1
1 Division of Administrative Hearings
2 Department of Administration, State of Florida
3
SUGAR CANE GROWERS COOPERATIVE )
4 of FLORIDA; ROTH FARMS, INC.; and )
WEDGWORTH FARMS, Inc., )
5 Petitioners )
V ) DOAH Case No. 92-3038
6 SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an agency of the State )
7 of Florida; et al., )
Respondents. )
8
FLORIDA SUGAR CANE LEAGUE, INC.; )
9 UNITED STATES SUGAR CORPORATION; )
and NEW HOPE SOUTH, INC., )
10 Petitioners, )
V ) DOAH Case No. 92-3039
11 SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an agency of the State )
12 of Florida; et al., )
Respondents. )
13
FLORIDA FRUIT and VEGETABLE )
14 ASSOCIATION; LEWIS POPE FARMS; )
W. E. SCHLECHTER & SONS, INC., )
15 and HUNDLEY FARMS, INC., )
Petitioners, )
16 V ) DOAH Case No. 92-3040
SOUTH FLORIDA WATER MANAGEMENT )
17 DISTRICT, an agency of the State )
of Florida; et al., )
18 Respondents. )
19
20 Deposition of Zan Kugler
21 Taken before Elaine V. Williams,
Professional Reporter and Notary Public in and for
22 the State of Florida at large, pursuant to notice of
taking deposition filed by the Petitioners in the
23 above cause.
- - -
24 Thursday, January 27, 1994
319 Clematis Street, Suite 500
25 West Palm Beach, Florida 33401
10:12 a.m. - 12:57 p.m.
2
1 APPEARANCES:
2
On behalf of the Petitioners Florida Sugar
3 Cane League, Inc., United States Sugar Corp.,
and New South Hope, Inc.:
4 Earl, Blank, Kavanaugh & Stotts, P.A.
One Biscayne Tower, Suite 3636
5 Two South Biscayne Boulevard
Miami, Florida 33131
6 By: RICHARD BURGESS, ESQUIRE
7 On behalf of the Respondent SFWMD:
South Florida Water Management District
8 3301 Gun Club Road
West Palm Beach, Florida 33416-4680
9 By: None present
and
10 Popham, Haik, Schnobrich & Kaufmann, Ltd.
4000 International Place
11 100 Southeast Second Street
Miami, Florida 33131
12 By: DANIEL McGRATH, ESQUIRE
13 On behalf of the Intervenor, United States of America:
Department of Justice
14 155 South Miami Avenue, Suite 627
Miami, Florida 33130-1693
15 BY: None present
16
17
- - -
3
1 - - -
2 I N D E X
3 - - -
4
5 WITNESS: DIRECT CROSS REDIRECT RECROSS
6 Zan Kugler
7
BY MR. BURGESS: 4
8
9 - - -
10 E X H I B I T S
11 - - -
12
13 NUMBER PAGE NO.
14 Petitioner's Exhibit A 64
Petitioner's Exhibit B 68
15
4
1 P R O C E E D I N G S
2 - - -
3 Thereupon,
4 Zan Kugler,
5 being by the undersigned Notary Public first duly
6 sworn, was examined and testified as follows:
7 THE WITNESS: I do.
8 DIRECT (Zan Kugler)
9 BY MR. BURGESS:
10 Q. Mr. Kugler, my name is Rick Burgess. I'm
11 an attorney with Earl, Blank, Kavanaugh and Stotts in
12 Miami, Florida, and we represent the Florida Sugar
13 Cane League and United States Sugar Corporation in
14 the SWIM Plan challenge. I'm going to be asking you
15 some questions today and I would ask you to let me
16 know if you don't understand my question. I'll
17 attempt to rephrase it for you.
18 Where are you employed, sir?
19 A. South Florida Water Management District.
20 Q. How long have you worked there?
21 A. I began in November of '84.
22 Q. Where were you employed before that?
23 A. I worked for a contractor, construction
24 contractor, Hobbs Construction.
25 Q. Is that local?
5
1 A. Panama City.
2 Q. What schools or colleges, universities have
3 you attended?
4 A. Undergraduate degree in civil engineering
5 from the University of Pittsburgh, graduate master's
6 degree in civil engineering from the New Jersey
7 Institute of Technology.
8 Q. Where is the New Jersey Institute of
9 Technology located?
10 A. Newark, New Jersey.
11 Q. What was your degree there?
12 A. Civil. Civil engineering.
13 Q. What did you do at Hobbs Construction?
14 A. I was a project engineer for construction
15 of a state prison just west of Miami.
16 Q. Before Hobbs, where were you?
17 A. I was with the U.S. Army Corps of
18 Engineers, chief of construction out of their Miami
19 office.
20 Q. How long were you with the Corps?
21 A. I was four years with the Corps.
22 Q. In the Miami office?
23 A. Right.
24 Q. I'm sure in four years you worked on a lot
25 of projects for the Corps, but what were some of the
6
1 larger ones?
2 A. Miami Beach restoration, Port Everglades
3 Harbor deepening, numerous structures for the Water
4 Management District in regards to the South Central
5 Flood Control Project, Khrome Avenue Retention
6 Center.
7 Q. At one time you were listed as a witness or
8 potential fact witness in the SWIM Plan challenge.
9 Do you know now whether you are going to testify at
10 the hearing?
11 A. I don't know, no.
12 Q. Has anyone told you one way or the other?
13 A. No.
14 Q. Did you know that you were listed as a fact
15 witness for the hearing?
16 A. No.
17 MR. McGRATH: It is my understanding that
18 he is no longer identified as a witness.
19 BY MR. BURGESS:
20 Q. When you joined the District in '84, what
21 was your position?
22 A. I was Senior Civil Engineer.
23 Q. What is your position now?
24 A. Director, Engineering Division.
25 Q. Between senior civil and director, what
7
1 other positions have you held?
2 A. I held Director of Engineering Construction
3 Division, which is the precursor of the Engineering
4 Division itself.
5 Q. How long have you been a director of the
6 Engineering Division?
7 A. I believe since -- well, one year after
8 joining the District I was promoted to Director.
9 Q. Have you yourself ever been a plaintiff or
10 defendant in any lawsuit?
11 A. No.
12 Q. Have you ever testified in either
13 administrative proceedings or in civil proceedings?
14 A. No.
15 Q. Have you ever had your deposition taken
16 before?
17 A. No. When you say, "civil proceedings,"
18 could you explain?
19 Q. Administrative proceeding under the Florida
20 or United States Administrative Code.
21 A. No.
22 Q. And during your tour with the Corps you
23 were -- you didn't testify in an administrative
24 proceeding?
25 A. No.
8
1 Q. Okay. So it is safe to say you have never
2 been qualified as an expert civil engineer?
3 A. I did testify as an expert witness for a
4 federal fraud trial.
5 Q. Okay. What were you qualified as an expert
6 in?
7 A. Basically, my experience as chief of
8 construction for the Corps.
9 Q. You are familiar with the Settlement
10 Agreement entered into between the District and the
11 U. S. Government?
12 A. Yes.
13 Q. Okay. Did you have any involvement in the
14 formulation of that Settlement Agreement? By
15 "formulation," I mean the negotiation or negotiations
16 that led up to the document itself.
17 A. No.
18 Q. How about with respect to any of the
19 appendices; including, I believe it is, Appendix C
20 that addresses the Stormwater Treatment Areas?
21 A. No.
22 Q. Now, the SWIM Plan that we are here on
23 today is the plan adopted by the governing board in
24 March of 1992. Were you involved in the formulation
25 of that plan?
9
1 A. No.
2 Q. Okay. There is an appendix to that SWIM
3 Plan. Again, I believe it is Appendix E or F. It is
4 an appendix that deals with the eight meter a year
5 settling rate and the effective treatment area for
6 the Stormwater Treatment Areas. Were you involved in
7 the preparation of that appendix?
8 A. No.
9 Q. There is a document that is, I think,
10 referred to in general parlence as the Mediated
11 Technical Plan, and there is a conceptual design
12 document that has been prepared by Burns & McDonnell
13 dated November 5, 1993. Are you familiar with the
14 Mediated Technical Plan?
15 A. Yes, I am.
16 Q. Are you familiar with that draft appendix?
17 A. Yes, I am.
18 Q. Okay. Were you involved -- again, by
19 "involved," I mean in the formulation of the Mediated
20 Technical Plan itself -- involved in negotiations?
21 A. No.
22 MR. McGRATH: I would, just for the record,
23 object to any line of questions regarding the
24 mediated plan primarily as being irrelevant
25 since the focus of the litigation is the March
10
1 '92 plan.
2 BY MR. BURGESS:
3 Q. How about with respect to the draft
4 Appendix A? For the record, the document's entitled
5 Appendix A to Settlement Agreement Conceptual Design
6 of Mediated Technical Plan, Draft, November 5, 1993.
7 Were you involved in the formulation of that document
8 at all?
9 A. Yes.
10 Q. What was your involvement?
11 A. I administered the contract with
12 Burns & McDonnell to produce the document.
13 Q. What is your role with respect to the --
14 let's start with contract 3021 between the District
15 and Burns & McDonnell.
16 A. My role was project manager of that
17 particular consultant agreement.
18 Q. What was the purpose of that consultant
19 agreement?
20 A. The original purpose of that agreement was
21 to develop a conceptual plan to be presented to the
22 Board in regards to the Everglades Protection
23 Project.
24 Q. How are the SWIM Plan and the Everglades
25 Protection Project related, if at all?
11
1 A. The protection project was, in essence, the
2 conceptual plan that was described by the SWIM Plan,
3 for which the SWIM Plan was the basis, I suppose.
4 Q. Did I describe that correctly? Is that
5 contract 3021?
6 A. Yeah, right. C-3021.
7 Q. Were you project manager for contract
8 C-0041 with Burns & McDonnell, which I believe was
9 the ENR contract?
