right

22 away, because I had some questions given the context

23 in which this all came up.

24 It appeared to me that the witness was a

25 professional who had done some scientific studies, and

1 at least from the way the commissions were set up it

2 looked like he was subpoenaed as a fact witness.

3 I had some questions as to whether that was the

4 appropriate way to go about trying to take this guy's

5 deposition, and I know that has come up in the past

6 where I have sent out subpoenas or the equivalent

7 commissions.

8 MR. REID: Apparently somebody has talked to

9 you about this?

10 MS. RAEPPLE: Yes, Paul Nettleton, and he

11 said there was no objection to your signing the order.

12 MR. REID: That's correct.

13 HEARING OFFICER: All right. Now I will go ahead

14 and sign them, and then you can...

15 MR. REID: Whether we have done them or not

16 HEARING OFFICER: I just had not done them until

17 it was something that I had a feel for as I was

18 looking at them.

19 Okay, let's take about a five-minute break, and

20 then we'll come back and talk about it.

21 (WHEREUPON, THE HEARING WAS RECESSED FROM 11:42 A.M.

22 T0 11:50 A.M., AT WHICH TIME MS. RAEPPLE WAS ABSENT FROM

23 THE HEARING ROOM.)

24 HEARING OFFICER: Okay, let's start. The next

25 thing that I wanted to talk about today was some of these

1 pretrial issues and trying to straighten out some of

2 those things.

3 To summarize, as I understand I believe the

4 witness lists are now complete. I have drafted an

5 order confirming that and will be getting that out in

6 the next day or two. I have been functioning without

7 the half-time secretary I used to have. That will go out

8 in the next couple of days.

9 There are, I think as we indicated at the earlier

10 hearings the witness lists will be considered

11 conclusive, in that any additions will be by motion

12 only, and we will have to take that up and deal with

13 them if there are any such issues.

14 We had discussed previously the possibility of

15 stipulating to some of the issues, including the

16 standing issue and some other matters that may serve

17 to narrow the hearing process a little bit.

18 I don't know if there have been any efforts in

19 that regard.

20 (WHEREUPON, MS. RAEPPLE ENTERED THE HEARING ROOM.)

21 What I would like to do is to put together a

22 prehearing order essentially establishing a date by

23 which all stipulations would be prepared and finalized,

24 and also as part of that prehearing order I was

25 anticipating including a requirement for exchange of an

1 exhibit list, and I don't know what the parties'

2 position is, whether it has been given any thought or

3 not, but hopefully in exchanging witness lists we

4 could also reach agreement with respect to authenticity

5 and avoid having to go through some of the more mundane

6 aspects, if possible, of the hearing process.

7 That's what I'd like to get.

8 MR. HYDE: Along the lines of those stipulations,

9 we wanted to get to something more than the mere

10 authenticity of documents.

11 A lot of the witnesses for all sides to this

12 proceeding are expert witnesses who quite often rely

13 on a troop of assistants to help in the development

14 of their studies, data, and reports.

15 And we want to make sure that those ancillary or

16 subsidiary persons need not be dragged in as a result

17 of technical objections to studies or reports on the

18 basis of hearsay or anything.

19 I think in light of your ruling that the witness

20 list is effectively closed except for good cause upon

21 motion we need to all keep in mind we want to obviate

22 the need for additional witnesses being brought in for

23 that kind of purpose only.

24 It's easy to do. A lot of times you just have to

25 get someone to do it, but I urge all parties to focus

1 on that.

2 HEARING OFFICER: Well, I agree with that, and

3 I think that's exactly the sort of issues that we were

4 talking about when we talked about some of these

5 stipulations, and I know everybody has been involved in

6 the discovery process, but we do need to begin pulling

7 some of these issues together.

8 There were discussions about trying to come up

9 wit the stipulation and exchange them back and forth.

10 I don't know whether that has taken place or not or

11 whether there is time for doing that, but I think those

12 are some of the things we need to talk about today,

13 to try to establish such a deadline and see where we

14 stand.

15 Along the same lines, one of the things that I had

16 voiced the other day was the issue of trying to come

17 up with an outline pursuant to which we could try to

18 structure the hearing and also the written submittals

19 that would be prepared by the parties at the end of the

20 hearing, and I just threw that out the other day, and

21 I;'m sure it aught everybody off guard. Maybe I need

22 to explain a little bit more what I'm thinking about

23 and see if we can also establish a deadline for

24 coming up with such an outline.

25 What I have done in the past and had good success

1 with in terms of rule cases and other complicated

2 matters was to try to pull together all of the issues

3 that have been raised by the parties that were involved

4 in the case and try to establish them within some sort

5 of general outline and have that reviewed and passed

6 back and forth by the parties and see if we can reach

7 some sort of consensus on that, and generally use

8 that outline both for purposes of presentation of

9 evidence at the hearing and also for the submittals at

10 the end, and what I have found it does is it makes

11 it better if everybody uses the same organizational

12 pattern and even if you don't agree an issue raised

13 by one party is necessarily pertinent or if you don't

14 want to address an issue raised by one party we

15 have the same format, and we can just put, "The

16 District does not address this issue," or "This issue

17 is not pertinent within the context of this case,"

18 and we can follow it that way and then the parties

19 that believe it's pertinent can address it, and when

20 I sit down and try to pull it all together at the

21 end it will be a framework for doing my order.

22 This makes it a lot better if we come up with an

23 outline along those lines.

24 I know that all parties have now filed their,

25 well, all parties haven't, but there have been issue

1 statements that have been filed, and I went back and

2 tried to look at those.

3 Those give us kind of an outline. They might be

4 a little bit too specific. I think in spite of,

5 I guess I was looking at the League's, a lot of those

6 issues could probably be put together and combined

7 into the same general subject matter, even if there

8 are particular aspects of it that might be different,

9 and then try to group those together within the

10 context of the outline.

11 I know that everybody at this point in time has

12 their schedule pretty well full, and everybody is

13 choking on whether or not, how we are going to find the

14 time to do those kinds of things. I don't really

15 have a particular deadline in mind, and I wanted to

16 get some ideas from the parties today as to what their

17 thoughts are.

18 We have a prehearing conference scheduled for

19 April 11th, which is the Monday following the discovery

20 cutoff, and it may be that we can get a little bit more

21 specific once the discovery period has passed. It gives

22 us two weeks before the commencement of the hearing.

23 It may be during that week we can try to pull

24 that together a little bit better.

25 I do think it's a very useful exercise in the long

1 run, and it will help everybody in terms of if everybody

2 files the same general outline in filing their proposed

3 submittals at the end, it just is going to make for a

4 lot clearer record and make it a lot easier an d

5 quicker for me to be able to get it out at the end of

6 the process.

7 So I do want to try to talk about that a little

8 bit, and then there is, let's see, I think there is

9 one other issue.

10 We had gone through this process of preparing the

11 issue statements in the hope of trying to narrow the

12 issues somewhat. I think it was a productive exercise,

13 but I don't know whether we have narrowed the issue or

14 not. The last thing I wanted to try to discuss is

15 exactly where we stood with respect to the issue

16 statements and what that does with respect to the motion

17 to strike that the District had filed way back at the

18 beginning of this proceeding.

