STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS _____________________________ SUGAR CANE GROWERS ) COOPERATIVE OF FLORIDA, a ) Florida Agricultural ) Cooperative Marketing ) Association, ROTH FARMS, INC,) AND WEDGWORTH FARMS INC., ) and ) Case Nos. 92-3038 FLORIDA SUGAR CANE LEAGUE, ) 92-3039 INC., UNITED STATES SUGAR ) 92-3040 CORPORATION; and NEW HOPE ) SOUTH, INC., ) and ) FLORIDA FRUIT AND VEGETABLE ) ASSOCIATION, LEWIS POPE FARMS) W.E. SCHLECHTER & SONS, INC.,) and HUNDLEY FARMS, INC., ) Petitioners, ) vs. ) SOUTH FLORIDA WATER ) MANAGEMENT DISTRICT, an ) Agency of the State of ) Florida. ) Respondent, ) and ) MICCOSUKEE TRIBE OF INDIANS ) OF FLORIDA the UNITED ) STATES OF AMERICA, and ) FLORIDA DEPARTMENT OF ) ENVIRONMENTAL REGULATION, ) the FLORIDA WILDLIFE ) FEDERATION, the FLORIDA ) AUDUBON SOCIETY, and ) the SIERRA CLUB, ) _________Intervenors.________) DEPOSITION OF THOMAS M. MISSIMER Suite 1403 250 Australian Avenue, South West Palm Beach, Florida November 2, 1992 9:00 o'clock p.m. BALLOWE REPORTING SERVICE (305) 761-1622 APPEARANCES: HOPPING BOYD GREEN & SAMS BY: Gary V. Perko, ESQ., Appearing on behalf of the Sugar Cane Growers Cooperative. PEEPLES, EARL & BLANK BY: MARK T. KOBELINSKI, ESQ., Appearing on behalf of the United States Sugar Cane League, Inc. UNITED STATES ATTORNEY BY: THOMAS A.W. FITZGERALD, Assistant United States Attorney. SOUTH FLORIDA WATER MANAGEMENT DISTRICT BY: RUTH CLEMENTS, ESQ. Appearing on behalf of the South Florida Water Management District. ALSO PRESENT: Robert Johnson, Everglades National Park BALLOWE REPORTING SERVICE (305) 761-1622 2 1 The deposition of Thomas C. Missimer, a 2 witness of lawful age, taken for the purpose of discovery 3 and for use as evidence in the above-styled cause, 4 pursuant to notice, before Ellen Dionisio, Shorthand 5 Reporter and Notary Public in and for the State of Florida 6 at Large, at the time and place aforesaid. 7 ----------------- 8 I N D E X 9 WITNESS DIRECT CROSS 10 THOMAS MISSIMER (by Mr. Fitzgerald) 4 11 (by Mr. Perko) 68 12 E X H I B I T S 13 UNITED STATES FOR IDENTIFICATION 14 No. 1 Page 4 No. 2 Page 10 15 No. 3 Page 27 No. 4 Page 59 16 17 18 19 20 21 22 23 24 25 BALLOWE REPORTING SERVICE (305) 761-1622 3 1 THEREUPON: 2 THOMAS M. MISSIMER 3 was called as a witness by the United States Attorney's 4 Office and, having been first duly sworn, was examined and 5 testified as follows: 6 DIRECT EXAMINATION. 7 MR. FITZGERALD: Good morning, Mr. Missimer. 8 I'm Assistant US Attorney, Tom Fitzgerald. With me 9 is Bob Johnson of the Everglades National Park who 10 you may know. 11 Would everyone else like to state their 12 appearances. 13 MS. CLEMENTS: Ruth Clements with the South 14 Florida Water Management District. 15 MR. KOBELINSKI: Mark Kobelinski with 16 Peeples, Earl & Blank representing the United 17 States Sugar Corporation, New Hope South, Inc., and 18 Florida Sugar Cane League. 19 MR. PERKO: Gary Perko, of Hopping Boyd Green 20 & Sams here with the Sugar Cane Growers Cooperative 21 Of Florida, Roth Farms, Inc., and Wedgworth Farms, 22 Inc. 23 BY MR. FITZGERALD: 24 Q Mr. Missimer, for the court reporter and the 25 record, could you spell your last name and give us your BALLOWE REPORTING SERVICE (305) 761-1622 4 1 business address. 2 A My name is Thomas M. Missimer, 3 M-I-S-S-I-M-E-R. My business address is 428 Pine Island 4 Road Southwest, Cape Coral, Florida 33991. 5 (Whereupon, United States' Exhibit No. 1 was 6 marked for Identification by the Court Reporter.) 7 Q Mr. Missimer, if I could ask you to look at 8 what has been marked as Exhibit 1, copies of which have 9 been provided by counsel captioned, "NOTICE OF TAKING 10 DEPOSITION-DUCES TECUM." 11 Since you are here today, I presume you have 12 seen this before? 13 A Yes, I have. 14 Q Did you have an opportunity to review the 15 enclosure which identifies the documents and identifies 16 items that should have been provided in advance in 17 connection with your testimony, specifically page five 18 which says "DOCUMENTS TO BE PRODUCED" and page six? 19 A Yes, I read that and discussed it with 20 counsel. 21 Q Did you cause the records of your firm to be 22 searched to provide all documents that meet requirements 23 of those seven paragraphs? 24 MR. KOBELINSKI: Object to the form of the 25 question. "Of his firm" is this directed to the BALLOWE REPORTING SERVICE (305) 761-1622 5 1 Missimer & Associates or to the witness? 2 MR. FITZGERALD: It's directed to the 3 witness. 4 MR. KOBELINSKI: Then, I am objecting to the 5 question to the extent that it is asking whether or 6 not he searched his corporate records as opposed to 7 his own. 8 BY MR. FITZGERALD: 9 Q What's your position at Missimer & 10 Associates? 11 A I'm a principal hydrogeologist and 12 vice-chairman. 13 Q Who is Chairman of the Board? 14 A Robert Fletcher. 15 Q In your position as vice-chairman of the 16 board, do you have any ownership interest in the firm? 17 A Missimer & Associates which is now the 18 holding company, ViroGroup Incorporated, is a publicly 19 owned corporation. I am one of the numerous shareholders. 20 Q What is the extent of your shareholdings in 21 the corporation? 22 A I have roughly two hundred seven thousand 23 shares of common stock in the corporation. 24 Q What ownership interest does that represent 25 in portion to the outstanding shares? BALLOWE REPORTING SERVICE (305) 761-1622 6 1 A There's about three point two million shares 2 outstanding. Somewhere in excess of six or seven percent, 3 I believe, without a calculator. 4 Q Do you have outside shareholders or are 5 shares held primarily by employees or people that work 6 there? 7 A The corporation trades on the NY Stock 8 Exchange; so, there are numerous shareholders. 9 Q Are they preferred stock categories or just 10 common stock? 11 A Just common stock. 12 Q On a day-to-day basis, what is your role at 13 Missimer & Associates? 14 A I function as the principal hydrogeologist 15 and chief scientist. I sit on the board for policy 16 decisions. 17 Q In that capacity, are there any files of 18 Missimer & Associates to which you do not have access? 19 A Yes. We have 18 offices around the country. 20 I don't have access to every bit of the filed material in 21 the company. 22 Q With respect to the offices in South Florida, 23 what's your access to the files and records of those 24 offices? 25 A I have access to all the files in the offices BALLOWE REPORTING SERVICE (305) 761-1622 7 1 in South Florida. 2 Q Do you maintain personal files separate and 3 apart from the business records and files on projects in 4 which you are employed through Missimer & Associates? 5 A Only on active projects; on closed projects, 6 I do not maintain personal files. 7 Q On the active projects where you maintain 8 such files, where, physically, do you maintain them? 9 A In the Cape Coral office of Missimer & 10 Associates. 11 Q Do others within your firm in the Cape Coral 12 office and in South Florida also have access to your files 13 on a as-needed basis? 14 A Yes. 15 Q With regard to the seven categories of 16 documents to be produced, do you have personal documents 17 apart from those stored and maintained in the care, 18 custody, and control of Missimer & Associates? 19 MR. KOBELINSKI: Object to the form of the 20 question. 21 A To a certain degree, yes. I have certain 22 documents that I keep regarding my own publications about 23 specific issues that I maintain separately from the 24 corporate file, but, usually, in most cases the corporate 25 files are complete. What I have are duplications. BALLOWE REPORTING SERVICE (305) 761-1622 8 1 Q (BY MR. FITZGERALD) Now, the documents with 2 regard to your personal publications, are any of those 3 within the ambit of the seven paragraphs described in the 4 documents to be produced? 5 A Yes, to a certain degree. 6 Q Which categories? 7 A Number six, it says presentations. I made 8 presentations, and, I believe, that I provided a list of 9 everything in my resume. 10 Q Those are presentations on the subject of 11 wellfield withdrawals -- 12 A Yes. 13 Q -- in South Florida or elsewhere? 14 A Yes. 15 Q With regard to the items that are in your 16 personal records, are any of those not identified in your 17 resume as actual publications or presentations you have 18 given? 19 A No. 20 Q Are any of the documents that would otherwise 21 be responsive to number six in the records of Missimer & 22 Associates - Cape Coral office, is it? 23 A Could you ask that question again please. 24 Q You said that some of the records that are 25 responsive to six are in your personal records, I assume BALLOWE REPORTING SERVICE (305) 761-1622 9 1 at home and elsewhere? 2 A Yes. 3 Q With regard to those documents that would 4 respond to six that are not part of your personal records, 5 where would they be? 6 A In the Cape Coral office or the Miami office 7 or West Palm or Palm Beach Gardens. 8 Q Of the ones that would be in those four 9 locations not your personal home or whatever, are those 10 also identified in your list of publications and in your 11 resume? 12 A Everything that I have done - worked on - is 13 enclosed in my resume. We have responded with all the 14 other projects that you have requested via Mr. Perko's 15 presentations to you and already been entered into the 16 record in the past. 17 Q Are you familiar with what Mr. Horvath 18 provided? 