10 A. I believe I was, yes.
11 Q. And did C-9125 replace the 0041 contract?
12 A. That is correct, yeah.
13 Q. What is the status of the 0041, or the ENR
14 contract, as you sit here today?
15 A. I believe that contract has been closed
16 out.
17 Q. To your knowledge, is Burns & McDonnell
18 doing any other work relative to the ENR project at
19 this time?
20 A. No. No.
21 Q. What is the status of the ENR project at
22 the present time?
23 A. In regards to the Engineering Division, we
24 are complete with that project. We have completed
25 our task.
12
1 Q. Do you have any involvement in the -- or
2 did you have any involvement in the application for
3 operating permit from the DER with respect to the ENR
4 project?
5 A. No.
6 Q. Do you now have any involvement with the
7 application to the EPA for an NPDS permit for that
8 project?
9 A. No, I don't.
10 Q. Contract 2059 that took the place of 0041,
11 what is the status of that contract?
12 A. That particular contract I believe has been
13 also closed out. It's been replaced by a subsequent
14 general service contract.
15 Q. What is the number on that one, if you
16 know?
17 A. I don't. I think -- oh, boy -- C-50-50, I
18 believe. But there's too many contracts.
19 Q. Okay. What is Burns & McDonnell's task
20 under that contract?
21 A. That is a general service contract. Their
22 particular assignment will come under subsequent
23 amendments. They have not received any to date yet
24 on that contract. It's just been recently executed.
25 To go back, on the other general service contract you
13
1 mentioned before --
2 Q. 30?
3 A. -- C-91 -- what is it? C-91 --
4 Q. 2059?
5 A. Yeah. There are some amendments still
6 outstanding on that that deliverables are due, so
7 that contract still is in effect.
8 Q. Okay. What are those deliverables?
9 A. I believe there's some amendments in regard
10 to construction face support and the S-13 repowering
11 project. That is the only outstanding one that I can
12 remember.
13 Q. Okay. 3021, what is the status of that
14 contract?
15 A. 3021, there has been three amendments
16 issued with regards to 3021. Amendment 3 is
17 currently -- we have not issued a Notice to Proceed
18 on Amendment Number 3. Amendment Number 2 is
19 complete through the draft document, which is
20 Appendix A of the technical plan. Amendment Number 1
21 is essentially complete.
22 Q. Amendment 1 was for the conduct of
23 preliminary engineering analysis?
24 A. It was. Yes. There's a number of tasks
25 involved in that in very numerous tasks. Basically,
14
1 it was a data gathering effort.
2 Q. Amendment 2?
3 A. Amendment 2 originally was defined as a
4 plan formulation. That was the title of the
5 amendment. It was to produce a conceptual plan to be
6 presented to the Board. It was subsequently
7 redefined. The scope was rewritten to support the
8 mediated technical group through their mediation
9 effort.
10 Q. When was that rewritten? Do you know?
11 A. That was probably in a time frame of March
12 to somewhere in May.
13 Q. '93?
14 A. '93.
15 Q. And then so with the publication of the
16 draft Appendix A to the mediated plan, it is your
17 opinion that the Amendment 2 has been satisfied?
18 A. It is complete through the draft. We are
19 due a final document on that Appendix A, which he has
20 not completed nor do we have any idea how we are
21 going to complete that, no.
22 Q. Is there a date for that deliverable?
23 A. No. We have just -- we, I think, at the
24 last Board meeting got approval for a 180 day
25 extension of that particular amendment.
15
1 Q. I wanted to ask you about that. There was
2 an item on the January 13 Board agenda to authorize a
3 change to Amendment 2 entitled Plan Formulation to a
4 Continuing Contract with Burns & McDonnell for the
5 General Design of the Everglades Protection Project
6 to extend the time for engineering services by 180
7 days at no additional cost to the District. When
8 this says "authorize a change," is the change just to
9 extend the time?
10 A. Right. Right. I think there was an
11 October date that was the official completion date of
12 that amendment and we have gone through the
13 administrative steps necessary to extend that.
14 Q. Okay. So it has been extended?
15 A. Yeah. It was authorized by the Board.
16 Q. From when? 180 days from when?
17 A. From the previous completion date, which
18 again I'm not sure what that date was, but it is
19 October, I believe, of '93.
20 Q. Now, Amendment Number 3, what does that
21 deal with?
22 A. Amendment Number 3 was again written to do
23 the preliminary engineering in regards to the
24 Mediated Technical Plan.
25 Q. Is that similar to a task that
16
1 Burns & McDonnell performed with respect to the
2 conceptual design document; the March, I believe --
3 I'm sorry -- October '91?
4 A. This is more the next phase or the next
5 step that you would take after a conceptual design.
6 Q. Okay. Did Burns & McDonnell do any
7 preliminary engineering similar to what is
8 contemplated under Amendment 3 for any other version
9 of the STA?
10 A. No.
11 Q. And that amendment has been -- what is the
12 status of it?
13 A. It's been authorized by the Board, but
14 there has been no Notice to Proceed given to proceed
15 with the work as defined.
16 Q. Okay. When was it authorized?
17 A. I don't remember.
18 Q. Do you know what the scope of that
19 amendment is from a price standpoint?
20 A. It was on the order of $750,000.
21 Q. What is the next step?
22 A. The next step would be to solicit Detail
23 Design Consultants to produce the construction plans
24 and specifications that would --
25 Q. Is that authorization to Burns & McDonnell
17
1 or just in general to solicit bids or how does that
2 work?
3 A. You mean the detailed phase?
4 Q. Yeah.
5 A. The detailed phase would be a new
6 solicitation through the CCNA procedures for numerous
7 consultants to do the component parts of the project.
8 Q. Okay. The preliminary engineering for
9 Mediated Technical Plan, which you described as
10 Amendment 3, is that what we are discussing here or
11 is that something separate?
12 A. Okay. You have got me confused there.
13 Q. Okay. Earlier you testified that Amendment
14 3 was written to do the preliminary engineering for
15 Mediated Technical Plan; is that a correct statement?
16 A. Right.
17 Q. Okay. And since Burns & McDonnell had
18 operated under Amendment 1 and Amendment 2, I guess
19 I'm asking whether are they the ones that are going
20 to get the Notice to Proceed.
21 A. Yes. Amendment 3 is to their contract and
22 the Notice to Proceed is the official notice to them
23 to start the clock, if you will, on that amendment.
24 Q. Okay.
25 A. That was not done.
18
1 Q. When will that be done?
2 A. It doesn't look like it will be done now
3 because of the mediated situation.
4 Q. So as far as --
5 A. Well, let me step back and maybe correct
6 that statement. I have no -- as of this point in
7 time, I do not know whether that Notice to Proceed
8 will be given or not and that in fact the Mediated
9 Technical Plan will be implemented, so right now we
10 are kind of on hold and waiting for direction.
11 Q. Where will you get that direction?
12 A. Well, from my executive office.
13 Q. Who does that usually come from? With
14 respect to this STA type work with Burns & McDonnell,
15 who does that direction come from?
16 A. Okay. My direction would come from my
17 supervisor Bernie Schattner, who is the department
18 head, and his immediate supervisor now is Tom
19 MacVicar.
20 Q. Is this situation of this amendment being
21 on hold, is that the same as the process you earlier
22 described with respect to a final Appendix A due
23 under Amendment 2?
24 A. Right.
25 Q. Is that also on hold?
19
1 A. Right.
2 Q. Is Burns & McDonnell doing anything now as
3 far as the STAs are concerned that you're aware of?
4 A. No. No.
5 Q. When was the last time you talked to Galen?
6 A. Yesterday morning. No, maybe afternoon.
7 Several times yesterday.
8 Q. Okay. What was that about, if they are not
9 doing anything?
10 A. About another project.
11 Q. Another project for the District?
12 A. Yeah.
13 Q. What is he working on besides STA?
14 MR. McGRATH: Just object to all of this.
15 BY MR. BURGESS:
16 Q. I'm just curious.
17 A. He's not working on anything for the
18 District right now that I'm aware of. Let me correct
19 that. You know, that's a job that is still under
20 construction that he's responsible for construction
21 face support. There is nothing active going on with
22 that at this time, but he does have that as an active
23 contract.
24 Q. Okay. Do you know how long the preliminary
25 engineering for the Mediated Technical Plan,
20
1 Amendment 3, how long Burns & McDonnell, time span,
2 how long they have to do that?
3 A. I believe the duration is 11 months.
4 Q. And as you sit here today, you have no idea
5 as to when they may be directed to proceed on that
6 amendment?
7 A. No, I don't.
8 Q. Okay. I know you testified earlier that
9 you did not have any direct involvement with respect
10 to the formulation of the SWIM Plan or the appendix.
11 Do you know who, on behalf of the District, was
12 involved with calculating either the settling rate or
13 estimating the effective acreage needed for STAs that
14 are described in the SWIM Plan?
15 A. No, I don't.
16 Q. Are you similarly a project manager for any
17 contracts between the District and Brown and
18 Caldwell?
19 A. Yes.
20 Q. How many contracts?
21 A. We have one contract; C-3051. Yeah, I
22 think that's right.
23 Q. How many amendments were there to that
24 contract?
25 A. There were six amendments to that one.
21
1 Q. What is the status of that contract and
2 those amendments?
3 A. That contract is complete.
4 Q. Including all amendments?
5 A. Right.
6 Q. There was a SAGE committee meeting in
7 February of 1993. You may or may not remember it,
8 but you did speak there. And you introduced Zack
9 Fuller and you talked about contract and amendments
10 and you said something to the effect that, "With
11 respect to Amendment 6, we have had meetings on this
12 document. There has been a number of additions that
13 we recognize have to be made, and we plan to follow
14 up with the additional work on the evaluation of
15 chemical treatments in a subsequent amendment to
16 Amendment Number 6, which is in the process of being
17 drafted now." Was that subsequent amendment to
18 Amendment Number 6 ever completed?
19 A. It never completed.
20 Q. Never proceeded? And why not?
21 A. The mediation began about that time.
22 Q. Are Brown & Caldwell working for the
23 District in any capacity?
24 A. I believe they are in the Planning
25 Department they have a contract with the C-51 West
22
1 project.
