0001
01 STATE OF FLORIDA
01 DIVISION OF ADMINISTRATIVE HEARINGS
02
02 SUGAR CANE GROWERS COOPERATIVE OF
03 FLORIDA, INC., ROTH FARMS, INC.,
03 and WEDGWORTH FARMS, INC.,
04
04 and
05
05 FLORIDA SUGAR CANE LEAGUE, INC.,
06 UNITED STATES SUGAR CORPORATION,
06 and NEW HOPE SOUTH, INC.,
07
07 and
08
08 FLORIDA FRUIT AND VEGETABLE CASE NOs. 92-3038
09 ASSOCIATION, LEWIS POPE FARMS, 92-3039
09 W.E. SCHLECHTER & SONS, INC., and 92-3040
10 HUNDLEY FARMS, INC.,
10
11 Petitioners,
11
12 vs.
12
13 SOUTH FLORIDA WATER MANAGEMENT
13 DISTRICT,
14
14 Respondent,
15
15 and
16
16 MICCOSUKEE TRIBE OF INDIANS OF
17 FLORIDA, the UNITED STATES OF
17 AMERICA, FLORIDA DEPARTMENT
18 OF ENVIRONMENTAL REGULATION, and
18 FLORIDA WILDLIFE FEDERATION,
19
19 Intervenors.
20 . . . . . . . . . . . . . . . . . . . /
21
22
23 DEPOSITION OF PAUL C. PARKS, Ph.D
24 September 22, 1992
0002
01
02 DEPOSITION OF PAUL C. PARKS, Ph.D.
03 Taken in the above-styled cause, pursuant to
04 notice, at the offices of Hopping Boyd Green & Sams, 123
05 South Calhoun Street, Tallahassee, Florida, on September
06 22, 1992, commencing at 9:00 a.m.
07
08 Reported by:
09 JERRY L. ROTRUCK
10 Certificate of Merit
0003
01 APPEARANCES OF COUNSEL:
01
02 On behalf of the Petitioners Sugar Cane Growers Cooperative
02 of Florida, Inc., Roth Farms, Inc., and Wedgworth Farms,
03 Inc.:
03
04 William H. Green, Esq.
04 Hopping Boyd Green and Sams
05 123 South Calhoun Street
05 Tallahassee, FL 32301
06
06 On behalf of the Petitioners Florida Sugar Cane League,
07 Inc., United States Sugar Corporation and New Hope
07 South, Inc.:
08
08 William L. Hyde, Esq.
09 Peeples, Earl & Blank
09 215 South Monroe Street
10 Suite 350
10 Tallahassee, FL 32301
11
11 On behalf of the Petitioners Florida Fruit and Vegetable
12 Association, Lewis Pope Farms, W.E. Schlechter & Sons,
12 Inc., and Hundley Farms, Inc.:
13
13 Kenneth F. Hoffman, Esq.
14 Oertel, Hoffman, Fernandez & Cole
14 2700 Blair Stone Road
15 Tallahassee, FL 34301
15
16 On behalf of the Intervenor United States of America:
16
17 Suzan Hill Ponzoli, Esq.
17 Assistant U.S. Attorney
18 Miami Avenue, Suite 600
18 Miami, FL 33102
19
19 On behalf of the Intervenor Department of Environmental
20 Regulation:
20
21 Lee M. Killinger, Esq.
21 Assistant General Counsel
22 State of Florida
22 Department of Environmental Regulation
23 Twin Towers Office Building
23 2600 Blair Stone Road
24 Tallahassee, FL 32399-2400
0004
01 APPEARANCES OF COUNSEL (continued):
01
02 On behalf of the Intervenor Florida Wildlife Federation:
02
03 David J. White, Esq.
03 Counsel, Southeastern Natural Resources Center
04 1401 Peachtree Street, N.E.
04 Suite 240
05 Atlanta, GA 30309
05
06 Also appearing:
06
07 Steve Grigas, Esq.
07 Sierra Club Legal Defense Fund
08 Post Office Box 1329
08 Tallahassee, FL 32302
09
09
10
0005
01 INDEX TO WITNESS
02 PAUL PARKS, Ph.D. Page
03 Examination by Mr. Green 5
04
05 INDEX TO EXHIBITS
06 No. Marked
07 1 7
08 2 17
09 3 24
10 4 24
11 5-A 62
12 5 25
13 6 25
14 7 25
15 8 38
16 9 72
17 10 76
18 11 82
19 12 94
20 13 104
21 14 107
22 15 113
23 16 116
24 17 118
25 18 122
0006
01 S T I P U L A T I O N
02 IT IS STIPULATED AND AGREED by and between counsel
03 appearing for the respective parties as follows:
04 THAT the deposition of PAUL PARKS, Ph.D., was
05 taken by agreement for the purpose of discovery, for use as
06 evidence, and for such other purposes as may be permitted
07 by the Florida Rules of Civil Procedure and other
08 applicable law;
09 THAT all objections, except as to the form of the
10 question, are reserved until the trial of this cause; and
11 THAT by agreement of the witness and all parties,
12 reading and signing of the deposition was *not waived.
0007
01 D E P O S I T I O N
02 Whereupon,
03 PAUL PARKS
04 was called as a witness, having been first duly sworn to
05 speak the truth, the whole truth, and nothing but the
06 truth, was examined and testified as follows:
07 EXAMINATION
08 BY MR. GREEN:
09 Q Please state your name and address for the record.
10 A Paul Parks, 1549 Live Oak Drive, Tallahassee,
11 Florida.
12 Q Mr. Parks, I am going to be asking you questions
13 about related to the South Florida Water Management
14 District SWIM plan challenge proceedings. Are you
15 basically familiar with those proceedings?
16 A Actually, I would prefer to be called Dr. Parks.
17 Q You can call me Dr. Green.
18 A Yes.
19 Q Dr. Parks, I would like to -- let me have marked
20 the notice for this deposition as Exhibit 1 and I would
21 like to ask you if you have seen a copy of that document.
22 (Whereupon, Exhibit No. 1 was marked for
23 identification.)
24 THE WITNESS: Yes.
25 BY MR. GREEN:
0008
01 Q If I could refer you to the -- you can keep it for
02 a minute -- the second page, I would like to go through
03 these items briefly with you and ask you, it is my
04 understanding that there was a production this past Friday
05 which would have been September 18th, at the Sierra Club
06 offices in Tallahassee and also yesterday, September 21st.
07 Can you tell me whether the documents that have
08 been requested on page 2 here have all been produced in
09 those two -- on those two days, or either of those days?
10 MS. PONZOLI: With the exception, Mr. Green, of
11 those the United States regards as privileged.
12 MR. GREEN: Which ones are those?
13 MS. PONZOLI: There are certain documents that
14 were withheld, a very limited number. I don't know
15 that they -- I don't know that they fit into any of
16 these categories, quite frankly, Mr. Green.
17 BY MR. GREEN:
18 Q Dr. Parks, did you go through this list with Ms.
19 Ponzoli in preparation for the production of documents that
20 it relates to?
21 A No.
22 Q When the documents were produced last Friday and
23 yesterday, did you go through those documents with Ms.
24 Ponzoli prior to their being produced?
25 A No.
0009
01 Q Are you familiar with the documents Ms. Ponzoli
02 just mentioned that she is asserting privilege with regard
03 to --
04 A Generally.
05 Q Do you know where those documents are kept?
06 A Yes.
07 Q Where?
08 A My office.
09 Q So the documents that we just discussed for which
10 a privilege has been asserted were not produced yesterday
11 or Friday?
12 A That is correct.
13 Q Do you know what privilege they are being
14 protected under?
15 A No.
16 Q Can you tell me the proper approximate volume of
17 them in terms of four-inch stack, more or less?
18 A Three.
19 Q Do any of them relate to settle amendment
20 agreement negotiations specified on page 2, Item 4?
21 A No.
22 Q Can you tell me the subject matter they relate
23 to?
24 A Well, over a long period of time, I have been
25 providing advice to the U.S. Attorney's office, and they
0010
01 relate to that.
02 Q Is that advice related to the proceedings that we
03 are here today for?
04 MS. PONZOLI: I think I am going to object to
05 that question. It is extremely broad. Mr. Green, can
06 you narrow it a little bit?
07 MR. GREEN: Sure.
08 BY MR. GREEN:
09 Q The proceedings that you have been advising the
10 U.S. Attorney's office on, can you tell me what proceedings
11 those are?
12 A They began with the suit by the U.S. Attorney
13 filed in federal court, and they have -- it has continued
14 into the federal government's participation in these
15 proceedings, but I mean to the extent, they -- it really
16 was stuff performed at the request of the federal
17 government for the federal lawsuit.
18 Q Would that be the same lawsuit that we have cited
19 here on Item 4, page 2 of the notice?
20 A Yes.
21 Q Can you tell me whether those documents relate to
22 research or reports that you have prepared?
23 A What do you mean by a report?
24 Q A written document that summarizes your views on
25 any particular topic?
0011
01 MS. PONZOLI: I object to the form of the
02 question. That is in the form of advice he would have
03 given the United States, would have been a report under
04 that definition. He has already said that these were
05 documents involving advice to the United States.
06 Mr. Green, I think I have allowed an extensive
07 amount of examination on what the privileged documents
08 are, and given the volume of documents that were
09 produced which are virtually all of Dr. Parks's
10 documents, minus this minor number. I can't see going
11 on and on about what they are. I object to the
12 continued examination regarding what the privileged
13 documents are.
14 I have offered in the context of resolution with
15 the *league, and I would offer with you if all parties
16 wish to provide privileged lists of those *withholding
17 documents, then the United States is ready to do that
18 also.
19 MR. GREEN: Ms. Ponzoli, can you tell me what
20 privilege you are asserting with regard to those
21 documents?
22 MS. PONZOLI: They are predominantly work product
23 privilege, but I would have to go document by document,
24 Mr. Green, and my deposition is not being taken.
25 MR. GREEN: I understand. I just need to
0012
01 understand the nature of the privilege you are
02 asserting.
03 MS. PONZOLI: We can agree to mutual privileged
04 list, then it would be very clear as to each document
05 for all of us.
06 MR. GREEN: We can discuss that at a later time.
07 BY MR. GREEN:
08 Q Dr. Parks, you have brought in a trolley with two
09 boxes and a briefcase on it. Can you tell me what those
10 documents are, in general?
11 A No.
12 Q Do they relate to this notice? Were they
13 documents we requested that you produce?
14 A They are not my documents.
15 Q Okay.
16 MS. PONZOLI: Mr. Green, they are copies of what
17 you took.
18 MR. GREEN: That is fine. I just want to be
19 complete. Thank you.
20 BY MR. GREEN:
21 Q Dr. Parks, I will ask you some questions as we
22 said about the SWIM plan proceedings. And am I correct in
23 assuming that you have been deposed a number of times
24 before in other proceedings?
25 A Yes.
0013
01 Q I would still like to say that if I ask a question
02 that isn't clear to you or if you don't understand it,
03 please tell me that, and I will attempt to rephrase it. If
04 after you answer a question and you think about it and
05 decide that, well, maybe it wasn't what I really meant or I
06 misstated it, please tell me that, and I will allow you to
07 restate your answer.
08 If at any time you feel uncomfortable that you
09 need to have a drink of water or whatever, please let me
10 know.
11 MS. PONZOLI: Mr. Green, I have hesitated to
12 interrupt you, but I did mention before the deposition
13 began privately to you that I wished to place an
14 objection on the record prior to the beginning of the
15 deposition, so I think this may be the best time before
16 we get into the substance of the questions.
17 MR. GREEN: Fine.
18 MS. PONZOLI: The United States wishes to place on
19 the record that it was served last night for the first
20 time a supplemental preliminary disclosure of fact
21 witnesses of Petitioner's Florida Sugarcane League,
22 Inc., United States Sugar Corporation, and New Hope
23 South, Inc.
24 In this supplemental preliminary disclosure, the
25 Florida Sugar Cane League and United States Sugar
0014
01 Corporation and New Hope South attempt to designate Dr.
02 Parks as their fact witness.
03 The United States waives no objections to this
04 abuse of discovery. This is a wholly improper manner
05 of beginning the deposition process, and we will refer
06 this to the hearing officer for resolution.
07 We have previously filed a motion for protective
08 order on September 17th, 1992, because we had had
09 several of these problems with the Florida Sugar Cane
10 League. I believe that Mr. Hyde and I reached a
11 preliminary agreement yesterday before the hearing
12 officer had his conference call which he indicated I
13 wasn't hearing any motions in any event. I will
14 attempt to honor that agreement with Mr. Hyde. And if
15 we can work through this deposition peacefully, then
16 that is fine. If not, then we will have to recess and
17 have a ruling on this improper designation of Dr.
18 Parks.
19 MR. HYDE: If I may just briefly, I think we are
20 trying to create an issue here where none exists. A, I
21 think that the U.S. Attorney's office, maybe not you
22 personally, but your office was provided with this, a
23 notice of this supplemental preliminary witness
24 disclosure prior to last night.
25 Secondly, and more importantly, the agreement that
0015
01 we have reached yesterday in terms of deposing Dr.
02 Parks would be that the U. S. attorney's motion for
03 protective order in abeyance, that any disputes or
04 objections to questions, subject matter of questions
05 concerning Dr. Parks would be made at such time as
06 those objectionable questions were asked, and they
07 would be reserved for later resolution by the hearing
08 officer. I think that is the basis of our
09 understanding.
