1

1 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUGAR CANE GROWERS COOPERATIVE OF

3 FLORIDA, INC., ROTH FARMS, INC.,

and WEDGWORTH FARMS, INC.,

and

FLORIDA SUGAR CANE LEAGUE, INC.,

6 UNITED STATES SUGAR CORPORATION,

and NEW HOPE SOUTH, INC.,

and

FLORIDA FRUIT AND VEGETABLE CASE NOs. 92-3038

9 ASSOCIATION, LEWIS POPE FARMS, 92-3039

W.E. SCHLECHTER & SONS, INC., and 92-3040

10 HUNDLEY FARMS, INC.,

11 Petitioners,

12 vs.

13 SOUTH FLORIDA WATER MANAGEMENT

DISTRICT,

Respondent,

and

MICCOSUKEE TRIBE OF INDIANS OF

17 FLORIDA, the UNITED STATES OF

AMERICA, FLORIDA DEPARTMENT

18 OF ENVIRONMENTAL REGULATION, and

FLORIDA WILDLIFE FEDERATION,

Intervenors.

20 . . . . . . . . . . . . . . . . . . . /

23 DEPOSITION OF THOMAS M. SWIHART

24 February 3, 1993

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2 DEPOSITION OF THOMAS M. SWIHART

3 Taken in the above-styled cause, pursuant to

4 notice, at the Department of Environmental Regulation, 2600

5 Blair Stone Road, Tallahassee, Florida, on February 3,

6 1993, commencing at 9:00 a.m.

8 Reported by:

9 JERRY L. ROTRUCK

10 Certificate of Merit

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1 APPEARANCES OF COUNSEL:

2 On behalf of the Petitioners Sugar Cane Growers Cooperative

of Florida, Inc., Roth Farms, Inc., and Wedgworth Farms,

3 Inc.:

4 William H. Green, Esq.

Hopping Boyd Green and Sams

5 123 South Calhoun Street

Tallahassee, FL 32301

On behalf of the Petitioners Florida Sugar Cane League,

7 Inc., United States Sugar Corporation and New Hope

South, Inc.:

William L. Hyde, Esq.

9 Peeples, Earl & Blank

215 South Monroe Street

10 Suite 350

Tallahassee, FL 32301

On behalf of the Intervenor United States of America:

Cathy Stark, Esq.

13 Assistant U.S. Attorney

155 South Miami Avenue, Suite 600

14 Miami, FL 33102

15 On behalf of the Intervenor Department of Environmental

Regulation:

Keith Hetrick, Esq.

17 Donna LaPlant, Esq.

Assistant General Counsel

18 State of Florida

Department of Environmental Regulation

19 Twin Towers Office Building

2600 Blair Stone Road

20 Tallahassee, FL 32399-2400

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 INDEX TO WITNESS

2 THOMAS M. SWIHART Page

3 Examination by Mr. Hyde 6

9 INDEX TO EXHIBITS

10 No. Marked

11 1 8

12 2 88

13 3 91

14 4 91

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1 S T I P U L A T I O N

2 IT IS STIPULATED AND AGREED by and between counsel

3 appearing for the respective parties as follows:

4 THAT the deposition of THOMAS M. SWIHART was taken

5 by agreement for the purpose of discovery, for use as

6 evidence, and for such other purposes as may be permitted

7 by the Florida Rules of Civil Procedure and other

8 applicable law;

9 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.

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1 D E P O S I T I O N

2 Whereupon,

3 THOMAS M. SWIHART

4 was called as a witness, having been first duly sworn to

5 speak the truth, the whole truth, and nothing but the

6 truth, was examined and testified as follows:

7 EXAMINATION

8 BY MR. HYDE:

9 Q Would you please state your name and address for

10 the record, please?

11 A Thomas Swihart, spelled S-w-i-h-a-r-t. My home

12 address?

13 Q Home or work, it doesn't make any difference.

14 A At work it is DER, 2600 Blair Stone Road,

15 Tallahassee.

16 Q Mr. Swihart, my name is Bill Hyde, and I am with

17 the Peeples, Earl & Blank law firm. I am here today on

18 behalf of Florida Sugar Cane League, U.S. Sugar

19 Corporation, and New Hope South, Inc., in a case we have

20 generically called the Everglades SWIM Plan proceedings.

21 Recently those proceedings were consolidated with DER's

22 issuance of its permit to the water management district.

23 I will be asking you a series of questions about

24 your involvement in that process, and I would like you to

25 tell me if at any time you don't understand the question or

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1 if you need me to rephrase it. I will try to do so. If

2 you make no such objection, I will presume that you

3 understand what I am saying and that your answer is being

4 responsive to the question.

5 In the event that any of the attorneys note any

6 objections for the record, I would suggest that you just

7 stop your testimony at that point, let us work it out and

8 then we can move on. In most instances, it will be an

9 objection for the record only, and you will still be

10 required to answer the question. There may be some limited

11 circumstances where your attorney, Mr. Hetrick, will advise

12 you not to answer a question.

13 Do you understand all of that?

14 A Yes, I do.

15 Q The first thing I would like to ask you --

16 MR. HETRICK: Excuse me, I assume we reserve all

17 objections except as to form?

18 MR. HYDE: Yes. That has been the running

19 stipulation throughout these proceedings.

20 BY MR. HYDE:

21 Q Mr. Swihart, were you ever provided with a copy of

22 a Notice of Taking Deposition Duces Tecum in this cause?