2 Q. What is that project?
3 A. That is the Corps of Engineers Flood
4 Control Project for the western end of the C-51 Palm
5 Beach Canal.
6 Q. What is the status of that project?
7 A. I don't know.
8 Q. You are not involved?
9 A. No.
10 Q. Are you involved with any contracts with
11 Brown & Caldwell?
12 A. No.
13 Q. I want to ask you some questions about some
14 documents. I'll be glad to show this to you. I have
15 a document here titled Water Budget Analysis for the
16 Everglades Agricultural Area, 1979 to 1990, by
17 Wassenu Abtew and Nagendra Khanal. Are you familiar
18 with that document?
19 A. I believe I have read that, yes.
20 Q. In what capacity have you reviewed this
21 document?
22 A. Background information for the project;
23 Everglades Protection Project.
24 Q. Okay. This particular document is stamped
25 "Draft" and the covering letter of October 6, '92
23
1 asks the recipient to please be aware that the
2 document still has a draft status. Are you aware
3 whether or not the document's ever been finaled?
4 A. No, I'm not.
5 Q. Let me show you what is titled Historical
6 Phosphorus Loads for the EAA, Draft, December '92,
7 prepared by Burns & McDonnell. Are you familiar with
8 that document?
9 A. Yes, I am.
10 Q. What is that document?
11 A. That is a deliverable Amendment 1 to
12 contract C-3021.
13 Q. Now, that is stamped "Draft." Do you know
14 whether that document has ever been finaled?
15 A. I don't remember, to be honest with you.
16 Q. That was the deliverable or a deliverable
17 under Amendment 1?
18 A. Basically, deliverables came in draft and
19 then they were finalized and you have a final
20 deliverable, so this is one as I mentioned earlier,
21 there were a number of tasks or components of
22 Amendment Number 1. This was one of those
23 deliverables.
24 Q. Which was a data gathering?
25 A. It was a data gathering. Basically, a
24
1 large portion of that amendment was a data gathering
2 effort.
3 Q. Do you know whether the historical
4 phosphorus loads that are contained in this draft
5 December '92 document were the ones that Galen Miller
6 used in his calculations to size the STAs?
7 A. I don't know. I can't comment for sure on
8 that.
9 Q. Would it be unusual if this document had
10 not been finaled?
11 A. The reason it wasn't finaled was the fact
12 that mediation began more or less at the time we were
13 trying to finalize documents and our attention
14 shifted to that support.
15 Q. Let me show you a document titled
16 Adjustments to EAA Discharges Due to Implementation
17 of BMP's, Draft, January '93. Are you familiar with
18 that document?
19 A. Yes, I am.
20 Q. And that also is stamped "Draft." Do you
21 know if that was ever finaled?
22 A. No, I'm not sure of that either.
23 Q. If it wasn't, was it for the same reason
24 that you just explained?
25 A. Yes.
25
1 Q. And that would be a deliverable under what
2 contract?
3 A. That is again the C-3021 contract,
4 Amendment Number 1.
5 Q. What was the reason that that document was
6 prepared, if you know?
7 A. It was basically development of the
8 engineering to a conceptual design for the
9 constructive wetlands alternative.
10 Q. Why was it important to make adjustments to
11 EAA discharges?
12 A. To be exact in response to that question
13 I'd have to refer to the document.
14 Q. Let me show you what is titled Phase 2,
15 Evaluation of Alternative Treatment Technologies,
16 February 18, 1993. Are you familiar with this
17 document?
18 A. Yes.
19 Q. And this is the Brown & Caldwell
20 deliverable?
21 A. Right.
22 Q. Under what contract?
23 A. C-3051.
24 Q. Okay. How about amendment --
25 A. Amendment 4.
26
1 Q. And that document is complete?
2 A. There is a final version of that report.
3 Q. Okay. There is a final?
4 A. Yes.
5 Q. Do you know what the date on the final is?
6 A. No.
7 Q. Okay. Let me show you what is titled
8 Everglades Protection Project Recommended Effective
9 Areas of Stormwater Treatment Areas, Draft, April
10 '93. Are you familiar with that document?
11 A. Yes.
12 Q. That was a deliverable under what amendment
13 and what contract?
14 A. Amendment 1 of contract C-3021.
15 Q. And that too is stamped "Draft." Do you
16 know whether there is --
17 A. Again, like the other ones of this
18 particular amendment, I'm not quite sure -- I believe
19 there is one that has not been finalized, and I'm not
20 sure which one of these hasn't. This may have been
21 finalized. I'm not sure. I think there is one
22 outstanding deliverable that still needs to be
23 finished.
24 Q. We have spoken, I think, about three
25 different Burns & McDonnell documents all that were
27
1 stamped "Draft." Are you saying only one of those
2 three has been finaled?
3 A. I believe there is only one that remains to
4 be closed out or finalized, and it is just -- again,
5 I believe it is an administrative matter, not so much
6 one of any new material or engineering work.
7 Q. Okay. Do you know, as you sit here today,
8 which one hasn't been final?
9 A. No. That is my problem.
10 Q. But it is one of those three?
11 A. I believe so, yeah. You could probably put
12 another one out here and I would -- like I said,
13 there were numerous deliverables of that, and that
14 particular amendment, to be honest with you, needs to
15 be finalized and closed out, and I probably will make
16 an action item for myself to do that when I get back
17 to my office.
18 Q. What particular amendment is that?
19 A. Amendment Number 1.
20 Q. Okay. Let me show you what appears to be a
21 letter, item of correspondence anyway, dated April
22 20, 1993 to you from Burns & McDonnell. Take a look
23 at that and tell me what that is.
24 A. This is a letter to me from Galen Miller in
25 regard to, I believe, the initial development of the
28
1 conceptual work for the Mediated Technical Plan, I
2 believe. Let me read this. Yes. I think part of
3 it's documentation in regard to some of the mediation
4 discussions.
5 Q. So that would have been done under the
6 amendment to Amendment 2?
7 A. It would be the rewritten Amendment 2 or
8 the changed scope of Amendment 2 to contract C-3021.
9 Q. Okay. I have another letter dated May 4,
10 '93 to you again from Galen Miller and ask you if
11 that similarly has reference to the conceptual
12 technical work under the Mediated Technical Plan.
13 A. Yes, this is also in regard to the
14 mediation effort and the development of the Mediated
15 Technical Plan; again, under Amendment 2 of the
16 contract C-3021.
17 Q. Same question with respect to this letter
18 to you from Burns & McDonnell dated May 5, 1993.
19 A. Yes. It again deals with Mediated
20 Technical Plan.
21 Q. Same question with respect to this letter
22 dated May 10, '93 to you from Burns & McDonnell.
23 A. Yes, this again deals with the Technical
24 Mediated Plan.
25 Q. Have those letters that you have said have
29
1 reference to the Mediated Technical Plan, would those
2 letter reports have been used for the preparation of
3 what we discussed earlier was Appendix A or the
4 conceptual design to the Mediated Technical Plan?
5 A. Yes.
6 Q. Let me go back to -- earlier this morning
7 you spoke in terms of the conceptual plan that
8 Burns & McDonnell had prepared was, in essence, the
9 conceptual plan for what was in the SWIM Plan. Is
10 that a correct statement?
11 MR. McGRATH: I would object to the extent
12 it is a mischaracterization of the witness'
13 testimony.
14 BY MR. BURGESS:
15 Q. Let me ask you, what is the conceptual plan
16 that Burns & McDonnell has prepared with regard to
17 the SWIM Plan? Is it the Mediated Technical Plan, is
18 it another document?
19 A. It was the March 31 document, conceptual
20 plan.
21 Q. Okay. What is the status of that March 31
22 document?
23 A. There has been no change to the status.
24 Q. Was that a final document?
25 A. Yes, the March 31st was. Yes.
30
1 Q. 1992?
2 A. '92, right.
3 Q. If my recollection serves me, there were
4 two different documents or two different conceptual
5 plans; is that right?
6 A. There was a document, a conceptual plan,
7 produced in October of '91 which was our first
8 attempt to develop a concept for the Settlement
9 Agreement and then it was subsequently changed
10 through a draft in late February of '92, and then the
11 final version in March of 31; March 31st of '92.
12 Q. Okay. To your knowledge, is it the March
13 31, '92 document that will be used as the design for
14 the STAs that are referenced in the SWIM Plan?
15 A. I don't know.
16 Q. We talked this morning about the SWIM Plan
17 and about Burns & McDonnell's work efforts and
18 putting together conceptual design for the Stormwater
19 Treatment Areas that are referenced in that SWIM
20 Plan. Is there a general design or a final design
21 past that conceptual design for those STAs?
22 A. No.
23 Q. Is the District intending to build the STAs
24 that are referenced in the SWIM Plan?
25 MR. McGRATH: I would object to the extent
31
1 you're asking this witness what the District
2 intends to do.
3 THE WITNESS: I don't know.
4 BY MR. BURGESS:
5 Q. Who would know?
6 A. I don't know if anyone knows. I don't
7 know.
8 Q. I know you weren't at Galen Miller's
9 deposition, but he had -- just assume for the
10 purposes of my question that he had said one of his
11 tasks under Amendment 2 was to review the various
12 analyses conducted by Brown & Caldwell and to produce
13 an overall plan for recommendation to the Board. Has
14 that been done, to your knowledge?
15 A. No, that was not done. It was subsequently
16 overridden by the mediation effort and the scope
17 changed.
