1

1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

3 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, )

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

4 -and- )

FLORIDA SUGAR CANE LEAGUE, INC., UNITED )

5 STATES SUGAR CORPORATION, and NEW HOPE )

SOUTH, INC., )

6 -and- )

FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )

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

INC., and HUNDLEY FARMS, INC., )

8 Petitioners, )

vs. ) DOAH CASE NOS.

9 ) 92-3038

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039

10 Respondent, ) 92-3040

) (Consolidated)

11 and )

)

12 MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

STATES OF AMERICA, FLORIDA DEPARTMENT OF )

13 ENVIRONMENTAL REGULATION, and FLORIDA )

WILDLIFE ASSOCIATION, )

14 Intervenors. )

- - - - - - - - - - - - - - - - - - - - - - -

16 HEARING BEFORE: HONORABLE J. STEPHEN MENTON

HEARING OFFICER

DATE: FRIDAY, OCTOBER 30, 1992

19 TIME: COMMENCED: 9:00 A.M.

CONCLUDED: 12:45 P.M.

21 LOCATION: HEARING ROOM 2, DESOTO BUILDING

1230 APALACHEE PARKWAY

22 TALLAHASSEE, FLORIDA

23 REPORTED BY: KIMBERLY ANN ROBERTS,

COURT REPORTER, NOTARY PUBLIC,

24 STATE OF FLORIDA AT LARGE

1 APPEARANCES:

2 Representing the Petitioners, Sugar Cane Growers

Cooperative of Florida, Roth Farms, Inc., and

3 Wedgworth Farms, Inc.:

4 WILLIAM H. GREEN, ESQUIRE

-and

5 ROBERT P. SMITH, ESQUIRE

Hopping, Boyd, Green & Sams

6 123 South Calhoun Street

P.O. Box 6526

7 Tallahassee, Florida 32314

Representing the Petitioners, Florida Sugar Cane

9 League, Inc., United States Sugar Corporation,

and New Hope South, Inc.:

JUDITH S. KAVANAUGH, ESQUIRE

11 -and-

RICK BURGESS, ESQUIRE

12 Peeples, Earl & Blank, P.A.

One Biscayne Tower, Suite 3636

13 Two South Biscayne Boulevard

Miami, Florida 33131

14 -and-

WILLIAM L. HYDE, ESQUIRE

15 Peeples, Earl & Blank, P.A.

Suite 350

16 215 South Monroe Street

Tallahassee, Florida 32301

18 Representing Petitioners, Florida Fruit and

Vegetable Association, Lewis Pope Farms,

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

Hundley Farms, Inc.:

20 KENNETH G. OERTEL, ESQUIRE

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

21 Suite C

2700 Blair Stone Road

22 Tallahassee, Florida 32301

1 APPEARANCES:

2 Representing Respondent, South Florida Water

Management District:

R. BENJAMIN REID, ESQUIRE

4 Popham, Haik, Schnobrich & Kaufman, Ltd.

400 International Place

5 100 Southeast Second Street

Miami, Florida 33131

7 Representing Intervenor, The United States of

America:

SUSAN HILL PONZOLI, ESQUIRE

9 Assistant United States Attorney

Southern District of Florida

10 Suite 627

155 South Miami Avenue

11 Miami, Florida 33130-1693

12 -and-

13 GEOFFREY GARVER, ESQUIRE

-and-

14 KEITH E. SAXE, ESQUIRE

Department of Justice

15 Environment and Natural Resources

Division

16 General Litigation Section

P.O. Box 663

17 Washington, D.C. 2004-0663

Representing Intervenor, Florida Department of

19 Environmental Regulation:

20 LEE M. KILLINGER, ESQUIRE

Assistant General Counsel

21 Department of Environmental Regulation

Twin Towers Office Building

22 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

1 APPEARANCES:

2 Representing Intervenor, Florida Wildlife Federation:

3 DAVID G. GUEST, ESQUIRE

111 South Martin Luther King, Jr., Blvd.

4 P.O. Box 1329

Tallahassee, Florida 32302

9 * * * * *

12 I N D E X

ITEM PAGE

HEARING COMMENCES . . . . . . . . . . . . . . . . . . . .5

OPENING REMARKS . . . . . . . . . . . . . . . . . . . . . . .5

HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 147

CERTIFICATE OF REPORTER . . . . . . . . . . . . . 148

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCES AT 9:00 A.M. AS

3 FOLLOWS:)

4 HEARING OFFICER MENTON: Okay. Good morning.

5 Let's begin by taking attendance and figuring out exactly

6 who's here. Starting with the petitioners, the

7 Cooperative.

8 MR. GREEN: Mr. Menton, my partner, Bob Smith, and I,

9 Bill Green, are here representing the Cooperative.

10 HEARING OFFICER MENTON: Okay. For the League.

11 MS. KAVANAUGH: Mr. Menton, Judy Kavanaugh and Bill

12 Hyde for the League and related petitioners.

13 HEARING OFFICER MENTON: And for the Fruit and

14 Vegetables.

15 MR. OERTEL: Kenneth G. Oertel.

16 HEARING OFFICER MENTON: All right. For the South

17 Florida Water Management District.

18 MR. REID: Ben Reid with Popham Haik.

19 HEARING OFFICER MENTON: And the U.S. Government.

20 MS. PONZOLI: Susan Hill Ponzoli. I have co-counsel,

21 Keith Saxe and Geoff Garver.

22 HEARING OFFICER MENTON: All right. DER.

23 MR. KILLINGER: Lee Killinger.

24 HEARING OFFICER MENTION: Okay. And I guess Mr.

25 Guest is here.

1 MR. GUEST: That's correct, representing the

2 environmental interest.

3 HEARING OFFICER MENTON: All right. Any other

4 intervenors present? Anybody else that needs to state

5 an appearance? Okay. As I was going over my list from

6 the last hearing of things that needed to be resolved

7 today, it seems to me, I guess, we have four main issues

8 outstanding.

9 The first has to do with the petitioners' entry. I

10 think we resolved most of the issues on the petitioners'

11 entry last time, and the only thing that we need to do is

12 get an order entered to summarize that situation. Is

13 everything on course as far as that entry goes,

14 petitioners' entry into the Park and into the Refuge?