19 I don't know that all of the issues raised in the

20 motion to strike have been necessarily resolved as a

21 result of this process, and I don't know which ones

22 remain out there and whether it's productive to try to

23 go back and resolve things.

24 I had indicated to the District at the time they

25 filed their motion that we would try to get to that

1 before the start of the hearing so that's one issue

2 that also is out there.

3 Having thrown those things out, what my thoughts

4 were essentially was that we should seek to finalize an

5 exhibit list an da list of the stipulations again

6 sometime shortly after that end of discovery period

7 that second week in April and be prepared to try to set

8 a deadline either on the 21st of April, the week after

9 the 18th of April, I guess it would be, to try to

10 have exchanged witness lists and perhaps have another

11 hearing to resolve disputes to circumvent problems at

12 the hearing.

13 MS. PONZOLI: Mr. Menton, I had taken, and I'm

14 not married to this, I had shown it only briefly to

15 Mr. Reid, and I have not shown it to Mr. Killinger,

16 our prior discovery and scheduling order, and I had

17 taken the dates and issues that the parties had

18 agreed to, the exhibit list and stipulations and

19 pretrial motions, and tried to take these couple of

20 weeks that we have and apply them.

21 Do you want to look at these or call them out to

22 the parties and see how they feel?

23 MR. SMITH: Could we look at that, please? Let's

24 don't start with something we have not looked at.

25 MS. PONZOLI: Well, this is your discovery and

1 scheduling order. I am proposing you think about

2 these dates, Mr. Smith. You signed it. It is all

3 yours. We submitted it mutually. These are modifications

4 to the dates under our prior schedule, look at this and

5 see how you feel about those modifications for getting

6 our requirements met.

7 If you want to call them out, they are written

8 above there. I was going to let Mr. Menton do it, or

9 I could do it, or you can do it.

10 MR. SMITH: May we have a minute?

11 HEARING OFFICER: Sure. While he's looking at

12 it, I don't know if the District or the federal

13 government has comments regarding an outline and

14 whether you think that's feasible in the time frame.

15 I don't think that was addressed previously, and

16 probably we could include it within the schedule you

17 have, although I haven't looked at it.

18 MR. KILLINGER: I've got a quick question. Did

19 you contemplate doing the permitting case and the

20 SWIM case since the final order goes different

21 directions, or come from different directions?

22 HEARING OFFICER: Yes, and I think to the extent

23 we can agree with respect to the SWIM plan case then it

24 would make it a little bit easier to figure out for

25 the permitting case what aspects of the SWIM plan case

1 and should be rolled over into the permitting case.

2 MR. KILLINGER: Okay. I don't, maybe I'm not

3 remembering clearly. I'm wondering what the course of

4 the proceeding is going to be. Are we going on one

5 proceeding or both?

6 MR. REID: Sequential.

7 MR. KILLINGER: Okay. That's what I thought.

8 I think having a separate list for each case would

9 facilitate the permit case.

10 MS. PONZOLI: My only concern, Mr. Menton, is that

11 as you are aware there is very fundamental differences

12 on each side of the table as to what really is relevant

13 and should be in that outline, and I suspect that in the

14 end you are going to put things in the outline because

15 they believe they are relevant, and you are going to

16 hear them to see what you think about them, and we are

17 never going to agree they are relevant, and you

18 sometime down the line will decide.

19 I guess I'm a little worried about presumptions

20 that once they are in the outline they are relevant.

21 Do you understand?

22 HEARING OFFICER: I understand your concern, and

23 I don't by any means view this process as ordaining any

24 issue that's set forth in there as being one that is

25 necessarily relevant or irrelevant.

1 It may well be that in terms of my recommended

2 order at the conclusion of this it would be exactly my

3 conclusion, that the petitioners have raised it for

4 whatever reason and it's not pertinent.

5 MR. REID: How would this...

6 HEARING OFFICER: Well...

7 MR. REID: Usually the plaintiff would prepare it,

8 and it would be added to by the defendant.

9 HEARING OFFICER: Well, I think we have a framework

10 to start with that these statements have been set forth,

11 and what I think I tried to do is look at those aspects

12 of the various petitions and pull them together into

13 one document and then combine as many of those as

14 possible.

15 You have tried to break it down in you proposal

16 into four general subgroups, and it may be that those

17 four general subgroups can serve as a basis.

18 MR. REID: One thing we are going to suggest, to

19 the extent we need to have in limine motions we might

20 consider starting those on the morning of the first,

21 what we now call the first day of the hearing and get

22 those out of the way for however many days it takes.

23 That gives, relieves a little pressure on us.

24 HEARING OFFICER: Okay. I think that may be an

25 appropriate way to do it.

1 MR. REID: And planned, as opposed to a lot of times it

2 happens anyway.

3 MR. HYDE: Mr. Menton, on the subject of the

4 parties' exhibit list, I noted from your earlier order

5 that you wanted the parties to identify each specific

6 exhibit to be used, and absent good cause shown the

7 exhibits not listed and made available before the

8 hearing, including impeachment and rebuttal exhibits,

9 should not be used at the final hearing.

10 My concern is what you really mean by absent

11 good cause shown, because as you probably recall the

12 hearing will proceed with the District's prima facie

13 case, and then the petitioners putting on theirs, and

14 then in effect rebuttal and then I supposed surrebuttal.

15 We have good reason to believe that, and I think

16 it's fairly obvious, that a good portion of the

17 substance of the government's case will be confined

18 primarily to the rebuttal, and as a consequence we

19 may well end up with a lot of new types of matters

20 that were not previously addressed or contemplated, and

21 so my concern is if something new does indeed come up

22 during a rebuttal case that we had not previously

23 addressed that we would not be precluded from addressing

24 that with another exhibit afterwards, even if it's not

25 listed. In other words, a surprise would constitute

1 good cause.

2 HEARING OFFICER: Well, at this point in time

3 everybody has lived with the case long enough, and they

4 know what the issues are, and they know what the

5 witnesses are, what they have prepared and what they

6 are going to testify to.

7 The purpose of listing exhibits is simply to

8 prevent surprise at the time of the hearing.

9 What I don't want to happen is to get into the

10 hearing process and have some document suddenly appear

11 for the first time or one that was not disclosed as

12 being one that was going to be relied upon and suddenly

13 take on some great, major import.

14 It comes down to the whole issue of sandbagging

15 somebody. Everybody knows what the issues are in this

16 case and should have a general idea as to what not only

17 their parties are going to call but what, what their

18 parties are going to testify to but what the other

19 sides' parties are going to testify to.

20 If you have a document that you intend to

21 cross examine a witness of the District about, then you

22 ought to list it on your witness list, so that, number

23 one, we can try to resolve any questions regarding

24 authenticity and try to deal with any motions in limine

25 or privilege issues that may come up and try to get

1 those resolved prior to time of hearing, so we don't

2 spend a whole lot of time at the hearing arguing about

3 it.

4 MR. HYDE: I do agree with you in every respect,

5 and I certainly concur in theory that's how it ought to

6 work.

7 My concern is the probability or the potential of

8 surprise.