18 Q. The scope changed to providing --
19 A. His Amendment 2.
20 Q. -- to providing technical support in
21 support of the mediated plan?
22 A. That is correct.
23 Q. As you sit here today, do you know whether
24 Burns & McDonnell will be tasked with -- well, strike
25 that. What is the status of the Everglades
32
1 Protection Project?
2 MR. McGRATH: If you know.
3 THE WITNESS: Could you maybe expand on
4 that question to be more specific?
5 BY MR. BURGESS:
6 Q. Okay. My understanding was that Galen
7 Miller and Burns & McDonnell were tasked with
8 reviewing the work of Brown & Caldwell in addition to
9 work that they were conducting, and formulating a
10 recommendation to the Governing Board, which would be
11 the preferred alternative, if you will, for the
12 Everglades Protection Project. What is the status of
13 that undertaking, if you know?
14 A. It is basically put on hold and waiting for
15 direction.
16 Q. Okay. Based upon some of the documents we
17 have looked at here today, it seems to me that
18 Burns & McDonnell has prepared two different
19 conceptual designs regarding Stormwater Treatment
20 Areas; one is the March 31, '92 conceptual design and
21 one is the November 5, '93 conceptual design. Both
22 reference Stormwater Treatment Areas, however. Do
23 you know what conceptual design the District will
24 support with respect to Stormwater Treatment Areas?
25 MR. McGRATH: Again, object.
33
1 THE WITNESS: No, I don't.
2 BY MR. BURGESS:
3 Q. I'm going to refer to the conceptual design
4 for the Mediated Technical Plan, dated November 5,
5 1993, and I know that you earlier testified you had
6 some familiarity with the Mediated Technical Plan. I
7 want to read from the document and ask you some
8 questions about some statements.
9 I am on Roman Numeral page II-3 of part 2,
10 titled Phosphorus Reduction Technologies. It is a
11 paragraph at the bottom that says, "The conceptual
12 design varied from that suggested in the SWIM Plan
13 primarily in that all discharge from the four primary
14 pumping stations would be treated in the STAs. The
15 SWIM Plan Appendix F had contemplated that flows and
16 phosphorus loads originating from sources outside the
17 regulated portions of the EAA would be bypassed
18 around the STAs and discharged untreated to the EPA
19 or otherwise handled."
20 Let me ask you, sir, is it your
21 understanding that the conceptual design for the
22 mediated plan did differ from the SWIM Plan in that
23 discharge from four primary pumping stations would be
24 treated in the STAs?
25 MR. McGRATH: Again, just for the record,
34
1 let me object to all questions about the
2 mediated plan as not being relevant to the focus
3 of this litigation.
4 MR. BURGESS: Okay. It is certainly
5 relevant for purposes of discovery, though.
6 They spent a gazillion (sic) dollars on it.
7 THE WITNESS: There were differences.
8 BY MR. BURGESS:
9 Q. Okay. And to your understanding, does the
10 existing SWIM Plan that the District intends to
11 support, according to counsel here today, still only,
12 to your knowledge, address flows and loads
13 originating from sources inside the EAA?
14 A. The conceptual design as developed in the
15 March 31 document by Burns & McDonnell has not
16 changed.
17 Q. To your knowledge, are they -- well, you
18 testified they are not working on that.
19 A. We have done nothing since the 31st
20 document.
21 Q. But in any event, the Technical Mediated
22 Plan does deal with flows and phosphorus loads
23 originating from sources outside the EAA?
24 A. There's a number of differences, yes.
25 Q. That was one of them?
35
1 A. Uh-huh.
2 Q. Same document, page Roman Numeral II-4.
3 The paragraph at the bottom reads, "The current
4 proposed SWIM Plan and the March 1, 1992 conceptual
5 design for the Stormwater Treatment Areas included no
6 specific mechanisms for increasing the flow of water
7 to the EPA to offset volumetric reductions resulting
8 from the implementation of BMP's and the construction
9 of STAs." Is that a true statement, as far as you
10 know?
11 A. I believe so, yes.
12 Q. Does the mediated plan include specific
13 mechanisms for increasing the flow of water to the
14 EPA to offset --
15 A. Yes, I believe it does.
16 Q. -- reduction? Any intentions, as far as
17 you're aware of, that either the District itself or
18 through its contractor would seek to amend the
19 present plan to allow for consideration of those
20 volumetric reductions?
21 A. I have no knowledge of any action in that
22 regard.
23 Q. Okay. This particular conceptual design
24 document, dated November 5, '93, prepared by
25 Burns & McDonnell contains some recommendations with
36
1 regard to basin scale alternative treatment
2 technologies. On page Roman Numeral II-12, paragraph
3 D, it states, "The following are recommendations
4 concerning the basins scale alternative treatment
5 technologies. Number one, direct filtration should
6 be considered a viable alternative to STAs and in all
7 basins of the EAA direct filtration should be
8 included in the upcoming Plan Formulation Phase of
9 the Everglades Protection Project."
10 Okay. Do you know, sir, to what extent the
11 District is considering direct filtration as
12 alternatives to STAs?
13 A. No, I don't.
14 Q. Okay. What reference is meant by this
15 upcoming Plan Formulation Phase of the Everglades
16 Protection Project?
17 MR. McGRATH: Again, let me just object to
18 the extent the witness has already testified
19 that he was not involved in the preparation of
20 that document.
21 MR. BURGESS: But he's the project
22 administrator for the contractor who prepared
23 the document.
24 THE WITNESS: I'm not sure what that
25 statement references in terms of plan
37
1 formulation.
2 BY MR. BURGESS:
3 Q. "Plan" is capitalized and "Formulation" is
4 capitalized.
5 Are you familiar with the Plan Formulation
6 Phase for the Everglades Protection Project?
7 A. In regard to the original SWIM and
8 Settlement Agreement, yes. In regards to the
9 Technical Mediated Plan, that document, I believe,
10 was, in essence, the culmination of plan formulation,
11 that November document, so I'm not quite sure what
12 that statement means.
13 Q. So you weren't aware of any additional Plan
14 Formulation Phase due with respect to the Everglades?
15 A. No. The next amendment, Amendment 3, would
16 go into the preliminary engineering of that
17 particular conceptual design that you have in your
18 hands there.
19 Can I say something off the record here?
20 MR. BURGESS: Yes, he can go off the
21 record.
22 (Discussion held off the record.)
23 MR. BURGESS: Okay. We can go back on.
24 BY MR. BURGESS:
25 Q. I don't want you to speculate, Mr. Kugler,
38
1 but after you took a brief look at that particular
2 section in this conceptual design for the Mediated
3 Technical Plan, does that recommendation, language of
4 Galen Miller, with respect to upcoming formulation
5 phase of the Everglades Protection Project, does that
6 mean anything more to you?
7 A. I believe it is in reference to the SWIM
8 Plan, the conceptual design development for the SWIM
9 Plan, and I do not believe it has meaning in regards
10 to the Technical Mediated Plan.
11 Q. Okay. Is there an upcoming Plan
12 Formulation Phase for the SWIM Plan?
13 A. No, not that I am aware of at this time.
14 Q. But there was, apparently, in November of
15 '93?
16 A. When the original Amendment 2 was written,
17 this plan formulation was for that conceptual March
18 31 document which was the SWIM conceptual design.
19 Q. Okay. The original amendment to contract
20 3021 was changed. Originally, what was it?
21 A. Plan formulation for the conceptual design
22 of the SWIM based conceptual project, you know.
23 Q. Okay. What was involved in that plan
24 formulation?
25 A. The plan formulation was to utilize the
39
1 works of Brown & Caldwell, the findings of Brown &
2 Caldwell, and to develop a recommendation to go and
3 be presented to the Board in June at their June Board
4 meeting.
5 Q. June of 1993?
6 A. '93, yeah.
7 Q. What was the recommendation for or to be
8 for?
9 A. It was to further develop the March 31st
10 conceptual design or change it, if in fact the
11 technology, the chemical treatment technology, proved
12 to be a more viable cost effective technology.
13 Q. Did chemical treatment ever prove to be a
14 viable more cost effective technology?
15 A. The results of that are in the
16 Brown & Caldwell amendments. Their recommendations
17 are there. We did not pursue one of the
18 recommendation, which was the further study of the
19 chemical treatment alternative.
20 Q. Why was that not pursued?
21 A. The mediation efforts came into existence
22 and we focused our support to that.
23 Q. Do you know whether there are any plans to
24 resurrect a look at the Brown & Caldwell Amendment 6
25 alternative recommendation?
40
1 A. No, I'm not aware of any.
2 Q. Are you aware of any plans to further
3 develop the March 31, 1992 technical design --
4 A. No.
5 Q. -- document?
6 A. No.
7 Q. You are not aware of any plans to develop
8 that and you are not aware of any plans to change it
9 in favor of chemical treatment?
10 A. Huh-uh.
11 Q. Correct?
12 A. No.
13 Q. In your estimation as a civil engineer with
14 experience on projects in South Florida and in the
15 Everglades, is that March 31, 1992 conceptual design
16 document complete in the sense that you could hand
17 that to construction engineers and they could begin
18 the construction of the Stormwater Treatment Areas?
19 MR. McGRATH: Let me just object to the
20 extent you're asking the witness for an opinion
21 and he is not designated even as a witness, let
22 alone an expert witness.
23 MR. BURGESS: Okay. But he is a civil
24 engineer. As a human being, he's entitled to
25 opinions and he can express it in depositions.
41
1 MR. McGRATH: But whether those opinions
2 are relevant to litigation are in question.
3 THE WITNESS: No.
4 BY MR. BURGESS:
5 Q. "No" what?
6 A. No, it is not complete in terms of a set of
7 plans and specifications to be given to a
8 construction contractor.