19 A Mr. Horvath had the same - I reviewed what he 20 was requested to do also, and he asked me if I had worked 21 on any projects in the past. Therefore, we provided in 22 response to your previous inquiry. 23 Q In addition to looking through your personal 24 records, did you also look through the records of Missimer 25 & Associates' South Florida locations to find any BALLOWE REPORTING SERVICE (305) 761-1622 10 1 documents responsive to this? 2 A I did the best I could to look through all 3 the records that I had access to in response to this, I 4 believe. If I missed anything, it was inadvertent. 5 Q At the business locations, did you direct 6 others to do that, or did you conduct that review or 7 search personally? 8 A I conducted the search personally via the 9 computer records. We have every project we have ever 10 done. I went back and provided all the records that we 11 had. 12 Q You were aware, were you not, that the 13 subject matter for which you have been designated as a 14 witness in this case differed from the subject matter of 15 Mr. Horvath. So, the two areas are not necessarily 16 co-equal that you have other areas of designated 17 testimony? 18 A I know that they are not exactly the same, 19 that is correct. 20 Q So the documents would not necessarily be the 21 same. You understood that, didn't you? 22 A Yes. 23 MR. FITZGERALD: Could you mark this. 24 (Whereupon, United States's Exhibit No. 2 was 25 marked for identification by the Court Reporter.) BALLOWE REPORTING SERVICE (305) 761-1622 11 1 Q (BY MR. FITZGERALD) If I can invite your 2 attention to Exhibit 2 for the purposes of the deposition 3 which is a Curriculum Vitae of Thomas M. Missimer, P.G. If 4 you can take a minute and look through that. 5 Does it look familiar? 6 A Yes. 7 Q Is that your most current, up-to-date 8 Curriculum Vitae? 9 A Yes, minus just a couple of recent 10 publications. 11 Q What would they be? 12 A I believe, I just have a manuscript that just 13 went out on the subject of consulting ethics and have 14 another manuscript that's in preparation on - I'm not 15 sure. It is sitting on my desk - which one it is. 16 I believe, at least one on consulting ethics. 17 Q Do you have the general subject? 18 A It's on an issue of ground work 19 contamination. 20 Q What is the contamination that you are 21 addressing? 22 A It's a general paper, a general environmental 23 program on methodology and superfund actions. 24 Q Is it keyed to the federal superfund or does 25 it take into account state superfund? BALLOWE REPORTING SERVICE (305) 761-1622 12 1 A It's strictly federal superfund and 2 methodology under the act, and the National Contingency 3 Plan. 4 Q In looking at the NCP, did you key it to any 5 event in South Florida? 6 A No. 7 Q So it's a general survey? 8 A No, it's a case - a scenario that I was asked 9 to write about. It is a type of a case on what kind of 10 methodology or thought processes were used to evaluate a 11 site of mobile contaminates that in reality turns out not 12 to be able to be cleaned up within an economic or reality 13 range. 14 Q The other manuscript that's in preparation or 15 about to go into publication, who is that for? 16 A The Florida Chamber. 17 Q When do you expect that to be published? 18 A January. 19 Q Have you testified as an expert witness 20 before in any court proceeding, Mr. Missimer? 21 A Yes. 22 Q When was that? 23 A I testified about somewhere near 15 times 24 over the last 16 years. 25 Q Was that in Federal or State court? BALLOWE REPORTING SERVICE (305) 761-1622 13 1 A Both. 2 Q With regard to Federal Court, can you recall 3 approximately how many times that would have been? 4 A I testified in Federal Court one time that I 5 was actually qualified in court. 6 Q As an expert? 7 A Correct. 8 Q What was the area of your expertise for the 9 purposes of that case? 10 A I was qualified in the areas of hydrogeology, 11 geology, and water quality. 12 Q Is that in the Southern District of Florida? 13 A Yes. 14 Q With regard to your State cases, what were 15 your areas of expertise? Were you designated as an expert 16 for those cases? 17 A Yes. 18 Q What was the area of expertise, if there was 19 a common thread? 20 A They were varied depending on the case in the 21 area. 22 Q Can you give me some examples of the various 23 areas? 24 A I've been qualified in the area of geology; 25 hydrogeology; hydrology; contamination hydrogeology; BALLOWE REPORTING SERVICE (305) 761-1622 14 1 wellfield feasibility and design; environmental auditing; 2 dredge and till permitting; I think, water quality 3 monitoring. 4 Q When was the most recent of those? 5 A Let's see, about a month ago. 6 Q State court? 7 A Yes. 8 Q Have you been deposed before, Mr. Missimer? 9 A Yes. 10 Q As probably you've been told in the past, if 11 you want to take a break at any time, you get tired or 12 suddenly the time change and your stomach says - let me 13 know, and we can take a break. 14 If at any time I ask a question you don't 15 understand, just ask me to clarify it, and I will try to 16 do that if I can. 17 You have a Bachelor of Arts Degree from 18 Franklin and Marshall, in Pennsylvania? 19 A Yes. 20 Q You studied geology there? 21 A Yes. 22 Q When you took your Master's Degree at Florida 23 State, did you do a thesis? 24 A Yes. 25 Q What was the subject of your thesis? BALLOWE REPORTING SERVICE (305) 761-1622 15 1 A The subject of the thesis was the 2 depositional history of Sanibel Island, Florida. 3 Q Up through that time, had you done any course 4 work or field work in the Everglades? 5 A No. 6 Q After completing your Master's Degree, at 7 some point, you began to amass credits for a Doctor Of 8 Philosophy at Rosenstiel School? 9 A Yes, I began work there January of last year. 10 Q How far along are you towards your doctorate? 11 A My course work will be completed this 12 semester. The only thing I have left is the dissertation. 13 I have roughly over half done. 14 Q Has your dissertation topic been selected as 15 yet? 16 A Yes. 17 Q What is the topic? 18 A The topic is the investigation of the Miocene 19 change from carbonates to plastics on the Florida 20 peninsula. 21 Q Do you think you can translate that for the 22 benefit of all the blank looks around the table? 23 A What I'm doing is essentially studying the 24 area from about 25 and-a-half million years ago, up to 25 five and-a-half million years ago in the South Florida BALLOWE REPORTING SERVICE (305) 761-1622 16 1 platform from Lake Okeechobee south to the Keys. What 2 happened during that time period in terms of the sediments 3 and the ocean currents and sea levels. 4 Q When do you expect to complete your 5 dissertation and, ultimately, your qualifying exam? 6 A Either the end of next year or the first 7 semester of the year beyond that. 8 Q Who is your panel or faculty advisor? 9 A Doctor Robert Ginsburg. 10 Q After leaving school, after leaving the 11 University of Florida in '73, from whom did you first gain 12 work? 13 A I first worked for the United States 14 Geological Survey. 15 Q That was in Fort Myers? 16 A Correct. 17 Q What was the nature of your duties while you 18 were at the United States Geological Survey? 19 A I was a hydrogeologist specializing in ground 20 water and surface water with the USGS. 21 Q Were your efforts in that regard localized to 22 Fort Myers? 23 A No. 24 Q Where was the geographic extent of that 25 office's responsibility? BALLOWE REPORTING SERVICE (305) 761-1622 17 1 A We worked in southwest Florida in Lee, 2 Hendry, and Collier counties. 3 Periodically, I was loaned out to do specific 4 projects for the East Coast depending on what was needed 5 at a given time. 6 Q During that period of time, did you have any 7 experience in remodeling water quality for South Florida? 8 A Remodeling water quality? 9 Q Water quality impact in South Florida? 10 A I did not do specifically water quality 11 modeling, no. 12 Q How about water quality? 13 A I did not do remodeling of quality modeling, 14 no. 15 Q What were you specifically doing during that 16 period? 17 A When I first began, I collected water 18 samples; I did aquifer testing; I conducted aquifer 19 performance tests; I did a lot of quality analysis and 20 collected the samples; analyzed the data. 21 I was at one time project manager of all 22 water resources investigation in Hendry County, Florida. 23 I had the responsibility as assistant hydrogeologist in 24 charge of the Fort Myers field office. 25 I published a number of publications that are BALLOWE REPORTING SERVICE (305) 761-1622 18 1 published in my resume. 2 Q Was your work at that point primarily 3 directed at municipal wellfields? 4 A It was in a variety of subject areas. In the 5 US Geological Survey I collected data for almost anyone 6 including the Water Management District, the EPA, the park 7 service, anybody who needs an investigation done. 8 So, it was not just focused toward the 9 municipal wellfields. 10 Q During the period of time you were with them, 11 USGS, did you collect any data for the South Florida Water 12 Management District? 13 A Yes. 14 Q What type of data was that? 15 A Collected surface water quality data as part 16 of the regional nutrients investigation. 17 Q Where, physically, were you doing that? 18 A I collected the samples beginning on the 19 Loxahatchee River. I had a collection all along the north 20 side of the Loxahatchee River to the northern portion of 21 Lake Okeechobee. 