23 A I believe I saw one. I don't believe I ever

24 possessed a copy.

25 Q Did you ever review the list of documents that we

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1 had requested that you produce in connection with this

2 deposition?

3 A Yes.

4 Q Did you, in fact, produce all of those documents

5 that are listed in paragraphs 1 through 10 of that notice?

6 A Yes.

7 Q Have you withheld any documents, either yourself

8 or on the instructions of your attorneys, or have your

9 attorneys withheld any documents?

10 A I am not aware of any documents which were

11 withheld.

12 MR. HYDE: Keith, have you withheld any documents?

13 MR. HETRICK: We have not withheld any documents.

14 MR. HYDE: Would you mark this as Exhibit No. 1?

15 (Whereupon, Exhibit No. 1 was marked for

16 identification.)

17 BY MR. HYDE:

18 Q I am going to show you a document that has been

19 labeled Exhibit No. 1. Would you identify that document

20 for me?

21 A This is a resume I submitted to DER General

22 Counsel a number of months ago.

23 Q Is that resume still current?

24 A No, it is not.

25 Q In what respect is it no longer up to date?

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1 A It has a heading called "1988 to Present:

2 Environmental Administrator, Standards and Monitoring

3 Section." Two weeks ago, I took a job, a different job at

4 DER in the Office of Water Management Coordination as the

5 water policy administrator. That is one difference, and

6 there is an addition I would like to make on the

7 education.

8 My degree from the University of South Florida is

9 in interdisciplinary social science. At the time of

10 graduation, I was two courses short of a degree in

11 interdisciplinary natural science and have since completed

12 those courses. Other than that, I think this is complete.

13 Q What is the difference between the major in

14 interdisciplinary social science and the one in natural

15 science?

16 A It is different course requirements. I attempted

17 to get a double major and didn't succeed.

18 Q So this is a double major, it is two separate

19 degrees?

20 A No. The major was only awarded in one. I have

21 completed the course requirements since graduation but have

22 not gone back and got that second major as a resident of

23 USF.

24 Q Let's go back, then, to your education, beginning

25 with your college experience.

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1 A Okay.

2 Q I note that you first attended Michigan State

3 University?

4 A Yes.

5 Q Why did you transfer from there?

6 A It is hard to recall at this time. Let's say, I

7 was paying out-of-state tuition at Michigan State, and I

8 decided I wanted to be closer to home in Florida where I

9 grew up.

10 Q Your resume reflects that you did get a degree in

11 1973 at USF --

12 A Yes.

13 Q -- in interdisciplinary social science?

14 A Yes.

15 Q When did you complete the coursework for the

16 degree in interdisciplinary natural science?

17 A The last three years.

18 Q Would you explain to me the difference between

19 those two majors?

20 A Yes. They had an interdisciplinary science

21 program at USF, natural science and social science, and it

22 was a different array of courses required for each track.

23 Q Well, what kind of courses would one take for the

24 social science degree?

25 A I can recall I took a number of political science

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1 courses, a constitutional law course, and there was a

2 minimum credit hour requirement.

3 Q Did the courses that led to that degree have any

4 bearing upon the work that you do now on behalf of the

5 Department?

6 A I believe they do.

7 Q Could you explain how they do?

8 A The work I do in DER involves policy analysis. I

9 think that began my training in policy analysis.

10 Q What courses did you take at that time in the

11 pursuit of the degree in interdisciplinary natural science?

12 A There was a year of biology, a year of chemistry

13 and a year of calculus, and a set of other natural science

14 courses.

15 Q What would be, or could you describe some of those

16 natural science courses?

17 A Yes. There is a course in oceanography, course in

18 statistics and honors course in ecology. I believe there

19 is a course in limnology and some other courses that were

20 required for the total credit hours.

21 Q Did you have a specialization within that degree?

22 A No.

23 Q What did you do during the year of 1974, between

24 your undergraduate and graduate degrees?

25 A I was employed in Tampa.

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1 Q What as?

2 A I think it was called a Planner I, with a private

3 planning firm.

4 Q What did the general duties of that position

5 entail?

6 A It was reviewing comprehensive plans. I think we

7 did some housing surveys, in fact.

8 Q Your resume next reflects that from '75 to 1984

9 you were working on an MSP in environmental and regional

10 planning from FSU?

11 A Yes.

12 Q What is an MSP?

13 A Master of Science in Planning.

14 Q Why did it take you so relatively long to complete

15 the coursework necessary for that degree?

16 A I was working at DER during most of that time.

17 Q What is that? Can you describe what this degree

18 is? What does it entail?

19 A It was a series of courses in planning theory,

20 planning background, and a specialization in environmental

21 regional planning involved courses in natural resource

22 management, courses in natural resource economics. There

23 was a geography course I had, I believe. I cannot recall

24 any other courses at this late date.

25 Q Did you have or did you prepare a thesis for your

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1 postgraduate degree?

2 A There was not a thesis requirement, but there was

3 a requirement for a paper, as they called it, not formally

4 a thesis.

5 Q What did your paper concern?

6 A It was an analysis of the drawdown of Lake Toho in

7 central Florida.

8 Q What did that analysis reflect?

9 A It was an ex post facto analysis of whether the

10 drawdown conducted by the Game and Fresh Water Fish

11 Commission in fact met the objectives stated for the

12 drawdown, and I concluded that it did.