9 I have certainly heard of attorneys for the

10 government agencies say, "Well, we don't know what

11 you're going to be saying yet, so that's going to come

12 in our rebuttal at some point," and I'm just worried

13 about what kind of surprise occurring in the context of

14 this proceeding, and if indeed genuine surprise does

15 occur as a result of the government's part of the case,

16 then I think we should not be precluded from putting

17 in an appropriate exhibit at that time if indeed an

18 exhibit is necessary to counter that surprise, even if

19 it wasn't listed prior to trial.

20 I'm speaking really in a hypothetical sense. One

21 does not know until the situation presents itself, but

22 it is a legitimate concern.

23 HEARING OFFICER: Yes, it is a legitimate concern

24 and one that like so many of these cannot be addressed

25 in the abstract.

1 The thing that I want everybody to be very clear

2 on is that I am going to take a very stringent view

3 of documents coming in that had not previously been

4 identified, so err on the side of disclosure. That's the

5 best advice that I can give you.

6 If you have any reason to expect that a particular

7 document may be important for cross examining

8 witness or to address some issues that the District

9 may be raising, list it. I mean, you don't have to

10 use it, but it will be a lot easier if you list

11 it than if you don't list it.

12 MR. HYDE: I understand what you're saying. My

13 concern is really not so much addressed to surprise as

14 a result of new document, but surprise as a result

15 of new testimony which may need to be countered by or

16 may be appropriately countered by an appropriate

17 exhibit. That's the context I was most concerned about.

18 But again it's a hypothetical concern, and I

19 agree with you wholeheartedly that everybody needs to

20 if anything err on the side of liberality and produce

21 if there is any doubt about it.

22 I am still concerned about genuine surprise, and

23 I hope during the proceedings you will keep that in

24 mind. I guess it really begs a specific example, and

25 we are speaking hypothetically.

1 HEARING OFFICER: Well, I'm sure that some of these

2 issues will come up during the hearing, but I want

3 everybody to be on guard that surprise at the

4 time of hearing are very difficult to deal with, and

5 simply because I haven't been privy to the discovery

6 and we go back and start pulling depositions and "He

7 talked about it in his, so it's not surprise," I do

8 not want to spend a lot of time at the hearing

9 getting into those issues, so I think everybody

10 should be well aware of the position of all parties

11 in this case and what the witnesses are going to

12 testify to, and I'm going to take the view that with

13 the hundreds of depositions that have been taken and

14 the thousands of pages of documents that have been

15 produced that their is very little surprise out there,

16 and I am going to have to be convinced that surprise

17 has occurred before I'm going to make any exceptions

18 to the witness lists or exhibit lists.

19 MR. SMITH: We need to have a little relationship

20 between the exhibit list and the witness list so when

21 you enter your order on witnesses with your conclusive

22 effect you have described may I respectfully suggest

23 you reserve questions of authenticity of documents

24 if it arises in the latter stage and becomes an issue?

25 We can't anticipate what they will say with respect to

100

1 what they say, but it may require a witness, and vice

2 versa. We ought not be able to sandbag each other,

3 because we haven't named a witness.

4 HEARING OFFICER: Right, and we have talked about

5 some of that before when we talked about the witness

6 list, and I believe there were a number of witnesses

7 who were listed in the abundance of caution in case

8 stipulations could not be reached with respect to some

9 of those authenticity issues.

10 Again we are talking in the abstract. I would hope

11 that the parties would be able to resolve a lot of

12 those issues prior to the time of hearing so we don't

13 have to argue about them.

14 I mean, if the study has been done, it's been

15 done, and you should not have to, if it was appropriate

16 for somebody else's analysis, then hopefully you can

17 simply reach an agreement this is a study that was one

18 by so-and-so as such-and-such a date, and we don't have

19 to bring that witness in to identify his report.

20 MR. SMITH: I'm simply saying I think it would be

21 important for the Hearing Officer to reserve that

22 question in the order you're speaking about now as

23 imminent.

24 HEARING OFFICER: And I think I'll have to go back

25 and look at my draft, but I think I have addressed that

101

1 in terms of the authenticity of documents. And I do

2 think that the representations that were made by all

3 parties at the prior hearing that the witnesses that

4 would be necessary to authenticate them have been

5 identified and have ben laid out on the witness list

6 already, and it's simply a question of whether or not

7 they need to be called or not. That's my recollection

8 from the earlier hearings that we had.

9 MR. HYDE: I think that you are probably correct in

10 most respects. I think that we have discovered in some

11 of the recent depositions people have had other people

12 working for them, and this goes back to my earlier

13 observations of what do you do with people that have

14 been assistants to experts that have formulated opinions

15 in this regard?

16 I don't think, and I think it would be true for

17 everybody, that each and every one of those person

18 has been listed. I would be very surprised if they

19 had.

20 I think we have all been operating under the

21 assumption that those kinds of witnesses were never

22 really anticipated to be called anyway and were not on

23 the second list.

24 HEARING OFFICER: Right, and, I mean, again we

25 will have to deal with these issues as they come up if

102

1 there is a problem, but I would hope that the witnesses

2 that you are talking about are not controversial...

3 MR. HYDE: No.

4 HEARING OFFICER: ... and it's simply a matter of

5 foundation, and a lot of this foundational question

6 can be resolved with stipulations, I would hope.

7 MR. HYDE: We certainly hope so, too.

8 MR. SMITH: We will have the witnesses do it if

9 you haven't boxed us in in your ruling by saying we have

10 to have disclosed and listed the authenticating

11 witnesses for documents that the other side has thus far

12 agreed to or not.

13 I am thinking particularly, you see, I've go a

14 bunch of documents, Ms. Ponzoli knows about them, from

15 a deposition we took of the Manger of the Loxahatchee,

16 and we're going to go through maybe next week these with

17 Dr. Maffei, documents produced out of Atlanta,

18 U.S. Fish and Wildlife Service.

19 I don't know who authenticating witnesses will be,

20 and I expect her to agree they are authentic,

21 then the issue will be whether they are relevant.

22 If she says they are not, "You'll have to prove

23 their authenticity," I'll have to find a witness to

24 prove it.

25 I'm simply saying don't box yourself and us in on

103

1 that.

2 HEARING OFFICER: Well, I agree with that, too, but

3 those are exactly the kinds of issues that the listing

4 of witnesses and exhibits is supposed to try to

5 alleviate.

6 If you go through there and list what those lists

7 are going to be and she can look at those exhibits and

8 say, "We're not going to contest authenticity...."

9 MR. SMITH: Exactly.

10 HEARING OFFICER: Then hopefully we can resolve

11 that.

12 MR. SMITH: But if we have, if the witness list

13 is dead today and the exhibits are not listed for another

14 two weeks were just need that relief.

15 HEARING OFFICER: Okay. Well, that relief will be

16 available, but it will be available only upon demonstration

17 of good cause. Okay?

18 As I have said before, the witness list is closed,

19 absent a showing by somebody as to why they need to

20 reopen it, and I'm going to up the burden on you

21 to come forth and show my why you need to do it, and if

22 you can do it, then fine, you have done it, and

23 we'll add the witness to the list, but it's going to be

24 on the person seeking to add, because at this point

25 everybody should have been identified and put down.