22 Q Was that ever incorporated in any 23 publications that you are aware of? 24 A Yes. 25 Q What were those? BALLOWE REPORTING SERVICE (305) 761-1622 19 1 A The nutrient information was collected for 2 all of South Florida and put out in a series of 3 publication, I think, from '75 through 1980, a series of 4 data reports. They were altered by someone. 5 Q Are those the technical publications that the 6 district puts out? Are you familiar with that? 7 A No, they were not. 8 Q Who published them? 9 A The United States Geological Survey. 10 Q They incorporated your data? 11 A Yes. 12 Q Did you ever have editorial opportunities to 13 review data prior to publication? 14 A No. 15 Q Did you review the documents after the 16 publication? 17 A I reviewed the data that we used in the 18 publication for accuracy. That was my sole impute into 19 those documents. 20 Q Did you find they accurately reflected your 21 opinion? 22 A Yes. 23 Q During that same period that you were with 24 USGS, did you do the data collection for the National 25 Parks Service? BALLOWE REPORTING SERVICE (305) 761-1622 20 1 A Not that I can remember. 2 Q How about the United States Fish And Wildlife 3 Service or Department of Interior in general? 4 A Since the USGS is part of the Department of 5 Interior. 6 Q Bad question, let me rephrase that one. 7 Let's leave it to Fish and Wildlife Service then. 8 A No, not to my knowledge. 9 Q Where did you go upon terminating your 10 employment with USGS? 11 A I went to the University of Miami. 12 Q To Rosenstiel School? 13 A Yes. 14 Q What were you doing there? 15 A I was retained as a research associate doing 16 specific research projects for the university. 17 Q You were there for how long? 18 A Approximately one academic year, about nine 19 or ten months. 20 Q What type of projects were you working on? 21 A My specific project that I was retained to do 22 was to study the migrating mudbanks on the north coast of 23 South America, in the Amazon. 24 Q Were any of your projects related to South 25 Florida? BALLOWE REPORTING SERVICE (305) 761-1622 21 1 A At that time, yes. 2 Q What were they? 3 A I worked as a consultant on the outside for 4 the National Conservation Organization to work on 5 comprehensive plans on groundwork hydrogeology for Sanibel 6 Island and a few other things. 7 Q Were any of your projects, during that 8 period, related to the Everglades? 9 A I didn't work specifically on the Everglades. 10 I was there for various instructional type things, but I 11 didn't do any specific research. 12 Q When you say, "instructional things" 13 seminars, classes, what type of thing? 14 A Since I was a hydrogeologist and there were 15 no other hydrogeologist there, I helped conduct seminars 16 for the graduate students and explained things in the 17 Everglades. 18 Q Okay. How did you prepare for those 19 sessions, those training sessions, if you hadn't worked in 20 the Everglades? 21 A I was very familiar with the literature in 22 the Everglades and familiar with what was being done 23 research wise from my friends in the US Geological Survey. 24 Q Let me step back for a second. 25 When you were working for the USGS, did you BALLOWE REPORTING SERVICE (305) 761-1622 22 1 have any involvement in reviewing the operation of the 2 Central and South Florida Flood Control Project? 3 A The only thing that I did with regard to that 4 is, I knew generally where the canals were and structures 5 for collections, where the quality samples were that I was 6 asked to do. 7 Q So you occasionally had to collect samples 8 out of those facilities? 9 A Yes. 10 (There was an interruption on the phone.) 11 Q Back on the record. Other than collecting 12 some samples out of the flood control works, had you had 13 any involvement with the flood control project? 14 A No. 15 Q How about when you were at Rosenstiel; 16 thereafter, did any of your work address the operation of 17 the flood control projects? 18 A No. 19 Q How about the activities of the South Florida 20 Water Management District? 21 A Other than exchange research information, I 22 really didn't do anything for South Florida Water 23 Management District. 24 Q While you were with Rosenstiel, what research 25 information were you exchanging with the district? BALLOWE REPORTING SERVICE (305) 761-1622 23 1 A I made inquires on some information regarding 2 deep wells in Lee and Collier County, I believe, at that 3 time. 4 Q Was that for your academic position or was 5 that outside consulting work? 6 A It was for the outside consulting work. 7 Q At that time, for whom were you working? 8 A Florida Conservation Foundation. 9 Q And that's the consulting work you were 10 referring to? 11 A Yes. 12 Q Were you doing any other consulting work? 13 A No. 14 Q Why did you leave Rosenstiel? 15 A I had the opportunity to start my own company 16 at that particular point and time. I decided I didn't 17 want to be poor anymore. 18 Q How did you come about actually establishing 19 it and locating the staff? 20 A I started the company and it was incorporated 21 in May of 1976 with myself and one person. 22 The reason we located in Cape Coral was we 23 had work there that was set up for us. I had marketed it 24 just immediately prior to that. 25 Q What type of work was that? BALLOWE REPORTING SERVICE (305) 761-1622 24 1 A I believe, the first job I did was a study of 2 potential contamination from septic tanks for the City of 3 Sanibel and a number of other small jobs in Lee County, 4 Florida. 5 Q How large was the company when it started? 6 A There were two people. 7 Q Now how large is it? 8 A About 350 in 18 offices. 9 Q When did you go public? 10 A December 21, 1991. 11 Q Did you have an opportunity to review the 12 documents that Mr. Horvath was presenting in response to 13 his Subpoena Duces Tecum? 14 A I generally looked through the list of those 15 documents to see what they were and what they referred to, 16 yes. 17 Q Over the years that your firm has been in 18 existence since 1976, have you been employed by the 19 Florida Sugar Cane League in any capacity? 20 A Specifically the Florida Sugar Cane League - 21 other than my client here, no, the Sugar Cane League. 22 Q Do you understand the distinction between the 23 Florida Sugar Cane League and the Florida Sugar Cane 24 Growers Cooperative? 25 A Yes. They are a companion organization. BALLOWE REPORTING SERVICE (305) 761-1622 25 1 MR. KOBELINSKI: I'll object to the extent 2 that you are asking a question that might be 3 outside this witness' knowledge. 4 MR. FITZGERALD: Well, he is capable of 5 saying it is outside his knowledge. 6 MR. KOBELINSKI: I'll object to the extent 7 that you're asking a legal question and asking for 8 a legal opinion. 9 Q (BY MR. FITZGERALD) Believe me, if I ask a 10 legal opinion and you feel incompetent to answer, feel 11 free to say that. 12 Who is your current employer for purposes of 13 the pending lawsuit? 14 A Hopping Boyd Green & Sams. 15 Q Do you understand whom they represent? 16 A I was retained by them. I have a general 17 understanding but not all the specific details because 18 that is a matter between them and their clients. They 19 retained me. 20 Q Did you have any role in assisting Mr. 21 Horvath in designing his seepage test for some properties 22 in the Everglades Agricultural Area? 23 A We discussed the matter and reviewed it in 24 general before it was conducted. 25 Q Did you review the reports and data that were BALLOWE REPORTING SERVICE (305) 761-1622 26 1 derived from that test? 2 A Yes, I reviewed the reports that came out. 3 Q Within your organization at Cape Coral, do 4 you exercise a quality control review over the work that 5 is being done? 6 A I reviewed the reports within the clean water 7 area. I don't review all the contamination. 8 Q What, in your mind, is the difference between 9 the clean water area and the contamination area? 10 A The company is organized into hydrology 11 division and an environmental division. The hydrology 12 division handles the municipal water supply, wells, and 13 that type of thing. 14 The dirty water division is the environmental 15 assessments and remediation of contaminates. 16 Q When were you actually retained by Hopping 17 Boyd Green & Sams in this matter? 18 A Let's see. I'm not sure I recall the exact 19 thing we were involved - I don't remember, to tell you the 20 truth. 21 Q Do you have a contract with them? 22 A We have an affirmation of a contract, a 23 letter, that was recently sent to me by Mr. Perko and Mr. 24 Green. 25 Q So the letter -- BALLOWE REPORTING SERVICE (305) 761-1622 27 1 A I believe you have a copy. 2 Q You can mark that Exhibit 3? 3 (Whereupon, United States's Exhibit No. 3 was 4 marked for Identification by the Court Reporter.) 5 The letter dated October 19, 1992, is now 6 Exhibit 3 for this hearing. Is that the letter to which 7 you refer? 8 A Yes. 9 Q Do you have any other correspondence that 10 reflect when your relationship with Hopping Boyd Green & 11 Sams in that matter referenced in the letter, began? 12 A Again, I believe, that the proposal on the 13 contract documents regarding the project that Mr. Horvath 14 did, was the first of us officially being retained by this 15 company on this particular matter. I don't have the exact 16 dates. 