10 MS. PONZOLI: But it is clear that we were to come
11 to an impasse over proceeding. We had agreed that we
12 would recess as opposed to answering the questions. I
13 would not be placed in the awkward position of having
14 to instruct him not to answer, nor would you incur
15 similar type extreme measures. So we will just -- we
16 can work our way through, I made that clear. I will
17 tell you quite honestly, I was in my office Sunday
18 afternoon and no such notice was in my office Sunday.
19 And you knew that I would be in Tallahassee on Monday,
20 so my office did not have it. If it is there, it is
21 hidden somewhere.
22 MR. HYDE: By recess, I don't think you mean as
23 soon as an objectionable question is asked you are
24 going to recess the deposition.
25 MS. PONZOLI: No. I just mean that I would not
0016
01 been placed in a position of going to instruct him not
02 to answer. We would simply cease that line of
03 questioning.
04 MR. HYDE: Okay.
05 MS. PONZOLI: And -- Mr. Green, I am sorry.
06 MR. GREEN: Ms. Ponzoli, just for clarification, I
07 had intended to ask Dr. Parks questions that I think
08 are relevant to the subject matter of this proceeding
09 without separately designating him as a fact witness
10 or anything else. I presume that that is the scope of
11 this deposition. If we get to the point that I ask
12 questions you feel are beyond the scope of the
13 deposition, I would presume you would object and then
14 he can answer subject to the objection. Would that be
15 your view on that?
16 MS. PONZOLI: I think what you have said is rather
17 broad, Mr. Green. We may have to work through it in
18 order to get -- to whether it is problematic for the
19 United States. I intend to make every effort to let you
20 ask the questions you feel necessary and let him
21 answer. I will have objections and continuing
22 objections to his offering opinions on issues which he
23 was not designated as an expert by the United States to
24 offer opinions.
25 MR. GREEN: That is fine. Would counsel for
0017
01 other parties and Ms. Ponzoli like to make any
02 stipulations with regard to this deposition, the normal
03 ones? I see a no. That means there are no
04 stipulations?
05 MS. PONZOLI: I prefer to proceed under the rules,
06 Mr. Green. I prefer to have him read and sign this
07 deposition. If you want to tell me the stipulations
08 you would like to proceed under --
09 MR. GREEN: Would you like to preserve all
10 objections except as to the form of the question at the
11 hearing? That is acceptable to everyone else.
12 Let the record show counsel have agreed.
13 This is Exhibit 2, Dr. Parks's resume.
14 (Whereupon, Exhibit No. 2 was marked for
15 identification.)
16 BY MR. GREEN:
17 Q Dr. Parks, I notice that in the subject matter of
18 expected testimony that the United States has filed with
19 regard to you, they indicated that you would be talking
20 about violations of state water quality standards and
21 permitting requirements of Florida law and also about
22 standing.
23 I would like to ask you some questions about your
24 background with regard to those areas. Dr. Parks, when you
25 finished your graduate work, what was your first
0018
01 employment?
02 A I did postdoctoral studies.
03 Q Where?
04 A At the University of -- really, with a professor
05 from Cornell University who was on sabbatical at the
06 University of Pennsylvania, and then at Cornell, in Utica.
07 Q What is the date of that in the 1970s? Do you
08 remember the date when you took your postdoctoral
09 appointment?
10 A It was in the '60s.
11 Q The '60s. What was your research concentrated on
12 in that regard?
13 A At what period?
14 Q Your postdoctoral research that you just
15 mentioned?
16 A Temperature jump relaxation kinetics.
17 Q What chemical compounds were you studying in that
18 regard?
19 A Mainly cytochrome C.
20 Q What sort of temperatures did you use to impose a
21 temperature jump?
22 A It was a capacitance discharge apparatus.
23 Q Similar to a shock tube?
24 A Not really.
25 Q So it was an electrical discharge?
0019
01 A Yes.
02 Q What sort of temperature jump in terms of degrees
03 Calvin did you *expose this cytochrome compound to?
04 A It depended on the medium and on the discharge.
05 Q There was a range of temperatures potentially
06 available?
07 A Yes.
08 Q Did you memorialize your postdoctoral research in
09 publications of any type?
10 A What do you mean by memorialize?
11 Q Did you publish papers on your temperature jump
12 research?
13 A Yes.
14 Q Are those the publications listed on the back of
15 your resume which has been marked as Exhibit 2?
16 A No.
17 Q Are any of those publications related to your
18 postdoctoral research?
19 A Yes.
20 Q Could you tell me which ones?
21 A The elucidation of the *redux potential of
22 cytochrome C at alkaline pH.
23 Q Did any of your postdoctoral research deal with
24 the establishment of water quality standards?
25 A No.
0020
01 Q Did any of it deal with analysis of state
02 regulations relating to water quality standards?
03 A No.
04 Q Did any of it deal with wetlands?
05 A No.
06 Q Is that also true with regard to your doctoral
07 research?
08 A Yes.
09 Q And your undergraduate research or degree studies,
10 I should say?
11 A What do you mean by deal with?
12 Q Did you take any courses as an undergraduate at
13 George Washington University that dealt with water quality
14 standards?
15 A No.
16 Q Or wetlands?
17 A No.
18 Q Or hydrology?
19 A No.
20 Q Or physics?
21 A Yes.
22 Q What physics courses did you have?
23 A Oh, gosh, I --
24 Q If you remember them.
25 A I don't remember, really.
0021
01 Q How about biology, did you take courses in biology
02 as an undergraduate?
03 A The title, biology, do you mean, courses that had
04 as a title, biology?
05 Q Yes.
06 A No.
07 Q I take it your undergraduate -- well, what was the
08 major of your undergraduate degree, what major?
09 A Chemistry.
10 Q What was your minor.
11 A I didn't have a minor.
12 Q Did you take any courses in your undergraduate or
13 graduate work or postdoctoral work on hydrology?
14 A No.
15 Q On geohydrology?
16 A No.
17 Q Or on hydrological modeling?
18 A No.
19 Q Dr. Parks, can you tell us whether you are a
20 member of any professional societies?
21 A I am not.
22 Q What is your current employment?
23 A I am self-employed.
24 Q What is the name of the organization if it has a
25 name?
0022
01 A Natural Bridge Associates is the consulting,
02 Florida Wildlife Federation is the environmental.
03 Q Did you finish your answer?
04 A Yes.
05 Q The Florida Wildlife Federation relationship that
06 you just mentioned, are you employed by the Florida
07 Wildlife Federation?
08 A Not really, I have a grant that they administer.
09 Q How long have you had that grant?
10 A With --
11 Q With the Florida Wildlife Federation?
12 A I believe since 1988.
13 Q Is that an annual grant?
14 A Yes.
15 Q That is renewed?
16 A Yes.
17 Q What are your responsibilities under that grant?
18 A To provide scientific technical analyses of
19 environmental questions relating to the Everglades, to
20 produce educational material related to the Everglades.
21 Q And you have been doing that since 1988 for them,
22 is that correct?
23 A Yes.
24 Q The reports that you mentioned you prepared for
25 them or the environmental analyses I think you said that
0023
01 you prepared for them, do you prepare those in writing?
02 A Yes.
03 Q Is it your practice to send them out to members of
04 that organization?
05 A Yes.
06 Q Do you represent that organization before
07 governmental agencies?
08 A Yes.
09 Q Have you represented that organization in
10 connection with the SWIM plan development that is the
11 subject of these proceedings?
12 A Yes.
13 Q Did that SWIM plan involvement go back to 1988?
14 A I have forgotten exactly when the district began
15 working on the Everglades SWIM plan.
16 Q I would like to ask you to go back now in your
17 work experience and let's focus, if we can, on your tenure
18 with the Florida Department of Environmental Regulation?
19 A All right.
20 Q Do you still have a copy of your resume?
21 A Yes.
22 Q Between 1973 and 1977, as chief chemist for the
23 Florida Department of Pollution Control, were you asked to
24 give technical interpretations of water quality standards?
25 A Yes.
0024
01 Q Were you asked to deal with water quality
02 standards for nutrients?
03 A Yes.
04 Q Did you generally participate in rulemaking
05 relating to water quality standards?
06 A Yes.
07 Q During that period? And when you became head of
08 enforcement in 1977, did you continue to advise the
09 Department on water quality standards rulemaking?
10 A Yes.
11 Q And, in fact, I believe your resume indicated that
12 you served as an expert witness on water quality and
13 permitting and enforcement litigation as early as 1977, is
14 that correct?
15 A Yes.
16 MR. GREEN: For the convenience of everyone, if I
17 could, I would like to make Exhibit 3 the list of
18 abbreviations in the SWIM plan document.
19 (Whereupon, Exhibit No. 3 was marked for
20 identification.)
21 MR. GREEN: Exhibit 4 will be a copy of the reg.
22 file version of Chapter 17-3, Florida Administrative
23 Code.
24 (Whereupon, Exhibit 4 was marked for
25 identification.)
0025
01 MR. GREEN: Exhibit 5 is a copy of the Chapter
02 17-4, Florida Administrative Code, from the reg.
03 files.
04 (Whereupon, Exhibit 5 was marked for
05 identification.)
06 MR. GREEN: Exhibit 6 is Chapter 17-302, Florida
07 Administrative Code, from the reg. files.
08 (Whereupon, Exhibit No. 6 was marked for
09 identification.)
10 MR. GREEN: Exhibit 7 is a copy of the settlement
11 agreement entered in the case of United States, et al.
12 versus South Florida Water Management District, et al.,
13 Case No. 88-1886.
14 (Whereupon, Exhibit No. 7 was marked for
15 identification.)
16 MR. GREEN: Dated July 26, 1991.
17 BY MR. GREEN:
18 Q First, Dr. Parks, with regard to Exhibit 4, which
19 is Chapter 17-3, Florida Administrative Code, if you could
20 turn to page 3, are you familiar with the provision set
21 forth here as Rule 17-3.011(11), FAC, on page 3 of Exhibit
22 4?
23 A Yes.
24 Q Are you familiar with the term, mixing zone?
25 A Yes.
0026
01 Q Can you tell me what that is?
02 A If I could refer to the rule.
03 Q Absolutely. That is fine.
04 A What is the question?
05 Q Could you tell us what a mixing zone is?
06 A It is an area of defined and limited degradation
07 that meets the requirements of 17-4.244.
08 Q And what are those requirements?
09 A What kind of a discharge are we talking about?
10 Q A discharge of nutrients. Do you understand the
11 term, nutrients, when I use that term?
12 A Yes. Well, maybe I shouldn't assume that. What
13 do you mean by nutrients?
14 Q What are nutrients, I am asking you?
15 MS. PONZOLI: The question seems circular, Mr.
16 Green, it is your question.
17 BY MR. GREEN:
18 Q Let's start all over again. Okay. Are you
19 familiar with the term, nutrients, in the context of the
20 Florida water quality standards regulations?
21 A Yes, sir.
22 Q What does that term encompass?
23 A It encompasses anything a plant needs to --
24 Q Would nitrogen be one of those parameters?
25 A Yes.
0027
01 Q Would phosphorus?
02 A Yes.
03 Q Now, we were talking about the mixing zone rule.
04 Can you tell us what, what the limitations of mixing zones
05 might be with regard to discharges of nitrogen or
06 phosphorus?
07 MS. PONZOLI: Object to the form of the question.
08 MR. GREEN: What is the problem?
09 MS. PONZOLI: I don't understand what you mean by
10 limitations.
11 BY MR. GREEN:
12 Q Do you understand what I mean, Dr. Parks, by
13 limitations?
14 A It is my understanding (1)(c), 17-4.244(1)(c)
15 says, except for the terminal components of discharges and
16 nitrogen and phosphorous acting as nutrients, mixing zones
17 which do not adhere to all of the provisions, and it goes
18 on, shall be presumed to constitute a significant
19 impairment of designated uses of surface water, and -- what
20 was the question again, how does it apply to nutrients?
21 Q Yes. The provision you just read, what does that
22 mean to you?
23 A That mixing zones aren't allowed for nitrogen and
24 phosphorus acting as nutrients.
25 Q And what is the basis for that belief?
0028
01 A That was the intent when the rule was drafted. I
02 was involved in drafting it, and --
03 Q And that is your recollection -- excuse me, I
04 didn't mean to interrupt you.
05 A And Bill White, I believe, wrote that provision to
06 make that exclusion.
07 Q So when you say mixing zones are not allowed for
08 nitrogen or phosphorus, what is the practical effect of
09 that with regard to a discharge of nitrogen or phosphorus?
10 A That discharges of nitrogen and phosphorus must
11 meet water quality standards at the point of discharge.
12 Q Are you aware of any documents that support that
13 interpretation?
14 A No.
15 Q Are you aware of any people involved in this case
16 other than yourself who agrees with that interpretation?
17 A No.
18 Q Now, let's go back, if we could, to 17-3.011(11).
19 Exhibit 4, page 3, again. And, in fact, parens (11),
20 parens (a), if I could refer you to that, it is the third
21 paragraph from the top on that page?
22 A Yes.
23 Q It reads, the Department's rules that were adopted
24 on March 1, 1979 regarding water quality standards are
25 designed to protect the public health or welfare and to
0029
01 enhance the quality of waters of the State, period, and
02 then it goes on. The answer you gave to the question a
03 moment ago with regard to whether mixing zones were
04 available for nutrient discharges, I believe you indicated
05 that you were involved in that rulemaking and that it was
06 not the intent of the rule to allow that. Is that a fair
07 summary of what you --
08 A I got a little confused with the pronouns there.
09 Could you maybe restate that?
10 Q Sure. I think earlier when I asked you the basis
11 for believing that mixing zones were not available for
12 nutrients discharges, you indicated that it was not the
13 intent of the rule for them to be available. I believe
14 that was the gist of it, is that a fair summary?