13 Q How did it meet those objectives?

14 A There was water quality improvement and

15 recreational enhancement.

16 Q Did this paper entail some original research on

17 your part such as site visits, water sampling and the like,

18 or did you rely upon other people's work?

19 A There was -- I relied upon other people's work.

20 Q Did you ever visit the site?

21 A Once.

22 Q Did you have a faculty adviser, a principal

23 faculty adviser for your postgraduate degree?

24 A Yes.

25 Q Who might that be?

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1 A Dr. Andrew Dzurik, D-z-u-r-i-k.

2 Q I note from your resume that you have two listed

3 publications. Are those the only publications that you

4 have at this time?

5 A Yes.

6 Q Would it be possible to obtain copies of those

7 documents from you? I don't know that they are

8 specifically relevant here, but they may well be in this

9 case.

10 A Certainly. The first one there, the publication

11 in the Water Resources Bulletin, I gave to Lee Killinger a

12 few months ago, which I believe he intended to pass on to

13 you.

14 Q I just don't recall having seen it, and I would

15 like to obtain a copy of it maybe during a break or some

16 later point.

17 A The second one, you could just photocopy that

18 chapter from the Water Resources Atlas, or I could try to

19 do that.

20 Q Let me discuss the first one, which is entitled,

21 "An Antidegradation Policy for Preserving Surface Water

22 Quality in Florida."

23 Can you describe in general terms what that paper

24 concerns?

25 A Yes. It was a description of the antidegradation

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1 component of Florida water quality standards, including its

2 history and application in Florida.

3 Q Was that paper written more or less as an academic

4 exercise, or was there some specific purpose underlying the

5 creation?

6 A I don't know what you mean by academic exercise.

7 Q Well, was it something that was, in effect, part

8 of your job duties here, to set forth what the Department's

9 policies were in that regard or what the history of the

10 Department's policies were?

11 A I conceived the idea of writing the paper. I

12 thought it was a worthwhile thing to get published in the

13 bulletin.

14 Q Is this something that you did on your own time,

15 or did you do it like during your normal work hours?

16 A I did it both.

17 Q Did you have to obtain any sanction for doing so,

18 from a supervisor, or anything like that?

19 A I received approval before publication, and I

20 discussed it with my supervisor as we were writing it.

21 Q Who was your supervisor at the time?

22 A The second author, O. Eugene Walton.

23 Q Was that document a peer-reviewed publication?

24 A Yes.

25 Q By whom, to your knowledge, was it peer-reviewed?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 A It was anonymous referees that the editor of the

2 Water Resources Bulletin sent it out to for review.

3 MR. HETRICK: Let the record reflect Mr. Green

4 has left the room.

5 BY MR. HYDE:

6 Q Let me take you through your job history with

7 DER.

8 From 1976 to 1986, you worked as an Environmental

9 Specialist II, III and IV with the Department. Is that

10 description on your resume an accurate summary of just what

11 you did during those years?

12 A Yes.

13 Q When you say that you engaged in water resource

14 planning for the Department, what does that mean?

15 A There was a, at that time, a United States Water

16 Resources Council grant process, and I assisted in

17 preparation of a part of the Department's plan that served

18 as part of that grant application with the Water Resources

19 Council.

20 Q So you, in fact, worked on an application to get

21 funds from that program?

22 A That was part of it.

23 Q Were there any other parts of it?

24 A Part of it was assisting in the writing of the

25 plan, itself, which served as a part of the grant

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1 application.

2 Q Is that document or publication still around?

3 A I don't know.

4 Q What time was it completed, to the best of your

5 knowledge?

6 A I believe there were annual versions of it, every

7 year around that time.

8 Q You next state that you engaged in writing

9 environmental impact statements.

10 A Yes.

11 Q What were those for?

12 A The Department was involved with EPA in writing an

13 environmental impact statement for a proposed drawdown of

14 Lake Apopka, and it was my job to help write that

15 environmental impact statement.

16 Q With whom did you work on that project?

17 A Primarily with Gene Walton.

18 Q Next, it notes that you assisted in water quality

19 standard setting. What duties or responsibilities did you

20 have in that regard?

21 A I was one of the many DER staff involved in the

22 large revisions of the state water quality standards

23 conducted in 1978-1979.

24 Q Did you have some specific responsibilities for

25 the promulgation of those standards?

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1 A Toward the end I was, I think, more or less the

2 editor of the whole rule, and I was particularly involved

3 in the Outstanding Florida Waters rule writing.

4 MR. HETRICK: Mr. Green has entered the room.

5 BY MR. HYDE:

6 Q Would you describe your responsibilities regarding

7 those -- that rule promulgation effort as being more of one

8 of an editor, or were you actually engaged in the

9 substantive analysis that led to specific standards being

10 adopted?

11 A I think it was more of an editor.

12 Q Who were some of the other important players with

13 whom you worked at that time on the development of those

14 rules?

15 A Chuck Littlejohn was one, Paul Parks, Bill White,

16 I recall all worked on that. Bill Green here could provide

17 a better list than I could, probably.

18 Q Have you been involved in any efforts that

19 subsequently revised those water quality standards?

20 A Yes, I have.

21 Q When did that occur?

22 A It occurred a number of times through my tenure at

23 DER, and then most intensively in the last several years.

24 Q Why did it occur most intensively in the last

25 several, or seven years?

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1 A Several years. From 1988 to the present, I was

2 the administrator of the Standards and Monitoring Section

3 in DER, which oversaw the revision of state water quality

4 standards.