15 MS. PONZOLI: That's my understanding, Mr. Hearing

16 Officer. Mr. Fitzgerald briefed me on this. I briefly in

17 speaking with the petitioners, I think everything is on

18 course, and I think that by mid next week that Mr.

19 Burgess and Mr. Fitzgerald should be able to

20 present that order to you for signature.

21 HEARING OFFICER MENTON: Okay. I just have been

22 tied up in some other matters and haven't had a chance to

23 really focus on this as much, but I think next week my

24 hearing schedule is clearing out, so I intend to really

25 sit down and try to do some housekeeping in this case and

1 make sure we have everything entered that needs to be

2 entered. So if that order can get to me next week, it

3 would be good timing from my perspective.

4 MS. KAVANAUGH: Mr. Hearing Officer, Mr. Burgess is

5 unfortunately stranded in Tampa despite our warnings to

6 come up last night because of the fog. He indicated that

7 there are some minor disputes that he expects to be able

8 to work out, but I will concur they expect to work things

9 out and have an order --

10 HEARING OFFICER MENTON: If there is something we

11 can take up by phone, I will be in town all next

12 week, so I will be available to resolve any minor disputes

13 that we can get done over the phone because I think it's

14 important that we get that order entered and make

15 sure that whole process is underway.

16 I guess the three main issues then that are

17 outstanding is the U.S. entry into the EAA and the

18 financial issues that we talked about on a couple of these

19 different hearings, and then the main one that we set

20 aside for today was the burden of proof. Are those the

21 three that everyone -- while we're all on the same track,

22 anything else that is going to be addressed today?

23 MR. GUEST: Mr. Hearing Officer, I filed an extension

24 on financial things and I have not had an opportunity to

25 brief that. I've been out of town on another case.

1 HEARING OFFICER MENTON: Okay. Well, what I intend

2 to do, and we may be getting ahead of ourselves a little

3 bit, Mr. Green has submitted a proposed order to me.

4 My review of Mr. Green's order I think indicates that it

5 goes not only to the discovery issues but also to the

6 more fundamental questions as to what its role to the

7 financial issues in this dispute, and after reviewing what

8 has been filed to this date, what I intend to do is

9 really do two separate orders on that.

10 The first would be to address specifically the

11 discovery issues. I've looked at the proposed order

12 that was submitted, I believe the U.S. submitted that, and

13 I'm going to make some modifications to that. Again,

14 we're getting ahead of ourselves a little bit. I know

15 there was an amendment to that that was filed yesterday,

16 and I'm not quite sure how that comes into play; but when

17 we get to that issue today, I intend to discuss that and

18 see if we can come to a resolution, at least, on the

19 discovery aspects of it. And then I think we really need

20 to do a separate order that specifically addresses the

21 role that the Hazen and Sawyer Study and the financial

22 issues in the context of this whole case.

23 I think those are two distinguishable things. I

24 would like to address both of those, and we can get to

25 that a little bit later. Mr. Guest, I guess what I'm

1 saying in response to your motion is that I think the

2 discovery issues and the financial aspects have been

3 resolved at the prior hearings, and I'm going to do an

4 order on that probably the first thing next week when I

5 can sit down and pull all this together.

6 If you give me something directly related to his

7 order by the end of next week, I'll consider it, but I'm

8 going to be in the process of writing that order next

9 week.

10 MR. GUEST: My concern was not the discovery

11 issue; it's the larger issue.

12 HEARING OFFICER MENTON: Okay. Well, if you get

13 something filed to me by next week, I'll review it and

14 consider in doing it. Again, I'm going to hear argument

15 today on some of those issues and see where we are.

16 Is there any particular order that we need to take

17 these three outstanding issues up? Any suggestions in

18 that regard?

19 MS. PONZOLI: We sort of agreed to finish me first.

20 HEARING OFFICER MENTON: Okay.

21 MS. PONZOLI: My entry, we agreed to it.

22 HEARING OFFICER MENTON: Okay.

23 MS. PONZOLI: And beyond that, I don't think there

24 was agreement quite frankly.

25 MR. HYDE: I think there has been in light of

1 your discussion about what to do with Mr. Guest's request.

2 I think we can do the financial issue second and the

3 burden of proof last.

4 HEARING OFFICER MENTON: All right. I think that's

5 probably good. As I recall, let's go to the U.S. entry

6 issues. As I recall from our last discussions, there was

7 going to be an attempt to see if there could be some

8 agreement on locations, and I think I still left open the

9 mercury issue, although, I indicated how I was leaning on

10 that, and also the issue of whether there was a protective

11 order appropriate regarding the disclosure of any of the

12 test results. Those are the issues as I recall them; is

13 that correct?

14 MS. KAVANAUGH: Yes.

15 MS. PONZOLI: Umm-hum.

16 HEARING OFFICER MENTON: What happened with the

17 location aspects?

18 MS. PONZOLI: I'm in a the glass is half full mood

19 this morning. We have actually finalized more or less

20 25 of the sites. There is agreement among the named

21 petitioners. I guess at the close of this, Mr. Oertel and

22 I should look at the map together, but I don't anticipate

23 there be a large problem. His clients, in fact, own the

24 place. If I need to go, it's my understanding is through

25 his office is that won't be a problem.

1 The sites that remain a problem are particularly

2 four sugar mills are in dispute, whether I can go to the

3 Bryant Mill and just three others, the Osceola, the

4 Okeelanta and Atlantic Mills. Then I still need

5 quite honestly 11 additional sites.

6 Now I have never been able to obtain the property

7 descriptions for Lewis Pope Farms from the Fruit and

8 Vegetable Association. With those property descriptions,

9 I will probably take up several of my additional

10 sites. I would propose that for the 11 additional

11 sites that Dr. Jones and I submit to the petitioners a map

12 with some circles on it and sites that we believe are

13 missing sites for our testing.

14 We have been very constrained by going to

15 where the various petitioners are located, but I think we

16 have worked it out pretty well. I think at this

17 point they may need to go to the larger League membership,

18 to the larger Co-op membership and see if they own

19 property in those locations and if they will supply those

20 sites to us, Mr. Hearing Officer.