15 A Yes.
16 Q My question is, what rule were you speaking of
17 when you said the intent of the rule? Were you referring
18 to the rules that are referenced here on page 3 of Exhibit
19 4 that were adopted in March of 1979?
20 A No.
21 Q What rules were you referring to?
22 A The specific statement in Chapter 17-4.
23 Q The one we referred to earlier?
24 A Yes.
25 Q Do you recall whether that provision that we
0030
01 referred to earlier in 17-4 was adopted in March of 1979?
02 A Yes, it was.
03 MR. HYDE: Excuse me, I am a little confused here.
04 Are we talking about 17-4.244(1)(c)?
05 THE WITNESS: Yes.
06 MR. HYDE: Okay.
07 BY MR. GREEN:
08 Q So you were employed by the Department when the
09 rule, the mixing zone rule in 17-4.244 that we have been
10 talking about was adopted, is that correct?
11 A I don't know about every line in the mixing zone
12 rule.
13 Q But the part that relates to nutrients that we
14 have been discussing, were you employed with the Department
15 when that was adopted?
16 A Yes.
17 Q And was that March 1979?
18 A Yes.
19 MS. PONZOLI: Mr. Green, would you specify which
20 subsection, I am getting lost along with Mr. Hyde.
21 MR. GREEN: Absolutely, Ms. Ponzoli, the date I am
22 referring to is on Exhibit 4, page 3, under --
23 MS. PONZOLI: I am with you there. It is in 17-4
24 I am getting lost, the subsection in 17-4 that you and
25 Dr. Parks are discussing, I just want to be sure I am
0031
01 following you. You seem to understand each other fine,
02 but I just want to be with you.
03 MR. GREEN: No problem. It is Rule
04 17-4.244(1)(c), Florida Administrative Code, and it is
05 on page 14, actually, of Exhibit 5.
06 MS. PONZOLI: Thank you. We are talking about the
07 entire subsection (c), is that accurate, or not?
08 MR. GREEN: Well, we were focusing primarily on
09 the first sentence of that subsection in the earlier
10 questions.
11 MS. PONZOLI: Okay. I am with you.
12 BY MR. GREEN:
13 Q I think Dr. Parks indicated that perhaps other
14 portions of the rule could have changed after that time,
15 and he wasn't necessarily saying that he was working with
16 the Department when those changes were made, is that
17 correct?
18 A Yes.
19 Q If mixing zones were not available for nutrients
20 back in 1979, in the mixing zone rule as we have been
21 discussing it, what would be the rationale for that, or is
22 there a rationale that you are familiar with?
23 A Nutrients, the impact of nutrients on receiver
24 waters could not generally meet the test required for a
25 mixing zone as given in the rule.
0032
01 Q And are those tests that you just referred to the
02 ones that are specified in Rule 17-4.244, FAC?
03 A Yes.
04 Q Let's look at those for a moment, if we may, if I
05 could refer you to page 14 of Exhibit 5. If you would
06 start there and walk me through the tests that you feel
07 mixing zones for nutrients could not meet, I would
08 appreciate it.
09 A I think the Everglades is a real good example of
10 (c)(3).
11 Q That is on page 14, (c)(3). Go on, please.
12 A Parens (f).
13 Q Okay.
14 A Paragraph 2.
15 Q Is that on page 15 of the exhibit?
16 A Yes.
17 Q Thank you.
18 A Parens (3). That is all I see right now.
19 Q Dr. Parks, for a discharge of nutrients and for
20 the provisions you just referenced on pages 14 and 15 of
21 Exhibit 5 that you felt nutrients would not qualify for, is
22 there any other relief mechanism available in Florida's
23 water quality regulations that could pertain to those
24 discharges?
25 A What do you mean by relief?
0033
01 Q Well, actually, I was referring to the moderating
02 provisions on page 3 of Exhibit 4. For example, under
03 parens (11), parens (b)(2), on page 3 of Exhibit 4, there
04 is a mention of site-specific alternative criteria,
05 exemption and equitable allocation provisions. Are you
06 familiar with those provisions in the Florida rules?
07 A I would have to refer to -- I am generally
08 familiar, but I would have to refer to the specific rule
09 section to answer specific questions.
10 Q Let's take the first one, site-specific
11 alternative criteria. Are you familiar with that concept
12 in the regulations and can you find it?
13 A I am familiar, I am pretty sure I can find it.
14 Q Thank you.
15 Did you find it, Dr. Parks?
16 A Yes, I did.
17 Q Where is it found in the regulations?
18 A 17-302.800.
19 Q Is that in Exhibit 6, page 68?
20 A Yes.
21 Q Dr. Parks, we were discussing nutrient discharges
22 earlier, and I would like to ask you whether, in your
23 experience, site-specific alternative criteria are
24 available for nutrient discharges?
25 A What kind of nutrient discharges are you talking
0034
01 about?
02 Q Discharges of phosphorus and nitrogen?
03 A And the question is, is a site-specific
04 alternative criteria generally available for a discharge of
05 phosphorus and nitrogen?
06 Q Well, is this an available relief mechanism? Do
07 you understand what I mean by relief mechanism? If you
08 don't --
09 A Yes.
10 Q Is this site-specific alternative criteria section
11 part of Florida's Water Quality Standards which will allow
12 case-by-case relief or moderation of water quality
13 standards for nutrient discharges?
14 A What would case-by-case mean in this context?
15 Q Let me ask you to read 17-302.800(1)?
16 A Out loud or to myself?
17 Q Yes.
18 A Out loud.
19 Q The first sentence.
20 A The water body or portion thereof may not meet a
21 particular ambient water quality criterion specified for
22 its classification due to natural background conditions or
23 plan induced conditions which can't be controlled or
24 abated.
25 Q And then the next sentence, please, and then that
0035
01 is all.
02 A In such circumstances and upon petition by an
03 affected person or upon an initiation by the Department,
04 the Secretary may establish a site-specific alternative
05 water quality criterion when an affirmative demonstration
06 is made that an alternative criterion is more appropriate
07 for a specified portion of waters of the State.
08 Q Can you think of any instance in which a nutrient
09 discharge might qualify for site-specific alternative
10 criteria relief under there provision?
11 MS. PONZOLI: Object to the form of the question.
12 BY MR. GREEN:
13 Q Are you familiar with any situations where the
14 Department has granted, the Department of Environmental
15 Regulation has granted relief to nutrient discharges under
16 this provision that we have been discussing?
17 A No.
18 Q Have you, yourself, as consultant for different
19 clients sought site-specific alternative criteria relief
20 from the Department of Environmental Regulation?
21 A Yes.
22 Q Did you ever do that for a client that needed
23 relief for a nutrient discharge?
24 A I guess it was an issue with Zellwood.
25 Q What kind of discharge did Zellwood involve?
0036
01 A The drainage from vegetable farms.
02 Q And why was -- may I call it S-S-A-C or SSAC, for
03 everyone to expedite, why did Zellwood need a SSAC for that
04 discharge?
05 A I am not too sure, I don't know the details of
06 Zellwood's enforcement and permitting problems. I was
07 asked by another consultant to participate in analyzing
08 Zellwood's potential for receiving a SSAC.
09 Q What did you conclude, were -- did they qualify
10 for a SSAC, in your opinion?
11 A I would have to refer to the original report. The
12 gist of it was whether they qualified for a SSAC or not,
13 the gist of the analysis was that.
14 MS. PONZOLI: Mr. Green, you have a copy of that.
15 Why don't we let him refresh his memory?
16 MR. GREEN: Well, frankly, I don't know where it
17 is right now. If you could give me the gist of it, I
18 would be happy for right now.
19 MS. PONZOLI: I sort of feel like you are going to
20 impeach him if his gist differs from what he has
21 already told you he doesn't remember too well.
22 MR. GREEN: As long as you will give me the right
23 to find it and question him later about it, we can move
24 on to other questioning.
25 THE WITNESS: I remember it now.
0037
01 MS. PONZOLI: Do you prefer to answer without
02 reviewing the document, Dr. Parks?
03 THE WITNESS: No.
04 BY MR. GREEN:
05 Q I would be happy to let you review it and change
06 your answer if it changes your view. We will find it, but
07 right now, if you can just give me the gist of it, did they
08 need a SSAC, did they qualify and that sort of thing?
09 A The SSAC was for dissolved oxygen.
10 Q Why did they need a SSAC for dissolved oxygen, do
11 you remember?
12 A They were contributing, as I recall, and this is
13 best of my recollection, I have not seen that document for
14 a long time.
15 MS. PONZOLI: We found it.
16 MR. GREEN: I don't think this is it.
17 Continue, please.
18 THE WITNESS: That they were contributing to
19 dissolved oxygen violations in Lake Apopka, and the
20 question was what was the remedy for that, and my
21 analysis, as I recall it, was to make a determination
22 as to whether or not the proposed remedy would have any
23 effect on dissolved oxygen in Lake Apopka.
24 MR. GREEN: Let's mark as Exhibit 8 a document
25 entitled "Efficacy and Feasibility of Phosphorus
0038
01 Abatement in Lake Apopka."
02 (Whereupon, Exhibit No. 8 was marked for
03 identification.)
04 BY MR. GREEN:
05 Q Dr. Parks, can you identify this document?
06 A This is a report that Sanford Young and I prepared
07 for, I guess, Zellwood drainage district.
08 Q Is this the report that you referred to previously
09 that you had done in conjunction with Mr. Young?
10 A Yes.
11 Q Let me ask you to kind of flip through it and
12 refresh your recollection on it. I know that your
13 conclusions start on page 24, but that is not to say that
14 you should not look at any or all of it if you need to.
15 Are you generally familiar with this now, Dr. Parks?
16 A It is coming back to me.
17 Q Let's look at page 3 of Exhibit 8.
18 MS. PONZOLI: Dr. Parks, are you through reviewing
19 it?
20 THE WITNESS: Well, it would depend on the
21 question. I may have to take some more time.
22 BY MR. GREEN:
23 Q If you need more time to answer a question, please
24 tell me. On page 3, the top paragraph, as I understand
25 that paragraph, you are citing a nutrient rule,
0039
01 17-3.121(19), and stating that violation of that rule is
02 violation of water quality criteria.
03 My question is, is that the rule for which this
04 document is seeking to have a site-specific alternative
05 criterion established?
06 A I think that formally, it would have, if this had
07 gone forward, it would have required SSAC for -- it would
08 have required an application for a SSAC for any parameter
09 that didn't meet water quality standards to which the
10 discharge was contributing.
11 Q Are there any other water quality standards, to
12 your knowledge, besides the one cited on page 3 here that
13 apply directly to nutrients that are contained in Florida
14 regulations?
15 A Yes.
16 Q What are those?
17 A Not to cause a violation, not to cause a violation
18 of any other criterion, and -- I am paraphrasing, I am not
19 reading precisely the rule language -- and not to create
20 nuisance conditions.
21 Q Are there any --
22 A There may be others.
23 Q Are there any end of the pipe nutrient
24 restrictions contained directly in Florida water quality
25 standards? Did that question make sense?
0040
01 A I could use a little clarification.
02 Q Let me go again. Other than the standards you
03 just paraphrased, do Florida water quality standards
04 contain any end of pipe numerical limitations on phosphorus
05 or nitrogen?
06 A Yes.
07 Q What are those?
08 A Wherever you must work backwards from water
09 quality standards to discharge point, you have to get end
10 of pipe limitations.
11 Q How do you do that?
12 A How do you --
13 Q Work backwards, the process you just described,
14 how is that done?
15 A You determine what discharge concentrations will
16 enable, provide reasonable assurance that water quality
17 standards will not be violated.
18 Q Is that a case-by-case determination, or does the
19 number apply to every discharge in Florida?
20 A Nutrient standards are site-specific.
21 Q Would it be correct to say, then, that there are
22 no general across the board end of pipe nutrient standards
23 in Florida?
24 A No.
25 MS. PONZOLI: I object to the form.
0041
01 MR. GREEN: What is the problem with the form?
02 MS. PONZOLI: I think it is an unintelligible
03 question, it is too broad.
04 MR. GREEN: Would you read it back, Jerry?
05 (Whereupon, the court reporter read the requested
06 portion of the record.)
07 BY MR. GREEN:
08 Q Did you understand the question?
09 A Yes.
10 Q What is your answer?
11 A No.
12 Q What are those standards?
13 A They are the standards that are determined by --
14 determined the site-specific ambient nutrient limits and
15 work backwards to the end of the pipe.
16 Q Well, maybe we are confused. Let me start all
17 over again with this.
18 Dr. Parks, you indicated that in order to
19 determine the end of pipe limitation for nutrient
20 discharge, one would work one's way backwards from the
21 receiving body of water on a case-by-case basis. Is that
22 an accurate summary of what you said?
23 A Yes.
24 Q So that is a site-specific determination, is that
25 correct?
0042
01 A Yes.
02 Q And the number that is gotten for one site might
03 be entirely different than for another site, depending on
04 local conditions, is that true?
05 A Yes.
06 Q So my question is, would you agree that in that
07 situation, that the number does not -- that one situation
08 for a particular discharge does not apply across Florida to
09 all discharges of that type?
10 MS. PONZOLI: Same objection as before.
11 THE WITNESS: Do you mean would each discharge
12 have the same number?
13 BY MR. GREEN:
14 Q Yes. Would they? Once that was determined for
15 one nutrient discharge in Florida, would the number be
16 applied to every other discharge in Florida?
17 A We are saying, for example, you determine that
18 phosphorus of 20 parts per billion can be discharged at one
19 site, are you asking, can -- does that 20 parts per billion
20 apply to all other sites?