5 Q Let's get back to what your duties were from 1976

6 to 1986. The next category of duties included water

7 management planning. What did that entail?

8 A I worked with others on the state water use plan

9 primarily.

10 Q Is that now promulgated as Chapter 17-40, is that

11 what you are referring to?

12 A 17-40 is a -- I guess I would say a reincarnation

13 of the state water use plan.

14 Q What was that state water use plan at the time you

15 were working on it, incorporated in some other rule or

16 policy document?

17 A Well, there was a decision to not focus upon a

18 document called a state water use plan, but instead to

19 adopt state water policy by a rule.

20 Q When did this occur?

21 A I think that was about 1981 or '82.

22 Q Who else worked with you in that effort?

23 A Bill Hinkley, Chuck Littlejohn are names that I

24 remember.

25 Q What was your ultimate product from that effort?

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1 A The ultimate product was a move toward adoption of

2 a state water policy rule, and actually I left that

3 function at about that time, I believe.

4 Q In 1982?

5 A I believe so.

6 Q The next category indicates that you were involved

7 in energy planning.

8 A Yes.

9 Q What did that mean?

10 A The Department became very involved with an effort

11 by the Public Service Commission to set energy conservation

12 goals. The Department was interested because energy

13 conservation can also mean natural resource protection, so

14 we participated a lot in the Public Service Commission

15 ruling.

16 Q The next category is designation of waters as

17 Outstanding Florida Waters. From here on out, I will just

18 refer to Outstanding Florida Waters by the acronym, OFWs.

19 That is the way I know them best.

20 What did that entail? Was this the actual choice

21 of water bodies to be designated as such?

22 A I would say it was more overseeing rulemaking that

23 designated individual OFWs.

24 Q Did you have some operative criteria that you were

25 to employ in that process?

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1 A The criteria that are specified in 17-3.

2 Q Could you be more specific? What portion of

3 17-3?

4 A Well, 17-3 is now 17-302, but the part that --

5 there is a part that sets out criteria for OFW

6 designation.

7 Q There is another category just below that which

8 speaks to, "Designation of waters as `Outstanding Florida

9 Waters,' and coordination program with the Army Corps of

10 Engineers for the state public works program."

11 Did you intend that separate listing of

12 designation of waters as Outstanding Florida Waters to be

13 somewhat different from that which you described?

14 A No. That is an error. I have it listed twice

15 there.

16 Q What did the coordination program with the Corps

17 involve?

18 A That is also reflected in the next chronological

19 category here, but I began that at one point and then

20 became the administrator of a program that oversaw it, so

21 maybe you want to talk about that next category.

22 Q Let's move up to the next date, I guess,

23 chronologically is from May '86 to October '86, where you

24 were the acting chief --

25 A I am sorry, I missed one, yes, okay.

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1 Q You are getting a little bit ahead of yourself.

2 What was that position?

3 A There was a Bureau of Laboratories and Special

4 Programs whose bureau chief took another job, and DER -- I

5 was asked to be the acting bureau chief.

6 Q I gather this was a temporary appointment?

7 A Yes.

8 Q Can you give me an idea of what you did while you

9 were in that position?

10 A A huge amount of paperwork.

11 Q Were you, in effect, the administrator for the

12 program then?

13 A I was acting bureau chief.

14 Q Why did you choose not to apply for that as a

15 permanent position?

16 A I think the principal reason was the knowledge I

17 learned of the job as acting bureau chief. There was a lot

18 of personnel and administrative stuff that didn't appeal to

19 me very much.

20 Q Let's move on now to your 1985 to 1988 position

21 where you were, I guess, environmental administrator of

22 Water Resource Programs Section in the Bureau of

23 Laboratories and Special Programs.

24 Could you briefly describe to me what that

25 position entailed?

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1 A Yes. It was primarily two separate tasks listed

2 here. One of them was the state public works program.

3 Under state law, every local sponsor of the Army Corps of

4 Engineers project is supposed to request the State of

5 Florida to approve their request that the Corps do work on

6 behalf of their project. Associated with that, there is an

7 annual Water Resources Development Conference and two

8 publications that we take to Congress and propose funding.

9 Projects in that public works request are the flood control

10 navigation projects in Florida, including the Central and

11 Southern Florida Flood Control District.

12 The second task was a smaller part, which was

13 coordinating some water quality standards changes.

14 Q Going back to the first task, what work, if any,

15 did you do with the South Florida Water Management District

16 regarding the Central and Southern Florida -- what is that

17 called, Flood Control District?

18 A I should say Flood Control Project, because that

19 is the Corps's name for it. They, like other local

20 sponsors, submitted a request that the state sponsor to

21 support their request for appropriations. We would

22 evaluate that request, and we would send that request to

23 other agencies and determine what our recommendation was.

24 Q Was this an annual thing?

25 A Yes.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Q What sort of requests for appropriations were

2 being made by the water management districts in that

3 regard?

4 A As I recall, at that time, they had a Hendry

5 County project, they had a Boles Canal project, of course,

6 they had the Kissimmee River Restoration Project in their

7 package. I don't recall any others right now.

8 Q Did any of these appropriations requests ever deal

9 with the subject matter of this proceeding, in particular,

10 dealing with discharges of waters from the Everglades

11 Agricultural Area to the water conservation areas?

12 A I can't specify for you a direct and intimate

13 connection, but the Central and Southern Florida Flood

14 Control Project is an integrated system.

15 Q Did you say is or isn't?

16 A Is.

17 Q So by that I take it that you mean that if you

18 work in one aspect of it, you are affecting other aspects

19 of it?