21 I can explain that map to you if you would like.

22 What you're looking at, the colors are the named

23 petitioners property, pink being U.S. Sugar. Green, I

24 think, is Mr. Wedgworth or Wedgworth Farms. The brown

25 being New Hope South and so forth and so forth. Although,

1 the brown at the top of the map, even though the Palm

2 Beach County plat book would have indicated that that

3 should have been New Hope South, the name was a little

4 different and they say, in fact, that New Hope South

5 doesn't own that north property, only the south property.

6 There are five, if I may, I would like to show you.

7 There are five yield belts here. We have for the first

8 yield belt around the lake, assuming we were able to

9 get the Bryant Mill, we have all of our eight

10 sites completed for that, so we're fine there. The second

11 yield belt we have six sites. We need an additional

12 one; for the third yield belt, assuming we get the sugar

13 mill, we have four. We are still missing four and so

14 forth.

15 We're almost filled up on the fourth yield belt, and

16 then the fifth we're missing four sites. The sugar mills

17 are an area evidently of serious dispute, although the

18 Co-op has agreed to allow us to enter their site at their

19 mill, the U.S. Sugar and the Flo-sun related mills have

20 not agreed to allow us on their property.

21 There is a sugar mill here Okeelanta. There is

22 Atlantic, and there is Osceola. These are all, as I

23 understand it, associated with the Flo-sun parent

24 corporation which owns New Hope South. Now some of this

25 information you need to realize goes to the type of

1 financial information that we were not allowed to do

2 discovery, so I can only make broad allegations to you

3 regarding the ownership of these various entities because

4 I have no specific discovery on them.

5 This is the Bryant Mill owned by U.S. Sugar

6 Corporation. I had asked to go also to the Clewiston

7 Mill. The Clewiston Mill is very interesting because the

8 public records on the Clewiston Mill show that the

9 phosphorus levels there are something like six times the

10 surface water concentrations in the area which would make

11 them more or less 2,000 parts per billion.

12 The argument of the U.S. Sugar Corporation is that

13 this water drains into the lake and, therefore, does not

14 drain south. It is not part of the Everglades planning

15 area, and I should not be able to go there. Since it is

16 not part of the Everglades planning area, I have

17 agreed to let that one go. But I do want you to be aware

18 that they are claiming it goes here, and we will

19 hear subsequently in this case that the lake water comes

20 down and it's dirty. So I want you to understand we

21 believe there is a very intimate relationship in all this

22 phosphorus.

23 These, however, are not. These mills, these mills

24 are -- this is Talisman, Atlantic. These mills are all

25 part of this whole area. The Bryant Mill, the argument

1 there as I understand it has been that this is a

2 hydrologically isolated sugar mill. I think that that is,

3 from my discussions with the Water Management District and

4 with their technical people, that is something they are

5 attempting to accomplish is to isolate it hydrologically.

6 However, no one believes that in a storm event they would

7 be successful in that effort to keep all their surface

8 water contained there.

9 Furthermore, the situation is that when the mill is

10 in operation it draws so much water up into the mill there

11 is a gradient. They probably are not discharging water

12 into the ground water surface water anywhere. They

13 probably are isolated in that intense activity for about

14 half of a year, but a half of a year that they are passive

15 the belief is that there is seepage.

16 Whether or not they are hydrologically isolated I

17 would respectfully argue is a very complicated proof

18 problem and is a very complicated thing for anyone to

19 prove to you one way or another. I would ask that I be

20 allowed to go and test there. It is not an invasive

21 testing. I think that these are hot spots that are of

22 real interest of where phosphorus is in the EAA, what we

23 can do to contain it and various processes we talked about

24 previously, so I think that particular type of

25 site is very important that we be allowed access to those.

1 So I guess my point is that we have a fair number of

2 the sites agreed to. We have those sugar mills in dispute

3 and we still need the additional sites.

4 HEARING OFFICER MENTON: Okay. Just to make sure

5 I'm with you, you have 25 sites that are in agreement --

6 MS. PONZOLI: Yes, sir.

7 HEARING OFFICER MENTON: -- and everybody is in

8 agreement with those 25; is that correct, Mr. Green and

9 Miss Kavanaugh?

10 MR. GREEN: Yes, sir.

11 MS. KAVANAUGH: Yes, sir.

12 HEARING OFFICER MENTON: All right. Mr. Oertel.

13 MR. OERTEL: I don't think we have a problem with the

14 United States on that.

15 HEARING OFFICER MENTON: All right, on the 25. Then

16 there are four sugar mills; is that what you're saying?

17 MS. PONZOLI: Yes, sir.

18 HEARING OFFICER MENTON: The four that you have

19 identified including the Bryant one --

20 MS. PONZOLI: Yes, sir.

21 HEARING OFFICER MENTON: -- and you have asked for

22 access and not allowed by the petitioners on those

23 four; is that right?

24 MS. PONZOLI: That's right, those four in dispute.

25 HEARING OFFICER MENTON: All right. And then the

1 other 11 sites that you say that you need are just a

2 matter of trying to get together and trying to figure out

3 where those are?

4 MS. PONZOLI: It's a matter of -- I have exhausted

5 my ability to do a good sampling on the petitioners

6 property really. If you look up there, it is concentrated

7 in certain areas. There is a fair amount of property

8 owned by the League and the Co-op that covers the white

9 areas that we would need testing in, and if their members

10 would agree to our entering the property, then that would

11 resolve that issue. I think it's possible they might, but

12 it's simply not been presented.

13 HEARING OFFICER MENTON: Okay. So the bold black

14 lines, those are the yield belt lines?

15 MS. PONZOLI: Yes, sir.

16 HEARING OFFICER MENTON: And you have just not been

17 able to identify sites within the categories that you

18 want in those specific yield belts and you're looking to

19 them to give you some information on that.

20 MS. PONZOLI: Right.

21 HEARING OFFICER MENTON: And you're hopeful that

22 you'll be able to work that out, so we don't need to do

23 that --

24 MS. PONZOLI: No, we can't work that out in truth.

25 I don't think they actually know where their people own.

1 As they sit here today, they could not agree to something

2 because they don't know -- my understanding is they don't

3 know where their people own.