9 Q. What would need to be done?
10 A. You need to further develop through
11 preliminary engineering phase and then through a
12 detailed design phase to produce contract
13 construction drawings and specifications.
14 Q. I'm sorry. You said contract design phase?
15 A. You would have two phases, subsequent
16 phases. You would have a preliminary engineering
17 phase and you would have a detailed design phase.
18 The detailed design would, in essence, be the
19 preparation of the plans and specifications that
20 would form part of a construction contract.
21 Preliminary engineering would basically be more field
22 reconnaissance geotechnical work survey work,
23 refinement of a conceptual design.
24 Q. With respect to the existing conceptual
25 design, the March 31, '92 conceptual design and the
42
1 present SWIM Plan, how long would the preliminary
2 engineering phase take to complete?
3 A. I think a reasonable duration for the
4 preliminary engineer phase would be from nine to 12
5 months.
6 Q. And the detail design phase, would that
7 commence at the end of the preliminary engineering
8 phase or would they be coextensive?
9 A. There could be some overlapping at the end
10 where you could solicit for your design consultants
11 prior to the finalization of the phase preliminary
12 engineer phase.
13 Q. Okay. And what would be the duration of
14 the delay design phase?
15 A. That would vary in regards to the physical
16 components. The pump station would require longer
17 duration than would maybe levee design or control
18 structure design.
19 Q. Can you give me a ballpark on how long?
20 A. I would say overall, if you want to look at
21 a duration to complete all designs, I would say in
22 the order of a year-and-a-half to two years.
23 Q. Neither of these phases, the preliminary
24 engineering phase or detail design phase, have been
25 commenced with respect to the STAs that are
43
1 referenced in the March '92 SWIM Plan?
2 A. No.
3 Q. Would that be the next logical step for the
4 District; to commence construction of the STAs that
5 are referenced in the SWIM Plan?
6 MR. McGRATH: Object to the form of the
7 question.
8 BY MR. BURGESS:
9 Q. Well, from an engineering standpoint, would
10 that be the next logical step?
11 A. If it is a given that the document is
12 accepted and authorized --
13 Q. What document?
14 A. The March 31 document. Then, yes, you
15 would move into a preliminary phase and then finally
16 into the delay design phase.
17 Q. Okay. And neither of those phases have
18 been done, obviously, either for the conceptual
19 design or for the Mediated Technical Plan; is that
20 correct?
21 A. No.
22 Q. And do your estimates with respect to time
23 apply equally to the conceptual design for the
24 Mediated Technical Plan?
25 A. Yes. More or less, the technical plan, the
44
1 Mediated Technical Plan, is larger in scope, larger
2 project; therefore, more effort. But durations would
3 be very similar, I would say.
4 Q. Are you familiar with the time frame set
5 forth in the SWIM Plan with respect to construction
6 of the STAs?
7 A. Yes.
8 Q. As you sit here today, do you have an
9 opinion as to whether or not were we to commence the
10 preliminary engineer phase tomorrow, that the STAs
11 referenced in the SWIM Plan could be on line and
12 functioning within the time frames that are set forth
13 in the SWIM Plan?
14 MR. McGRATH: Object. Again, asking this
15 witness for his opinion based on his expertise.
16 THE WITNESS: No, I don't believe it can be
17 done.
18 BY MR. BURGESS:
19 Q. Okay. Why not?
20 A. There is just not enough -- there isn't
21 enough time between the July -- I believe July '97
22 was the completion date that was stated in the
23 Settlement Agreement. And if you put everything in
24 sequence and put the construction period behind the
25 design periods that I indicated earlier, I think that
45
1 you would probably miss that target date.
2 Q. We have nine to 12 months for the
3 preliminary engineering phase, one-and-a-half to two
4 years for the delay design phase, then how long is
5 the construction phase?
6 A. Your longest construction component would
7 probably be the pump stations, which you would need
8 at least two years, 18 months to two years, depending
9 on the size of the station construction period.
10 Q. As you sit here today -- you, as the
11 project administrator -- is that the title?
12 A. I think the proper title is manager.
13 Project manager.
14 Q. As the project manager with respect to the
15 conceptual design contractor for the STAs, as you sit
16 here today, you are not aware of any intentions on
17 the part of the District to order Burns & McDonnell
18 to begin either the preliminary engineering phase or
19 the detail design?
20 A. No.
21 Q. Okay. The same document we were discussing
22 earlier, the conceptual design for the Mediated
23 Technical Plan, same paragraph with respect to the
24 recommendations, it says that, paragraph number two,
25 "bench scale and pilot plants testing of the direct
46
1 filtration process on EAA waters should proceed
2 immediately." Are you aware of any such --
3 A. No.
4 Q. -- testing that has begun?
5 A. No.
6 Q. Are you aware of why this pilot scale
7 investigation of direct filtration never commenced?
8 A. All work more or less stopped at the end of
9 the mediation period.
10 Q. The end of the mediation period?
11 A. Well, the failure of the mediation effort
12 to produce an agreement, work more or less was put on
13 hold at that time.
14 Q. Are you aware of any discussions as to the
15 commencement date for pilot studies of direct
16 filtration?
17 A. No.
18 Q. Who would be, at the District, who would be
19 knowledgeable on that; if there was any intentions to
20 do filtration and pilot scale size?
21 A. Well, obviously, the Executive -- I would
22 have to refer you to the Executive Office in regard
23 to maybe that type of planning, but the research
24 group division might have in their study plan for the
25 ENR project review and research of the chemical
47
1 treatment alternatives.
2 Q. And who would be in charge of that?
3 A. Tom Fontaine is the head of that division,
4 Tony Federico is his supervisor.
5 Q. Okay. Do you know -- you said they may.
6 Do you know whether or not the research group study
7 division for the ENR is looking at chemical
8 treatment?
9 A. No.
10 Q. Okay. Are you aware or were you aware of
11 the fact that this conceptual design for the Mediated
12 Technical Plan adopted a settling rate constant that
13 was different from that contained in the SWIM Plan?
14 A. Yes.
15 Q. Okay. I believe the one in the SWIM Plan
16 was eight meters a year; is that correct?
17 A. Yes.
18 Q. And this document has a settling rate of
19 10.25?
20 A. Yes.
21 Q. Okay. Have you yourself done any
22 independent calculations to verify either of the
23 settling rates?
24 A. No.
25 Q. Do you know whether Burns & McDonnell did?
48
1 A. I don't believe so.
2 Q. Where did they get those figures from?
3 A. I believe they referenced the Justice
4 Department consultants.
5 Q. Do you have, as you sit here today, any
6 idea as to which settling rate the District would
7 intend to support at the hearing on the March '92
8 SWIM Plan?
9 MR. McGRATH: Same objection as before.
10 THE WITNESS: No, I don't.
11 BY MR. BURGESS:
12 Q. Do you have any opinion as to which
13 settling rate is correct and should be used to size
14 Stormwater Treatment Areas?
15 A. No, I don't.
16 Q. Do you know whether Burns & McDonnell has
17 any opinion?
18 A. No, I don't.
19 Q. Okay. There is a statement on page Roman
20 Numeral II-22 that says, "The March 31, '92
21 conceptual design was based on treatment of all
22 historic discharges to the EPA, without distinction
23 as to source, and to that extent was inconsistent
24 with the current proposed SWIM Plan for the
25 Everglades, which considers only treatment of
49
1 agricultural discharges from the EAA."
2 Sir, as you sit here today, do you know
3 whether, with respect to the SWIM Plan challenge that
4 we are involved in, the District will support a
5 design for the STAs which will be based upon
6 treatment of all historic discharges to the EPA
7 without distinction as to source or whether they will
8 support a design which considers only the treatment
9 of agricultural discharges from the EAA?
10 MR. McGRATH: Same objection as before
11 regarding the question asking the witness for
12 what the District will do.
13 THE WITNESS: No, I'm not.
14 BY MR. BURGESS:
15 Q. Do you have an opinion as to -- as a civil
16 engineer experienced in Everglades projects, do you
17 have an opinion as to whether or not the design for
18 Stormwater Treatment Areas should treat all historic
19 discharges to the EPA or only those from agricultural
20 areas?
21 A. No.
22 Q. There is a statement on Roman Numeral II-23
23 that says, "Tt was the intent that, given no other
24 substantive changes (such as the potential selection
25 of an alternative treatment technology) the current
50
1 proposed SWIM Plan for the Everglades be modified to
2 reflect the above changes in the required effective
3 treatment areas together with certain other
4 modifications to the basis for design."
5 Let me ask you this, sir: Were you aware
6 that the effective treatment area acreage varied
7 between the March 31, 1992 conceptual design based
8 upon eight meters a year and the calculated effective
9 treatment area based upon the 10.25 meters a year?
10 A. Yes.
11 Q. Okay. I am going to give you the document
12 so you can see where I am reading from.
13 A. Uh-huh.
14 MR. McGRATH: Is there a question pending?
15 BY MR. BURGESS:
16 Q. Oh, yes. I'm sorry. Do you know what
17 Mr. Miller means by the language, "It was the
18 intent"?
19 A. No, I don't.
20 Q. Do you know of any plans presently to
21 modify the SWIM Plan to reflect the differences in
22 acres referenced on that page?
23 A. No.
24 Q. Do you have any opinion as to whether or
25 not the SWIM Plan should be modified to reflect the
51
1 differences in acreage?
2 MR. McGRATH: Same objection as before.
3 THE WITNESS: No, I don't.
4 BY MR. BURGESS:
5 Q. What would be a reason to amend the SWIM
6 Plan to reflect these different treatment acres?
7 A. Well, I suppose you could say there's been
8 a change.
9 MR. McGRATH: Let me object to the extent
10 that the question requires the witness to
11 speculate.