17 Q So other than correspondence and proposals 18 related to the seepage tests on the Gilmore (phonetic) and 19 Hillsbourgh Farms (phonetic) in the EAA, you have no 20 correspondence relating to the work you were to do? 21 A No. 22 Q Have you commenced your work - let me 23 withdraw that. 24 You stated that your firm is organized 25 functionally, internally. What division is Mr. Horvath BALLOWE REPORTING SERVICE (305) 761-1622 28 1 in? 2 A Hydrogeology. 3 Q What division are you in? 4 A I really straddle in all different - I'm a 5 corporate employee. 6 Q Who, within your firm, will have or has the 7 responsibility for coordinating whatever work will be done 8 on the case at issue to which this letter says you have 9 been retained? 10 MR. KOBELINSKI: Object to the form of the 11 question to the extent that "you" is being used 12 both as the witness personally and Missimer & 13 Associates repeatedly without making reference as 14 to who is being discussed. 15 A Could you repeat the question. 16 (Thereupon, the court reporter read back the last 17 question.) 18 A This in fact depends upon what is asked to be 19 done. Mr. Horvath or I, one or both of us, will divide 20 the responsibilities accordingly. 21 If it was to do with the dike leakage issues, 22 Mr. Horvath will deal with it. Whatever other issues, I 23 deal with them depending on what is instructed by the 24 attorney for this case. 25 Q Have you discussed at all the time frame over BALLOWE REPORTING SERVICE (305) 761-1622 29 1 which your work is to be performed? 2 A I'm aware that the administrative hearing 3 will be held sometime in the spring. I assume that the 4 work will be done before that. 5 Q Have you done your work? 6 A In my particular case, no. 7 Q When do you plan to begin it? 8 A I will begin it when the attorneys, you know, 9 specifically authorize me to proceed with a specific scope 10 of what they wish me to investigate. 11 Q Did you discuss with the attorneys in advance 12 of their designating you as a witness in this matter, what 13 the areas of your potential testimony might be? 14 A Yes, I did. 15 Q When was that? 16 A Say, a few months ago. 17 Q What was your understanding of the area or 18 subject matter of your expected testimony? 19 A Again, I might qualify the answer to this 20 because I may have several areas that I am not aware that 21 I may be testifying. 22 I have not discussed that or had anything in 23 writing to me. I'm aware that I may testify in the area 24 of municipal water supply withdrawals on the Southeast 25 coast. There may be other areas. BALLOWE REPORTING SERVICE (305) 761-1622 30 1 Q Have you done any review of the Everglades 2 SWIM Plan that was approved by the South Florida Water 3 Management District this past spring? 4 A Because I'm on the list of people that get 5 every water management district report, I have looked at 6 parts and I have read them out of interest. But, I have 7 not reviewed it in detail. 8 MR. KOBELINSKI: Can we take a break? 9 (A short break was taken.) 10 BY MR. FITZGERALD: 11 Q Can you read back the last question. 12 (Thereupon, the last question was read back 13 by the court reporter.) 14 Q Did you review any of the preliminary 15 drafts - the three or four versions - that the SWIM Plan 16 went through before the adopted version in the spring of 17 '92? 18 (There was an interruption on the telephone.) 19 A In response to your question, I saw all of the 20 preliminary drafts because, again, being on the mailing 21 list, I had the fortunate opportunity to be present for 22 some of the hearings. 23 So, I am aware generally of some of the 24 material, but I never reviewed it in detail. I just read 25 a few things. BALLOWE REPORTING SERVICE (305) 761-1622 31 1 Q Did anyone at Missimer & Associates review 2 the remediations of the SWIM Plan as part of any contract 3 or formal work the firm was doing? 4 A Not that I know of. 5 Q Going back in time, are you familiar with 6 what is referred to as the Everglades Agricultural Area 7 Regulatory Program 40E-63 of the Florida Administrative 8 Code? 9 A In general, I'm familiar with it. 10 Q How are you familiar with that? 11 A Again, I was present during the adoption 12 hearing of that particular rule or whatever was going on, 13 the preliminary adoption hearing. 14 Q When you say, "hearing" you mean the formal 15 meeting of the board of the South Florida Water Management 16 District? 17 A Yes, I'm present in a lot of the board 18 meetings because I have to be there for other things, and 19 I have to wait through this stuff. 20 Q Did anyone in your firm, to your knowledge, 21 formally review or participate in the development of the 22 BMP rule? 23 A To my knowledge, no. 24 Q Does your firm have anyone within it in the 25 South Florida offices or elsewhere who specializes or has BALLOWE REPORTING SERVICE (305) 761-1622 32 1 any expertise in Best Management Practices for farming? 2 A Not that I know of, no. 3 Q Have you or anyone at your firm, to your 4 knowledge, done any work in evaluating the proposed 40E-63 5 with regard to its affect on water supply for South 6 Florida? 7 A We have not done any work yet regarding water 8 supply issues, no. 9 Q Do you anticipate that that's the area in 10 which you will be working with regard to this case? 11 A It's possible. 12 Q Can you characterize for us how much of the 13 work of Missimer & Associates offices in Florida are 14 performed for clients in the Everglades Agricultural Area? 15 A I am not sure I understand, how do you want 16 that characterized? 17 Q Okay, do you understand what I mean when I 18 refer to the Everglades Agricultural Area as defined in 19 the SWIM Plan? 20 A Yes. 21 Q Does your firm, within its four South Florida 22 locations that you have described previously, work for 23 clients in that area? 24 A Yes. 25 Q What's the general nature of the work you do BALLOWE REPORTING SERVICE (305) 761-1622 33 1 for them? 2 A Generally involves water supply. 3 Q Do you also do remediation plans for clients 4 in that area? 5 A You mean in terms of wetland mediation? 6 Q No, let me give you an example. In the 7 documents that Mr. Horvath produced, did you note that 8 your firm has been involved in assessing a plan and 9 supervising a plan to review certain outdated fuel tanks, 10 for example, in the particular facility in the EAA? 11 A Yes, I'm aware of that. 12 Q You do that type of work? 13 A Yes. 14 Q That's referred to by the Environmental 15 Agency as remediation plan, is it not? 16 A Yes. 17 Q There's state money available for removing 18 old fuel tanks? 19 A Correct. 20 Q You do that type of consulting work? 21 A Yes. 22 Q If somebody should have - within the EAA - a 23 pollution disorder: A truck overturns, an old tank leaks, 24 or whatnot, it is DERA that directs that they correct the 25 problem, is that right? BALLOWE REPORTING SERVICE (305) 761-1622 34 1 A It can be, yes. 2 Q Does your firm participate in developing the 3 plans for the remediation program, hauling away the 4 tainted soil for ultimate incineration or cleaning? 5 A We are involved in that type of project 6 throughout the State of Florida, yes. 7 Q So those are some of the services that you 8 provide for clients in the EAA? 9 MR. KOBELINSKI: Object to the form of the 10 question, lack of foundation. 11 Q (BY MR. FITZGERALD) You can answer the 12 question, if you can. 13 A We have been involved in storage tanks and 14 water supply, correct. 15 Q Did you become involved in projects in the 16 EAA involving the development of additional sources of 17 irrigation water? 18 A Yes. 19 Q You have some of those ongoing right now? 20 A Correct. 21 Q Mr. Horvath provided those documents? 22 A (Witness nods head.) 23 Q Have you done any work in attempting or 24 assisting in efforts to hydrologically isolate facilities 25 in the EAA? BALLOWE REPORTING SERVICE (305) 761-1622 35 1 A Could you explain what you mean by 2 "hyrologically isolate facilities"? 3 Q I can try. Personally, I don't think it's 4 possible, but that's something I'm going to ask you in a 5 minute. 6 If one had a facility in the EAA, they 7 hypothetically had a sugar mill and wished to isolated it 8 so that the water used in processing or water by rainfall 9 or otherwise used on the facility would not enter 10 downstream waterflow either surfacial or subsurfacial, 11 could you refer to that for these purposes as 12 hydrologically isolated? Have you done any work of that 13 sort? 14 A The only thing that I can recall that is 15 close to that is the work that Mr. Horvath has done on the 16 citrus processing facility for US Sugar in the terms of 17 the spray irrigation and the industrial waste. 18 Q That's a new facility that's just been 19 developed? 20 A Yes. 21 Q Where is that located? 22 A It's in Hendry County. The exact location, I 23 would have to refer to the project file. 24 Q Has Missimer & Associates ever done any work 25 in analyzing the effluent on the sugar mills? BALLOWE REPORTING SERVICE (305) 761-1622 36 1 MR. KOBELINSKI: I object to the form of the 2 question. 3 MR. FITZGERALD: Basis? 4 MR. KOBELINSKI: The characterization of 5 "effluent". 6 Q (BY MR. FITZGERALD) Mr. Missimer, do you 7 understand the term, "effluent"? 8 A Yes. 9 Q Please answer the question, if you can? 10 A No. 11 Q Have you done any study work for the firm 12 again on the effluent of farming practices in the EAA? 13 MR. KOBELINSKI: Object to the form. Same 14 basis. 