4 HEARING OFFICER MENTON: All right. So what we have

5 to resolve today then is solely the issue of the sugar

6 mills; is that --

7 MS. PONZOLI: I believe the sugar mills and I think

8 they want to argue about the perameters and the protective

9 order, and I would like to address those briefly.

10 HEARING OFFICER MENTON: All right. Well, let's

11 take the sugar mills first. Where are we on that and

12 what's the problem?

13 MS. KAVANAUGH: Mr. Hearing Officer, as to, first

14 of all, the League, of course, owns no sugar mills

15 and New Hope South, the other named petitioners owns no

16 sugar mills, so the only named petitioner that has a

17 mill in dispute is U.S. Sugar, which does own the Bryant

18 Mill.

19 We have explained to Ms. Ponzoli that that mill has

20 been expressly permitted by both DER and the District as

21 being zero discharge facility. It does not drain to the

22 EPA. Its permit specifically recognizes and determines

23 there is no release of storm water, surface waters,

24 anything else from that site.

25 I agree with Ms. Ponzoli this is a very highly

1 technical proof issue is as a matter of fact whether or

2 not this is a draining entity, but it's been determined in

3 two state permits which were issued, one in May and

4 one in July of this year. So U.S. Sugar's position is

5 since they are not contributing to the phosphorus impact

6 and not really regulated as a contributor to the

7 phosphorus impact, there is no reason to subject

8 their mill to this kind of testing because it won't reveal

9 anything other than what is on their site, which has

10 nothing to do with the Everglades protection area.

11 We're also concerned that it is some sort of

12 collateral attack on the decisions by the two agencies

13 already to the effect that it is hydrologically isolated,

14 and for those reasons they are not willing to offer those,

15 you know, just to come on and take tests that have no

16 relevance to this proceeding.

17 HEARING OFFICER MENTON: Okay. Even assuming that

18 it is hydrologically isolated, it would seem to me as

19 we've discussed before that there may well be some useful

20 information that could be gleaned about the processes that

21 may be going on at a sugar mill site at a certain yield

22 belt.

23 MS. KAVANAUGH: And we would like to suggest that the

24 Co-op has offered its mill and is willing to allow that

25 kind of testing if, for example, in the course of that

1 testing program that, in fact, occurred, there were

2 information. Because our basic position is they're not

3 going to find anything that is going to be of use in this

4 proceeding period. I mean that's what our consultant --

5 HEARING OFFICER MENTON: But your position is --

6 MS. KAVANAUGH: I understand, sir. But before you

7 open a mill private property to testing when the impact of

8 that particular property has nothing to do with this

9 proceeding, I guess we would suggest that at least that

10 first level showing go forward that, in fact, the

11 information they get will give them relevant information

12 about the phosphorus cycle.

13 HEARING OFFICER MENTON: Perhaps one way of dealing

14 with this particular mill is to deal with it in terms of

15 a protective order, which would be that at least on this

16 particular one go out there and do the testing, but

17 because there may be some other issues regarding the

18 permits and opening the door to that, that if the

19 information then is gleaned from the testing at that mill

20 be held within the context of this litigation and not

21 disclosed to other entities. I throw that out as one --

22 MS. KAVANAUGH: And I understand and I haven't

23 discussed that with my clients, but their position is this

24 mill does not impact the regulated area; therefore, there

25 is no reason to open it up to any form of discovery,

1 any kind of testing, because it has nothing to do with

2 this proceeding, so we would have to continue in our

3 objection. And furthermore, as I say, it raises the

4 specter of some kind of a collateral attack on the two

5 permits they already have.

6 HEARING OFFICER MENTON: But isn't that protected

7 if you get a protective order where it's not going to be

8 disclosed and that, I mean, that's exactly the issue --

9 MS. KAVANAUGH: But you don't get res judicata

10 from these permits. The agencies have determined this,

11 that mill doesn't drain to the EPA, doesn't impact the

12 EPA.

13 HEARING OFFICER MENTON: But the threat to those

14 permits if we restricted the disclose of that information,

15 I mean, that concern is alleviated; isn't it?

16 MS. KAVANAUGH: Well, that's overcoming the fact that

17 this mill has nothing to do with this proceeding in the

18 first place. They could, for example, go to, I guess,

19 somewhere in Palm Beach County and find some other

20 fertilizer plants that may have phosphorus, but that has

21 nothing to do with this proceeding because it's not

22 draining, it's not impacting the regulated area.

23 I guess that's our threshold objection to the

24 Bryant Mill. It has nothing to do with these proceedings,

25 and if the point is that they need to get information

1 about phosphorus cycle from a mill site, well, they have

2 a mill site to do that. There has been no showing there

3 is any difference.

4 HEARING OFFICER MENTON: One of the issues that's

5 come up before is that there may be useful information

6 from taking tests at the different yield belts, and aren't

7 you talking about a mill site at a different yield belt?

8 MS. KAVANAUGH: There may be, but I don't think

9 there has been any showing on that. I think we could be

10 more than willing to present information that the mills

11 are mills are mills, and, again, there is the threshold

12 problem that this is not in part of what's being regulated

13 under this Plan.

14 HEARING OFFICER MENTON: Well, I understand that.

15 But even if you can present evidence ultimately that there

16 is no difference in the yield belts, this is discovery. I

17 don't know that it's appropriate for me to make that

18 determination at this stage of the proceeding.

19 MS. KAVANAUGH: But isn't it appropriate to make

20 a determination as to whether there should be discovery

21 against entities that are not regulated or under this

22 Plan? Are we going to be allowed to get discovery

23 outside the boundaries of the Plan? Are we going to be

24 allowed to get discovery against entities and individuals

25 who are not described at all in the Plan?

1 HEARING OFFICER MENTON: At least with respect to

2 this particular mill, we're talking about one of the

3 petitioners in this case as I understand it who has

4 specifically challenged some of the fundamental

5 assumptions and conclusions that are set forth in the

6 Plan, and they, you know, we're at an early stage in

7 discovery.

8 At this point, I don't know what particular relevant

9 evidence may come out as a result of this discovery, but

10 it would seem to me that I don't understand where the

11 confidential or protected interest is that we need to

12 guard against when we're talking about simply going out

13 and taking a couple of samples off the property.