12 MR. BURGESS: I don't want him to
13 speculate, but obviously, you know, as the
14 project coordinator for the contractor that
15 wrote this document, who was verbalizing that
16 there is an intent to amend the SWIM Plan to
17 reflect changes in effective treatment areas,
18 I'm asking him what would be one of the reasons
19 that you would amend the SWIM Plan to reflect
20 the different treatment areas? I think he can
21 answer the question.
22 MR. McGRATH: I don't even understand the
23 question.
24 THE WITNESS: Yeah. I am a bit confused
25 with the question. Restate it in maybe a
52
1 different --
2 BY MR. BURGESS:
3 Q. Okay. The Burns & McDonnell -- referencing
4 in this document that there was an intent, given no
5 other substantive changes, such as chemical
6 treatment, that the current SWIM Plan be modified to
7 reflect changes in what they say are required
8 effective treatment areas, and so in November of '93
9 there apparently was an intent. You testified you
10 don't know whose intent it was or why there was an
11 intent.
12 MR. McGRATH: Or what that intent was.
13 BY MR. BURGESS:
14 Q. Right. Well, the intent is clear here; to
15 modify the current SWIM Plan to reflect changes in
16 required effective areas together with certain other
17 modifications to the basis for design.
18 I'm asking you if you, in your capacity as
19 the overseer for this particular contractor, are
20 aware of why the SWIM Plan might be modified to
21 reflect changes in required effective treatment
22 areas. What would be the purpose to amend the SWIM
23 Plan?
24 A. One purpose might be a change in the basis
25 design formulation for calculating the effective
53
1 areas, which is the change from eight meters to 10.2
2 meters per year.
3 Q. Okay. What changes in the design might be
4 occasioned by a change in the settling rate from
5 eight meters to ten meters? This document references
6 the effective treatment areas would get smaller. Is
7 that your understanding?
8 A. Yeah.
9 Q. Okay. Were the District to make changes to
10 the SWIM Plan, would a new conceptual design document
11 be necessary?
12 MR. McGRATH: I need to object just to the
13 extent you're asking the witness to speculate
14 based on a speculative proposed action of the
15 Board, so you're asking for speculation on top
16 of speculation.
17 MR. BURGESS: I am really not. I mean, the
18 contractor is saying that here is an intent to
19 modify the current SWIM Plan. I'm asking the
20 witness what changes in the March 31, '92
21 conceptual design would he anticipate would be
22 made if this change was adopted.
23 THE WITNESS: Okay. Given that the change
24 is adopted, then yes, you would need to revise
25 that 31st document to reflect the differences in
54
1 effective treatment areas.
2 BY MR. BURGESS:
3 Q. Okay.
4 A. As well as all the physical works.
5 Q. Okay. The next paragraph on the same page
6 says, "Burns & McDonnell subsequently initiated the
7 preparation of modified conceptual designs of the
8 Stormwater Treatment Areas and adjacent hydroperiod
9 restoration works under Amendment 2 to contract
10 C-3021. That work was interrupted by the initiation
11 of the mediation process and was not finally
12 completed and documented." Is that your
13 understanding?
14 A. Yes.
15 Q. Okay. To what extent has that work been
16 documented, if you know? It says, "not finally
17 completed and documented." Was it documented at all?
18 Were there any deliverables to the District?
19 A. No. No. There was no deliverable.
20 Q. Are you aware of any documentation in
21 support of modified conceptual designs for the STAs?
22 A. No.
23 Q. Are you aware of any intentions at the
24 District to order Burns & McDonnell or request
25 Burns & McDonnell to complete the conceptual designs
55
1 for the STAs based upon the change in the settling
2 rate?
3 A. No.
4 Q. There is a statement on page Roman Numeral
5 II-25 that says, "Total capital cost for an updated
6 SWIM Plan reflecting the revised basis for design
7 would then be approximately 309 point 1 million, of
8 which approximately 293 point 5 million would be
9 associated with the three Stormwater Treatment
10 Areas."
11 I'm asking, sir, whether you have any
12 knowledge of any documents at the District which
13 attempt to allocate between costs associated with
14 water quality and costs associated with hydroperiod
15 restoration with reference to the STAs.
16 A. You mean, in other words, funding
17 allocations; where the funds might go?
18 Q. Yeah. Let me ask you to narrow it. Do you
19 know whether Burns & McDonnell has attempted to
20 allocate what portions of these figures they are
21 talking about here would be applicable to hydroperiod
22 and what would be applicable to water quality?
23 A. Yes. In their cost estimate, they have a
24 break out of hydroperiod restoration versus treatment
25 areas.
56
1 Q. Okay. Same page. "Modification of the
2 current proposed SWIM Plan for the Everglades as
3 suggested above would still not address the need for
4 offsetting volumetric reductions in flow to the EPA
5 resulting from implementation of the SWIM Plan."
6 Do you know what that sentence refers to?
7 A. Again, you know, reading that, and not
8 having read the 25 pages preceding that, when you
9 said modification of the SWIM Plan, I believe he was
10 only referring to the effective treatment area size
11 modification, and that would not address any of the
12 volumetric makeup water that he was referencing
13 there.
14 Q. Okay. Let's take a break.
15 (Thereupon, a recess was taken.)
16 BY MR. BURGESS:
17 Q. Okay. Back on the record.
18 With respect to the conceptual design for
19 the Mediated Technical Plan, Draft, dated November 5,
20 1993, we were speaking of a paragraph talking about
21 modification of the current proposed SWIM Plan on
22 page Roman Numeral II-25. That paragraph talks about
23 the modifications to the SWIM Plan still not
24 addressing the need for offsetting volumetric
25 reductions. What need was Galen Miller referring to
57
1 when he talked about the need for offsetting
2 volumetric reductions?
3 A. I don't know.
4 Q. Are you aware of any need to offset
5 volumetric reductions in flow to the EPA resulting
6 from implementation of the SWIM Plan?
7 A. Need, no.
8 Q. Okay. What is the concept that you are
9 familiar with with respect to offsetting volumetric
10 reductions in flow?
11 A. That would be an increase in treatment area
12 to accommodate -- or let me rephrase that, or correct
13 that. Additional lake releases to offset the
14 volumetric reduction from BMP's.
15 Q. Are you aware of any documents of the
16 District that address that the concept of setting off
17 or -- I'm sorry -- of offsetting the reductions from
18 BMP's?
19 A. No.
20 Q. Okay. What amount of additional lake
21 releases would be needed to offset the reductions
22 from BMP's?
23 A. I don't know. I believe --
24 Q. Who would know?
25 A. -- Galen might be able to comment on that.
58
1 Galen Miller. He's referencing there the 20 percent
2 volume reduction due to BMP's, I believe.
3 Q. Okay. And to your knowledge, did the March
4 '92 SWIM Plan take into account the additional lake
5 releases to the STAs that would be needed to offset
6 these reductions from BMP's?
7 A. I'm not sure.
8 Q. Do you know whether Galen Miller's March
9 '92 document, conceptual design document, took into
10 account additional lake releases?
11 A. Yes, it did.
12 Q. In what manner?
13 A. Exactly how they took it into account, it
14 was -- to be honest with you, I'm not, you know, all
15 clear on all the references that might have been made
16 to that particular volume makeup water.
17 Q. As you read this statement, does this have
18 reference to what would appear to be a perceived need
19 to address the issue of volumetric reduction is in
20 flow resulting from the SWIM Plan in any amendment to
21 the SWIM Plan?
22 A. I really don't know what his intention was.
23 Q. Other than seeing this statement here, have
24 you been involved in any conversations where the
25 subject matter has come up about the need to address
59
1 in the present SWIM Plan, by amendment or otherwise,
2 these offsetting volumetric reductions in flow?
3 A. No.
4 Q. We talked a little bit earlier about
5 Burns & McDonnell and Galen Miller being involved in
6 a task to make an overall recommendation to the Board
7 concerning the Everglades Protection Project. Are
8 you aware of any plans or intentions for that work
9 step to be resurrected and for Galen Miller to make
10 such a recommendation to the Board?
11 A. No.
12 Q. Similar to the issue we just talked about
13 with regard to makeup for volumetric reductions due
14 to BMP's, are you aware of a concept that I have
15 heard discussed as lake regulatory releases? Do you
16 know what that refers to?
17 A. I don't know how to expand on what -- lake
18 regulatory releases means just that. I don't know in
19 the context to what --
20 Q. In the context of the SWIM Plan, do you
21 know whether the design documents, either -- I'm
22 sorry -- do you know whether either the March '92
23 SWIM Plan or Galen Miller's March '92 conceptual
24 design document considered lake regulatory releases?
25 A. There is a consideration in both documents
60
1 on regulatory releases.
2 Q. How was that subject dealt with? Was it a
3 volume that was a volume of water that was considered
4 in a calculation or --
5 A. Yes. In essence, it was a consideration in
6 the design development that Galen needed to make
7 account of.
8 Q. Okay. Were lake regulatory releases
9 considered any differently with respect to the
10 preparation of the conceptual design for the Mediated
11 Technical Plan than in the previous documents?
12 A. I think reference needs to be made to both
13 documents and review of those documents to see exact
14 differences.
15 Q. But do you know whether there were
16 differences?
17 A. I believe there were.
18 Q. Do you know what those differences
19 regarded? Was it amount --
20 A. No. I would have to review both documents.
21 Q. -- volume or flow?
22 A. Don't know. I'm sorry, I don't. I don't
23 remember.
24 Q. Do you know the period of record that was
25 utilized by Burns & McDonnell with respect to
61
1 preparation of the March '92 conceptual design
2 document?
3 A. It was a period from 1979 to '88, I
4 believe.
5 Q. Have you been involved in any discussions
6 where the topic has concerned what species of
7 vegetation would be planted in the STAs?
8 A. Yes.
9 Q. Do you know, as you sit here today, what
10 species are intended to be planted in the STAs?
11 A. None.
12 Q. None?
13 A. It is to be naturally revegetated.
14 Q. Okay. And that was not the way it was
15 always to be; is that correct?