104

1 If there are as a result of the failure to reach

2 stipulations regarding certain exhibits, there are

3 necessary exhibits, I mean necessary witnesses to

4 authenticate them, then we can take those up at the time

5 you file your motion.

6 Okay. Where are we now, everybody has had an

7 opportunity to review the document Ms. Ponzoli has put

8 forth. I haven't seen it yet. I don't know what

9 it is, what the dates are that we're looking at.

10 MS. PONZOLI: I'm sorry.

11 HEARING OFFICER: Any specific comments or

12 objections from the petitioners who have now had an

13 opportunity to review these dates?

14 MR. HYDE: They are very abbreviated dates, and

15 I'm not faulting Ms. Ponzoli. We are dealing with a

16 constrained time frame anyway, but if the last day of

17 discovery is April 8th I think it quite ambitious to think

18 we can get something as complicated as this prehearing

19 stipulations to bed in a week.

20 There are so many parties, and there are so many

21 issues, and there will be I dare say hundreds of

22 exhibits, maybe thousands, and that's just going to be

23 very difficult to pull together in one week.

24 MS. PONZOLI: Are you working back, Mr. Hyde,

25 from the 25th as the starting date?

105

1 MR. HYDE: Yes.

2 MS. PONZOLI: If you have a better suggestion...

3 MR. HYDE: In terms of the filing of the prehearing

4 stipulation itself, perhaps you should push it back

5 some dates. Some of the earlier things, some of the

6 other aspects about exchange of exhibit lists could be

7 done in your time frame, but I was concerned about

8 getting the prehearing stipulation and all of its

9 nuances ready in a one-week period.

10 HEARING OFFICER: And it's probably, the date for

11 the prehearing stipulation probably works better to have

12 it after the exhibit lists anyway.

13 MS. PONZOLI: Okay.

14 HEARING OFFICER: Why don't we go with the dates

15 for the exhibits that we have on here and move the date

16 for the prehearing stipulation?

17 MS. RAEPPLE: Mr. Menton, I would suggest why don't

18 we move the exhibit list to the following Monday,

19 the 18th? There will be hundreds and possibly

20 thousands of exhibits, and...

21 HEARING OFFICER: Isn't that what she has, the 18th?

22 MS. RAEPPLE: The list is on the 15th.

23 HEARING OFFICER: Okay.

24 MS. RAEPPLE: I think we could all use that

25 additional weekend. We are all working under a very

106

1 heavy burden right now just getting through the

2 depositions, and I don't know about the other parties

3 but I'm having not a lot of time right now to work on

4 exhibit lists, and I now it will take me the two

5 weekends after deposition and the intervening week to get

6 it done. I would like to have it by the following

7 Monday.

8 MS. PONZOLI: The only problem I have with those

9 suggestions is that you are putting everything into a

10 single week, and I don't see how we physically, putting

11 aside mentally and spiritually, will be able to get

12 everything done in that single week if we don't accomplish

13 some things the prior week.

14 I mean, what it may entail is we are going to have

15 to start now to put these together.

16 I am having, I thought it was ambitious. I

17 don't know how to compress it more.

18 MS. RAEPPLE: Working backwards, the prehearing

19 stipulation I would envision we could file that Friday

20 before the hearing begins on Monday, which would give us

21 all the intervening weekend to review it and

22 become failure with it and prior to the...

23 HEARING OFFICER: It's safer to make it Thursday,

24 so that it gets to me in time before I leave.

25 MS. PONZOLI: When would pretrial motions be filed

107

1 and the responses filed? I had used, what I tried to

2 do, just so you all know, I tried to take the same type

3 of spacing, at least conceptually, that we previously

4 envisioned and tried to apply it to this expedited

5 schedule, and I agree the pretrial, the prehearing

6 stipulation is formidable document, and if it needs to

7 be moved forward, but those prehearing motions and

8 responses will also be very substantial documents, and

9 I just don't see how we can do exhibits, prehearing

10 motions, responses, objections to authenticity, and

11 everything in a single week. That's my concern.

12 MS. RAEPPLE: That assumes nobody does

13 anything until that week. Won't people still be doing

14 this?

15 MS. PONZOLI: Well, obviously then people

16 in the first week working, and the second week more

17 or less exchange?

18 MR. KILLINGER: I wonder if we could do the final

19 prehearing motion before we get the prehearing stip

20 worked out. I seems to me they necessarily follow

21 what you can or can't stipulation to.

22 MR. REID: That's true.

23 MR. KILLINGER: So...

24 HEARING OFFICER: Well, run that by me again.

25 MR. KILLINGER: What we can agree to or can't agree

108

1 to in the prehearing stipulation will determine what's in

2 the prehearing motions about exhibits or whatever else.

3 MR. HYDE: Well, I didn't think that the prehearing

4 stipulation required any agreement among parties as to

5 what my exhibits would be. I can list what my exhibits

6 are. You may object to them, and you may object and

7 say, "It's irrelevant."

8 MR. KILLINGER: I understand, but we don't know

9 what that is until we orally hear the stipulations or

10 know how to file a document.

11 HEARING OFFICER: You're talking about the date

12 for finalizing the prehearing stip. I mean, in the

13 process of that you could be exchanging witness lists

14 and exchanging drafts and so forth, and most of those

15 could be crystallized by them.

16 MR. HYDE: I always thought of this kind of

17 standard language regarding prehearing motions to

18 deal with more generic type issues anyway.

19 Certainly you don't waive your rights at hearing

20 to object to relevancy or admissibility of things

21 because you didn't file a prehearing motion in limine.

22 I have always treated this in other hearings as being

23 more for a generic problem type of evidence of

24 testimony.

25 A good example would be the District's motion to

109

1 strike, while on other points I think is a moot

2 document, and there might need to be an update anyway,

3 because it deals with the early petitions filed, but

4 that is the kind of motion I think that's contemplated

5 here, not specific motions directed to one exhibit

6 or a small class of exhibits. I thought it more of an

7 issue oriented motion.

8 HEARING OFFICER: Well...

9 MR. REID: Well, maybe it would be better if we

10 had a meeting with the Department on this, and, I mean,

11 we can spend your time talking, but you don't really

12 care as long as we get it all done?

13 HEARING OFFICER: Right. Exactly.

14 MR. REID: Maybe we should try to get together.

15 HEARING OFFICER: I do think the suggestion that

16 Mr. Reid made earlier, that we use the 25th, the first

17 day of the hearing, to try to deal with whatever motions

18 are pending and try to resolve those, I think that's a

19 good suggestion and can be built into the schedule.

20 What about the idea I had thrown out about an

21 outline? And I guess that comes into play in terms of the

22 proposed recommended orders, and also in terms of how

23 we are going to handle the presentation of the

24 evidence. Were have discussed this a couple of different

25 times in a lot of different circumstances.

110

1 One of things that concerns me in trying to

2 take this information in and digest it is if we go to

3 hearing and somebody presents their case regarding 50

4 parts per billion and say I hear the District's version

5 of that in their prima facie case if they choose to get

6 into that or however that comes about, but say I hear

7 that and we proceed from there into all of the other

8 issues, and then we begin with the petitioners' case,

9 it could be six weeks later before I hear the

10 petitioners' version on that particular issue.