14 MS. KAVANAUGH: I would suggest that the protective

15 aspect is separate and apart from the threshold question

16 as to whether or not there can be discovery as to

17 facilities regardless of whose they are. U.S. Sugar owns

18 other things in other parts of the state that have nothing

19 to do with this. Whether there should be discovery on

20 private property that is not encompassed within the agency

21 action that we're talking about here. That's our

22 threshold question.

23 HEARING OFFICER MENTON: But it is in the EAA. I

24 mean, even if it doesn't drain, you know, even if it is

25 hydrologically isolated, it is in the EAA.

1 MS. KAVANAUGH: This is true, but there are other

2 parts of the EAA which are not subject to the Plan which

3 are subject to other plans, for instance, Lake Okeechobee

4 SWIM Plan. So mere geographic presence it seems to me

5 that -- and certainly it's our position that absent a

6 showing that this particular piece of property impacts

7 or drains or has anything to do with the --

8 HEARING OFFICER MENTON: But you're creating a very

9 difficult burden at a very early stage in the discovery

10 process, it seems to me.

11 MS. KAVANAUGH: No, sir. I don't think we are. We

12 have two state permits that have said it's hydrologically

13 isolated; that it is not impacting these areas. There is

14 a finding in one of the permits that there is no impact on

15 the resources. So I guess having that determination is

16 res judicata unless we're going to reopen the permits, in

17 fact, go and assess whether it's true, I suggest this is

18 not the proceeding to do that. So I guess we may, we

19 continue in our objection as to that matter.

20 HEARING OFFICER MENTON: Ms. Ponzoli.

21 MS. PONZOLI: This is part of the Everglades Planning

22 Area, Mr. Hearing Officer. I let the one mill go that is

23 one of the dirtiest mills out there as far as I can

24 determine from public records because it was not within

25 the planning area. This is within the planning area. I

1 do not believe that these permits that are frankly not in

2 front of us here today are dispositive of the issue which

3 she concedes is a very difficult proof problem.

4 As to whether there is seepage, I did my consultation

5 with the Water Management District with the experts. They

6 believe there is seepage into the protection area. I'm in

7 discovery. I should be able to -- I'm not looking to

8 disprove her permit. I'm not doing the type of seepage

9 work you need to disprove that.

10 I'm looking for phosphorus cycling at hot spots, and

11 there is something to me fundamentally unfair even as to

12 the United States that we would go to the single entity

13 that was cooperative out there and said you may come to

14 our mill. Every other mill is fighting our entry coming

15 in.

16 U.S. Sugar Corporation owns that mill. We've let

17 one mill go by. This one should be included, and I very

18 respectfully submit that Flo-sun's mill should be included

19 also.

20 HEARING OFFICER MENTON: What is your position

21 regarding the protection order regarding the disclosure

22 of information from the mills?

23 MS. PONZOLI: I think the protective order, I don't

24 think that she has met on behalf of her clients her

25 burden. She has to show that there is something that is

1 going to be jeopardized and destroyed or ruined. I think

2 it's set out in Harris versus Amoco.

3 HEARING OFFICER MENTON: What about her permits?

4 MS. PONZOLI: I can't disprove her permits by my

5 phosphorus cycling work. All I'm looking at is how much

6 phosphorus is in my soil core and how much phosphorus

7 or whatever is in my water sample. I cannot prove by

8 water sample and soil sample that, in fact, the water

9 flows downstream.

10 HEARING OFFICER MENTON: But even if you can't prove

11 the flow of the water, couldn't the information that you

12 glean be used by someone who may want to come in and

13 collaterally attack her permits? Isn't that one of the

14 main concerns she's voicing?

15 MS. PONZOLI: That is her main concern. I don't

16 think that's a valid objection. I have to tell you

17 truthfully I have not studied her permits. I'm not

18 familiar with her permits. Pardon? Oh.

19 Mr. Reid is telling me they can do that anyway.

20 MR. REID: Somebody else can do that. I mean, if

21 somebody wanted to attack, they can do a procedure

22 and do the same thing. It's not secret from the whole

23 world. It's obtainable by somebody.

24 MS. PONZOLI: I think what we have here is we have

25 a very protective industry that doesn't want us to come in

1 under any circumstances, and we're continually having

2 almost like specters raised of fears of what's going to

3 happen. We're talking about a soil core and water sample

4 here at a sugar mill site.

5 I mean we're not taking 50 different samples on

6 transects across the sugar mills and through the ponds.

7 It's a fairly noninvasive entry, and I believe that it

8 would be probably not very representative if we have

9 a single sugar mill within the EAA, that we're foreclosed

10 from every other sugar mill in the EAA knowing that these

11 are the hot spots for phosphorus within the agricultural

12 area.

13 I would like to point out also to the petitioners

14 that this concept of eliminating these sugar mills from

15 discovery, that is not a one-edged sword. If these sugar

16 mills are eliminated at this point for all purposes, then

17 if we go into any regional impact, or if we go into any

18 economic impact, if we go into anything going on out

19 there, those sugar mills ought to be gone. They're not

20 part of this proceeding.

21 I mean, if it cuts one way, it cuts every way. That's

22 something that I think is important. I think they're not

23 going to let the economic impacts on their sugar mills

24 go on a regional basis. They're going to want to argue

25 it. It's important to them. It's important to us to look

1 at the hot spots in the EAA for phosphorus.

2 HEARING OFFICER MENTON: Mr. Green has something he

3 wants to say.

4 MR. GREEN: Mr. Menton, in fairness to the other

5 parties, I understood at the last hearing to be at least a

6 preliminary determination that entry would be allowed, and

7 that's the basis upon which we did not object to having

8 the Cooperative mill examined. That certainly shouldn't

9 be construed as a concession that we believe any of the

10 theories that Ms. Ponzoli has are correct, but I also

11 assume that you still have before you the issue and have

12 been discussing whether the information obtained should be

13 protected if that entry is allowed not only from

14 disclosure in other proceedings but from enforcement

15 because we have three enforcing agencies that are

16 here at this table.