15 A The only thing we have been involved in 16 regarding agricultural "effluent" is for storage for the 17 recovery project for US Sugar. It's not directly related 18 to the quality. It's related to management. 19 Q (BY MR. FITZGERALD) The aquifer system that 20 you are working on for US Sugar, that's a current project? 21 A Yes. 22 Q What's the nature of that project? 23 A Again, I'm not the project manager. I know 24 very few of the details other than I reviewed the 25 construction; I did documents. BALLOWE REPORTING SERVICE (305) 761-1622 37 1 It's a test well for US Sugar; that's really 2 as much as I can tell you about it. 3 Q Do you recall where the test wells are 4 located? 5 A I don't know specifically. I don't have a 6 map in front of me. 7 Q Is it in operation as yet? 8 A No. 9 Q Do you know when approximately it is supposed 10 to be put in place? 11 A Since it's a test well, it's got to go 12 through all the testing. I don't think it's under 13 construction yet. It may be by now, but I doubt it. 14 Q Did your proposal include the services to 15 acquire the necessary permits for that testing? 16 A Yes. 17 Q Is that from the South Florida Management 18 District and DERA? 19 A Under the UIC programs. 20 Q What is the design capacity of the test well, 21 if you know? 22 A Design capacity will be based on what the 23 aquifer will be able to receive. I don't know at this 24 time. 25 Q So, that is one of the tests parameters you BALLOWE REPORTING SERVICE (305) 761-1622 38 1 will be handling? 2 A Yes. 3 Q Who is handling that? 4 A The project management is Doctor Charles 5 Walker, and he is being assisted by Horvath. 6 Q Is Doctor Walker a employee of Missimer? 7 A Yes, he is. 8 Q When did you secure the contract to perform 9 that work? 10 A I believe, within the last eight months. I 11 can't tell you the exact date. 12 Q That's specifically with the US Sugar 13 Corporation? 14 A Yes. 15 Q Do you have any contracts with Flo-Sun? Are 16 you familiar with Flo-Sun? 17 A No, I'm not familiar. 18 Q How about New Hope South Incorporated? 19 A I don't recall, but I'll preface this, we 20 have over 14 hundred active projects in our computer. 21 I don't recall seeing that, but I can't tell 22 you if it's there or not for sure. 23 Q Maybe it's easier to do it geographically 24 first. Do you also have general oversight, in that role 25 you described, in terms of water quality projects? BALLOWE REPORTING SERVICE (305) 761-1622 39 1 A Only once that I'm specifically called in on 2 quality control; not every one of them. 3 Q How does your firm make a decision to accept 4 a contract or not accept a project? 5 A Well, usually we are requested to write a 6 proposal on a specific type of project. In most cases, we 7 respond with a proposal. 8 If we have conflicts of interest or if we 9 review for that, we don't want to be working for company 10 "X" and company "Y" has a litigation against the same 11 company. 12 We really look for conflicts of interest or 13 in certain cases, expert testimony; whether or not we 14 believe the facts in this case and that particular type of 15 thing. I mean that's what we look at. Like any other 16 company, we do the best we can to get as much work as 17 possible. 18 Q Would you be the person at your firm with the 19 widest general knowledge of the projects the firm is 20 currently engaged in, in South Florida? 21 A Perhaps in a general sense, historically, 22 yes; but, currently, perhaps, no. 23 Q Are you aware of any other projects other 24 than the few we have discussed on the aquifer storage and 25 recovery well and some of the remediation projects that BALLOWE REPORTING SERVICE (305) 761-1622 40 1 your firm is engaged in, in the Everglades Agricultural 2 Area? 3 A Yes. 4 Q What are those? 5 A They are two projects that have been listed 6 as confidential. We have confidentiality agreements not 7 to reveal any of the details of those two projects. 8 Q Who are the clients in those cases? 9 A The clients are the firms of Peeples, Earl & 10 Blank and the other client is Landers and Parsons. 11 They're both law firms. 12 Q Where is Landers and Parsons located? 13 A Tallahassee. 14 Q Who retained you from Peeples, Earl & Blank? 15 Who is the attorney who retained you? 16 A I believe it was Dennis Stotts, but I'm not 17 sure of the details because I do not know anything with 18 regard to that project. I just know it exists. 19 Q Who is the project manager for that firm? 20 MR. KOBELINSKI: Object to the form. What 21 firm, the witness'? 22 Q (BY MR. FITZGERALD) Yes, when I say "your 23 firm" I mean Missimer & Associates for future reference 24 not somebody else's firm, if that wasn't clear. 25 A I am concerned with revealing anything with BALLOWE REPORTING SERVICE (305) 761-1622 41 1 regards to that project because we have a confidentiality 2 agreement. I don't think, based on my contract and the 3 way it is worded, I should. 4 Q What's the value of that contract to your 5 firm? 6 A I would affirm that the confidentiality 7 agreement also applies to the finances. 8 Q Are you directing your witness not to answer? 9 MR. PERKO: I'm instructing the witness not 10 to answer any questions regarding the specific 11 terms of these two agreements. 12 Q (BY MR. FITZGERALD) What's the value of the 13 aquifer storage recovery well project to your firm? 14 A I really don't know to tell you the truth. I 15 could find out, but I don't know. 16 Q Do you know the value of the other two 17 contracts you have referred to that you say that you are 18 under some sort of confidentiality agreement? 19 A Yes. 20 Q Did you assist in the evaluation of the 21 request that you become involved in those projects, the 22 development of the proposal? 23 A One of the projects. 24 Q Which one? 25 A The Landers and Parsons project I was BALLOWE REPORTING SERVICE (305) 761-1622 42 1 involved indirectly. 2 Q Is it fair to say that based on your stock 3 ownership in the firm, that you have a financial interest 4 in the project that the firm engages in? 5 A To some degree, like any shareholder any 6 public corporation, I have an interest in the well-being 7 of the corporation, but not a personal financial interest. 8 I would not describe it as that. 9 Q Do you receive dividends on your stock? 10 A No. 11 Q Do you have stock options? 12 A Me, personally, no. 13 Q How is your salary set? 14 A Salary is set by the compensation committee 15 of the board. 16 Q Are you a member of the board? 17 A Yes. 18 MR. FITZGERALD: During the next break we 19 will see if the hearing office is available to 20 address the question of - that you have directed 21 the witness not to answer. 22 For the purposes of the record, I take 23 exception to that and will pursue it further. This 24 deposition will not be concluded, but merely 25 adjourned if the hearing officer is not available. BALLOWE REPORTING SERVICE (305) 761-1622 43 1 The witness is subject to potential 2 impeachment. There are indications of bias based 3 on the financial value of those projects to his 4 firm in which he is a substantial shareholder by 5 his own description. 6 MR. KOBELINSKI: To the extent that you will 7 be contacting the hearing officer and the witness 8 has mentioned another firm which I understand he's 9 bound by confidentiality, I think that, that firm 10 should be contacted with regards to the hearing and 11 it should be, if it wishes to do so, be present 12 during that hearing. 13 MR. FITZGERALD: We are attempting to contact 14 the hearing officer, and we will afford him an 15 opportunity to contact the law firm if he so 16 desires. 17 MR. KOBELINSKI: I will object to your 18 characterization as far as personal financial, and 19 I will say that you have a lack of foundation for 20 bias. 21 MR. PERKO: I will object as well. 22 BY MR. FITZGERALD: 23 Q Mr. Missimer, what's the value of your stock? 24 A I don't know. I guess it's been seven 25 and-a-half dollars a share. BALLOWE REPORTING SERVICE (305) 761-1622 44 1 Q How many shares do you hold? 2 A About two hundred seven thousand shares. 3 Q So, it would be fair to say about one point 4 five million dollars, roughly? 5 A Based on your arithmetic, something like 6 that. 7 Q You're the engineer. Two hundred thousand 8 times seven dollars will be one point four million, you 9 would agree to that? 10 A Yes. 11 Q So rounded up between one point four and one 12 point five. 13 Does that represent a substantial amount of 14 your personal assets? 15 A Yes. 16 Q Other than the two projects that you don't 17 choose to answer questions about at this point, how many 18 other projects does your firm currently have in the EAA? 19 A We have US Sugar and some continuing service 20 issues on the southern division of their citrus operation. 21 There may be some additional work to be done on some 22 monitoring of the new citrus plant. 23 The work that we are doing for Mr. Perko in 24 this case is a confidential project, and right now, I 25 believe, that is all. But, again, with the preface that's BALLOWE REPORTING SERVICE (305) 761-1622 45 1 the best I can do in recalling the list of projects that 2 we have, actually in the EAA. 3 Q Okay. I think this is a good place to take a 4 break and see if we can reach a hearing officer. 