21 Q Yes.
22 A No.
23 Q What DER regulation describes the process that the
24 Department would come up -- would follow when establishing
25 the nutrient limitation for a particular discharge?
0043
01 A Permitting.
02 Q The permitting regulations?
03 A Yes.
04 Q Are you familiar -- are those contained in any of
05 the exhibits that I have handed you, for example, Exhibit
06 5?
07 A This is part of them.
08 Q Can you point me to the particular rule that
09 describes the process we have been discussing?
10 MS. PONZOLI: Object to the form.
11 BY MR. GREEN:
12 Q That is the process of establishing case-by-case
13 nutrient limitations?
14 A This is not complete. Wait a minute. It doesn't
15 seem to be all here.
16 Q If you cannot find it in the exhibits that I have
17 given you, we will come back to that later, Dr. Parks.
18 A Okay. But -- it is not all here.
19 Q Let's go back to Exhibit 4, page 3, once again.
20 A Exhibit 4, page 3.
21 Q Yes.
22 A All right.
23 Q Parens (11) parens (b)2, again, mentions the term
24 equitable allocation. Are you familiar with that term?
25 A Yes.
0044
01 Q Do you know how that term is used in Florida's
02 water quality regulations?
03 A I would have to refer to the specific part of the
04 rule. Do you know the page?
05 Q 17-4.242, I believe, (4), page 8, of Exhibit 5.
06 A I have it.
07 Q Are you familiar with this provision that is Rule
08 17-4.242(4), Florida Administrative Code?
09 A Generally.
10 Q Do you have any knowledge of whether this
11 provision has ever been applied by the Department of
12 Environmental Regulation?
13 A No.
14 Q Have you ever sought equitable abatement for a
15 client in your role as a consultant?
16 A I don't believe so.
17 Q Do you know if anyone else has?
18 A No.
19 Q If you could stay in that same exhibit and let's
20 flip on over to the mixing zone rule that we were
21 discussing earlier, which I believe was page 14, on page
22 14, (c)(3), that was a provision that you had felt you
23 indicated nutrient discharges could not meet. Is that
24 correct?
25 A I did say that.
0045
01 Q Would you explain your reason for that statement?
02 A In a -- for example, in a discharge to a marsh,
03 such as the Everglades, the nutrient impact would be
04 cumulative.
05 Q How does that relate to (c)(3), in your mind?
06 A It would produce a significant adverse impact,
07 adverse effect.
08 Q What is the basis for believing that phosphorus or
09 nitrogen impacts on marshes or cumulative, if that is what
10 you meant?
11 A Phosphorus accumulates in the soil.
12 Q Have you -- how do you know that?
13 A From reading the work of others and hearing
14 reports presented to LOTAC.
15 Q Have you done any infield research yourself to
16 determine whether phosphorus impacts are cumulative in
17 wetlands?
18 A I believe that is answered in my resume.
19 Q Well, I would like you to answer it again?
20 A No.
21 Q No. Dr. Parks, have you done any infield research
22 since receiving your -- since completion of your
23 postdoctoral work?
24 A Let me answer that by reading a statement from my
25 resume, a list of publications derived from there and
0046
01 earlier work is attached, following this period, my
02 employment did not involve laboratory or field research.
03 Q Thank you, Dr. Parks, that is helpful. Why would
04 accumulation of phosphorus mean that there was a
05 significant adverse effect as that term is used under
06 (c)(3), on page 14 of Exhibit 5?
07 A My understanding of what a significant adverse
08 effect is on the established community of organisms comes
09 from other experts. My understanding is that that is a
10 consequence of accumulation of phosphorus in the sediments
11 and soils near the point of discharge.
12 Q Is that true in every case for every type of
13 nutrient discharge?
14 A I don't know.
15 Q Is that something that would need to be evaluated
16 on a case-by-case basis?
17 A Yes.
18 Q How about parens (F), on page 14? You indicated
19 earlier that nutrient discharges could not meet that
20 restriction. Would you explain why that is?
21 A Well, again, the Everglades is a good example,
22 because of the progressive effect of the impact, the
23 boundary of the effected area continues to increase.
24 Therefore, it would violate provision (F).
25 Q We will get back to that. How about parens (2),
0047
01 on page 15? What was your reasoning there for earlier
02 stating that nutrient discharges could not meet this
03 provision?
04 A My reason there was that the boundaries are not
05 stable.
06 Q For any nutrient discharge?
07 A For all nutrient discharges.
08 Q What do you base that conclusion on?
09 A My knowledge of what is happening in the
10 Everglades.
11 Q Would those be reports that you referenced earlier
12 that are opinions of other experts?
13 A And personal observation.
14 Q What are those personal observations that you are
15 referring to?
16 A Helicopter trips, air boat trips, half-track trips
17 to the vicinity of the discharge points and downstream.
18 Q What discharge points, where in Florida?
19 A In the Loxahatchee National Wildlife Refuge,
20 conservation area 2-A, conservation area 3-A.
21 Q When did you take those trips?
22 A I am not sure of the exact dates.
23 Q Do you know the year?
24 A Not precisely. Late '80s, early '90s.
25 Q Do you know how many trips you took?
0048
01 A No.
02 Q Who did you go with?
03 A LOTAC.
04 Q For the record, what is LOTAC, Dr. Parks?
05 A Lake Okeechobee Technical Advisory Committee, in
06 some years, and Council, in some other years. And it
07 was -- had three incarnations. One was appointed by the
08 Secretary of DER, one was a result of the SWIM Act, and the
09 third was an Executive Order of the Governor.
10 Q When you made these helicopter flights you were
11 talking about, you said LOTAC went with you, do I
12 understand that correctly?
13 A I went with LOTAC would probably be better.
14 Q Who was with you, what person?
15 A The members of LOTAC and the members of the staff
16 of the South Florida Water Management District.
17 Q Who might those individuals been?
18 A Who belonged to LOTAC?
19 Q And the individuals from South Florida Water
20 Management District that accompanied you?
21 A I am working to recall that. Archie Grant.
22 LOTAC, composition of LOTAC changed a little bit, it seemed
23 to me. Pete Rosendale, Bernie Yokel, Ignatio Garcia, Ben
24 Godlia, Lois Ojamel, Barry Baldwin. I can see their faces,
25 but -- and I know their first names.
0049
01 Q You have done quite well. Of those individuals
02 you just mentioned, were any of them South Florida Water
03 Management District employees?
04 A No. The employees -- let's see, these are various
05 trips at various times. Steve Davis, Pete Rhodes, well,
06 the helicopter pilot.
07 Q Anyone from the federal government attend those
08 trips with you?
09 A No. Well, I don't believe so.
10 Q How about DER?
11 A Yes.
12 Q Who from DER? Do you recall?
13 A One trip I was on, some of this may have been
14 Stage 2, Bart Bibler, and if it had been Stage -- there
15 would have been people from the federal government, it
16 might have been.
17 Q But you don't remember any, at this point,
18 individuals you might know?
19 A No.
20 Q When you took the trips you were talking about,
21 what was the purpose of the trips?
22 A To examine the areas impacted by the discharges
23 from the EAA.
24 Q How was that examination done?
25 MS. PONZOLI: Object to the form.
0050
01 THE WITNESS: In flying over, we knew from the
02 point of discharge downstream, and, you know, the
03 vegetation changes, it is very obvious and easy to see
04 from the air what is natural Everglades and the changes
05 that have occurred in the vicinity of the discharge
06 points.
07 On the ground, in the airboat trips, of course,
08 you are down in it, you can smell it and look at it and
09 stick a pole down in it, and you can easily see the
10 difference between the impacted areas and the areas
11 that are further downstream.
12 BY MR. GREEN:
13 Q Did you take any scientific instrumentation
14 along?
15 A No.
16 Q So were these observations primarily visual and
17 sensory?
18 A Yes.
19 Q How did you know where you were?
20 A From the -- in the air, of course, it is quite
21 easy to see structures and relate them to what I know about
22 the geography of the area, in an air boat, it is less
23 certain, but I always keep a map in my head when I am
24 traveling, the direction I am going, roughly where I am.
25 Q I believe you indicated earlier that because of
0051
01 your personal observations, that the impacts in these areas
02 were increasing or expanding, is that a correct
03 paraphrase?
04 A No.
05 Q Let me ask you what you meant? When I asked you a
06 question about, on page 15, parens (2) of Exhibit 5, I
07 believe that you indicated that Everglades discharges could
08 not qualify for mixing zone because the boundaries were not
09 stable.
10 Is that a fair summary of what you said?
11 A Yes.
12 Q And then I asked you why you believed that?
13 A Yes.
14 Q And then you said personal observations. Is that
15 true?
16 A The personal observation is that the effect
17 occurs. I have not personally observed it expanding,
18 although I have knowledge from the work of others that the
19 impact is expanding downstream. And from my knowledge of
20 the basic principles involved, I would expect it to expand
21 downstream.
22 Q Let's look at page 15 of Exhibit 5, parens (3),
23 which was the last section that you at this time recalled
24 might not be met by nutrient discharges.
25 Could you explain your reasoning there?
0052
01 A Dissolved oxygen values less than 1.5 milligrams
02 per liter at any time or place. I would expect that in the
03 midst of the cattail monoculture that that criterion would
04 not be met, and, in fact, data show that.
05 Q In a case of nutrient discharges in general, for
06 nutrient discharges that are believed to cause dissolved
07 oxygen values to go down, if the values for dissolved
08 oxygen go below the applicable standard, is there a relief
09 mechanism that the Department can utilize to consider
10 whether to grant a discharge permit in spite of that that
11 you are familiar with?
12 A Let me make sure I understand your question.
13 Q Sure.
14 A If waters are not meeting the dissolved oxygen
15 standard and there is a nutrient source which contributes
16 to further lowering of the dissolved oxygen standards, is
17 there a relief mechanism, that is what you asked?
18 Q Yes.
19 A No.
20 Q Would site-specific alternative criteria not be
21 available in the example you described?
22 A I believe you cannot further lower the dissolved
23 oxygen with a SSAC.
24 Q Further over what level?
25 MS. PONZOLI: Object to the form.
0053
01 BY MR. GREEN:
02 Q When you say further lower, what were you
03 referring to, further than what?
04 A The ambient values that are already below
05 standards.
06 Q Does it matter why the ambient values are below
07 standards in the example you have been discussing?
08 MS. PONZOLI: Object to the form.
09 THE WITNESS: It might.
10 BY MR. GREEN:
11 Q How so?
12 A I would have to refer back to the documents.
13 Q That is Exhibit 6, page 68, I believe. Let me ask
14 you a question about this page 68 of Exhibit 6, Dr. Parks,
15 that we referred to earlier. If a nutrient discharge were
16 responsible for lowering dissolved oxygen, would this
17 provision of DER regulations been potentially applicable
18 for granting relief for that discharge?
19 MS. PONZOLI: Object to the form.
20 THE WITNESS: What kind of a nutrient discharge is
21 it?
22 BY MR. GREEN:
23 Q A nutrient discharge into a water body that did
24 not meet the ambient water quality criterion for oxygen,
25 dissolved oxygen?
0054
01 A You are asking me, is this provision generally
02 applicable to that?
03 Q Is it potentially applicable?
04 MS. PONZOLI: Same objection.
05 THE WITNESS: I would have to know more about the
06 discharge.
07 BY MR. GREEN:
08 Q Under what circumstances, in your knowledge, would
09 a site-specific alternative criterion been available for
10 dissolved oxygen relating to the nutrient discharge, if
11 any?
12 MS. PONZOLI: I object to the form.
13 THE WITNESS: Well, just what the rule says, due
14 to natural background conditions or plan induced
15 conditions which can't be controlled or abated, and, of
16 course, granting it is discretionary.
17 BY MR. GREEN:
18 Q All right.
19 A And there are other tests further on in the rule.
20 MR. GREEN: Is this a good place to take a five-
21 minute break for everybody?
22 (Brief recess.)
23 BY MR. GREEN:
24 Q Dr. Parks, if we could go to page 18 of Exhibit 5
25 for a moment, I would like to ask you if you would review
0055
01 parens (7) of Rule 17-4.244, and tell me if you are
02 familiar with that section. Take all of the time you
03 need.
04 A A piece of mine, page 19 is missing in my copy.
05 Q We will get back to that after we find page 19,
06 thank you for noticing it.
07 Dr. Parks, on page 68 of Exhibit 6, a moment ago
08 we were speaking about site-specific alternative criteria,
09 and about that part of the rule in parens (1), on page 68,
10 it talks about natural background conditions or man-induced
11 conditions which can't be controlled or abated.
12 Are you familiar with those concepts, that is,
13 natural background conditions or man-induced conditions
14 which can't be controlled or abated?
15 A Yes.
16 Q What is your understanding of each?
17 A My understanding with respect to what?
18 Q Well, let's save some time. Would you agree that
19 those terms are defined on page 5 of the exhibit, in the
20 definitions section of the rule?
21 A Natural background is.
22 Q And how about man-induced conditions which can't
23 be controlled or abated?
24 A Yes.
25 Q If I could return briefly to Exhibit 8, which was
0056
01 the study that you prepared in relation to Lake Apopka,
02 also known as Zellwood, earlier, on the last page, well,
03 the next to the last page, 26, would you turn to that, and
04 would you read the last paragraph, please, out loud?
05 A "Because of the long time required and other
06 uncertainties, it is not clear at this time that abatement
07 of a nutrient imbalance in Lake Apopka is defined by
08 restoration of the support fishery is feasible. A site-
09 specific alternative criterion of the status quo is
10 appropriate until it can be established that abatement is
11 feasible."