20 A You can.

21 Q Did any of those appropriations requests have

22 anything to do with dealing with the alleged eutrophication

23 of the water conservation areas?

24 A I don't recall that they did.

25 Q You say that you also were engaged in changes to

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 water quality standards, including water quality

2 classifications and antidegradation policies.

3 What specifically did that -- what does that

4 mean?

5 A It means rulemaking.

6 Q Could you give me some representative examples of

7 some rules that you were assisting in the process of

8 adopting?

9 A Yes. I believe there is a water quality

10 reclassification I oversaw during that period, and I am

11 sure there were several designations of OFWs during that

12 period.

13 Q When you say designation of OFWs, do you mean

14 whether a particular water body was eligible for that

15 classification and was adopted as such by rule?

16 A Yes.

17 Q Is that what you meant by water quality

18 classifications in this general description?

19 A Yes.

20 Q You were not engaged in any other efforts to

21 reclassify water bodies, say, from Class III to Class II or

22 things of that nature?

23 A I think there was only one reclassification during

24 that period.

25 Q Which one was that, if you recall?

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1 A That might have been the Miami River reclassified

2 from Class IV to Class III.

3 Q What work did you do in the development of the

4 Department's antidegradation policies?

5 A OFWs are a part of the Department's anti-

6 degradation policies, and that reference is to, primarily

7 to OFWs.

8 Q Did you -- were you ever called upon to implement

9 any of the moderating provisions that are set forth in

10 Chapter 17-302 in this regard? First of all, do you

11 understand what I mean by that?

12 A Well, I am afraid I don't, because I have a

13 concern with the word "implemented."

14 Q Let me rephrase the question.

15 During this time, were you ever engaged in the

16 development of or the application of the site-specific

17 alternative criteria rule to a given water body or set of

18 water bodies?

19 A I think I may have reviewed a site-specific

20 alternative criterion petition, but -- during that period,

21 but I can't be certain.

22 Q What about mixing zones for point source

23 discharges?

24 A No.

25 Q What about variances?

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1 A I don't believe so.

2 Q Do you recall what water body you looked for a

3 SSAC for?

4 A I think there might have been a portion of the St.

5 Johns River.

6 Q Do you know what criterion was being, in effect,

7 deviated from in that regard?

8 A Dissolved oxygen, as I recall.

9 Q Do you recall what the result of that deliberative

10 process was?

11 A No.

12 Q Was it a request that was made by a local

13 government or a particular discharger?

14 A I think it was a power plant.

15 Q Did it concern any portion of the St. Johns River

16 that had been designated as an Outstanding Florida Water?

17 A I don't recall.

18 Q Let's move on now to your job duties from 1988 to

19 the present, where you were the environmental administrator

20 of Standards and Monitoring Section, the Bureau of Surface

21 Water Management.

22 First of all, let me ask, who is your supervisor

23 for that position?

24 A Vivian Garfein, who is the chief of the Bureau of

25 Surface Water Management.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Q What do your duties entail?

2 A I should also mention she is my recent

3 supervisor. Before then, it was Roxane Dow.

4 Q What do your duties entail for that position?

5 A There were several prime duties. One of them was

6 overseeing changes to state water quality standards.

7 Another one was overseeing the 305-B report every two

8 years, and there were some other miscellaneous duties.

9 Q What changes to the state water quality standards

10 did you oversee?

11 A We comprehensively reviewed and revised water

12 quality classifications. We comprehensively reviewed and

13 made some revisions and antidegradation policies during

14 that period, and we also made a number of changes in

15 individual water quality criteria.

16 Q When you said you looked to classifications, what

17 specifically did you do? Were you changing a water body

18 from one category to another, or portions of a water body

19 from one category to another?

20 A We conducted a survey of the classification

21 system, itself, to determine if changes in the system were

22 necessary, and then we also reviewed the classifications of

23 some individual water bodies to determine if those

24 individual water bodies should be reclassified.

25 Q Did any of these efforts include what are known as

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 the water conservation areas to the south of Lake

2 Okeechobee?

3 A Only indirectly, in that those water conservation

4 areas are classified as Class III waters, and we were

5 examining whether we needed an overall change in the

6 classification system. We decided not.

7 Q What was the change being contemplated at that

8 time?

9 A We were directed by the Legislature to review the

10 classification system and study several particular

11 subjects. One of them was whether artificial waters should

12 be classified differently. I think there are some other

13 specific subjects the Legislature directed us to look at.

14 What we did was we held six public workshops

15 around the state to receive views on whether the system,

16 itself, required modification.

17 Q Were you looking at any particular proposed

18 changes at that time even if they were not subsequently

19 adopted?

20 A I recall we looked in detail at artificial waters

21 and the other subject that the Legislature directed us to

22 look at, and we also looked, as I mentioned, at some

23 individual waters for reclassification.

24 Q Did you regard the water conservation areas as

25 being in that category of artificial waters?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 A We had great difficulty defining artificial

2 waters.

3 Q Was there some suspicion that they -- that is, the

4 water conservation areas -- might be considered within the

5 rubric of that classification as artificial waters?

6 A I don't think that we even thought about that

7 particular question.

8 Q What water bodies were you considering for

9 reclassification during that deliberative process?