5 Oh wait, wait, please. Let's finish 6 something else first as far as we can. 7 Were you aware that Mr. Horvath had been 8 asked similar questions regarding contracts in the EAA? 9 A No. 10 Q Had you discussed his testimony with him? 11 A No. 12 Q Did counsel discuss with you prior to today 13 what you might be asked regarding confidential contracts 14 that your firm has for people in the EAA? 15 MR. KOBELINSKI: You're asking for - I'm 16 curious. You are asking for counsel's discussions 17 with this witness? 18 MR. FITZGERALD: The question speaks for 19 itself. 20 A I'm not sure counsel's discussions -- 21 Q (BY MR. FITZGERALD) Let me rephrase that. 22 Were you aware prior to today, what you would 23 be asked regarding contracts your firm has with employers 24 in the EAA? 25 A Yes. BALLOWE REPORTING SERVICE (305) 761-1622 46 1 Q Did you discuss with your employers the 2 contractual arrangements and the fact that you might be 3 asked about those? 4 MR. KOBELINSKI: I'll object to the extent 5 that he is - again, you are going into - he has 6 referenced some contracts with some law firms, and 7 if you are talking about discussions with counsel, 8 I will object to the extent that you are asking for 9 privileged information. 10 MR. FITZGERALD: I'm not asking for 11 privileged information, Counselor. I am not asking 12 the substance of the discussions; I am asking if he 13 discussed those matters. 14 MR. KOBELINSKI: Exactly, if you are asking 15 if he discussed particular matters, that is the 16 substance. You are asking, what did he discuss 17 with Counsel. 18 MS. CLEMENTS: No, he's asking whether he 19 just discussed the contract, not anything about the 20 contract. 21 MR. KOBELINSKI: Then I would like the 22 question read back. 23 (Thereupon, the last question was read back 24 by the court reporter.) 25 MR. KOBELINSKI: Again, you are asking BALLOWE REPORTING SERVICE (305) 761-1622 47 1 whether or not he discussed what testimony, he may 2 have. I'll object to the extent that you are 3 asking privileged information. 4 MR. FITZGERALD: Are you instructing the 5 witness not to answer? 6 MR. KOBELINSKI: To the extent that you are 7 directing it towards a contract that he may have 8 with my firm, I certainly would. 9 I would just make comments again. I have 10 invited you to contact the other law firm that he 11 has mentioned and to bring them into this. I 12 believe that would be the proper thing to do at 13 this point and time. We have not done so as yet. 14 So, I certainly cannot go ahead and instruct him as 15 to another law firm. 16 Again, I think that law firm should be 17 brought in if you are going to ask for privileged 18 communication. 19 MR. FITZGERALD: Mr. Missimer, I'm not asking 20 you to reveal the content or the substance of any 21 of the discussions he had. 22 Q (BY MR. FITZGERALD) Did you discuss the 23 issue of the possibility that during this deposition you 24 might be called upon or asked to reveal the 25 confidentiality -- BALLOWE REPORTING SERVICE (305) 761-1622 48 1 MR. PERKO: I'm going to instruct the witness 2 not to answer the question because it is designed 3 to reveal a privileged communication between 4 counsel. 5 MR. FITZGERALD: Take that up with the 6 hearing officer. 7 For the record, what it is designed to reveal 8 is whether or not, in fact, the other law firm was 9 apprised since everyone here knew that this would 10 be the subject matter of the discussion with the 11 correspondence among counsel and because of 12 Horvath's deposition that, in fact, this witness 13 would be asked these questions for the purposes of 14 listing any potential bias or prejudice in his 15 testimony. 16 I'm sure from your prior involvement both as 17 an expert for the United States at one point and in 18 the state cases the notion that your potential bias 19 would be explored is not a new one. 20 Let's get the hearing officer. 21 MR. KOBELINSKI: I object to the extent that 22 Counsel has yet to explore bias in a meaningful 23 manner whatsoever, and, again, I will place my 24 request that the other firm be contacted with 25 regard to this hearing or the attempt of this BALLOWE REPORTING SERVICE (305) 761-1622 49 1 hearing. 2 (Thereupon, a break was taken for a hearing.) 3 BY MR. FITZGERALD: 4 Q Mr. Missimer, do you or your firm at this 5 time have any contracts with any party to this action to 6 perform work within the EAA? 7 A Say, with regard to this action? 8 Q Yes, parties to this action, not regard to 9 this action. Do you know who the parties are to this 10 case? 11 A Yes. 12 Q Do any of those parties currently have 13 contracts with your firm other than the one reflected in 14 the letter dated October 19th from Hopping, Boyd? 15 A Yes, one party. 16 Q Okay. Didn't you earlier indicate there are 17 two? 18 A There are two contracts but only one party to 19 this case. 20 Q Okay. In addition to - is that the Peeples, 21 Earl contract you were referring to earlier, or is that 22 the one with -- 23 MS. CLEMENTS: Landers & Parsons. 24 Q (BY MR. FITZGERALD) Is the Landers & Parsons 25 related to a party in this case? BALLOWE REPORTING SERVICE (305) 761-1622 50 1 A As you are aware, we have a contract with US 2 Sugar regarding the ASR projects. 3 Q In addition to that contract, do you have any 4 other contracts with US Sugar for work within the EAA of 5 any sort whatsoever? 6 MR. KOBELINSKI: I will object to the form of 7 the question. I understand what you are asking. 8 He testified that it was with the law firm. So, to 9 the extent - I will object to the form of the 10 question. 11 MR. FITZGERALD: You are asking a different 12 question, and you can certainly do that. I'm 13 asking him about US Sugar. 14 A We have a contract with US Sugar regarding 15 the ASR wells and various supply things. So there may be 16 a couple of things. We have a contract with the law firm 17 of Landers & Parsons. 18 We do not have a contract with any party 19 outside of those two law firms. The contracts are between 20 Missimer & Associates Incorporated and those law firms. 21 Q (BY MR. FITZGERALD) The contracts you refer 22 to as between Missimer & Associates, these were signed on 23 behalf of Missimer & Associates or on behalf of the 24 ViroGroup Inc., the holding company? 25 A At that time there was no ViroGroup Inc. BALLOWE REPORTING SERVICE (305) 761-1622 51 1 there was a name change. I think everything - I assume is 2 incorporated that has been ever been done in the past by 3 the overall encompassing name. 4 So, if it's ViroGroup and Associates 5 Division, Missimer & Associates then signed the contract 6 as the corporate entity in the State of Florida. 7 Q Does ViroGroup or Missimer & Associates have 8 existing contracts with any law firm to perform work 9 within the EAA? 10 A Yes. 11 Q How many? 12 A To my knowledge, there are two general 13 contracts. 14 Q Who is Tom O'Donnell? 15 A Thomas H. O'Donnell is one of my senior 16 partners. He is a director of the firm. He's a senior 17 hydrogeologist in charge of the environmental division. 18 Q Do you have any oversight responsibilities of 19 the environmental division? 20 A No, he is in charge of the environmental 21 division. 22 Q Are you familiar with the work they do? 23 A Yes. 24 Q Does your board of directors review proposals 25 or contract offers prior to accepting them to make sure BALLOWE REPORTING SERVICE (305) 761-1622 52 1 there are no conflicts? 2 A No. 3 Q Who does that? 4 A That is done under the individual project 5 manager and the supervisor. 6 Q Is Mr. O'Donnell the project manager for the 7 contract with the Parsons law firm in Tallahassee? 8 A I think that again is confidential. 9 Q Why? 10 A Why is it confidential? 11 Q Yes. 12 A Because we have a very broadly-worded 13 confidentiality agreement on both those contracts that is 14 done by a law firms, very broadly. 15 So, therefore, I can't reveal anything 16 regarding those contracts other than their existence. 17 Q Well, you're talking about two contracts now. 18 Let's stick to the Parsons contract. Do you have a 19 confidential agreement on that contract? 20 A Yes. 21 Q Who drafted that provision? 22 A I assume that Cindy Bartin with the firm of 23 Landers & Parson is the one who drafted that. 24 Q Is she the attorney who handled that matter 25 with your firm? BALLOWE REPORTING SERVICE (305) 761-1622 53 1 A Yes. 2 Q Is that for work within the EAA? 3 A Yes. 4 Q Are you prepared to answer any other 5 questions with regard to the precise nature of the work 6 being performed on that contract? 7 A No, because the confidentiality of the 8 contract specifically includes the discussion with anyone 9 on that contract about the work performed, any details or 10 the nature of work. 11 Q Does that include the value of the contract 12 to your firm? 13 A In my opinion, yes. 14 Q Does it include the geographic site within 15 the EAA of the work? 16 A In my opinion, yes. 17 Q Does it include the water quality issues 18 being studied, examined, or reviewed, by your firm in that 19 contract if any? That way you are not saying it's water 20 quality. 21 A If there is a water quality issue involved, 22 we are not to reveal what the nature is. 23 Q In your opinion under this confidentiality 24 agreement, do you feel bound not to discuss any 25 environmental implications of the work being done by your BALLOWE REPORTING SERVICE (305) 761-1622 54 1 firm for the Parsons' firm? 2 A We are not to disclose anything regarding the 3 contract. 4 Q So, you view it as a blanket bar to any 5 discussion other than the fact that a contract exists with 6 the law firm? 7 MR. KOBELINSKI: I will object to the form to 8 the extent that the witness and Mr. Horvath's 9 testimony has confirmed that it is not related to 10 phosphorus and not related to the SWIM challenge. 