12 Q Would it be correct to assume from this that,
13 quote, status quo, end quote, may be a SSAC in a given
14 case?
15 A I made that argument on more than one occasion to
16 the Department and they rejected it.
17 Q Do you believe it is correct?
18 MS. PONZOLI: Object to the form.
19 THE WITNESS: Under what circumstances?
20 BY MR. GREEN:
21 Q Under the circumstances that you were describing
22 in this Exhibit 8.
23 A Yes.
24 Q And it may be correct in other cases, but you
25 would have to decide case-by-case, is that fair?
0057
01 MS. PONZOLI: Object to the form.
02 BY MR. GREEN:
03 Q Would it be potentially correct in other cases?
04 MS. PONZOLI: Same objection.
05 BY MR. GREEN:
06 Q Would a status quo SSAC be potentially
07 appropriate, in your opinion, in a given case?
08 MS. PONZOLI: Same objection.
09 THE WITNESS: Under certain circumstances.
10 BY MR. GREEN:
11 Q And what would those circumstances be?
12 MS. PONZOLI: Object to the form. It is sort of
13 *aversive. You are posing a hypothetical to him and he
14 has to pose a hypothetical to you.
15 BY MR. GREEN:
16 Q You can answer.
17 A The situations where I made this argument had to
18 do with continuing an activity that did not lower ambient
19 quality. The argument was that we didn't need to have,
20 that the more appropriate value, which is a term used in
21 the rule, was simply background.
22 Q Well, why did that, the situations you were
23 talking about need a SSAC if they did not lower ambient?
24 A They were alleged to be contributing to violation
25 of water quality standards. The question was, would
0058
01 removal of their contribution, I mean, physically, they had
02 a contribution, whether it was contributed or not was the
03 question, technically, the question was whether removing
04 their contribution would change water quality in Lake
05 Apopka.
06 Q And you thought that removing their contribution
07 would not change the water quality in Lake Apopka, is that
08 correct?
09 A That may be a little broader than my statements
10 in the report, but the report speaks for itself. That is
11 the general line of the argument.
12 Q Would it be correct to summarize that point this
13 way, that a status quo SSAC might be available in a
14 circumstance where removal of the discharge in question
15 would not change ambient water quality? Is that a fair
16 statement of what you said?
17 MS. PONZOLI: Objection to form.
18 THE WITNESS: Well, I would say it a little
19 differently.
20 BY MR. GREEN:
21 Q How would you say it? Before you do, would you
22 answer the question?
23 A Could you read it back to me?
24 MR. GREEN: Read it back, Jerry, please.
25 (Whereupon, the court reporter read the pending
0059
01 question.)
02 THE WITNESS: Yes.
03 BY MR. GREEN:
04 Q How would you rather say it?
05 A I would say that unlike the Everglades in this
06 case, in Lake Apopka there wasn't any clear evidence that
07 removing this source or treating this source would alter
08 the water quality in Lake Apopka.
09 Q What do you base that last statement on, that
10 unlike the Everglades, what is it about the Everglades that
11 is different?
12 A There are large areas of the Everglades that have
13 not, at least not yet, been impacted by these discharges,
14 and it is apparent that the discharges in question are
15 causing the effect.
16 Q What areas are you speaking of the Everglades
17 that you are saying have not been impacted yet by these
18 discharges and what discharges are you speaking of?
19 A Discharges from the Everglades Agricultural Area
20 and the areas that have not yet been impacted are those in
21 the interior of Loxahatchee National Wildlife Refuge,
22 further downstream in Everglades National Park, down,
23 further downstream from the S-12's, and portions of
24 conservation area 3A, and all of 3B.
25 Q How about portions of conservation area 2A, are
0060
01 those impacted yet by nutrient discharges?
02 A Yes.
03 Q What areas of conservation area 2A?
04 A The most severely impacted are those closest to
05 the point of discharge, and the impacts, it is my
06 understanding that the impacts diminish as you proceed
07 downstream.
08 Q Excuse me --
09 A And there is some question as to whether any area
10 remains unimpacted by these discharges.
11 Q What discharges are you speaking of? Would those
12 be the S-10 structures, is that what you are saying?
13 MS. PONZOLI: Object to the form.
14 THE WITNESS: That is.
15 BY MR. GREEN:
16 Q What structures were you referring to?
17 A The structures that deliver water derived
18 predominantly from the EAA through the S-10, the water
19 comes from S-6 pumping station and S-5A pumping station.
20 Q Now, back to our earlier discussion about the
21 status quo SSAC concept, what evidence are you aware of
22 that removal of nutrients from EAA discharges would improve
23 ambient water quality in the water conservation areas?
24 A What do you mean by improve ambient water quality?
25 Q Let me ask you to go way back, about 10 questions
0061
01 ago and let's read him back.
02 (Whereupon, the court reporter read the requested
03 portion of the record.)
04 BY MR. GREEN:
05 Q Dr. Parks, what evidence are you aware of that
06 would indicate that removing or treating EAA discharges
07 would alter the water quality impacts associated with those
08 discharges in the water conservation areas?
09 A The evidence is cited in the SWIM plan that
10 phosphorus in the discharges is leading, is producing,
11 among other things, a monoculture of cattails in which
12 water quality standards are violated. If you remove the
13 cause of that upstream, then you would expect through time
14 the impact to dissipate phosphorus impacts and the impact
15 to go away.
16 Q Are you aware of any studies that would support
17 that conclusion?
18 A No.
19 MR. GREEN: For the record, if the parties would
20 feel comfortable with this, I would like to substitute
21 a more complete Exhibit 5 which has the page 19 that
22 Dr. Parks earlier pointed out was missing, and also all
23 of the way through the end of that section which is
24 page 26, and we can just substitute these. Is there
25 any objection to that?
0062
01 MS. PONZOLI: They are identical except for the
02 pages have been added?
03 MR. GREEN: Yes. Wait, let's mark that as Exhibit
04 5A.
05 (Whereupon, Exhibit No. 5A was marked for
06 identification.)
07 BY MR. GREEN:
08 Q Let's all turn to Exhibit 7, the settlement
09 agreement.
10 Dr. Parks, have you ever, first of all, have you
11 ever seen a copy of this document before?
12 A Yes.
13 Q Do you understand what it is, generally?
14 A Yes. I assume that this is the document that was
15 entered by the court, is that correct?
16 Q Yes. This is the settlement agreement in United
17 States of America, et al., versus South Florida Water
18 Management District, et al., Case No. 88-1886.
19 Dr. Parks, would you turn to page 2, and the third
20 line from the bottom, there is a definition of, quote,
21 imbalance in natural populations of aquatic flora and
22 fauna, end quote, and it continues, to the top of page 3,
23 and if I could refer you to line 5, page 3 -- make that
24 line 10, the sentence beginning, "In the case of the Park
25 and Refuge, imbalance specifically shall include," and that
0063
01 sentence continues, starting there, all of the way to the
02 end of that definition F.
03 Are you familiar with that part of this settlement
04 agreement? Have you ever seen it before?
05 A I have seen it before.
06 Q Do you know who drafted it?
07 A No.
08 Q Did you participate in its development?
09 A No. I have provided advice to the U. S.
10 Attorney's office since 1988. Whether they used some of
11 that in this, producing this document or not, I couldn't
12 say.
13 Q Did you participate in the developing of any
14 drafts that preceded this final document?
15 A Yes.
16 Q Who were you doing that for?
17 A The U. S. Attorney's office.
18 Q Do you remember how many drafts you saw?
19 A It was, I just happened to be in Miami at the time
20 on some other matter, and I looked over some drafts and did
21 some kind of wordsmithing sort of stuff on it. That was
22 the extent of my involvement with the settlement agreement.
23 Q As we go through this, can you tell me which
24 portions of the settlement agreement that you did review?
25 A I don't think I could. These were really minor
0064
01 wording changes. Everything was in virtually -- it is the
02 same, as best I recollect, the same as the final.
03 Q When was that?
04 A Well, I don't know for sure. I think it was late
05 June, something like that, early July, maybe.
06 Q Were you involved with meetings of any other
07 parties to that case, in discussions of drafts of the
08 settlement agreement?
09 A By any other parties?
10 Q Well, South Florida Water Management District or
11 the Department of Environmental Regulation?
12 A No.
13 Q Were there any other groups that you had in mind
14 when you asked me whether there were any other parties?
15 A Conservation intervenors.
16 Q Except for them, that is your answer. Okay.
17 If we could refer to Appendix A of this agreement,
18 which is entitled, "Phosphorus Limits for Inflows into
19 Everglades National Park," do you recall whether you
20 commented on any of the drafts preceding this final
21 agreement on this appendix?
22 A No.
23 Q Dr. Parks, this draft mentions, or, I am sorry,
24 this final copy of the final settlement agreement on
25 Appendix A, page 1, mentions in the middle of the
0065
01 paragraph, and I will quote, "In each basin, long term
02 discharge limits are the limits necessary to meet the OFW
03 water quality criteria as measured at the structures
04 discharging into the Park."
05 It continues. Are you familiar with the term,
06 OFW?
07 A Yes.
08 Q What does that mean?
09 A Outstanding Florida water.
10 Q Have you reviewed this settlement agreement to see
11 whether it applies Florida's water quality rules on OFWs
12 properly?
13 MS. PONZOLI: Objection to form.
14 THE WITNESS: That is a pretty broad question.
15 Well, yes.
16 BY MR. GREEN:
17 Q And what is your conclusion?
18 A I don't agree with the baseline.
19 Q Why not?
20 A I don't think the structure should be
21 grandfathered in.
22 Q Do you believe this agreement grandfathers the
23 structures in?
24 A Yes.
25 Q When you say structures, are you referring to
0066
01 those listed on Appendix A, page 1?
02 A I am referring to pump stations S-5A, S-6, S-7 and
03 S-8.
04 Q Well, I -- okay. Do you agree with how Appendix A
05 treats the structures that it pertains to, and that is,
06 structures S-12A, S-12C, S-12D, S-333, and also S-332,
07 S-175 and S-18C?
08 A It assumes that the OFW baseline is '78 and '79.
09 Q Why don't you believe that that is the correct
10 baseline to use for those structures?
11 A I believe that pumping stations *S-5S, S-6, S-7
12 and S-8, as well as S-9, as well as other discharges into
13 the Everglades, were sources of pollution under the meaning
14 of the OFW rule, and when that rule was adopted they should
15 have had permits, and therefore, their effect on ambient
16 water quality should not be included in the baseline for
17 OFW.
18 Q If their effect is not included in the baseline,
19 what does that change with regard to what limits should
20 apply to them, if anything?
21 A Unpolluted Everglades background would apply to
22 that.
23 Q Do you believe that the appropriate water quality
24 limitations that apply to discharges into the Everglades,
25 therefore, are those that would be found for unpolluted
0067
01 background Everglades water concentrations and pollutant
02 parameters?
03 MS. PONZOLI: Would you read that question back,
04 please?
05 (Whereupon, the court reporter read the pending
06 question.)
07 MS. PONZOLI: Are you withdrawing it? I object to
08 the form.
09 MR. GREEN: I kind of liked it.
10 MS. PONZOLI: I don't understand what it asks.
11 BY MR. GREEN:
12 Q Do you know what I am trying to ask you?
13 A No.
14 Q Let me back up.
15 Dr. Parks, you said that in your view, discharges
16 to the Everglades were not grandfathered in when the OFW
17 rule was adopted, is that correct?
18 A Yes.
19 Q And I think that I understood your answers earlier
20 to say that as a consequence of that, the discharge limits
21 that should apply to those structures would be limits that
22 should produce water that has a quality as high as
23 unpolluted background levels in the Everglades, is that
24 true?
25 A Let me correct that. It should be, it should be
0068
01 water of, it should be water of that quality which would
02 obtain in the absence of those unpermitted discharges.
03 Q And do you have an opinion on what quality of
04 water that might be?
05 A Real good, I mean, it is --
06 Q How about phosphorus? Do you have an opinion on
07 what the phosphorus concentration would be?
08 A No, I don't know.
09 Q But again, it is your understanding that this
10 Appendix A grandfathers those structures inasfar as the OFW
11 rule is concerned and uses the 1978-'79 baseline, is that
12 true?
13 A The grandfather of course is my characterization.
14 I think that is the effect of taking that baseline.
15 Q Do you understand how the interim and long-term
16 limits on Appendix A-2 were arrived at? And again, we are
17 still talking about Exhibit 7.
18 A On page A-2?
19 Q Yes.
20 A I believe that is explained in the SWIM plan. I
21 don't want to say that I am completely familiar with it,
22 but it was a statistical procedure using available data.
23 Q Do you have any understanding of why there are two
24 sets of limits as opposed to one limit? In other words,
25 why are there interim limits and long-term limits?
0069
01 A I am on page A-2. Which page are you on?
02 Q A-2.
03 A I see, I am looking, I got confused, dry year, wet
04 year. The interim limits, as I understand it, were to
05 provide a basis for design of the interim measures required
06 to remedy the pollutants being discharged from the EAA.
07 Q How about the long-term limits, what were they
08 designed to achieve, in your view?
09 A Water quality standards.
10 Q Which, if either, of those limits is based upon
11 OFW requirements?
12 MS. PONZOLI: Object to the form.
13 THE WITNESS: Do you mean interim or final?
14 BY MR. GREEN:
15 Q Yes. Was either one of those designed to achieve
16 OFW requirements, as far as you know?
17 A Yes.
18 Q Which one?
19 A The final.
20 Q Were any of the documents that at the beginning of
21 your deposition we talked about being withheld on grounds
22 of privilege related to the development of this settlement
23 agreement?