10 A I think we focused on potable waters, Class I

11 waters and shellfish waters, Class II waters, primarily.

12 Q What is a 305-B report?

13 A Section 305-B of the Federal Clean Water Act

14 requires every state to prepare every two years a state

15 water quality assessment.

16 Q And what is a state water quality assessment?

17 A A state water quality assessment is a summary of

18 the conditions, the condition of the state's waters.

19 In Florida, we prepare a water-body-by-water-body

20 assessment as well as an overall summary assessment that is

21 published every two years.

22 Q That sounds like a rather gargantuan effort to

23 do. Is it? Is it just something that you, yourself, did,

24 or did you work with other people in the development of

25 that report?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 A No. The real work was done by people like Joe

2 Hand, Mark Friederman, Vicki Tauxe, Leland Smith, Dean

3 Jackman. I supervise them, but they did the great mass of

4 the work, and they deserve the credit for the fine report

5 that it is.

6 Q Did those individuals go out and actually take

7 water quality examples, or were they relying upon

8 information that had otherwise had been made available to

9 them?

10 A Primarily information that otherwise was

11 available.

12 Q You also stated that you were involved in a

13 revision of the state's antidegradation policies in 1989.

14 What was that effort concerned with?

15 A EPA had disapproved part of our antidegradation

16 policies, and we commenced rulemaking to decide if we

17 should make changes.

18 Q Why did EPA disapprove of that effort?

19 A They believed that our rules were inconsistent

20 with their requirements.

21 Q In what respects?

22 A In several respects. They did not think that we

23 had a general antidegradation policy, which they thought

24 their rule required. They disapproved the classification

25 of the Fenholloway River as a Class V water body, and I

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 think there is some other less important changes that they

2 wanted.

3 Q Did the Department subsequently address EPA's

4 concerns?

5 A Yes.

6 MR. HETRICK: I object for the record.

7 BY MR. HYDE:

8 Q Just a brief follow-up question to 305-B program.

9 Did the Department assess the water quality of the several

10 water conservation areas in south Florida?

11 A Yes.

12 Q Do you recall what the Department concluded

13 regarding those several water bodies?

14 A Not in detail, but I recall that the report

15 concluded there were violations of water quality standards

16 in parts of that area.

17 Q Which report would have made that conclusion?

18 A I know at least the 1990 and 1992 versions did.

19 Q Where would I find a copy of those reports?

20 A I think you probably should ask Joe Hand for that.

21 Q Who is Mr. Hand?

22 A Mr. Hand is an environmental specialist in the

23 Bureau of Surface Water Management, who is principally

24 responsible for pulling together the 305-B report.

25 Q Is he located within this building?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 A Yes.

2 Q What is a triennial review?

3 A The United States Clean Water Act requires each

4 state to review its quality standards at least every three

5 years; hence, triennial review.

6 Q Are you, in effect, the administrator of that,

7 over that review process?

8 A I was.

9 Q Was, as in past tense?

10 A Right.

11 Q You no longer are?

12 A Right.

13 Q Who is currently responsible?

14 A They are recruiting for my successor.

15 Q Is your current position different from that which

16 is listed on your resume for 1988 to the present?

17 A Yes.

18 Q What did you describe your current position as

19 being?

20 A In the Office of the Secretary, it is a new

21 position called Water Policy Administrator.

22 Q What is the water policy administrator?

23 A I am still figuring that out. I think the main

24 task is to oversee revisions to Chapter 17-40, state water

25 policy.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Q Do you have a particular charge other than that

2 general description?

3 A There is a position description which has been

4 prepared for my position which includes that as a prime

5 duty.

6 Q What are your other prime duties?

7 A Another duty is to work with other people in DER

8 and the water management districts on the preparation of

9 district water management plans and the state water

10 management plan.

11 Q Is there some time frame within which you are to

12 complete this reanalysis of the state water policy plan?

13 A We plan to take revisions, proposed revisions, to

14 state water policy to the Environmental Regulation

15 Commission by the end of 1993. Chapter 373 requires

16 completion of the district and state water management plans

17 by the end of 1994.

18 Q Do you intend to workshop these proposed revisions

19 to the state water policy plan prior to making any

20 proposals to the Environmental Regulation Commission?

21 A I think you said state water policy plan, and I

22 would make a distinction between the state water policy

23 rule and the state water management plan, but both have a

24 provision for public participation, including workshops.

25 Q But you have not decided when or where those

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 workshops would be?

2 A There was a series of workshops on the state water

3 policy rule late last year. There will probably be another

4 cycle in the summer.

5 Q Why is the Department undertaking that effort?

6 A Which effort?

7 Q I am sorry, the revisions to the state water

8 policy rule.

9 A One of the reasons is that the district and state

10 water management plans are far along now, and there is a

11 need to be consistent between the water management plans

12 and the state water policy rule.

13 There is also some perceived need for changes in

14 17-40, and I can't tell you, since I have only been on the

15 job a short time, exactly what the deficiencies are.

16 Q When did you take over this position?

17 A A week and a half ago.

18 Q Do you know generally what these perceived

19 deficiencies are?

20 A Yes, only generally. I have also been out on

21 family sick leave for a good part of my time in this new

22 job. I can't give you a very complete description of what

23 my job is, every element to it.

24 Q Would you describe for me generally what these

25 perceived deficiencies are?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 A Yes. One problem apparently is that the state

2 water policy rule has a different organization than the

3 district water management plans, and there is a need to

4 make those consistent.