17 And we think it would be appropriate to limit the use

18 of that information to these proceedings and would support

19 that. And I think I understood Ms. Ponzoli at earlier

20 hearings to say that the Federal Government would be

21 guided by whatever you decided on that. I don't mean to

22 mischaracterize that, but that's the way I understood it.

23 I think it would be appropriate to protect that

24 information should you believe the discovery is relevant.

25 HEARING OFFICER MENTON: Okay. Well, let me just

1 say we've talked about this in a couple different hearings

2 and we've spent a lot of time going back and forth. I

3 think I've expressed before and I continue to have some

4 question in my mind as to exactly what is the protected

5 interests here that you're seeking me to offer you some

6 protection for.

7 Obviously the case law in discovery requires a

8 balancing of the various interests that are involved.

9 At this point, it seems, as I've expressed before, it

10 seems to me that there is a wide range of potentially

11 relevant information that could be gleaned as a result of

12 testing in the area. For that reason, I think that, you

13 know, given the early stage of this proceeding and the

14 general notion of discovery serving to afford the parties

15 opportunities to crystallize their positions, that the

16 U.S. has demonstrated that they should be entitled to get

17 access to the property. I expressed that last time.

18 I still am not completely clear as to what the

19 protected interests that the petitioners are asserting is.

20 I mean, is it protection from the enforcement agencies,

21 and to what degree is that protected interests that

22 you're asserting entitled to protection within the scope

23 of this proceeding? That's what I have a hard time trying

24 to see from the petitioners standpoint.

25 MR. GREEN: Well, we briefed that to the extent we

1 were able to find cases that are relevant, and I know you

2 asked us to go back and look at that again, and we did.

3 And I don't have any additional case authority to

4 cite except to say that Ms. Ponzoli is interested in the

5 phosphorus cycle, and that's what she said was the

6 purpose.

7 She's going to take cores, water and cores, and I

8 would say that anything that goes beyond that should be

9 brought before you because we don't know what she's going

10 to find. We have no reason to hide anything. We have no

11 reason to think there is going to be an enforcement set of

12 facts that would be generated by these trips, but we think

13 it be inappropriate if all of a sudden in the guise of

14 phosphorus cycling, the government develops factual

15 information that they normally couldn't get without

16 probable cause and then because of the public nature of

17 these proceedings we got chastised for it in a different

18 format.

19 So I guess I can't give you any additional case

20 authority for that, Mr. Menton, for that balancing

21 and fairness of the situation, because we have three

22 enforcing agencies at this table. It's one thing to

23 defend the SWIM Plan, and it's another to go beyond that.

24 We would ask that they not be allowed to go beyond that.

25 HEARING OFFICER MENTON: But I mean that is a very

1 general statement --

2 MR. GREEN: It is.

3 HEARING OFFICER MENTON: -- when you're talking

4 enforcement agencies present, and, you know, she's

5 articulated the notion that some potential collateral

6 attack on her permits or whatever. That's the first real

7 concrete protection interests, you know, potential

8 interests that I've heard that needs to have some

9 protection here.

10 MS. KAVANAUGH: Could I add to that? All of these

11 mills, all of them without exception, are permitted, are

12 permitted by the state agencies, both the District and

13 DER. All of them have permits that set perameters for, you

14 know, the conditions for the pollutants that Ms. Ponzoli

15 wishes to test separately for. So all of those mills have

16 essentially that same potential attack on permits they

17 already have on state agency determinations that have

18 already been completed.

19 Certainly, you know, there are various enforcement

20 mechanisms the state agencies can go on under these

21 permits and do certain inspections under certain

22 circumstances and criteria. But in this proceeding, it's

23 almost turning into almost what I would characterize as a

24 grand jury sort of situation where we're being to look

25 at everything regardless of whether it's permitted or

1 regulated by other agencies whether they have already made

2 the requisite showing to obtain those permits, and then

3 we're going to put it all back on the table.

4 That's our concern. That's our concern. Now we have

5 separate concerns too about the whole question of Flo-sun

6 and mills --

7 HEARING OFFICER MENTON: But when you talk about the

8 actual procedures that are involved, the invasiveness of

9 what the U.S. is asking to do, that is not that big of a

10 deal.

11 MS. KAVANAUGH: Except that are going into samples,

12 the very same, as I understand it, one of the places they

13 want to sample, for example, are what they call treatment

14 ponds. Those are permitted. Those are permitted right

15 now. And why are they going into --

16 HEARING OFFICER MENTON: It's not like they're

17 coming in and taking blood out of you or --

18 MS. KAVANAUGH: Of course not. Well, I guess water

19 is blood; blood is water. But they are going to make a

20 physical intrusion and take samplings on our land.

21 And as far as U.S. Sugar goes, our bottom line position is

22 that mill has nothing to do with this proceedings and I

23 have a different argument as far as the others.

24 HEARING OFFICER MENTON: All right. We can go on

25 and on this forever.

1 MR. REID: I just have one thing to say. The

2 petitioners brought this action and now they're saying

3 because of this action, all of the other regulatory

4 schemes that are out there in the state somehow have to

5 close down because it will be fruit of the poisonous tree

6 or something in this proceeding.

7 Everything is permitted out there. I mean, the use

8 of water is permitted. Some of the other places we're

9 going is permitted. That's totally irrelevant to the

10 claims made in this case. The claims made here and as to

11 the mill go, she's talking about phosphorus, we're not to

12 the other issues now, there's no basis to say because

13 they're permitted for other purposes, that somehow

14 changes what's happening in this case.

15 We can regulate them under law whether we have this

16 case going or not. If there is something out there that

17 we wanted to deal with, if we thought they were violating

18 the permit that they have, we can do that whether this

19 case is going on or not. So I don't see how by filing

20 an action which calls into issue a specific question,

21 phosphorus, you can suddenly say that gives me -- I can

22 stop discovery by the party who is defending this case

23 and you're basically tying our hands.

24 Their suggestions is you should tie our hands because

25 there is a permit. Well, the whole area is permitted.

1 That shouldn't make a difference. Now you've already

2 dealt with the question of the invasiveness, and it's been

3 negotiated and through what your indications it's a

4 limited invasion.