16 A. That is correct.
17 Q. Do you know who made the decision that the
18 STAs would be naturally revegetated?
19 A. That was a decision made by
20 Burns & McDonnell in their design, concept designs.
21 Q. Do you know why they recommended that the
22 areas be naturally revegetated, as opposed to
23 planted?
24 A. I think it was based on recommendations by
25 the Nolte and Associates report, a subconsultant to
62
1 Burns & McDonnell.
2 Q. Do you know why Nolte recommended that they
3 be naturally revegetated?
4 A. I believe they saw -- knew of no
5 justification for planting them; saw no value in
6 planting them.
7 Q. Do you know whether, with respect to
8 Burns & McDonnell recommendations, they suspect or
9 expect that a particular variety of plants is going
10 to naturally revegetate in these STAs? Are they
11 expecting the areas to be cattail dominated or
12 sawgrass dominated or bull rush? Do you know?
13 A. I don't know.
14 Q. With respect to the ENR project, is that
15 area being planted or has that area been planted?
16 A. Yes. The one portion of the polishing cell
17 was planted.
18 Q. And what are the other -- what is expected
19 with respect to the other portions?
20 A. The flowway cells were to be naturally
21 revegetated and the other polishing cell was to be
22 kept as a deep water cell for development of algal
23 matter and that type of vegetation. Not a
24 macrophyte. It is an emergent macrophyte. They were
25 to be kept out of the polishing -- that polishing
63
1 cell four, I believe it was.
2 Q. Do you know what was planted in the one
3 portion of the ENR?
4 A. A variety of wetlands species. I really
5 couldn't give you a list. There was at least six
6 different species.
7 Q. Do you know whether cattail has taken over,
8 become the dominant plant, in that portion?
9 A. In the polishing cell?
10 Q. The one portion that was planted, yeah.
11 A. No. I believe sugar cane.
12 Q. What is that?
13 A. I believe sugar cane.
14 Q. Sugar cane?
15 A. No. I don't know.
16 Q. How about the flowway that is being
17 naturally revegetated? Do you know what is growing
18 in there?
19 A. There is a considerable amount of mixed
20 vegetation, cattail being one of them, sugar cane
21 crop reappeared, a lot of exotics that are not
22 wanted, like willow and those types. I have not been
23 involved that deeply in the post construction phase
24 of the ENR project.
25 Q. Okay. Who is in charge of, if there is a
64
1 person in charge, the vegetative aspect of the ENR
2 project?
3 A. At this particular time, I would have to
4 recommend you talk to Tom Fontaine and his -- or
5 Tony, his supervisor, Tony Federico in regards to the
6 individuals that are responsible. There's quite a
7 few new individuals.
8 Q. Yeah. New?
9 A. There has been a recent -- a number of
10 recent new hires, I understand, in the research
11 effort.
12 Q. What is the status of the permitting
13 process for the ENR project? Are you aware of that?
14 A. No.
15 (The document was marked
16 Petitioner's Exb. A)
17 BY MR. BURGESS:
18 Q. I show you what is marked as Petitioner's
19 Exhibit A and ask you if you have seen that document
20 before.
21 A. Yes.
22 Q. Okay. The second sentence in the first
23 paragraph references conceptual design documents and
24 says, "Since these designs were produced as a result
25 of and based on the criteria stated in the Settlement
65
1 Agreement of the Federal lawsuit, it would follow, a
2 formal review of the documents for compliance to the
3 agreement is required by the Justice Department."
4 Did you write that statement?
5 A. I believe I did.
6 Q. Was that your understanding at the time and
7 is it your understanding now?
8 A. Could you rephrase that question?
9 Q. Yeah. When you wrote that statement, was
10 it a true statement?
11 A. I believe it was my understanding at the
12 time that it was necessary for the conceptual
13 documents produced to be reviewed or at least given
14 to the Justice Department for their review.
15 Q. Okay. And did you also believe at the time
16 that those designs were produced as a result of and
17 based on the criteria stated in the Settlement
18 Agreement of the Federal lawsuit?
19 A. Yes, it was -- oh, yes.
20 Q. Okay. And the conceptual design documents
21 that are now completed with respect to the STAs and
22 the SWIM Plan, specifically the one we have been
23 talking about today the March 31, '92 conceptual
24 design from Galen Miller, is that also a design which
25 was produced as a result of and based on criteria
66
1 stated in the Settlement Agreement of the Federal
2 lawsuit?
3 A. Yes.
4 Q. Okay. Incidentally, there are some bullets
5 later on in the page. The last bullet talks in terms
6 of what the District's position should be with regard
7 to certain Federal Government consultants, such as
8 Robert Kadlec, who is also a chairman of the District
9 Scientific Advisory Panel for the ENR Project. Do
10 you know whether that quandary was ever resolved?
11 A. No, I don't know what was resolved in that.
12 Q. Was there ever a problem, as far as you
13 knew, with Kadlec being both a consultant of the
14 Federal Government and Chairman of the District
15 Advisory Panel?
16 A. I don't believe there was a problem.
17 Q. Okay. How about the second bullet on that
18 page, last sentence, "Will the Government provide
19 relief in regard to the required finish dates if this
20 procedure impacts our current schedule?" Have you
21 been involved in any discussions at the District
22 which have referenced the time frames in the Federal
23 Settlement Agreement versus the time frames for
24 construction schedules in the design documents?
25 A. Okay. Let me see if I can repeat what you
67
1 have asked.
2 Q. That's okay. Let me just rephrase it.
3 This bullet seems to have reference with
4 whether the Government's going to let some Settlement
5 Agreement finish date slide, and there was some
6 discussion this morning with respect to the SWIM
7 Plan. And the construction dates contained in the
8 SWIM Plan. Have you been involved recently in any
9 discussions at the District, talking in terms of
10 whether the Federal Government is going to enforce or
11 not enforce certain deadlines --
12 A. No. No.
13 Q. -- in the Federal settlement?
14 A. No, I haven't.
15 Q. As far as you know, the latest
16 recommendation then with respect to the STAs would be
17 that the STAs would naturally revegetate, and that is
18 as a result of the recommendation in
19 Burns & McDonnell's conceptual design document?
20 A. Yes.
21 Q. Do you know whether the STAs would have or
22 would be a part of the conceptual design document for
23 the Mediated Technical Plan? Was that also the
24 recommendation; that those areas naturally
25 revegetate?
68
1 A. Yes, that was the recommendation.
2 Q. I show you a three-page composite exhibit.
3 (The document was marked
4 Petitioner's Exb. B)
5 BY MR. BURGESS:
6 Q. Okay. What I have handed you is a three
7 page Exhibit A, a memo dated August 28, 1992 from
8 yourself to Leslie Wedderburn referencing two of Tom
9 Fontaine's memos, July 8 and July 31, and attaching
10 those July 8 and July 31 memorandums. What was the
11 purpose of your writing to Leslie Wedderburn on
12 August 28?
13 A. It was a request for additional sampling of
14 the EAA discharges.
15 Q. Okay. And the time frame we're at here, in
16 August 28 of 1992, what was the reason for that
17 sampling? What was that sampling going to be used
18 for?
19 A. It was going to be used to help
20 characterize the discharges.
21 Q. Okay. And why was it important to
22 characterize the discharge?
23 A. It was in regard to the particulate
24 constituent of the waste stream and how much that
25 particulate constituent changed with pumping events
69
1 and variables such as that.
2 Q. Okay. The first page in your memo deals
3 with -- well, let's just read -- the second sentence
4 says, "It is becoming increasingly clear, knowledge
5 of the phosphorus fractionation is a very important
6 consideration in the treatment design." What
7 treatment design were you referencing? What does
8 that mean?
9 A. I believe in this particular memo it was
10 referencing the wetlands, constructed wetlands
11 design. I'm not quite sure. I would have to review
12 dates and time frames, where I was at this particular
13 time, if chemical treatment was a consideration also
14 in this request.
15 Q. Okay. Last paragraph on your schedule
16 requires you to make design decisions based on this
17 data by the end of November. Do you recall what
18 design decisions you needed to make before the end of
19 November?
20 A. No.
21 Q. Okay. The same sentence we have read into
22 the record that you authored here. "It is becoming
23 increasingly clear, knowledge of the phosphorus
24 fractionation is a very important consideration," why
25 was it becoming clear and why is that knowledge
70
1 important?
2 A. I think through the conceptual development
3 of the constructive wetland alternatives in our
4 education in regard to those constructive wetlands,
5 that it was important to characterize the waste
6 streams as best we could.
7 Q. Do you know whether, in fact, this data was
8 collected?
9 A. Yes, I received some data.
10 Q. The second page is the clinical data needs
11 memo from Fontaine to Wedderburn. It speaks in terms
12 of further developing models for sizing STAs and
13 examining reasonable assurance about STAs and ENR.
14 Was this the particulate and dissolved phosphorus
15 fractionation data request that your memo refers to?
16 A. There may be some connection there, but I'm
17 not -- I don't remember if there was.
18 Q. Okay. Last paragraph of that July 8 memo
19 talks about analyzing samples to determine size
20 fractionation of particles and species of phosphorus,
21 dissolved versus particulate; inorganic versus
22 organic. Do you know whether or not Galen Miller
23 ever considered the size fractionation of species of
24 phosphorus in preparing any of his conceptual design
25 documents for the STA?
71
1 A. I believe there are statements made in
2 regard to this consideration, but I believe his
3 design did not consider it.
4 Q. Do you know why his design didn't consider
5 it?
6 A. There just was not enough data or
7 development of this -- of this particular
8 consideration. Also, if my memory serves me right, I
9 believe again his, Galen Miller's, effort was one to
10 try to characterize the waste streams in regard to
11 land use. I think that discussion's in the technical
12 document, mediated technical document, and I believe
13 there was no correlation found in regard to land use
14 versus phosphorus characteristic -- you know, waste
15 water characteristics -- or there was insufficient
16 data to produce any correlation.