11 At that point I know I'm going to be scrambling

12 trying to remember what was said before and put it all

13 in context.

14 So one of the the things that I thought might be useful

15 if we try to come up with an outline is maybe if we can

16 agree upon a way that we can try to take evidence

17 relevant to particular issues at one time, and maybe

18 that we can take a couple of issue at a time or whatever,

19 but if we do 50 parts per billion in the first week and

20 50 parts per billion in the 12th week it's going to be

21 very difficult to go back and try to reconcile that

22 evidence and try to reach any conclusions on it.

23 MR. HYDE: Just to make sure I understand you,

24 I mean, I sort of logically have broken this

25 hearing into several elements anyway, and I think almost

111

1 everybody has, but you might for example do something

2 along the lines of what are the water quality violations,

3 and the District would put on its witnesses, and we would

4 put on ours, and we would in effect resolve that issue.

5 HEARING OFFICER: Right.

6 MR. HYDE: There's a lot of appeal to that. I

7 think one of the difficulties, and I just wanted to bring

8 this to your attention, is we have a number of witnesses,

9 as I'm sure all of the parties do, whose testimony will

10 go to many issues, many important issues, and it will

11 perhaps be difficult at times to draw the line

12 between when they are talking about this issue and

13 that, and it also may necessitate calling the same

14 witness back three or four times and creating

15 complications in that respect too.

16 HEARING OFFICER: There's no easy way around this.

17 MR. HYDE: That's the concern I have.

18 MR. REID: If you take the paper where we tried to

19 break it in to five or six areas, that sort of, for

20 instance one of them is water quality violations, and

21 that's one of the areas, and to the extent we put on

22 our prima facie case, we have one or two witnesses,

23 and that will be our two weeks, whatever it's going to

24 take. That might be a good outline, and you could

25 respond to each of those.

112

1 MS. PONZOLI: I'm having trouble with the concept

2 of this, because I had sort of, you know, you said it

3 was prima facie, and then the petitioners would put on

4 everything they wanted, and then we were going to put

5 on ours, and then we were going to go back and forth a

6 little, and then it's all over some day.

7 HEARING OFFICER: Hopefully,

8 MS. PONZOLI: But now this sounds like it just sort

9 of is all one case, 20 issues, whatever. I really

10 would like time to think about this. I mean, that is

11 very different.

12 HEARING OFFICER: That is different, and I understand

13 that, and I apologize for confusing that more if I have.

14 I guess I have just begun to try to think from a

15 practical standpoint how the best way to deal with it

16 is.

17 I don't mean to back off what I had said before.

18 I think we would still deal basically with a prima

19 facie case. and that's it, take all the evidence in the

20 prima facie case and deal with it.

21 Then as we get into the particular challenges that

22 the petitioners have raised I would hope that there would

23 be some way to break those down into four or five

24 discrete areas. Maybe we can't do it. Maybe I'm just

25 too hopeful.

113

1 But I think there is a real possibility. I think

2 we could break it down to four or five issues, take

3 the petitioners' case on number one, take the

4 respondents' case on number two, take any surrebuttal

5 that we have to on that, and then move to number two

6 and deal with all those almost as separate little

7 trials, understanding there is going to be some overlap

8 and some witnesses who will carry over into other

9 issues, but...

10 MR. REID: For the prima facie case, after the

11 prima facie case?

12 HEARING OFFICER: After the prima facie case.

13 MR. REID: ...and they would attack whatever we

14 decide are the issues, water quality standards, and

15 then we would rebut that.

16 HEARING OFFICER: Right.

17 MR. HYDE: I might urge you to keep the broader

18 issues to very limited areas and not to have 20 or 30,

19 maybe four or five at most.

20 HEARING OFFICER: I agree with that. I think

21 that's probably a good idea. Mr. Reid would have four

22 or five, you know, identify the four, and it might be

23 we can take those and expand on them or manipulate

24 those and work with those.

25 MR. REID: Why don't we talk about that in the

114

1 meeting?

2 MR. HYDE: (Nodding head.)

3 HEARING OFFICER: And we can discuss this a

4 little bit. What I thought was to get it out on the

5 table, let it digest a little bit, give it some thought,

6 and we can talk about it a little bit more on April 8th

7 when we have our next pretrial conference.

8 MR. BURGESS: April 11th

9 HEARING OFFICER: Okay, and I think if we try to

10 approach it and can break it down, it can serve as an

11 outline for the posthearing submittals, and that way

12 it will be easier to kind of organize the whole case from

13 everybody's standpoint, and even if you don't agree

14 all of these issues are necessary, relevant, or if it

15 doesn't pertain to your client or whatever, you don't

16 necessarily have to address it, but it just gives us a

17 framework for keeping everything organized and trying to...

18 MR. HYDE: One appealing aspect is it may free up

19 some of us to do other things.

20 HEARING OFFICER: Exactly.

21 MR. REID: Just so we are working on the, you are

22 still envisioning we have our prima facie case...

23 HEARING OFFICER: Yes.

24 MR. REID: All right.

25 HEARING OFFICER: And then we move to the

115

1 petitioners and try to break them down into some

2 four or five or six discrete areas.

3 MR. REID: And then we would have a mini-trial on

4 each one of them. That might work.

5 MS. PONZOLI: Mr. Menton, we should, the parties,

6 meet, but may we have a telephonic hearing to resolve

7 how this will proceed and what these dates will be,

8 assuming we are unable to reach agreement, because it

9 will be very hard to reach April 11th and suddenly, it's

10 scary that I would have a very tight time frame and

11 all of a sudden it's worse than I ever thought, you know,

12 because...

13 (WHEREUPON, MR. HOFFMAN ENTERED THE HEARING ROOM.)

14 MR. REID: Could we meet before next Friday?

15 MR. HYDE: It will have to be in the evenings.

16 I don't think the dates are that far apart.

17 MS. PONZOLI: Sure.

18 HEARING OFFICER: Ms. Ponzoli, I think that's a

19 good idea. I believe, I think that I've got the people

20 here convinced that I can phase out of everything

21 else and begin to focus on this. They are beginning

22 to think I'm Chicken Little, and the sky is falling,

23 but I think they believe me.

24 So I do have some other matters that I will have

25 to get resolved prior to the time it commences, but I

116

1 don't think I'll be doing any other new matters, so I

2 should be in town is what I'm saying, so I will be

3 available, I should be easily reachable for telephonic

4 hearings to deal with these matters.

5 MS. PONZOLI: Thank you.

6 MS. RAEPPLE: Mr. Menton, we are in the position now

7 of reserving a block of rooms for the first two weeks of

8 hearing, and signing a contract that binds us to at

9 least a portion of that, whatever occurs.

10 I would like to know what you envision doing after

11 the first two weeks. Are we going to run on?

12 HEARING OFFICER: Running for cover.

13 MS. RAEPPLE: Just for scheduling.

14 HEARING OFFICER: Yes, Mr. Reid had indicated

15 before that the District wished to begin their prima

16 facie case in Miami. We are in the process of trying

17 to coordinate something with the Dade County Courthouse

18 to make available a courtroom.