5 Again, you've looked at that and we've agreed to

6 that. That ought to be the end of discussion it seems to

7 me. But to say at the beginning somehow that they get to

8 decide what's relevant in our case, in the case that we're

9 trying to put on to defend the claim that they are making

10 against the SWIM Plan is not, I submit, is not the

11 appropriate way to go.

12 HEARING OFFICER MENTON: Okay. Mr. Killinger.

13 MR. KILLINGER: I would just like to say that Ms.

14 Kavanaugh stated that the permitting agencies do have a

15 right to go out and do compliance testing under their

16 permits, and I agree with that. I think that argument in

17 favor of allowing the testing is not invasive to be

18 conducted, I don't think that that constitutes an attack

19 on the permit in and of itself.

20 And I think if the agency has the right to go out and

21 test for compliance and it just happens to do the same

22 thing, I think it goes to what has been said up and

23 down the table. I don't think that this test is going to

24 affect their permit in and of itself. I think if we have

25 a right to test for compliance as an agency, I don't think

1 that this is going to affect that, should affect it.

2 HEARING OFFICER MENTON: All right. Ms. Kavanaugh,

3 one last comment.

4 MS. KAVANAUGH: One last final thing. Obviously,

5 everything I have said I've already said. With regard to

6 what Mr. Reid said, contrary to what he said, we have not

7 raised issues that call the mills into play. Now they are

8 arguing that Dr. Jones' phosphorus cycle theories

9 raise the whole question of phosphorus and the phosphorus

10 cycle. But we have not raised, our position has not

11 raised the mills and what they do or don't do in any other

12 issues, and as you're aware, we have not raised the

13 economic issues that Ms. Ponzoli is addressing and don't

14 intend to present any mill information in this proceeding.

15 We had not contemplated that, and I represent to you

16 now that we're not going to. So we have not by coming

17 into these proceeding subjected, you know, volunteered for

18 this. This was not contemplated certainly and we don't

19 intend to raise the issues because we don't think

20 they are relevant.

21 I am surprised to hear them keep saying phosphorus.

22 I thought the current proposal, in fact, and the mills

23 and everywhere else was to test for whatever they wanted

24 to test for. If they're willing to limit it to

25 phosphorus, recognizing the mercury issue is maybe a

1 phosphorus issue --

2 MR. REID: I'll clear that up. I didn't mean to

3 limit -- I was talking about phosphorus because that's the

4 one issue we're talking about now. We're not changing our

5 views on --

6 MS. KAVANAUGH: I just saying that might make things

7 easier. I don't know. But I guess they're not

8 representing that, so we continue in our objection.

9 MS. PONZOLI: If I may, Mr. Hearing Officer, the

10 mills are part of the EAA. They raise the whole issue of

11 the source of water quality impacts downstream. That's

12 exactly what all their petitions go to. And I have to

13 tell you very honestly we feel frequently that getting

14 down to what the real issues that they want to litigate

15 here is like trying to nail jello to the wall.

16 They keep slithering around. We're not real sure.

17 Maybe we're getting closer and closer, but there is no

18 question that water quality impacts downstream are what

19 the SWIM Plan is devised to address. They have alleged

20 they're not the source of it. The mills are a primary

21 source, and we would like to test there. And I think a

22 single mill is not very representative.

23 HEARING OFFICER MENTON: We've talked about the

24 Bryant Mill. Are there different issues involved with the

25 other three mills that we're talking about?

1 MS. KAVANAUGH: Yes, sir.

2 MS. PONZOLI: They are owned by -- and this I have to

3 do from broad knowledge because I'm not allowed discovery

4 on it -- those other three mills my understanding is are

5 owned predominately by the Flo-sun Corporation which owns

6 New Hope South. It is an inter-related family corporation

7 that, in fact, Mr. Hearing Officer, it is my understanding

8 owns plus or minus 200,000 acres of the entire EAA.

9 I mean we're talking about U.S. Sugar and Flo-sun

10 80 percent of the EAA. That's a huge amount of the

11 agricultural area that we're talking about. This is no

12 small entity out there. Those mills are related to a

13 named petitioner and certainly to members of the League,

14 and they will have to represent to you what the

15 relationship is because they know it better than I.

16 MS. KAVANAUGH: Mr. Hearing Officer, the League does

17 not own any land or any property. It's a trade

18 association just like the environmental groups that are

19 before you, like other trade associations that have come

20 in. There are two named petitioners who are members of

21 League and whose property, you know, we have worked out

22 access to. The companies that own the other three mills

23 are not named petitioners. They are members of the

24 League.

25 I would suggest to you that just by being a member of

1 a trade association, be it pilot fighters, be it the

2 Florida Power group, with respect to my colleague here, be

3 it the Sierra Club, does not subject the individual

4 members of that association to discovery on their private

5 property unless it can be argued that somehow those

6 individual members have raised issues, issues are raised

7 that goes to those specific members property. That hasn't

8 happened here, sir.

9 We're not going to present any data about Okeelanta's

10 property or Atlantic Sugar's property or Flo-sun's

11 property for that matter, and therefore, we think that to

12 allow this type of expansion where you have a

13 representative party is opening the door to a Pandora's

14 box. Are we going to be allowed to take the depositions

15 of every member of the environmental group to determine if

16 the standing allegations are exactly true?

17 I can assure you they would resist that mightily when

18 they say their members use the Park, et cetera, et cetera.

19 It's inappropriate unless we intended to present -- we

20 don't want to sandbag them. We're not trying to bushwhack

21 them. So at this point, sir, we cannot agree, and we

22 object strenuously to any discovery other than on the

23 named petitioners property.

24 As far as Ms. Ponzoli's request that we approach

25 non-named members of the League to see if they would be

1 willing voluntarily outside the scope of these proceedings

2 as third parties to allow access to their land, we would

3 certainly be willing to do that. But I did ask the

4 entities that own those mills, and they say, no, it's not

5 relevant.

6 HEARING OFFICER MENTON: All right. So I guess the

7 bottom line is that we have with the four sugar mills,

8 we have one that is claimed to be hydrologically isolated

9 and, therefore, not part of the planning process for the

10 SWIM Plan, and therefore, we shouldn't allow discovery

11 there.

12 Then with respect to the other three mills, the

13 issue is ownership and the fact that those mills are not

14 owned by any of the named petitioners in the case; is that

15 where we are?