11 So, that is certainly an additional matter 12 related to the contract. So, I will object to the 13 form of the question, mischaracterizing prior 14 testimony. 15 Q (BY MR. FITZGERALD) Aside from Horvath's 16 testimony, what is your position on what constraints are 17 placed on you as a director of the firm as a senior 18 partner on confidentiality? 19 A Confidentiality agreements are taken very 20 seriously by our firm. A fiduciary relationship between 21 our firm and a contracting agency or firm that we deal 22 with. 23 Therefore, we provide information only as 24 directed by legal counsel as a party to this contract. 25 MR. KOBELINSKI: I note for the record I BALLOWE REPORTING SERVICE (305) 761-1622 55 1 object to the form of the question to the extent 2 that he characterized this witness as a senior 3 partner when he has testified it is a corporation 4 and not a partner. 5 Q (BY MR. FITZGERALD) Mr. Missimer, a few 6 minutes ago you referred to Mr. O'Donnell as one of your 7 senior partners, you didn't mean that in a technical/legal 8 sense, did you? 9 A He was an original senior partner prior to 10 becoming a public corporation. He is now a shareholder 11 and director of the corporation. 12 Q So, his status is essentially equivalent to 13 yours? 14 A Yes. 15 Q Just to clarify, you are using the term, 16 "partner". With regard to the contract you've described, 17 the second contract with the firm of Peeples - withdraw 18 that. Let me back you up a second. 19 You indicated that you take the fiduciary 20 relationship very seriously at your firm, and only 21 disclose details as permitted or directed after 22 discussions with the law firm? 23 A Yes. 24 Q Have you discussed this issue with the 25 retaining law firm? BALLOWE REPORTING SERVICE (305) 761-1622 56 1 A Yes. 2 Q And what, if anything, have they told you 3 that you can reveal? 4 A I am not permitted to reveal anything. 5 Q With regard to the second contract with 6 Peeples, Earl, is there, in fact, a second contract for 7 work in the EAA where your firm was retained by Peeples, 8 Earl? 9 A Yes. 10 Q Is Tom O'Donnell the project manager for that 11 project? 12 A I can't reveal who the project manager is, 13 specifically. All I can say is I am not and not party to 14 all the details. 15 Q Do you know who the contract manager is or 16 the project manager? 17 A Yes. 18 Q You view that even the identity of the 19 project manager falls within some confidentiality? 20 A Yes. 21 Q Does that contract with the Peeples Earl, in 22 fact, contain a confidentiality agreement? 23 A Yes. 24 Q Who drafted the agreement? 25 A I don't know. BALLOWE REPORTING SERVICE (305) 761-1622 57 1 Q Is your firm represented by counsel under a 2 retainer? 3 A We periodically use counsel. I am not 4 under - I don't have counsel to this hearing at this 5 particular time. 6 Q I understand. Were either of these two 7 confidentiality agreements submitted by you or your firm 8 to your own counsel to review prior to signing the 9 agreement? 10 A No. 11 Q The agreement - the confidentiality agreement 12 in the Peeples Earl contract, what is your understanding 13 of the implication it places on your ability to answer 14 questions regarding the scope, geographic site, dollar 15 value, or nature of that contract? 16 A In my opinion, it does not allow us to reveal 17 anything unless we are so designated by counsel with 18 regard to their interpretation of the contract. 19 Q Have you sought permission from Peeples and 20 Earl? 21 A No, I have not sought permission. I have 22 discussed it with them. 23 Q With whom? 24 MR. KOBELINSKI: I will object. He 25 identified that he discussed it with the law firm. BALLOWE REPORTING SERVICE (305) 761-1622 58 1 I don't think there is a need to go beyond that. 2 Q (BY MR. FITZGERALD) You can answer the 3 question. Which lawyer have you discussed it with at 4 Peeples Earl? 5 A I think that's privileged information between 6 the law firm and myself. 7 Q I would submit that it's not, and you can 8 refer to your counsel. The mere identity of the lawyer, 9 in our view, would not be. You can consult with counsel 10 representing you here. 11 A I discussed it with Mr. Kobelinski. 12 Q Have you had an opportunity to discuss it 13 with any other attorney? 14 A Not this morning. 15 Q Which attorney at Peeples Earl - now you 16 mention Miss Bartin with regard to other contracts? 17 A Yes. 18 Q Who handled the other contract? 19 A Again, I was not directly involved in this 20 particular contract. 21 Q If you know? 22 A I don't want to speculate on the details of 23 how it began. 24 Q You don't know? 25 A I don't know from the very beginning to tell BALLOWE REPORTING SERVICE (305) 761-1622 59 1 you the truth. 2 Q Am I correct in taking from your answer, at 3 some point you became aware of an attorney dealing with 4 your firm? 5 A Like any consulting firm or law firm, from 6 time to time, the lawyer who handles things can change 7 just like consultants change. 8 I'm not aware of the whole history of the 9 project who started it and who ended it and where it is 10 right now. 11 Q What attorneys from Peeples Earl are you 12 aware of having dealt with your firm with respect to that 13 contract? 14 A Dennis Stotts I'm aware of, that's it. 15 Q Is that for work within the EAA? 16 A That specific contract? 17 Q Yes. 18 A Yes. 19 Q Going back to the document that's -- let me. 20 (Whereupon, United States's Exhibit No. 4 was 21 marked for identification by the Court Reporter.) 22 Mr. Missimer take a look at Exhibit 4. I'm 23 sorry, I didn't plan to use this so I don't have copies. 24 Do you recognize that designation of, "Fact 25 Witnesses" specifically the circled paragraph number two BALLOWE REPORTING SERVICE (305) 761-1622 60 1 next to your name? 2 A Yes. 3 Q Had you seen that prior to today? 4 For the record, this is the designation by 5 Hopping Boyd on behalf of the corporation? 6 A I believe, I've seen it before. 7 Q Is it your understanding, at this time, that 8 that's the general subject matter of your expected 9 testimony? 10 A Yes. 11 Q Has it changed since that original 12 designation, to your knowledge? 13 A To my knowledge, no, really nothing has 14 changed. 15 Q Is it your testimony that as of today, 16 November 2nd you have done no work specifically addressed 17 to that area of testimony? 18 A I have -- 19 MR. KOBELINSKI: Object to the form of the 20 question. 21 MR. FITZGERALD: You can go ahead and answer. 22 A I have provide some documents to another firm 23 in terms of withdrawals. I have not analyzed those 24 documents, not done analysis. 25 Q (BY MR. FITZGERALD) What type of documents BALLOWE REPORTING SERVICE (305) 761-1622 61 1 have you provided? 2 A I obtained a copy of the draft of the Lower 3 East Coast Water Supply Plan and some of the models for 4 the various counties that have plans in the designated 5 EAA. 6 Q Did you provide similar documents for the 7 benefit of the counties in the EPA, as that term is 8 defined, in the SWIM Plan? 9 A You would have to define what the EPA is and 10 the boundary. 11 Q Everglades Protection Area, you are not 12 familiar with that term? 13 A I don't know the exact boundaries of that; 14 so, I can't answer your question. 15 Q The counties south of the EAA comprise of 16 Broward, Dade, and Monroe, counties. Did you provide 17 water model documentation to this firm regarding those 18 counties? 19 A I provided the documents that were done 20 jointly with the Water Management District or by the Water 21 Management District in Dade, Broward, and Palm Beach 22 counties. 23 Q Were those from the Water Management 24 District? 25 A Yes. BALLOWE REPORTING SERVICE (305) 761-1622 62 1 Q The draft Lower East Coast Wellfield Supply 2 Planning documents were also from the management district? 3 A Yes. 4 Q Did you provide any documentation developed 5 by your firm? 6 A No. 7 Q Did you ever provided any documentation by 8 any other firm? 9 A No. 10 Q So, all documentation provided was strictly 11 publicly available records from the South Florida Water 12 Management District? 13 A Yes, we obtained the references, and, I 14 believe, we obtained the actual copies. I believe the 15 other firm obtained copies from the references rather than 16 sending them there physically. 17 Q Have you entered in a contractual 18 relationship directly with that firm? 19 A No. 20 Q Who directed you to provide those documents 21 to the firm? 22 A Hopping Boyd, Green & Sams. 23 Q What's the name of the firm? 24 A It's in Boston, I think. It slips my mind 25 for the time being. BALLOWE REPORTING SERVICE (305) 761-1622 63 1 MR. PERKO: For the record it is Tetra Tech. 2 MR. FITZGERALD: I know that, but he has to 3 say that. 4 Q (BY MR. FITZGERALD) Would the name Tetra 5 Tech strike a familiar note? 6 A Yes. 7 Q Have you dealt with Tetra Tech in the past? 8 A Many years ago on a few occasions. 9 Q And they are located in Boston? 10 A This particular individual is located in the 11 Massachusetts area. I'm not sure if it's Boston. 12 Q Who is carrying out the water modeling for 13 Tetra Tech? 14 A I don't remember the name of the individual. 15 It's been a while. 