19 As I think I indicated previously, we are not

20 exactly high on the priority list of the Dade County

21 Administrator's Office, but we are trying to emphasize

22 the significance of this case, and hopefully we can

23 get some accommodation.

24 We may have to move between courtrooms, but

25 hopefully it wouldn't be until the completion of a week.

117

1 We could keep the same one for a week. That's

2 what we're hoping to be able to do. We have to see if

3 we can get that worked out.

4 As I understood from Mr. Reid, he anticipates

5 that the first prima facie phase would be somewhere

6 around 10 trial days?

7 MR. REID: That was the best...

8 HEARING OFFICER: I understand, and, believe me,

9 I have learned to never take a lawyer at his estimate

10 as to how long a case was going to go. We would

11 obviously start in Miami. I think I had indicated

12 before I was going to exercise my prerogative to make

13 sure that I get back to Tallahassee by late afternoon

14 on Thursday of the second week, so that if we haven't

15 wrapped it up I would need because of family commitments

16 to be back in town on Thursday evening of the second

17 week.

18 At that time I would assume that we would probably

19 take a couple days off at the beginning of the following

20 week, assuming if the District hasn't finished with

21 its prima facie case we will continue until they

22 finish their prima facie case, and once the District

23 finishes its prima facie case I would assume we'd take a

24 couple of days off for everyone to get a breather and pay

25 their electric bill and other things that will perhaps

118

1 need to be done, probably no more than two or three

2 days, and then pick up with the petitioners after

3 that.

4 Then after we complete the first phase of the

5 petitioners we may take another couple of days breather.

6 MS. RAEPPLE: Where do we envision taking up the

7 petitioners' case?

8 HEARING OFFICER: Well, that's a good point. I

9 think what we probably need to do is see if we can

10 break down the issues a little bit in terms of coming

11 up with some, if we can work along the way that I had

12 suggested earlier, trying to break it down, pick which

13 one we will start with next and figure out what the

14 appropriate place for that would be.

15 I don't have any, I'd like to do as much of it in

16 Tallahassee as we can obviously for personal reasons,

17 but I understand there are also a lot of initial concerns

18 and a lot of other people don't live here.

19 So I guess let's try to break it down and see

20 what the issues are and see if we can prioritize which

21 issue should go next, and then we can talk about that

22 a little bit further on April 8th and pick dates.

23 I know that doesn't give you a whole lot of help

24 with a hotel room, but I think the first two weeks

25 it appears will be in Miami.

119

1 MR. REID: So can I ask the opening statements,

2 summaries, or however, what are you going to let us do

3 about that?

4 HEARING OFFICER: Well, to be honest I hadn't given

5 it much thought. I would certainly expect that each

6 party would be given an opportunity to do it, and I think

7 it would be helpful for me.

8 MR. REID: Maybe a day for everybody?

9 HEARING OFFICER: Maybe after we do our prehearing

10 stuff we can, and I'm welcome to your suggestions on

11 that. How long do you think you'll need?

12 MR. REID: I think within one day everybody

13 probably can be heard, don't you think?

14 MS. PONZOLI: That's plenty. Mr. Menton, may I

15 suggest when we have this meeting among counsel if we

16 could among ourselves agree to some type of a schedule,

17 a projection, and present it to you, or if we can't

18 I have to tell you I share Ms. Raepple's concern.

19 I have as everyone has, I have paralegals to

20 help, because the documents, the depositions, just the

21 paraphernalia we will have to carry to trial is

22 overwhelming, and I envision I will probably be gone

23 potentially for months this summer, but I need to know

24 where, because I need as she does in Miami, I need to rent

25 space in West Palm or Tallahassee.

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1 Maybe we can come up with the first cut of where

2 we're going to be. I'm almost at the point I don't

3 care where I'm going to be, but I need to know and

4 book rooms and work space. That's my serious concern.

5 HEARING OFFICER: Okay. Well, we talked about this

6 before, and this was again when we were looking

7 at each party presenting its case and going on and not

8 necessarily breaking it down into mini-trials, like

9 I had proposed today, and breaking it down certainly

10 confuses the issues a little bit more, but as I

11 understood from what we talked about before the District

12 obviously wants a lot of its witnesses who are in

13 West Palm Beach, you are going to choose Miami, though?

14 MR. REID: Right.

15 HEARING OFFICER: That's fine. And certainly a lot

16 of the federal witnesses from the Park and the Refuge

17 are in that same general vicinity, and we would be doing

18 some of that down there.

19 Now in terms of the petitioners, when we get to your

20 case after we finish the first two weeks, assuming we

21 complete the District's case, I don't know, Mr. Hyde,

22 were you planning on trying to do as much of your

23 case in Tallahassee as possible, or where are your

24 witnesses, and we'll get back the same with you, Ms.

25 Raepple?

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1 MR. HYDE: I would expect I would be speaking

2 for my own benefit here, so I have top qualify my

3 remarks by saying my prospective personally is it

4 would be much easier to be here, but I am sure my

5 partners would speak to another issue.

6 HEARING OFFICER: Let's get Mr. Burgess to create a

7 little internal conflict here.

8 I just don't know from a practical standpoint how

9 many, there are obviously Department witnesses who are

10 based in Tallahassee, and there are attorneys who are

11 based in Tallahassee, but where are the other witnesses?

12 You obviously have a better feel for that.

13 MR. HYDE: A lot of them are from out of state.

14 They are from all over.

15 HEARING OFFICER: So it doesn't matter whether

16 we...

17 MR. HYDE: Almost everybody flies through Atlanta

18 or Charlotte, and the connections are pretty decent.

19 There's no relative advantage of Miami over Tallahassee

20 in that regard.

21 HEARING OFFICER: Okay. Well, why don't we do

22 this? I think probably the fairest way to go is to

23 start the first two weeks in Miami, we'll move it up to

24 Tallahassee after that and take the first block up here,

25 and then we may just have to revisit it as we are going

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1 along.

2 MS. RAEPPLE: That gives us the first month.

3 HEARING OFFICER: One of the concerns that people

4 raised about doing some of it here was the size of the

5 hearing rooms at DOAH. You have seen the largest that

6 we have to offer, and that's not going to be acceptable?

7 Is that what I'm understanding?

8 MR. HYDE: I think it would be minimally

9 acceptable but certainly not desirable. Perhaps we

10 could canvass the availability of other space.

11 MR. KILLINGER: I can check and see what

12 reservations are for the large room at DEP, the ERC

13 room, which is large enough to hold it. I assume it

14 has things scheduled, but I'll check into it.

15 HEARING OFFICER: The other option would be to,

16 the problem is when we start getting into any of those

17 type facilities we will have them on perhaps not an

18 ongoing basis.

19 MR. HYDE: In one power plant siting case I had

20 several years ago we ended up renting space, ballroom

21 space, in a hotel in Ft. Lauderdale, and that may be

22 necessary to do it in that context with the parties

23 agreeing to split the costs.

24 HEARING OFFICER: Okay, and certainly I'm open

25 to that suggestion. I have done that in cases before,

123

1 and it worked out fine.

2 MR. BURGESS: Since I was in Ft. Lauderdale I

3 second that motion.