24 A How do you mean, related to?
25 Q Did they deal with that subject matter?
0070
01 A The settlement agreement, no.
02 Q Let's go over to Appendix B, Dr. Parks, and again
03 we are talking about Exhibit 7.
04 Can you tell me what your understanding is of how
05 the interim and long-term concentration levels in there
06 appendix were derived there?
07 A How they were derived, that is the question?
08 Q Yes.
09 A Again, I believe that procedure is described in
10 the SWIM plan, and my understanding is limited to what is
11 in the SWIM plan.
12 Q A moment ago when we were talking about the
13 phosphorus limits for Park inflows we were talking about
14 interim limits and final limits. When you said final
15 limits, did you also mean long-term limits, were those the
16 same thing?
17 A Yes.
18 Q Now, I believe you just indicated for Appendix B
19 that the derivation of those limits is described in the
20 SWIM plan. Do you know where they are described in the
21 SWIM plan?
22 A I think they are in the appendix.
23 Q And have you reviewed that derivation?
24 A Briefly.
25 Q Back to this Appendix B, can you tell me which of
0071
01 those limits, if any of them, was designed to meet OFW
02 requirements that might apply to the Loxahatchee National
03 Wildlife Refuge?
04 A I believe that the final limits, the long-term
05 limits were intended to meet OFW requirements for
06 Loxahatchee.
07 Q Did I understand you correctly from your earlier
08 testimony that you believe that the structures S-5A and S-6
09 had been grandfathered in, as that term is used for OFW
10 purposes?
11 MS. PONZOLI: Object to the form. It has been
12 asked and answered.
13 THE WITNESS: I believe that was made the
14 baseline, that year was made the baseline and that had
15 the effect of that.
16 BY MR. GREEN:
17 Q Dr. Parks, on page B-2 of this Exhibit 7, the
18 middle of the page, I will quote, "The current control
19 program, consisting of on-line STAs and BMPs, as described
20 in Appendices C and E, is designed to achieve a long-term
21 average annual flow-weighted concentration of 50 ppb for
22 each discharge to the Refuge and WCAs from the EAA," end
23 quote.
24 Do you have any knowledge of the basis for the 50
25 ppb limitation described in that sentence?
0072
01 A No.
02 Q I take it by that you weren't involved in any
03 discussions that led up to the establishment of that
04 number, is that correct?
05 A Yes.
06 MR. GREEN: I would like to mark this as the next
07 exhibit.
08 (Whereupon, Exhibit No. 9 was marked for
09 identification.)
10 BY MR. GREEN:
11 Q Dr. Parks, can you identify this letter that has
12 been marked as Exhibit 9?
13 A It is a letter to James Garner signed by me, yes,
14 two letters.
15 Q With regard to the first letter, the first page,
16 third paragraph, the first sentence, it states, quote,
17 "While not illegal, private discussions between your staff
18 and those who would be regulated of rules under development
19 is improper," end quote.
20 Can you tell me what you were trying to
21 communicate with that sentence?
22 A Well, just what it says.
23 Q What was the purpose of this letter?
24 A The purpose of this letter was to try to get a, to
25 develop a process where staff presentations to the board
0073
01 wouldn't be influenced or biased by their private meetings
02 with industry representatives.
03 Q How about reading the last sentence of the
04 paragraph that I was reading from, on page 1 of that first
05 letter?
06 A "Florida Wildlife Federation suggests that if the
07 Board wishes to maintain public confidence in the fairness
08 of this governmental process," that means rule development,
09 "it will limit staff discussions of rule development with
10 affected persons, including conservationists, to public
11 workshops."
12 Q So your earlier concern with regulated interests,
13 I take it, was also a concern you had with other interested
14 parties, is that a fair understanding?
15 A I only addressed this particular problem here as
16 it applied to those who were, as I saw it, opposing the
17 public interest.
18 Q Do you believe conservationists oppose the public
19 interest?
20 A No.
21 Q Dr. Parks, help me understand that sentence. I am
22 not intending to be argumentative. That sentence seems to
23 stay that the staff should limit discussions of rule
24 development with affected persons, including
25 conservationists, to public workshops?
0074
01 A It says that.
02 Q Is that what you meant?
03 A Yes.
04 Q Is that what you meant on page 3, in item number
05 1, where you suggest that the board adopt a policy that
06 would limit staff discussions of rule development with
07 affected persons to public workshops?
08 A Now, are you asking what I meant --
09 Q Does your definition of "affected persons" on page
10 3 of that letter, line 1, include conservationists?
11 A Yes.
12 Q Did you, yourself, follow that process during --
13 A I tried to.
14 Q Did you succeed?
15 A No.
16 Q Why not?
17 A Because the board didn't adopt this process.
18 Q Well, did you meet with South Florida Water
19 Management District staff during the development of the
20 SWIM plan in non-public meetings?
21 A Do you mean "met with" as groups of
22 conservationists, or --
23 Q Just you, yourself.
24 A Do you mean did I set up meetings to discuss the
25 SWIM plan, is that what you mean?
0075
01 Q Yes.
02 A No.
03 Q Or did you set up meetings to discuss the
04 settlement agreement?
05 A No.
06 Q Did anyone else set up meetings that you attended
07 that were not public with the rule development staff of the
08 South Florida Water Management District in connection with
09 the SWIM plan development?
10 MR. WHITE: I object to the form.
11 BY MR. GREEN:
12 Q Did you participate in any non-public meetings
13 with South Florida Water Management District staff during
14 their development of the SWIM plan that we have been
15 describing?
16 MS. PONZOLI: I object to the form, in its "non-
17 public hearing," can you define that, Mr. Green?
18 BY MR. GREEN:
19 Q What did you mean by public workshops on page 1 of
20 your letter, Dr. Parks, of Exhibit 9?
21 A Noticed workshops.
22 Q Did you meet with or participate in meetings with
23 South Florida Water Management District staff in non-
24 noticed workshops during your development of the SWIM
25 plan?
0076
01 A Non-noticed workshops. The problem I am having
02 is, you know, I talked to various staff members at various
03 times on various subjects. It sounds like you are asking
04 me, did somebody send out a letter and say we are going to
05 have a meeting on this subject and that would just be
06 conservationists, for example, and District staff, is that
07 what you are asking?
08 Q Well, I am basically asking you if you
09 participated or attended non-noticed meetings or workshops
10 with the rule-making staff of the Water Management District
11 that was implementing the SWIM plan or developing the SWIM
12 plan?
13 A By non-noticed workshop, you mean something that
14 is just like a workshop but it doesn't have a public
15 notice?
16 Q Or just a meeting where you sit around the table
17 an talk, hey, here is the SWIM plan, what do you think,
18 whatever; not complicated.
19 A I don't recall doing that.
20 MR. GREEN: This will be Exhibit 10.
21 (Whereupon, Exhibit No. 10 was marked for
22 identification.)
23 BY MR. GREEN:
24 Q Can you identify this collection of documents that
25 we have put together as Exhibit 10, Dr. Parks?
0077
01 A Well, the first is a memo from me to Everglades
02 Coalition members, dated March 18, 1988.
03 The second is a, it looks like a press statement
04 dated March 23, 1988.
05 The third is a letter to Governor Martinez from
06 Marjorie Carr, dated March 21, 1988, and the last is a
07 letter from Marjorie Carr to Dale Twachtmann dated January
08 20, 1988.
09 Q Dr. Parks, did you draft all of these letters you
10 just described?
11 A Yes.
12 Q Let's start with the last one, the January 20th
13 letter to Dale Twachtmann, signed by Marjorie Carr.
14 On the second paragraph of that letter, in the
15 middle of the paragraph, and I will quote, you stated this:
16 "Pumping stations S-2, S-3 and S-4 discharge from these
17 canals into Lake Okeechobee under an existing operations
18 permit issued to the District by the Department. Pumping
19 stations S-5A, S-6, S-7 and S-8 drain this same system into
20 the Conservation Areas. The discharges from these four
21 pumping stations are creating the problems of the
22 Everglades marsh. These pumps are not permitted by the
23 Department," end quote.
24 Dr. Parks, was the purpose of this letter -- what
25 was the purpose of this letter? Let me ask it that way.
0078
01 A The purpose of this letter was to make Secretary
02 Twachtmann aware of the problem in the Everglades, aware of
03 the cause and aware of the fact that these were sources of
04 pollution that the Department was obliged to regulate.
05 Q In the next to the last paragraph on page 2 of
06 that letter, can you tell us what you meant by that
07 sentence, the last sentence, beginning, "We believe that
08 you should"?
09 A What is the question?
10 Q What did you mean by that sentence?
11 A That the, that the Department should exercise its
12 regulatory, its authority over the Water Management
13 District to get the District to really put the owners, the
14 landowners on notice to issue a surface water management
15 permit.
16 Q The regulatory authority you are speaking of here
17 is the stormwater regulatory authority. What does that
18 mean, stormwater regulatory authority?
19 MS. PONZOLI: Object to the form.
20 BY MR. GREEN:
21 Q In the sentence we have been speaking of, what did
22 you mean by "stormwater regulatory authority"?
23 A At that time, the Department had delegated to the
24 South Florida Water Management District the Department's
25 own Chapter 403 stormwater regulatory authority, and I
0079
01 believe that that is what I was referring to here.
02 Q Do you believe that -- did you believe at that
03 time that structures *S-5S, S-6, S-7 and S-8 should apply
04 for surface water management permits from the Water
05 Management District?
06 A No.
07 Q Why not?
08 A That they should apply for surface water
09 management permits from the Water Management District?
10 Q Yes.
11 A At that time, I considered pumping stations S-5A,
12 S-6, S-7 and S-8 to be stationary sources of pollution
13 under the Department's rules.
14 The, in all its delegation agreements, the
15 Department has never allowed the District to permit itself,
16 so it wouldn't make much sense for the District to apply to
17 itself for a permit for these pumping stations.
18 Q I am having trouble understanding that sentence.
19 Let me quote it.
20 "We believe that you should insure that the
21 stormwater regulatory authority delegated by the Department
22 to the District is properly exercised by requiring that
23 each owner's responsibility be defined in a surface water
24 management permit issued by the District."
25 A What is the question?
0080
01 Q That sentence seems to tell me that you wanted or
02 the letter asked Secretary Twachtmann to ensure that the
03 Water Management District issue a surface water management
04 permit under its stormwater regulatory authority to these
05 point source structures.
06 Is that an incorrect reading of this sentence?
07 A Yes.
08 Q Please tell me what it means.
09 A Well, the antecedent to "owner" is landowners, in
10 the beginning of that paragraph, landowners in the EAA.
11 Q Could you tell me how landowners in the EAA has a
12 bearing on that sentence? I am struggling here.
13 A You could, in the sentence that you are struggling
14 with, if you were to substitute "landowner" for "owner," it
15 might help you.
16 Q If we do that, doesn't that sentence we have been
17 discussing then say that each landowner's responsibility
18 should be defined in a surface water management permit
19 issued by the District?
20 A Yes.
21 Q What do you believe the landowner's
22 responsibilities, are or what did you believe then they
23 were?
24 A To meet the requirements of Chapter 403 and
25 Chapter 373.
0081
01 MR. GREEN: It is 10 till, do you want to do it,
02 lunch?
03 (Lunch recess.)
04 BY MR. GREEN:
05 Q We were on Exhibit 10, Dr. Parks, and we were
06 talking about the last letter attached there which was a
07 January 20, 1988, letter, to Mr. Dale Twachtmann, Secretary
08 of DER, from Marjorie Carr, president of Florida Defenders
09 of the Environment. The next letter up in that exhibit is
10 a March 21, 1988, letter, addressed to the Honorable Bob
11 Martinez, prepared for Marjorie Carr's signature. Once
12 again, I would like to refer you to page 2 of that letter,
13 paragraph 2.
14 A Yes.
15 Q I am going to read the first and third sentence,
16 well, the second one. "In Water Conservation Area 2A, some
17 20,000 acres have been converted to cattails," end quote,
18 and can you tell me the basis of that statement?
19 A I think that was the best estimate that was
20 available at that time.
21 Q Where did the estimate come from?
22 A I think it came from the District, although I am
23 not sure.
24 Q How about the third sentence in that paragraph,
25 quote, "These effects are slowing spreading downstream as
0082
01 each area becomes saturated," end quote.
02 Can you tell me the basis for that statement?
03 A I guess it was, I believe it was work presented to
04 LOTAC.
05 Q Who presented that work to LOTAC?
06 A District staff members.
07 Q Did they present that to LOTAC in written form?
08 Did the District staff?
09 A I don't recall.
10 Q And now the top page of Exhibit 10, which is a
11 memorandum to the Everglades Coalition members from Florida
12 Defenders of the Environment that you prepared. The first
13 sentence reads, and I quote, "FDER Secretary Twachtmann has
14 so far refused FDE's request to place under permit the
15 SFWMD pumping stations that discharge EAA drainage into the
16 Everglades marsh," period, end quote.
17 Would you explain the circumstances that led to
18 that statement?
19 A In one of the letters in Exhibit 10, Marjorie Carr
20 asked the Secretary to begin that process of permitting
21 those pumps, and she never received any response of any
22 kind from the Secretary.
23 (Whereupon, Exhibit No. 11 was marked for
24 identification.)
25 BY MR. GREEN:
0083
01 Q Dr. Parks, you have been handed what has been
02 marked as Exhibit 11, pages 100 to 110 of the Surface Water
03 Improvement and Management Plan for the Everglades,
04 Planning Document, dated March 13, 1992.
05 Have you seen a copy of this portion of the so-
06 called SWIM plan prior to today?