17 Q. Okay. What was -- I apologize. I am
18 struggling here with this concept. What would be the
19 reason that you would want to know size
20 fractionations and species relative to the inquiry
21 referenced in this memo, which is to develop models
22 for STAs and further examine reasonable assurance
23 about STAs?
24 A. The Tom Fontaine memo I really can't help
25 you with there. That escapes me; exactly what their
72
1 analysis or what their intended analysis -- what
2 their objectives were in that intended analysis.
3 Q. But do you have any idea as to why it might
4 be important to know size fractionation or --
5 A. Well, yes. The more you can characterize
6 the waste stream, obviously the better you can design
7 to treat the removal process that you want to
8 establish. Now, whether it be constructed wetlands
9 or chemical treatment, it is important to know how
10 much -- what the particulate size is of the
11 constituents of the waste stream.
12 Q. Okay. Do you know how much data was
13 collected between the August 28, '92 memo that you
14 prepared and the end of November?
15 A. There was, I would -- I can't really
16 estimate how much data was collected, but it was not
17 very much. It was a couple storm events, I believe.
18 Q. Who has that data?
19 A. I have that data.
20 Q. Do you know where this data was taken from?
21 Was it taken from 5A, 6, 7 and 8?
22 A. More from 5A than 6, 7 and 8. I believe
23 there was some minimal sampling done at those other
24 locations, but 5A, I believe, was the primary source.
25 Q. Do you know whether any data was collected
73
1 from the 10 structures?
2 A. No, there was none.
3 Q. Do you know whether the data that you say
4 you are in posession of was ever used for any design
5 decisions that are referenced in your memo?
6 A. It was not used, no.
7 Q. Do you know why?
8 A. There was insufficient amount of data.
9 Q. You had mentioned Nolte and Associates
10 earlier. Did you review either of their versions of
11 their report; the preliminary or the final?
12 A. Yes.
13 Q. What was the purpose for you reviewing
14 that?
15 A. It was a deliverable to the District, and
16 as project manager of the contracts with
17 Burns & McDonnell, it was my responsibility to review
18 the deliverables for completeness.
19 Q. Is Nolte presently doing anything for the
20 District or Burns & McDonnell, to your knowledge?
21 A. For the District, I don't believe so. For
22 Burns & McDonnell, I'm not sure.
23 Q. Okay. Do you know whether any of the
24 conclusions or recommendations contained in the
25 preliminary or final versions of the Nolte report
74
1 were ever acted on by either the District or
2 Burns & McDonnell?
3 A. Burns & McDonnell used them in their
4 development of their conceptual work.
5 Q. It would have been after the --
6 A. The Nolte report, I think, was issued in
7 Decemberish of '92, I think.
8 Q. So Burns & McDonnell would have used it in
9 the --
10 A. Right. In the technical --
11 Q. Their later technical memorandums?
12 A. Right. Right.
13 Q. Are you aware of any sampling that the
14 District's conducting in 2A, at the moment, on
15 transects along 2A?
16 A. No, I'm not.
17 Q. Let me show you a letter dated November 24,
18 '92, it appears to be authored by yourself, and ask
19 you if you recall that letter.
20 A. Yeah, I recognize it.
21 Q. What does that letter refer to?
22 A. I believe comments received from Tom
23 Fontaine and his research people. They made a review
24 of one of the documents. I'm not sure of the title.
25 Q. It would appear that the letter that you
75
1 authored to Galen was instructing him not to use
2 something that he prepared, but rather to use
3 something that the District prepared. Is that a fair
4 statement or not?
5 A. Yes, yes.
6 Q. Okay. And we earlier discussed a document
7 entitled Historical Phosphorus Loads for the EAA,
8 Draft, December '92, authored by Burns & McDonnell.
9 The two exhibits in front of you, do they have
10 reference to the same thing, as far as you know?
11 A. I believe so.
12 Q. Do you have any independent recollection as
13 to what it is that you were asking Galen to use from
14 the District, as opposed to what he was doing?
15 A. It is not very fresh in my memory. If I
16 make a statement, it is probably going to be wrong.
17 Q. Well, I don't want to -- you know, I don't
18 want speculation. I am just struggling with it, too.
19 I am trying to put the two documents together.
20 A. To be honest with you, there may be
21 other -- there is probably unwritten communication
22 here that might have even overridden this statement.
23 Q. I'm sure.
24 A. And Galen Miller may be better to answer
25 exactly what that is.
76
1 Q. Okay. To your knowledge or recollection,
2 is the methodology employed by Burns & McDonnell in
3 their draft December '92 Historical Phosphorus Loads
4 for the EAA, is that methodology the methodology that
5 Burns & McDonnell used in the conceptual design for
6 determining what the historical phosphorus loads were
7 to the EAA?
8 A. That I don't know. I can't comment on
9 that.
10 Q. Do you know whether the document Historical
11 Phosphorus Loads for the EAA, Draft, December '92, do
12 you know whether that has been superseded by a later
13 publication?
14 A. Again, as I stated earlier, I'm not sure if
15 we have a final of that. I believe we have finalized
16 most all amendments on one document, but I think
17 there may be one outstanding that has not been
18 finalized.
19 Q. Okay. Did you bring any documents with
20 you?
21 A. No, I did not.
22 MR. BURGESS: Okay. Dan, I would ask that
23 you get from the witness because clearly this
24 would be under the purview of the duces tecum;
25 the later copies of the two or three documents
77
1 that he's referred to with respect to
2 Burns & McDonnell that I don't have copies of
3 that are labeled drafts that he says he thinks
4 may have been finalized. Could you get that
5 from them and send those to me?
6 MR. McGRATH: Okay. I'll check with the
7 client. I won't agree right now, but I'll
8 follow up on it.
9 MR. BURGESS: Okay. Well, then I don't
10 want to conclude the deposition. Otherwise, I
11 would conclude the deposition. But I just want
12 to leave it open because you didn't bring them
13 with him and I would like to take a look at
14 them.
15 MR. McGRATH: Just for the record, we
16 didn't receive the duces tecum or the notice
17 until yesterday, so given the notice
18 situation --
19 MR. BURGESS: I know it was faxed to the
20 District on Monday.
21 But do you know whether the historical
22 phosphorus load information contained in the
23 December draft is the same historical phosphorus
24 load information that Galen Miller used in the
25 conceptual design for the Mediated Technical
78
1 Plan?
2 THE WITNESS: I really don't know.
3 MR. BURGESS: Okay. With that previous
4 caveat then, I don't have any further questions.
5 I would like to attach, as exhibits, seven
6 or eight documents that we have discussed
7 earlier in the deposition.
8
9 (Thereupon, at 12:55 p.m.,
10 the deposition was adjourned)
79
1 CERTIFICATE OF OATH
2
The State of Florida )
3 County of Palm Beach. )
4
I, the undersigned authority, certify that
5 Zan Kugler personally appeared before me and was duly
sworn.
6
WITNESS my hand and official seal this ___
7 day of ________, 1994.
8
________________________________
9 Elaine V. Williams, CM
Notary Public - State of Florida
10 My Commission No. CC 263435
Expires: March 27, 1997
80
1 C E R T I F I C A T E
2
The State of Florida )
3 County of Palm Beach. )
4
I, Elaine V. Williams, Professional
5 Reporter, do hereby certify that I was authorized to
and did report said deposition in stenotype; and that
6 the foregoing pages, numbered from 1 to ____,
inclusive, are a true and correct transcription of my
7 shorthand notes of said deposition.
8 I further certify that I am not attorney or
counsel of any of the parties, nor am I a relative or
9 employee of any attorney or counsel or party
connected with the action, nor am I financially
10 interested in the action.
11 The foregoing certification of this
transcript does not apply to any reproduction of the
12 same by any means unless under the direct control
and/or direction of the certifying reporter.
13
Dated this ____ day of ______, 1994.
14
15
________________________________
16 Elaine V. Williams, CM
17
The State of Florida )
18 County of Palm Beach. )
19
The foregoing certificate was acknowledged
20 before me this ____ day of _______, 1994 by
Elaine V. Williams, who is personally known to me.
21
22 ________________________________
23 Notary Public - State of Florida
My Commission expires:
24
81
1 C E R T I F I C A T E
2 - - -
3
4 The State of Florida, )
5 County of Palm Beach. )
6
7
8 I hereby certify that I have read the
9 foregoing deposition by me given, and that the
10 statements contained therein are true and correct to
11 the best of my knowledge and belief.
12
13 Dated this ____ day of______________ 1994.
14
15
16
17
18 _________________________
19 Zan Kugler
20
DATE: February 9, 1994
TO: Zan Kugler
South Florida Water Management District
3301 Gun Club Road
West Palm Beach, Florida 33406
RE: Sugar Cane Growers v SFWMD
Please take notice that on January 27, 1994
you gave your deposition in the above referred
matter. At that time you did not waive signature.
It is now necessary that you sign your deposition.
Please come to our office, 319 Clematis
Street, Suite 500, West Palm Beach, Florida, at any
time between the hours of 9:00 a.m. and 4:30 p.m.,
Monday through Friday, to sign the deposition.
Notice that this address may be different than the
one where you gave your deposition.
If you do not appear to sign your
deposition within thirty (30) days, the original will
be forwarded to the attorney who requested your
appearance for deposition, for filing with the Clerk
of the Court. If you wish to waive your signature,
sign your name in the blank at the bottom of this
page and return to us.
Very truly yours,
MUDRICK, WITT, LEVY & CONSOR
REPORTING AGENCY, INC.
____________________________
Elaine V. Williams
NOTARY PUBLIC
I do hereby waive my signature:
______________________________
Zan Kugler
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