5 There is also some policy subjects apparently that

6 the workshops late last year recommended be addressed.

7 Some of those policy subjects are water conservation,

8 natural resource protection and water supply.

9 Q What is being sought in those particular regards?

10 Do they want to make them tougher, do they want to make

11 them more flexible? Do you have any idea of what the drift

12 of this reanalysis is?

13 A My understanding is that there are differing views

14 of what the changes should be, and in part this applies in

15 assessing alternatives.

16 Q When you say there are differing views, do you

17 mean within the Department or do you mean within the

18 community at large?

19 A I think I am referring to the latter.

20 Q Let me go back just for a moment. Under your

21 position as environmental administrator for the Standards

22 and Monitoring Section, you also apparently managed various

23 contracts concerned with water quality issues?

24 A Yes.

25 Q Could you describe in a little more detail what

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 that responsibility entailed?

2 A Yes. There is one contract with Dr. Delfino with

3 the University of Florida for mercury research

4 investigation in the Everglades. There is another contract

5 of Dr. Robert Digner at the University of Florida for the

6 statewide fish consumption survey, and there were several

7 contracts managed by people that I supervised.

8 Q Is that fish consumption survey related to the

9 issue of mercury contamination also, or is it something

10 different from that?

11 A I would say it is related, but the intent is to

12 get a statewide data base on fish consumption in Florida.

13 That could affect mercury fish advisories, because the

14 amount of fish people eat affects their dose.

15 Q So, but is the gist of that study to find out how

16 many people are consuming fish in the state?

17 A Yes.

18 Q Does that include fresh water and salt water, or

19 just fresh water?

20 A Both.

21 Q I would like to back up for a moment to your

22 efforts regarding the issue of mercury contamination.

23 Your resume reflects that you are the agency staff

24 representative to the Governor's Task Force on that

25 subject. Who appointed you to that position?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 A I suppose my bureau chief did.

2 Q And your bureau chief was Roxane Dow?

3 A Roxane Dow.

4 Q What is your charge for that particular effort?

5 A It was to represent the agency, to represent the

6 agency on the Governor's Mercury Task Force.

7 Q What specifically are you doing in that regard?

8 A Well, that was -- my resume says serving as, past

9 tense, my prior job. In fact, I think about six months ago

10 the Department got a full-time mercury coordinator who now

11 has that responsibility.

12 Q Who is that person?

13 A Tom Atkinson.

14 Q Were you effectively the Department's mercury

15 coordinator prior to that time?

16 A Yes.

17 Q What did you do as that coordinator? Did you pull

18 together information, or did you do something above and

19 beyond that?

20 A I oversaw the preparation of a DER mercury report,

21 and I participated with other members of the Task Force in

22 the preparation of a mercury work plan.

23 Q What is that mercury work plan? Is that a

24 research effort?

25 A It was a set of work objectives for all of the

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 involved agencies. There was a separate research plan that

2 the mercury committee oversaw.

3 Q By whom is that research being done now?

4 A The research plan recommended research in many

5 areas, some of which are being performed now. One of them

6 I mentioned is Dr. Delfino who has some sediment mercury

7 investigations underway. There is some other work being

8 done by other parties.

9 Q Other parties within the Department?

10 A Inside and outside. We contracted with KBN

11 Engineering for some of that work, and there is other

12 research.

13 Q Can you give me an idea of what some of this other

14 research is? First of all, maybe you could tell me, what

15 is KBN doing?

16 A KBN conducted, for one thing, an emissions

17 inventory for mercury in Florida. Another thing that, for

18 which we contracted with them was an atmospheric deposition

19 study at Lake Barco in Putnam County. Those are separate

20 efforts.

21 Q When you say an emissions study, what type of

22 emissions, if there is a limitation on that?

23 A The intent was to compile all of the available

24 data on all emissions of mercury from anthropogenic and

25 natural sources in Florida.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Q Are you looking at any particular emission

2 sources, or is it just a generic, across-the-board type of

3 thing, assessing what is coming out of the various types of

4 emission sources?

5 A All sources.

6 Q Do you know whether there is any operative thesis

7 as to that program, or is it really just a let's-see-what-

8 we-can-pull-together type of program?

9 A The contract report did come up with estimates of

10 total emissions from various sources in Florida.

11 Q Back to Dr. Delfino -- is it Delfino or Delfino?

12 A D-e-l-f-i-n-o.

13 Q Do you know where Dr. Delfino is conducting his

14 field work?

15 A Generally I do. It is a dozen sites in south

16 Florida.

17 Q Do you know whether any of those sites include the

18 water conservation areas?

19 A There are some sites in the water conservation

20 areas.

21 Q What is Dr. Delfino's first name, if you recall?

22 A Joseph.

23 Q Did he report to you while you were the mercury

24 coordinator?

25 A Not to me as mercury coordinator, but to me as

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 project manager for the contract that DER had with him.

2 Q Do you know whether Dr. Delfino has completed his

3 work?

4 A I know he has not.

5 Q Do you know when he is supposed to complete that

6 work?

7 A I believe early 1994 is when the final report is

8 due. The project manager for that is now Tom Atkinson.

9 Q Has Dr. Delfino or did Dr. Delfino file with the

10 Department any interim reports?

11 A He has filed quarterly reports.

12 Q Who is the current custodian of those quarterly

13 reports for the Department?