4 MR. REID: So we'll see what the first three weeks

5 are, the prehearing, we might miss a day there, so why

6 don't we just plan three weeks in Miami, just to be

7 sure?

8 MS. RAEPPLE: Okay. Fine.

9 (WHEREUPON, MR. DOWNIE LEFT THE HEARING ROOM.)

10 MS. PONZOLI: You would want to finish that whole

11 process instead of having to move exhibits and then

12 move to the next location and do a block there?

13 HEARING OFFICER: Okay.

14 MR. HYDE: Regarding the actual hearings themselves,

15 I presume you are going to go something along the

16 Monday to Friday guideline, but do you anticipate like

17 starting at 8:30 on Monday and going to 5:30 on

18 Friday, or could you work in an allowance for last-minute

19 travel plans and so forth?

20 HEARING OFFICER: We can be flexible. Tennis matches

21 and so forth.

22 It's hard to anticipate our issues. Certainly we

23 will have to accommodate travel schedules, and there

24 are always problems with witnesses.

25 If you finish up a witness and your next witness is

124

1 not available and that sort of thing. I don't have a

2 problem going into the evening when we have a witness

3 who wants to complete his testimony and get out of town.

4 We will go and complete his testimony if need be.

5 I think everybody is going to need some time at

6 the end of the day to try to recoup and get ready for

7 the next day, and certainly I will need that opportunity

8 to begin to digest some of the testimony that's been

9 presented.

10 So I don't want to make a habit of going too late

11 into the evenings, but I'll be flexible to the extent

12 we need to with witness schedules.

13 MR. HYDE: I was thinking primarily of Mondays

14 and Fridays.

15 HEARING OFFICER: Well, I think if we start getting

16 into, "Well, we won't start Mondays until 10 o'clock,"

17 then by the time we get all the preliminary stuff taken

18 care of it's 11 o'clock, and we don't get much done.

19 I think we need to start on Mondays at a reasonable

20 time. If that means we have to go down Sunday night,

21 then we have to do that.

22 I think that's probably the best way to go. We

23 need to take advantage of the weekdays as best we can and

24 get it done.

25 In terms of Fridays, if we're at a point where we

125

1 have a choice of finishing a witness and taking a new

2 witness at 3:30 or not, probably I will err to the side

3 of not, just so everybody can get back.

4 (WHEREUPON, MR. DOWNIE ENTERED THE HEARING ROOM.)

5 So during the week, you know, I'm going to be more

6 willing to go into the evenings, and as we get closer to

7 Friday I'm going to be more willing to call it a week.

8 Okay? Any other matters we need to discuss today?

9 MS. PONZOLI: It's not another matter. It's

10 sticky.

11 There are a number of....

12 HEARING OFFICER: Why should this be any different?

13 MS. PONZOLI: I'm sorry. There are people who

14 haven't finished their work, and they are doing work

15 for this hearing, and Dr. Shannon is one of them. He's

16 got six more weeks of work. If he's going to do that

17 six more weeks of work at trial then we need to do him

18 again.

19 Do you have some, or does anyone have some idea?

20 There are a number of these witnesses. It's not just

21 Dr. Shannon. If it were only Dr. Shannon it would be

22 easier.

23 I think Dr. Luke is going to do more work, and

24 obviously the vegetative people, mostly the

25 Cooperative witnesses. I don't know how to handle it.

126

1 MR. REID: That's a capital "C", by the way.

2 MS. PONZOLI: It's a serious problem. It's sort of

3 really up in the air.

4 HEARING OFFICER: Well, that is a real problem, and

5 I don't know what, I have to go back and remember what

6 we did in terms of witnesses finalizing opinions.

7 I know that we tried to schedule a witness based on when

8 they expected to have their opinions finalized.

9 I don't know what representations were made in

10 terms of these witnesses and when they would have final

11 opinions, but I think that before we even got into the

12 mediation mode we had discussed this issue, and I had

13 indicated that I, you know, I believe that a witness

14 should be in a position at this time to very clearly

15 articulate a deadline by which his opinions will be

16 finalized and if it's not finalized by then he will

17 have to demonstrate to me why he wasn't able to do it

18 beforehand.

19 And likewise if there are witnesses who claim that

20 they do not have the ability to come up with a final

21 opinion until after the start of the hearing, I want to

22 know why. I want to know why at this point in time

23 they haven't had an opportunity to come up with a final

24 conclusion, and if need be, you know, I mean, I am not

25 just going to have a lot of tolerance for that.

127

1 Everybody has been working on this case for a long

2 time, and the witnesses have been involved for a long

3 time, and I'm going to put the onus on them to

4 demonstrate to me why they haven't been able to finalize

5 their opinions.

6 MR. BURGESS: I can't address in the context of

7 Dr. Luke or Dr. Shannon, because they are not my

8 witnesses, but in other contexts, especially with

9 respect to the STAs, so that you have an understanding

10 as to why this is happening, the District says that

11 it's going with the SWIM plan that was adopted

12 March 31, 1992, and that would appear to have given

13 everybody the time to do the work to generate the

14 opinions necessary to address that document.

15 But when we get into discovery as late as last

16 week when I would take the deposition of the master

17 architect of the STAs, Gaylon Miller, and I would ask

18 him with respect to the Appendix in the STAs, which

19 says they shall be 32,600 acres, and they should be

20 based on eight meters a year settling rate, and he

21 says, "No, that's fallen by the wayside. This work in

22 front of me this high, dated February 4th, 1994, is

23 what we are going with now," and that happens time and

24 again with respect to different issues in this case.

25 Dr. Walker, the United States' witness, who was

128

1 deposed last week, "Dr. Walker, is the settling

2 rate of eight meters a year, which drives the size of

3 the STAs, within the SWIM plan, is that the best

4 evidence of the settling rate?" "No, it's not."

5 "What is it, sir?" "It's 10.25."

6 That is also recent numbers that he's come up with

7 with respect to his papers and his work.

8 So we talk about the dynamic process. That's

9 ongoing. To the extent that our witnesses are responding

10 to what the District is doing or the United States is

11 doing in support of the SWIM plan, we are just finding

12 it out in discovery, and that's why there are

13 additional documents, and there are additional

14 witnesses, and I've got a person going to deposition,

15 Mr. Stewart, an engineer, on Thursday who's reviewing the

16 work of Gaylon Miller, who's doing it for the District,

17 and I had to Fax a letter out after Mr. Miller's

18 deposition that said, "I'm getting these documents,

19 my witness has these documents, and he's reviewing them,

20 but he may not have all of his opinions finalized by

21 next week, because what he's doing is reviewing the work

22 of the District."

23 MS. PONZOLI: That's a distinction, Mr. Burgess,

24 because Mr. Walker had his opinions when he sat in

25 his deposition. Mr. Miller had his opinions in his

129

1 deposition, when he sat in his deposition.

2 I'm sitting in depositions and other attorneys are

3 sitting in depositions and are being told, "I have six

4 more weeks of work to do." "on the eve of trial my work

5 may be completed, and yes, I will offer it."

6 There's a real distinction there.

7 We can address it when it happens, I know, but

8 I'll be doing a depo I guess in the middle of the

9 night.