16 MS. KAVANAUGH: That's correct, sir.

17 MR. REID: May I ask a question? New Hope South,

18 that wasn't responded to. We're a little unclear for the

19 record. Is that part of the same company that owns -- New

20 Hope South, Incorporated, is a party, and Ms. Ponzoli made

21 reference to their owning some of the same parent

22 corporations. It sounds like that would make a

23 difference. I wonder if we can find --

24 HEARING OFFICER MENTON: That they're owned by the

25 same parent corporations.

1 MS. PONZOLI: Right. Flo-sun owns New Hope South

2 and the sugar mills --

3 MS. KAVANAUGH: Flo-sun is not a named party either,

4 sir.

5 MR. REID: Well, New Hope South is. I think we're

6 getting closer, and it sounds like they're not answering

7 but maybe they do -- if you're talking about inter-related

8 corporate entities, I'm not sure you can draw a line and

9 say if Flo-sun is in this case because of one of its

10 subsidiaries is in the case, I think it's harder for them

11 to say they're totally unrelated.

12 I think we ought to be able to find out the answer

13 to that perhaps before you can make that decision.

14 MS. KAVANAUGH: Flo-sun is not -- if Flo-sun is

15 related, and I can tell you exactly how, certainly New

16 Hope South, but it is a separate corporate entity. It's a

17 separate corporation, and it's not a party to this suit

18 either so --

19 HEARING OFFICER MENTON: Is it a member of the

20 League?

21 MS. KAVANAUGH: Oh, yes, so is New Hope South, so is

22 Atlantic Sugar, so is U.S. Sugar, so are various other

23 entities other than where the mill sites are. There are a

24 lot of members of the League.

25 MS. PONZOLI: Mr. Menton, I really respectfully

1 believe that I either, One, should be able to have access

2 to these mills to do this very very noninvasive simple

3 discovery, or I should be allowed discovery on the

4 corporation relationship of these mills with New Hope

5 South and Flo-sun, and I should be allowed discovery of

6 the hydrologic isolation of Bryant Mill.

7 If those are the reasons I would be denied access of

8 those areas based upon counsel's representation, then I

9 should be allowed discovery to determine whether, in fact,

10 those are as globally represented, not that you would

11 misrepresent it, but there is more to this picture than

12 meets the eye.

13 MS. KAVANAUGH: I'm trying to understand. Is the

14 allegation that New Hope South somehow controls one of

15 these mills, or is the allegation that New Hope South

16 is related somehow to --

17 HEARING OFFICER MENTON: I think they're saying they

18 don't know. I --

19 MS. KAVANAUGH: What I'm telling you, and I will

20 represent that New Hope South is related to Flo-sun which

21 is not a named party to this suit.

22 MR. REID: I think when you cut off discovery at this

23 stage of the case based on corporate lines, that you ought

24 to have a chance to find out if those lines really ought

25 to be adequate to cut off discovery, which is a severe

1 decision.

2 HEARING OFFICER MENTON: But nobody at least in my

3 recollection of the briefs that were filed in the cases

4 that were cited and I pulled most of the cases, nobody has

5 really cited me to any cases that specifically address

6 this issue as to when the League is a named party and

7 members of that League, you know, to what extent

8 they're subjected to discovery.

9 I have not researched that issue. I don't know if

10 there is any case law on it. I think it is, it's a very

11 peculiar interest. I think we have a peculiar twist to it

12 in the sense that the members actually own property within

13 the planning area in this case, so I'm not sure that any

14 of the cases that may be out there are particularly

15 relevant.

16 I do think that without having looked at any of the

17 that case law, my feeling is that the League members,

18 at least for this noninvasive testing purposes, should

19 provide access of their property for the tests that are

20 sought here. Now if we get into a dispute and

21 you're going to take the position that because they're not

22 League members, then I think that Mr. Reid's point is well

23 taken that there ought to be some discovery allowed in

24 order to explore those opportunities as well.

25 So I think we've been going back and forth on this a

1 long time. It's important to get this issue resolved.

2 My feeling is that the fact that the hydrological

3 isolation of the Bryant Mill is claimed by the owner of

4 that mill, I don't think it's controlling for purposes of

5 discovery in this case.

6 I think the U.S. Government and the respondents

7 should be entitled to access in order to conduct the

8 relatively noninvasive tests that they seek, and the same

9 thing with the sugar mills that are owned by other League

10 members even though they are not named parties.

11 All right. That gets us to the next issue in terms

12 of this entry, which is, I guess, the protective order

13 aspects of it. There has been and threw out earlier that

14 maybe one way to resolve some of the issues in terms of

15 the permits is by means of a protective order.

16 Ms. Kavanaugh or Mr. Green, I don't know if you

17 want to take a stab at arguing that a little bit further.

18 MR. GREEN: Mr. Menton, unfortunately Mr. Perko is

19 having the same flight problems. He was down at

20 depositions yesterday, and I defer to Ms. Kavanaugh.

21 HEARING OFFICER MENTON: Okay.

22 MS. KAVANAUGH: Thanks. We've briefed the issue, Mr.

23 Hearing Officer, and it's our -- obviously, you know, we

24 believe that none of this information is relevant, and

25 that the threshold question of relevancy particularly when

1 we're dealing with regulatory agencies needs to be

2 addressed and you have addressed it whether we agree with

3 it or not.

4 However, at a minimum, we feel we should be

5 protected from misuse of the information because there is

6 the potential, we're talking about a humongous area out

7 there, hundreds of thousands of acres. Frankly, we don't

8 anticipate any problems, but, you know, we have not tested

9 every spot they're going to test too. So we would like to

10 suggest to the Hearing Officer that it is appropriate

11 since we are in a proceeding with what we thought

12 were limited issues, that we be given some protection as

13 to the use of the information.

14 And furthermore, with regard to the other perameters,

15 we continue in our objections to test for anything that

16 is not addressed in this SWIM Plan, which includes

17 pesticides and heavy metals that the United States for

18 some reason seeks to test. We think you have the

19 authority to enter conditions limiting the use of the

20 information to these proceedings and would ask you to do

21 that. The cases we've cited indicate that that is a