14 A Tom Atkinson.

15 Q Is Dr. Delfino employed by the Department, or is

16 he an outside contractor?

17 A Dr. Delfino is the chairman of the Environmental

18 Engineering Department of the University of Florida.

19 Q Do you know whether Dr. Delfino has reached any

20 preliminary conclusions regarding the source or sources of

21 mercury contamination in waters in south Florida?

22 A He has some preliminary data that is discussed in

23 the quarterly reports, and the data is consistent with

24 other data, that the rate of atmospheric deposition in

25 Florida, including the Everglades, is much higher in recent

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 decades than prior to that.

2 Did I say atmospheric deposition there?

3 Q Yes.

4 A I should have said deposition.

5 Q Is that opinion confined just to south Florida?

6 A His research is contracted, is limited to south

7 Florida.

8 Q Why do you make a distinction between deposition

9 and atmospheric deposition?

10 A Because his data is sediment data. I didn't want

11 to say that he is drawing a conclusion about the source of

12 the mercury.

13 Q Let me see if I understand you. Are you saying

14 that Dr. Delfino has not drawn any conclusion as to what

15 the cause of that increased deposition is in recent

16 decades?

17 A I can't speak for him. I don't want to say that

18 he has. He probably has opinions and is formulating

19 opinions. I don't recall those being expressed in his

20 quarterly reports.

21 Q Have you ever discussed with him whether he has

22 any preliminary or tentative opinions as to the issue of

23 causation?

24 A I don't think I have.

25 Q Is Dr. Delfino the only person who is currently

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 conducting a mercury-related study for the Department?

2 A No.

3 Q Who are some of the other persons?

4 A There is a sugar cane and mercury study that the

5 DER Division of Air is overseeing.

6 Q Who, in particular, is in charge of that study?

7 A I think that Tom Rogers in the Division of Air is

8 probably still the project manager for that.

9 Q Is Mr. Rogers located here in Tallahassee?

10 A Yes.

11 Q Is Mr. Rogers' study to be completed by a given

12 date, or is there any time schedule that he is supposed to

13 issue a report in?

14 A I am sure there is, but I can't tell you what the

15 dates are.

16 Q Do you know when this study commenced?

17 A I think it commenced probably six months ago.

18 Q Do you know whether the study has some operative

19 thesis as to whether sugar cane is or is not creating a

20 problem for mercury in the Everglades, or south Florida

21 generally?

22 A I think the intent is to determine what amount of

23 mercury might be emitted near the atmosphere by burning of

24 sugar cane, or processing of sugar cane, I should say.

25 Q Have you discussed this study with Mr. Rogers?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 A Yes.

2 Q Do you know whether Mr. Rogers or his research

3 team have reached any preliminary conclusions?

4 A I don't know.

5 Q Do you know when such a report is to be issued in

6 this regard?

7 A I don't know.

8 Q Are there any other studies above and beyond these

9 two that you have identified?

10 A I believe there are. There is another study, and

11 I believe this commenced, also managed by Tom Rogers,

12 having to do with, I believe, open burning. I am not very

13 clear on that.

14 Q What do you mean by open burning?

15 A Burning of unconfined materials in the open, such

16 as municipal waste or forestry, I think more likely.

17 Q You wouldn't consider a municipal solid waste

18 incinerator as being, quote, open burning, would you?

19 A No, I would not.

20 Q Does this second study by Mr. Rogers also include

21 the, I guess it is, open burning of hurricane-generated

22 debris in south Dade County?

23 A I want to express my lack of confidence in how

24 much I know of that at commencement. I have not been

25 involved in it in six months. I think there was a second

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 study to be contracted for at that time. That is about the

2 limit of my supposition.

3 Q Regarding this sugar cane study by Mr. Rogers, is

4 that study being done in house?

5 A No. I believe Tom Rogers meant to contract with

6 some outside party.

7 Q Do you know who that contractor is?

8 A No.

9 Q Is this open burning study also to be contracted

10 out to someone outside the agency?

11 A If there is such a study, I believe it would be

12 contracted out.

13 Q Are there any other studies that are existing or

14 contemplated regarding the general issue of mercury?

15 A I can't think of any others.

16 Q I have read in a number of publications in recent

17 years that there has been an operative thesis that much of

18 the mercury problem is or has been caused by municipal

19 solid waste incinerators, in south Florida, at least.

20 Are there any ongoing efforts to analyze those

21 facilities' contribution to Everglades contamination inside

22 Florida?

23 A One such effort is that emission inventory that we

24 discussed, that estimated numerically the relative

25 contribution from all sources.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Q Is that the only one to your knowledge?

2 A I believe that the Department, through the

3 Division of Air, is considering rulemaking to require

4 additional control measures and/or additional emission

5 monitoring for that type of source.

6 Q Are you aware of any other studies on the mercury

7 subject matter that are being conducted by persons outside

8 of and not under the control of the Department?

9 A I can think of two quickly. One of them is, the

10 EPA's South Florida Initiative is supposed to include

11 mercury investigations. I recall also the Everglades SWIM

12 Plan research component includes mercury investigations.

13 There is a host of others involved in one way or another in

14 mercury investigation, the U. S. Fish and Wildlife Service

15 to DER to a long list.

16 Q Let me see if you know generally what those given

17 agencies are doing. For example, what is the Game and

18 Fresh Water Fish Commission doing?

19 A The Game and Fresh Water Fish Commission is