07 A You are representing that this is the SWIM plan?
08 Q Yes.
09 A Yes, this is the adopted SWIM plan, that is
10 correct.
11 Q I would like to ask you to go over, turn over to
12 page 104, the bottom two lines of that Exhibit 11, and ask
13 you to read the sentence beginning there into the record.
14 A "A panel of scientists designated by the TOC will
15 track and evaluate compliance with all aspects of state
16 water quality standards, including the phosphorus limits,
17 concentration levels and criteria. The represented
18 agencies may request technical assistance from others."
19 Q Dr. Parks, do you know what the term "TOC" refers
20 to in that sentence?
21 A Technical oversight committee.
22 Q Do you know how it is constituted?
23 A Not precisely.
24 Q Are you a member of the technical oversight
25 committee?
0084
01 A No.
02 Q Do you know anyone who is?
03 A Yes.
04 Q Who would that be?
05 A Dr. Suko, Dr. Mafei.
06 Q Anyone else?
07 A Richard Harvey.
08 Q And who does Richard Harvey work with?
09 A DER.
10 Q How about Dr. Suko?
11 A National Park Service.
12 Q And Dr. Mafei?
13 A U.S. Fish and Wildlife Service.
14 Q On page 105, under the Item 3, phosphorus limits
15 for WCA-2A and WCA-3A, the second sentence under that
16 heading, and I quote, "The current design criteria for STAs
17 is to achieve a long-term total phosphorus outflow
18 concentration of approximately 50 ppb," end quote.
19 Do you have any knowledge of how that 50 ppb
20 number was arrived at in this document?
21 A Well, my understanding is that it is considered to
22 be a reasonable interim step along the way towards actually
23 achieving water quality standards in the Everglades.
24 Q Have you seen any documentation to support it?
25 MS. PONZOLI: Object to the form.
0085
01 THE WITNESS: What would "support" mean in that
02 sense?
03 BY MR. GREEN:
04 Q Have you seen any analyses describing how this 50
05 ppb number was arrived at?
06 A No.
07 Q Do you know how it was arrived at -- derived?
08 A No.
09 Q You inferred, from your earlier responses, that it
10 was an interim step. Do you have any information that
11 would indicate that a lower number may be appropriate in
12 the longer term?
13 A Yes.
14 Q What information is that?
15 A It is contained in the SWIM plan.
16 Q Is that all of the information you are aware of
17 that it would support a lower number in the long-term?
18 A I am sure there is other information that leads to
19 the same conclusion, about oligotrophic systems.
20 Q What other information are you sure there is of
21 that type?
22 A I believe that a literature search would show that
23 oligotrophic systems are apt to be impacted by water
24 containing 50 parts per billion of phosphorus.
25 Q When you say literature, do you mean published
0086
01 papers?
02 A Yes, and the unpublished reports.
03 Q What unpublished reports are you familiar with
04 that might be relevant to that type?
05 A I am not familiar with specific reports. It is my
06 belief that an examination of the literature would show
07 other, the results of studies other than those cited in the
08 SWIM plan which would support the conclusions of the SWIM
09 plan, but I don't have specific references.
10 Q Do you know what individuals drafted this sentence
11 on page 105 we have been discussing?
12 A No. However, they are listed in the preface of
13 the SWIM plan.
14 Q Were there any individuals other than those listed
15 in the preface that were involved in the drafting of this
16 sentence, to your knowledge?
17 A No. I have no knowledge.
18 Q We discussed structures discharging into the
19 Loxahatchee National Wildlife Refuge earlier, and I believe
20 that your testimony was that you felt that they should not
21 have been grandfathered under the OFW rule.
22 MS. PONZOLI: Object to the form.
23 BY MR. GREEN:
24 Q Is that correct, that you believe they should not
25 have been grandfathered under the OFW rule.
0087
01 MS. PONZOLI: Object to the question. I think you
02 are mischaracterizing the answer.
03 THE WITNESS: Could you repeat the question?
04 BY MR. GREEN:
05 Q When we were discussing the settlement agreement
06 earlier, you stated that you believe that the provisions
07 that established effluent limits for the S-12 structures
08 and for the Loxahatchee National Wildlife Refuge were
09 arrived at assuming that the OFW structures were
10 grandfathered in under the OFW rule, is that correct?
11 MS. PONZOLI: Same objection.
12 THE WITNESS: You said OFW structures?
13 BY MR. GREEN:
14 Q Discharge structures.
15 A Yes, I said that.
16 Q Now, what would have been different about those
17 limits if they had not been grandfathered in, in your
18 opinion?
19 A It would have been necessary to, in order to
20 arrive at the long-term limits that would comply with the
21 OFW criteria, it would have been necessary to deduce the
22 quality of water that existed in the absence of those
23 unpermitted sources of pollution.
24 Q If those structures were grandfathered in under
25 the OFW rule, are you saying that unpolluted natural
0088
01 background would not be the baseline for OFW purposes?
02 MS. PONZOLI: Object to the form.
03 THE WITNESS: Yes.
04 BY MR. GREEN:
05 Q What would be the background for OFW purposes?
06 A The ambient water quality, '78-'79, are the best
07 scientific information that led to that same kind of
08 information.
09 Q How would one arrive at the ambient water quality
10 of '78-'79?
11 A Well, if you have measurements, of course, you use
12 that. If you don't have measurements you try to figure out
13 what it would have been in that time period.
14 Q Let's assume you did that.
15 A I did what?
16 Q That you did what you just described.
17 A Had measurements?
18 Q Had measurements and established ambient water
19 quality during the baseline of 1978 and '79. Then what
20 would be the regulatory consequences for that particular
21 discharge that the OFW rule would bring about, if any?
22 A The remedial actions required upstream from the
23 point of discharge would have to be designed to meet the
24 OFW criteria.
25 Q What are the criteria?
0089
01 A The lowering of ambient quality in reference to
02 that baseline.
03 Q So does that mean that if ambient water quality
04 were degraded with reference to the '78-'79 baseline, that
05 in that hypothetical it would have to be improved back up
06 to that baseline amount?
07 A If it were degraded relative to the '78-'79, when
08 degraded, how degraded?
09 Q Subsequent to that period.
10 A By what, degraded by what?
11 Q If the discharge quality were degraded compared to
12 the '78-'79 levels, what would be required under the OFW
13 rules to comply with that rule?
14 A Well, the OFW rule, you know, only applies in a
15 permitting situation, and we would have to be, you would
16 have to tell me how the unpermitted discharges had affected
17 ambient quality since the baseline period in order for me
18 to answer that question.
19 Q Well, let's, let me ask you this. Are you
20 familiar with the SWIM plan descriptions of ambient water
21 quality in connection with discharges into the Loxahatchee
22 National Wildlife Refuge, and in particular with regard to
23 the baseline period of 1978-'79?
24 A That is kind of -- I am confused by that question,
25 talking about the ambient water quality of the discharges.
0090
01 Q Do you have an opinion on whether the OFW rule
02 applies to discharges into the Loxahatchee National
03 Wildlife Refuge?
04 A Yes.
05 Q How does it apply?
06 A It governs the quality of the discharges.
07 Q How does it govern the quality of the discharges?
08 A The discharges must not cause or contribute to a
09 lowering of ambient quality relative to the baseline.
10 Q Is that the 1978-'79 baseline we were talking
11 about?
12 A Well, that is in dispute as far as I am concerned,
13 but --
14 Q What is your opinion of what the baseline should
15 be?
16 A That those, that the contribution of those
17 unpermitted pollution sources should not be included in the
18 baseline water quality.
19 Q Now, let's assume they were included,
20 hypothetically. Then how does the OFW rule apply to the
21 discharges into the Loxahatchee Wildlife Refuge, if at
22 all?
23 A If those unpermitted discharges have lowered
24 ambient quality relative to the baseline, corrective action
25 must be taken to bring it back up to the baseline.
0091
01 Q Let's look at the bottom of page 105 of Exhibit
02 11, the second sentence of the second paragraph, and I will
03 quote --
04 A Let me add to that, that is for the final, for the
05 long term, not necessarily for the interim.
06 Q When you say long term, what are you referring
07 to?
08 A For meeting state water quality standards under
09 the Marjorie Stoneman Douglas Act in Chapter 403.
10 Q And do you mean that also with regard to the
11 settlement agreement that we have been discussing and the
12 SWIM plan we have been discussing? Is that how you mean
13 long term?
14 A Well, long term in the settlement agreement means
15 whatever it means in the settlement agreement. I am really
16 only talking about DER permitting.
17 Q Well, what about page 103 of Exhibit 11? In the
18 center of the page there is a table and on the left there
19 are three entries, Interim Marsh Concentration Level, the
20 next is Marsh - Class III Standard, and then below that
21 Long-Term Concentration Level.
22 Were you referring to any one of those three
23 levels when you said long term a minute ago?
24 A I merely meant to inform you that I didn't think
25 the OFW, any of the OFW rule applied, necessarily applied
0092
01 to this interim permit that is the first permit proposed in
02 the SWIM plan.
03 Q What does it apply to?
04 A It applies to meeting water quality standards, to
05 having an operations permit as opposed to some other kind
06 of temporary operations permit or interim permit.
07 Q Let's go back to page 105 and let me read the
08 second sentence of the bottom paragraph, and I quote, "The
09 control program is designed to achieve approximately an 80
10 percent reduction in phosphorus loads from the Everglades
11 Agricultural Area (EAA) to the Everglades Protection Area
12 by July 1, 1997, and greater than an 85 percent reduction
13 in phosphorus loads to the Refuge by July 1, 2,002,
14 relative to average annual loads measured in water years
15 1979 through 1988."
16 Do you have an opinion on what regulatory
17 requirements of the Florida Department of Environmental
18 Regulation that this provision is intended to accomplish
19 compliance with?
20 A The July 1, 1997, load reduction, which is, I
21 know, equivalent to the 50 parts per billion, is intended
22 to meet the requirement for -- it is to be a first step
23 along the way to coming into compliance with state water
24 quality standards, and it is allowed by the Marjorie
25 Stoneman Douglas Act. I don't know that regulatory
0093
01 requirement is exactly the right word.
02 Q What about the remainder of that sentence, the 85
03 percent reduction?
04 A I don't -- I don't know that we -- we certainly
05 don't have any certainty that 85 percent reduction will
06 meet Class III water quality standards at this time. I
07 think it is sort of thrown in there.
08 Q Do you know whether either of those reductions,
09 that is, the 80 percent reduction or the 85 percent
10 reduction, are intended to achieve compliance with the OFW
11 rule?
12 A No.
13 Q Do you have an opinion on whether either one of
14 them would achieve compliance with the OFW rule?
15 A I think the baseline question has to be answered
16 before that question can be answered.
17 Q Well, let's answer it both ways. Let's assume
18 that you are right and the structures are not grandfathered
19 in. Would either of those reductions achieve compliance
20 with OFW rules?
21 A I don't know.
22 Q Let's assume they are grandfathered in. Do either
23 of those reductions achieve compliance with the OFW rule?
24 A The same answer.
25 Q All right.
0094
01 A I would add that Class III standards must also be
02 met and that they could be lower than the OFW number.
03 Q Could they also be higher?
04 A They could.
05 Q Do you know which they are?
06 A Yes.
07 Q Do you know anyone else who knows which they are?
08 A No.
09 Q How would one determine?
10 A By taking the interim steps and following the plan
11 in the SWIM plan.
12 MR. GREEN: This is to be marked as Exhibit 12.
13 (Whereupon, Exhibit No. 12 was marked for
14 identification.)
15 BY MR. GREEN:
16 Q Can you identify this document for us, Dr. Parks?
17 A Yes, I can identify this, it is a memorandum
18 written by me dated April 17, 1989.
19 Q Would you read the first sentence of the second
20 paragraph on page 1, please, out loud?
21 A "DER Secretary Twachtmann is proposing to treat
22 those nutrient limits required to implement any particular
23 SWIM plan as water quality standards that must be approved
24 by the Environmental Regulation Commission (ERC.)"
25 Q Now, in that sentence, what nutrient limits were
0095
01 you referring to?
02 A The site-specific narrative nutrient limits that
03 are already in the rule.
04 Q Would those been the nutrient limits that might be
05 imposed on structures S-5A, S-6, S-7 or S-8, or S-12A, B, C
06 and D?
07 A No.
08 Q Why not?
09 A Because this refers to ambient water quality.
10 Q Would this ambient water quality nutrient limit
11 you are referring to here conceptually include the limits
12 that are set for the Loxahatchee National Wildlife Refuge
13 in the SWIM plan based on 14 interior marsh stations?
14 A It could.
15 Q Do you know why Secretary Twachtmann was proposing
16 to treat such limits as water quality standards that
17 required ERC approval?
18 A No.
19 Q But you disagreed with him on that point?
20 A Yes.
21 Q Why?
22 A Because there had long been a process by which the
23 Department determined site-specific, interpreted the
24 site-specific standards, including that for BOD and
25 nutrients.
0096
01 Q The Department has done that historically for a
02 large number of sewage treatment plants, hasn't it?
03 A Yes.
04 Q Do you know of a case where the Department has
05 ever done that for a wetlands discharge?
06 A Not offhand.
07 Q Do you know how that process would be done that
08 you referred to?
09 A Generally.
10 Q Would you describe it?
11 A For what kind of a source?
12 Q Let's take the S-5A and S-6 discharges into the
13 Loxahatchee National Wildlife Refuge as an example.
14 A Well, there, I believe the process is defined in
15 the SWIM plan.