16 Q Who is the fellow in Boston you are referring 17 to? 18 A I don't remember his name. 19 Q For what purpose were those documents 20 provided, if you know? 21 A They were provided to give him general 22 information to assist in his efforts in doing modeling of 23 the Everglades. 24 Q What type of modeling? 25 A They are developing surface water models with BALLOWE REPORTING SERVICE (305) 761-1622 64 1 a lot of parameters. One of the parameters would be 2 ground water. 3 Q What additional parameters? 4 A I am not specifically knowledgeable to all 5 the details of the model; so, I can't answer that 6 question. It would be only speculation. 7 Q As a potential expert in this area on Lower 8 East Coast wellfields with impact on the SWIM Plan, what 9 parameters would you want to have evaluated in a water 10 budget or water model of the Everglades Agricultural Area? 11 A Well, as far as evaluation of withdrawals, 12 you need the aquifer properties either from the 13 literaturial or as designated at the location of the test 14 sites that would include the thickness of the aquifer, and 15 evaluate a few other things like the general hydrogeology 16 of the area, and how it relates to the EAA. 17 Q Have you ever seen such a matter of the EAA 18 or of the Everglades? 19 A No. 20 Q So systemic model exists as far as you are 21 aware? 22 A Not that I have reviewed. There may be a 23 model, but I don't know if I have reviewed that. 24 Q Are the county models that you provided or 25 provided the references to Tetra Tech sufficient in your BALLOWE REPORTING SERVICE (305) 761-1622 65 1 opinion? Do they, in fact, meet those parameters that you 2 described as those you would want to see in such a model? 3 A The computer models that were done for the 4 various wellfields in the county contain a great deal of 5 information that is quite useful in evaluating portions of 6 the water budget. 7 Q Have you had discussions with Tetra Tech of 8 their approach to this project? 9 A No, I haven't. 10 Q Have you had discussions in that regard with 11 anyone regarding the need for such a model in the context 12 of the present litigation? 13 A No, I haven't. 14 Q Have you formed any opinions on what the 15 impacts of the Lower East Coast Wellfields might be on the 16 SWIM Plan? 17 A I haven't formed an opinion yet, but I may in 18 the future. 19 Q Have you studied the issue at all as yet? 20 A I'm aware of some of the issues, but I have 21 not studied in sufficient detail to come to an opinion. 22 Q How did you identify the issues? 23 A I've read a portion of the SWIM Plan, and I 24 was requested to look at the Lower East Coast Water Supply 25 Withdrawals so -- BALLOWE REPORTING SERVICE (305) 761-1622 66 1 Q Were you directed to look at those with 2 specific regard to the impact of the water retention that 3 may occur under the Best Management Practices in the EAA? 4 A No. 5 Q Are you familiar with that issue? 6 A In very general terms, just from general 7 reading. 8 Q Do you have any future plans to analyze that 9 issue? 10 A If I'm directed to as far as the work that I 11 do, I will analyze it. 12 Q Do you know what work you are specifically 13 supposed to do at this time? 14 A Specifically, right now, the only work that I 15 may do that I'm aware of is on the East Coast Wellfield 16 Withdrawals. I may be designated to do other things that 17 I'm not aware of. 18 Q Have you been authorized to commence any of 19 that work? 20 A No. 21 (Discussion off the record.) 22 Q Mr. Missimer, we are going to conclude this 23 portion of the deposition at this time subject to recall 24 since you have testified you have not formed your opinions 25 as yet and haven't conducted any work as yet. BALLOWE REPORTING SERVICE (305) 761-1622 67 1 Additionally, we have reserved on the record 2 our right to raise the issues of the report of 3 confidentiality and the implications of those contracts on 4 this proceeding. Should it become resolved in the 5 immediate future or your opinions be formed, we will 6 renotice you to continue this deposition. 7 A Okay. 8 MR. KOBELINSKI: For the record I would just 9 object -- 10 MR. FITZGERALD: I didn't mean to preclude 11 anyone from asking questions. 12 MR. KOBELINSKI: For the record, I would 13 object to the continuation with regard to the 14 deposition other than for expert opinions that the 15 witness may or may not have in the future on the 16 basis that there has been no foundation laid for 17 exploration of these additional contracts or for 18 any factual testimony that this witness may have. 19 MR. PERKO: I will ask a few questions. 20 CROSS-EXAMINATION 21 BY MR. PERKO: 22 Q Mr. Missimer, you previously testified about 23 some contracts with the EAA. It's my understanding that 24 you've discussed two contracts with Landers & Parsons, one 25 with Landers & Parsons and one with Peeples Earl & Blank. BALLOWE REPORTING SERVICE (305) 761-1622 68 1 You have also discussed the contract 2 regarding aquifer storage recovery projects with US Sugar. 3 Is that encompassed by either of the two contracts with 4 Landers & Parsons and Peeples, Earl that project the 5 aquifer storage recovery project? 6 A No, that's an independent project by itself. 7 Q So, Mr. Horvath previously testified that 8 that project is probably in the range of a few hundred 9 thousand dollars. Do you agree with that approximation? 10 A Yes, but not in one fiscal year over a period 11 of perhaps three of our fiscal years. 12 Q Mr. Horvath has previously testified that 13 your firm obtains approximately five percent of its income 14 from agricultural interests in EAA. Do you agree with 15 that assessment? 16 A I would only agree with - five percent of 17 gross income for the company of the EAA? 18 Q Right. 19 A No, I wouldn't agree with that. 20 Q Could you approximate for me how much of the 21 firm's gross income is from agricultural interests within 22 the EAA? 23 A I will make the assumption that right now we 24 are about a 20 million dollars a year gross income firm, 25 and over half of that income comes from outside the State BALLOWE REPORTING SERVICE (305) 761-1622 69 1 of Florida. 2 My best estimate is our present income in the 3 proper fiscal year from the EAA agricultural interests is 4 in order of less than one percent of the gross of the 5 corporation. 6 Q Mr. Missimer, are you currently on any 7 government boards or committees? 8 A Yes, I am. 9 Q Could you list for me those boards and 10 committees? 11 A I'm currently - I was appointed by the 12 Governor to the board of Professional Geologists in the 13 State of Florida confirmed by the senate. I'm also on the 14 Lower West Coast Water Supply Plant Advisory Committee. 15 Q What are your responsibilities on the Board 16 Of Governors? 17 A The Board Of Professional Geologists in the 18 State of Florida essentially watches over licensed 19 geologists in the State of Florida. We do the licensing 20 work. We, in fact, design the tests and examinations. We 21 designate who is qualified and via the Board Of 22 Professional Regulation, we act upon disciplinary actions 23 as an advisor. We don't actually do the disciplinary 24 actions. 25 Q When were you appointed by the Governor to BALLOWE REPORTING SERVICE (305) 761-1622 70 1 serve on that board? 2 A In December of last year. 3 Q With regard to the other committee that you 4 serve on, can you explain the responsibilities? 5 A Yes, the advisory committee on the Lower West 6 Coast Plan reviews the plan documents on water 7 utilization, and how to develop water supplies in the 8 future. 9 I'm on that committee and on several of the 10 subcommittees and review issues such as wetland 11 regulations with regard to water supply. What type of 12 water supply shall be used in the future. How to 13 integrate agricultural with municipal use. 14 Q Who appointed you to serve on that committee? 15 A I was asked to serve on the South Florida 16 Water Management District. 17 MR. PERKO: I have nothing further. 18 MS. CLEMENTS: Nothing. 19 (Thereupon, the deposition was concluded 20 at 11:30 o'clock a.m.) 21 ------------------- 22 STIPULATION It is hereby stipulated by and between counsel 23 for the respective parties and the witness that the reading and signing of the foregoing deposition be, and 24 the same are, hereby waived. AND FURTHER DEPONENT SAITH NOT. 25 --------------- BALLOWE REPORTING SERVICE (305) 761-1622 71 1 CERTIFICATE STATE OF FLORIDA ) 2 :SS COUNTY OF BROWARD ) 3 4 I, Ellen Dionisio, Shorthand Reporter and 5 Notary Public in and for the State of Florida at Large, do 6 hereby certify that I reported the deposition of Thomas 7 Missimer, a witness called by the United States in the 8 above-styled cause; that the witness was duly sworn by me 9 to tell the whole truth; that the foregoing pages, 10 numbered 1 to 71, inclusive, constitute a true record of 11 the deposition of said witness as stenographically 12 recorded by me; and that this transcript was prepared 13 under my supervision. 14 I further certify that I am not an attorney 15 or counsel of any of the parties, nor a relative or 16 employee of any attorney or counsel connected with the 17 action, nor financially interested in the action. 18 WITNESS my hand and official seal in the City 19 of Fort Lauderdale, County of Broward, State of Florida, 20 this 8th day of November, 1992. 21 22 23 _________________________________________ Ellen Dionisio 24 Shorthand Reporter and Notary Public, State of Florida at Large. 25 My Commission Expires: August 19, 1995 BALLOWE REPORTING SERVICE (305) 761-1622