10 MS. RAEPPLE: Mr. Hearing Officer, I can address

11 Dr. Luke, and I was at his deposition, and he did have

12 his final opinions, but he in all fairness to

13 Mr. Saxe, who was taking his deposition, told him in

14 light of some of the questions he was asking him he

15 needed to run additional runs through the model, and if

16 he did he would produce them later, and we would let

17 them know if it impacted his opinion in any way.

18 And the other thing, again Mr. Saxe on the record,

19 obviously we know Dr. Luke will have to do further work

20 once we depose Carl Woelke and Lonnie Jones, who

21 are the witnesses on the other side of the case.

22 There's no way Dr. Luke can prepare rebuttal

23 testimony until we hear what these witnesses are going

24 to say in deposition.

25 So certainly there will be additional work that

130

1 Dr. Luke will be doing, but it's nothing he could have

2 done up until this time.

3 HEARING OFFICER: Well, I mean, to the extent that

4 the witnesses are responding to changes in what

5 Dr. Miller has said before, then I think you have to

6 anticipate that's going to result in some need for them

7 to further study what Dr. Miller has testified to or

8 what additional conclusions he's reached since the time

9 of the SWIM plan.

10 To the extent that witnesses are unable to reach

11 conclusions regarding provisions that were clearly

12 enunciated in the SWIM plan I'm going to have a lot

13 less tolerance on that.

14 MR. GREEN: This is Bill Green. Could I comment

15 briefly on Dr. Shannon?

16 HEARING OFFICER: Okay.

17 MR. GREEN: Unfortunately I did not sit in on his

18 deposition. Mr. Perko did, and he's having fun right

19 now in another deposition as we speak.

20 But my understanding of Dr. Shannon was he has

21 opinions of the work he's done to date, and he has been

22 waiting week after week for early baseline

23 monitoring data that the District has taken from all

24 farms in the EAA that were selecting the early baseline

25 approach.

131

1 Without getting into details, it's my understanding

2 that he received that data within the last week or two

3 at most, and we've been waiting for it since last,

4 I don't know how many months. It's a question of the

5 District putting things in proper format.

6 That's one thing that he will continue to analyze

7 to see if that changes other opinions. I don't

8 anticipate that it will.

9 The other aspect of what he is doing, and again

10 I wasn't at the deposition, but he probably testified

11 with regard to further work that he would like to do on

12 the microfiltration technology, and we understand that

13 if he does that work and if he wants to bring it in we

14 will have a burden of making him available and

15 convincing you why it couldn't have been done sooner.

16 Other than those two things, his opinions are

17 final, it's my understanding.

18 MS. PONZOLI: Well, I was at the deposition,

19 Mr. Green, and it's true he's waiting for that baseline

20 data. However, the basis of his opinions he admitted

21 could change substantially and his opinions based on

22 what the baseline data showed as a result of his

23 further work, so this is ongoing work that will not

24 be concluded until trial time.

25 HEARING OFFICER: But he doesn't have it...

132

1 MR. GREEN: That's my point, and we are doing the

2 best we can to get data to enable him to finalize his

3 opinions. It's really beyond our control, Your Honor.

4 HEARING OFFICER: I mean, if he hasn't had the

5 data made available to him, and I don't know the

6 specifics, but if it's a result of something the

7 District hasn't turned over to him, how could he be

8 expected to finalize his opinions?

9 MS. PONZOLI: Well, as part of the dynamic process,

10 Mr. Menton, in defense of the District, and I don't think

11 this data, this data is just coming to exist in recent

12 time.

13 It's the first year of baseline data. So it

14 isn't that the District didn't turn over something they

15 easily could have turned over. They were accumulating

16 the data, and then I think they had to reformat it into

17 something that the Cooperative could use.

18 I said it was a sticky process.

19 HEARING OFFICER: Yes, this whole aspect of the

20 dynamic nature of this is very difficult to deal with,

21 and I think the bottom line is that we have to go to

22 hearing on April 25th, and whatever data is available

23 on April 25th and the conclusions reached on that

24 date are the ones we have to deal with, and how that

25 impacts on what was originally decided in March of '92

133

1 is something, you know, we'll have to ferrit out in the

2 hearing process.

3 MS. PONZOLI: But you will allow us to discover

4 what they are going to say before they get on the stand?

5 HEARING OFFICER: I will give you that opportunity.

6 Again if we have to do that, if we have to complete a

7 segment and take a week-long break to do that, then

8 we'll do that if need be. We'll have to deal with

9 those issues as they come along.

10 Anything further we need to discuss today? All

11 right.

12 Just to see if I can summarizes what we're going to

13 do, the parties are going to meet to discuss the scheduling

14 order, and see if they can come to some consensus

15 regarding that, and let me know, and if you need to get

16 me on the phone you'll call me this week or next week to

17 deal with those issues.

18 The idea about trying to break the case into some

19 mini-trials or whatever will be explored further as part

20 of the process, and we can talk about that on

21 April 8th as we, if we need to and see how that works.

22 We will start the first there weeks in Miami and

23 go that way, and I will let you know the results of

24 our discussions with the Court Administrator's Office

25 down there, but assume it will be at the Dade County

134

1 Courthouse.

2 MS. RAEPPLE: And in the second week we will end

3 early on Thursday and not have a hearing on Friday?

4 HEARING OFFICER: That's right.

5 MS. PONZOLI: And follow that coming to Tallahassee,

6 so I should plan to be in Tallahassee the fourth,

7 fifth, and sixth weeks, roughly?

8 HEARING OFFICER: Right. I would say if we take,

9 again it would be a little bit difficult to predict,

10 because if we take the full three weeks with the

11 District's case we may take a couple days off at the

12 beginning of the next week, so it might be mid-week of

13 that fourth week before we actually pick up in

14 Tallahassee.

15 Okay. Anything further we need today? Okay.

16 Thank you.

17 (WHEREUPON, THE HEARING WAS CONCLUDED AT 1:00 P.M.)

18 * * * * *

135

1 CERTIFICATE OF REPORTER _______________________

2 STATE OF FLORIDA )

3 COUNTY OF LEON )

4 I, SUE HABERSHAW JOHNSON, Certified Court Reporter,

5 Registered Professional Reporter, and Notary Public in and for

6 the State of Florida at Large:

7 DO HEREBY CERTIFY that the foregoing hearing was

8 taken before me at the time and place therein designated; that

9 my shorthand notes were thereafter reduced to typewriting

10 under my supervision; and the foregoing pages, numbered page 1

11 through page 134, are a true and correct record of the

12 proceedings.

13 I FURTHER CERTIFY that I am not a relative,

14 employee, attorney, or counsel of any of the parties, nor

15 relative or employee of such attorney or counsel.

16 CERTIFIED THIS 15TH DAY OF MARCH, A.D. 1994,

17 IN THE CITY OF TALLAHASSEE, COUNTY OF LEON, STATE OF FLORIDA.

STATE OF FLORIDA )

19 SS

STATE OF LEON )

21 The aforesaid instrument was acknowledged

22 before me this 15th day of March, 1994, by SUE HABERSHAW

23 JOHNSON, who is personally known to me.

CHRISTINE WHEELER

25 Notary #AA711091