16 Q Do you know where in the SWIM plan it is defined?
17 A Not without looking it up.
18 Q Which volume is it in?
19 A Well, I am not sure. I am not sure where it is,
20 but I believe there is described in the SWIM plan somewhere
21 a plan to undertake the research necessary to establish
22 Class III water quality standards for nutrients.
23 Q Well, Dr. Parks, actually I think we may have had
24 it in Exhibit 11. Do you still have that over there? Page
25 104, the second paragraph, it refers to -- well, let me ask
0097
01 you to read that and see if that is what you had in mind.
02 A I am not sure that this is the only reference to
03 that process.
04 Q You are saying that page 104, the second
05 paragraph, is not what you had in mind?
06 A I am saying that, I am not certain that that is
07 the only reference to that process. I also think that SAGE
08 is probably going to take up that question at some point in
09 the future.
10 Q That is S-A-G-E, a group that is mentioned
11 somewhere in the acronym list?
12 A I don't know if it is.
13 Q If it isn't, would you tell us what SAGE is?
14 A Scientific Advisory Group for the Everglades.
15 Q Are you a member of that group?
16 A Yes, I am.
17 Q Would you briefly tell us what its
18 responsibilities are?
19 A I believe they are defined in the SWIM plan, but
20 again, I have a hard time putting my finger on it, maybe it
21 is in the technical appendix. I know that SAGE is
22 mentioned in here and its duties are defined in here, and I
23 would refer you to what the SWIM plan says. I don't think
24 I can paraphrase it.
25 Q That is fine. Are there any other documents that
0098
01 define the duties and responsibilities of SAGE, other than
02 the SWIM plan?
03 A There is a memo floating around, I think it may
04 say the same thing as the SWIM plan, and then there was a
05 clarification from Til, C-r-e-e-l, T-i-l.
06 Q Now, Dr. Parks, going back to the letter marked
07 as Exhibit 12 which was the take-off point for our
08 discussion here on the research in the SWIM plan, when I
09 asked you why you disagreed with Secretary Twachtmann
10 concerning ERC adoption of water quality standards for
11 nutrient limits, you indicated that there was a long-
12 established process for establishing nutrient limits on a
13 case-by-case basis.
14 Can you tell me what that long-established process
15 was in 1989, the date of this letter?
16 A The process is general for narrative nutrients,
17 and it is used much more often in connection with
18 biochemical oxygen demand, wherein the Department examines
19 the site, the specific site of the discharge, the receiving
20 waters, if you will, and determines by a variety of means,
21 by often through simulation, mathematical computer
22 simulation, what amount of BOD can be discharged and still
23 provide reasonable assurance that water quality standards
24 will be met.
25 Q When you --
0099
01 A The same process would apply to nutrients on any
02 site-specific place. The model wouldn't be the same.
03 Q Is that process embodied in any DER regulations?
04 A I am not sure the *Q. bell, *W. Q. bell, whether
05 those regulations specifically address nutrients or not,
06 but it is an analogous process to look at the site
07 specific, to take a narrative nutrient standard which is
08 narrative, which it must be because there are site-specific
09 variations, take the Department's professional expertise,
10 examine the site and use that professional expertise to
11 determine effluent limits. It is a longstanding practice
12 for BOD and it is, whether it is called that or not, it is
13 the same process for nutrients.
14 Q Can you remember any case or point source name
15 that that process has been applied to that you have been
16 involved with or you may be aware of?
17 A I think it is generally applicable whenever
18 nutrients, whenever there is a proposal to discharge
19 nutrients into wetlands, marshes, swamps, lakes, slow-
20 moving lake-like bodies of water.
21 Q Now, Dr. Parks, you testified a few minutes ago
22 that you were not aware of any circumstances where this
23 process had been applied to discharges to wetlands. Did I
24 misunderstand you?
25 A "This process" meaning --
0100
01 Q Of applying case-by-case nutrient limits.
02 A It is my impression that in every instance of a
03 proposal to discharge that the Department considers
04 nutrients and it necessarily considers them on a site-
05 specific basis.
06 Q How does the Department deal with existing
07 discharges in that context?
08 A How would it deal -- what does "deal" mean?
09 Q Excuse me, your answer related to proposed
10 discharges, and my question is, if the discharges that,
11 existing, ongoing, longstanding discharge, does that
12 matter, under the process you described?
13 A Presumably when it was originally permitted they
14 did it right.
15 Q What if it wasn't permitted originally?
16 A Then it is in violation of, it is a stationary
17 source of pollution and it requires a permit and they have
18 to go through the process.
19 Q Can you give me an example of an unpermitted
20 source that has had to follow the process as you just
21 described it?
22 A Deseret Ranches.
23 Q What type of source was that?
24 A Pump discharge of drainage water from
25 agricultural lands.
0101
01 Q Where did the discharge go?
02 A The St. Johns River, via canal.
03 Q Do you recall when that discharge was originally
04 created?
05 A No.
06 Q What was the result of the process being applied
07 to that? Was a permit applied for?
08 A I believe it was.
09 Q Was a permit issued?
10 A I don't know.
11 Q Do you remember the approximate year that that
12 happened?
13 A Late '70s.
14 Q Now, referring back to Exhibit 12, in the fourth
15 paragraph, and I quote, "Based on other experiences with
16 ERC approval of water quality standards opposed by powerful
17 interests, this could be a year's long process with an end
18 result that fails to protect the environment."
19 Can you explain what experiences that this
20 sentence referred to?
21 A Well, dioxin is a pretty good example.
22 Q When you say dioxin, do you mean rulemaking
23 related to dioxin?
24 A Yes.
25 Q You mentioned in the top of the last paragraph on
0102
01 page 1 of Exhibit 12, the first sentence, "What is the
02 alternative," end quotes.
03 A Which paragraph?
04 Q The last one on that page.
05 A "What is the alternative"?
06 Q Right.
07 A In the last paragraph?
08 Q Yes. Does that last paragraph describe --
09 A The one that begins, "What is our recourse?"
10 Q I am sorry, on page 1, are we on the same letter?
11 A I am on page 2.
12 Q Page 1, the last paragraph.
13 A Okay.
14 Q The paragraph begins, "What is the alternative,"
15 question mark, and then you describe an alternative.
16 Does that paragraph describe the process that you
17 were referring to earlier whereby a site-specific nutrient
18 discharge limitation might be imposed?
19 MS. PONZOLI: I object to the form.
20 THE WITNESS: What is the question?
21 BY MR. GREEN:
22 Q Is that the alternative that you were describing
23 earlier?
24 MS. PONZOLI: Objection.
25 THE WITNESS: Well, yes.
0103
01 BY MR. GREEN:
02 Q Now, on page 2, the middle paragraph, I quote, "It
03 is clear that the ERC has previously allowed the Department
04 to determine site-specific values required to prevent
05 violation of ERC-approved criteria. If it had not, each
06 sewage treatment plant permit would have required ERC
07 approval. Twachtmann's concept would involve the ERC in
08 setting numerical nutrient criteria for every single water
09 body. Whether intended or not, this scheme is obviously
10 unworkable. The net result would be more years of delay in
11 dealing with this fundamental problem. It will mean more
12 irreversible losses of lakes and other water bodies."
13 In the sentence where you say "whether intended
14 or not," what do you mean by that?
15 A I don't think that Secretary Twachtmann intended
16 to create an unworkable scheme, that I felt the result
17 would be unworkable.
18 Q With regard to the Deseret discharge that you
19 referred to earlier, isn't it true that the issue in that
20 case was whether the pump stations were stationary
21 installations under Chapter 403?
22 A Well, I don't know all of the legal objections
23 that Deseret made in that case. I was a witness in that
24 case, but I wasn't an attorney.
25 Q What did you testify about in that case?
0104
01 A That the water pumped wasn't storm water.
02 Q What kind of water was it?
03 A Well, it would be storm water now, under the
04 definition 373, but at the time it was not water that
05 resulted from the immediate runoff --
06 Q Were nutrients --
07 A -- following a rainfall.
08 Q Were nutrients an issue in that case?
09 A I believe that they were an issue, yes, I believe
10 they were. I am not positive. That was a long time ago.
11 MR. GREEN: This is a good point to break.
12 (Brief recess.)
13 BY MR. GREEN:
14 Q This will be Exhibit 13.
15 (Whereupon, Exhibit No. 13 was marked for
16 identification.)
17 BY MR. GREEN:
18 Q Dr. Parks, can you identify what has been marked
19 as Exhibit 13?
20 A It is a letter from me to Jim Webb.
21 Q I would like to refer you to the first sentence on
22 page 1, where you say, and I quote, "I have strongly
23 recommended funding for the Wilderness Society sugar study
24 to both the Dunn and the Munson Foundations."
25 Can you tell me who the Dunn Foundation is?
0105
01 A It is a charitable trust.
02 Q And the Munson Foundation?
03 A The same.
04 Q What is the Wilderness Society sugar study
05 referred to in that sentence?
06 A That was the economic study that was distributed,
07 I guess at the, it must have been the '91 Everglades
08 Coalition meeting. It is in the documents that were
09 produced.
10 Q It was in the documents produced yesterday or last
11 Friday?
12 A Yes.
13 Q Who did the study?
14 A The Wilderness Society.
15 Q Was it prepared by their staff?
16 A I am not sure who all was involved in it. Craig
17 Diamond was involved in it.
18 Q Is Craig Diamond an economist?
19 A I don't know what his training is.
20 Q What aspects of sugar were studied in that study?
21 A Well, I would have to review the study to give you
22 any kind of detailed answer.
23 Q Can you give me a general answer?
24 A It was the, I believe it was the contribution of
25 sugar to the totally regional economy, the taxes paid by
0106
01 sugar compared to the total taxes in the Water Management
02 District, that sort of thing.
03 Q Did you play any part in the preparation of that
04 study other than assisting in the securing of funding?
05 MS. PONZOLI: Object to the form of the question.
06 THE WITNESS: Could you rephrase that?
07 BY MR. GREEN:
08 Q Did you assist in carrying out that study we have
09 been talking about?
10 A No.
11 Q Did you review any drafts of the study?
12 A I don't believe so. I might have.
13 Q On page 2 of this letter which is marked as
14 Exhibit 13, the first new paragraph reads, and I quote,
15 "Second, there is the cost of remedial action. I believe
16 that this information is critical to the federal suit."
17 Why did you believe that the cost of remedial
18 action was critical to the federal suit?
19 A I think that "this information" refers to
20 everything discussed in the paragraph.
21 Q Such as?
22 A Production costs and profits, losses claimed for
23 taking land out of production, the amortization of the
24 mills, the employment, economic conditions in the towns in
25 the EAA.
0107
01 Q You just mentioned five factors. Why were those
02 factors critical to the federal suit?
03 A Well, I don't know for sure what I had in mind
04 there as far as the federal suit. It certainly doesn't
05 depend on any of this information. I was probably thinking
06 more in terms of remedy. I don't really know what I meant
07 at that time.
08 Q Well, the first sentence in that paragraph says,
09 "Second, there is the cost of remedial action." Might you
10 have been referring to that?
11 MS. PONZOLI: Asked and answered.
12 BY MR. GREEN:
13 Q Were you referring to that?
14 A Well, I might have been.
15 Q But you don't recall?
16 A No.
17 Q Dr. Parks, I show you what has been marked as
18 Exhibit No. 14.
19 (Whereupon, Exhibit No. 14 was marked for
20 identification.)
21 BY MR. GREEN:
22 Q Do you recognize this letter?
23 A It is a letter from me to Governor Martinez.
24 Q You state in the first sentence of the first
25 paragraph, and I quote, "I have provided Senator Lawton
0108
01 Chiles and Representative Bill Nelson my views on
02 Everglades and Lake Okeechobee issues."
03 When did you provide Senator Lawton Chiles your
04 views on Everglades and Lake Okeechobee issues?
05 A Well, it was shortly before I offered to do the
06 same thing to Governor Martinez, for Governor Martinez.
07 Q In the summer of 1990?
08 A I would presume.
09 Q How did you provide those views to Senator
10 Chiles?
11 A Well, I met with him and talked with him. I
12 don't know, I imagine I gave him some written material,
13 too, but I don't really recall the details.
14 Q Did you meet with him in Washington?
15 A No.
16 Q Where did you meet with him?
17 A I think it was here in Tallahassee.
18 Q Who attended the meeting other than you and
19 Senator Chiles?
20 A There were other people there, but I don't recall
21 who.
22 Q Where was the meeting in Tallahassee? Was it in
23 his offices in Tallahassee?
24 A I just don't remember.
25 Q Do you know approximately how many people attended
0109
01 the meeting?
02 A No.
03 Q Did you keep any notes of the meeting?
04 A No.
05 Q Did you receive any communication from Senator
06 Chiles following the meeting related to the meeting?
07 A I probably got a thank-you note.
08 Q What were your views on Everglades and Lake
09 Okeechobee issues that you referred to here? Can you tell
10 me what those were?
11 A That there were unpermitted discharges into the
12 Everglades that required a DER permit, that that permit
13 should be intended to achieve state water quality
14 standards. My views on Lake Okeechobee were that it was in
15 jeopardy, ecological jeopardy by virtue of a DER *dairy
16 rule that did not require that state water quality
17 standards to be met.
18 Q What was Senator Chiles' response to those
19 views?
20 A He listened with interest.
21 Q Did you ask Senator Chiles whether he had a
22 position on those issues?
23 A No.
24 Q Did you urge him to take a position on those
25 issues?
0110
01 A I think it was more just a briefing o