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, )

9 )

vs. ) DOAH CASE NOS.

10 ) 92-3038

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039

11 ) 92-3040

Respondent, ) (Consolidated)

12 )

and )

13 )

MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

14 STATES OF AMERICA, FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, and FLORIDA )

15 WILDLIFE ASSOCIATION, )

)

16 Intervenors. )

) _____________________________________________

18 HEARING BEFORE: HONORABLE J. STEPHEN MENTON

HEARING OFFICER

DATE: FRIDAY, SEPTEMBER 3, 1993

20 (2:03 P.M. - 3:00 P.M.)

21 LOCATION: HEARING ROOM 3, DESOTO BUILDING

1230 APALACHEE PARKWAY

22 TALLAHASSEE, FLORIDA

23 REPORTED BY: SUE HABERSHAW JOHNSON

CERTIFIED COURT REPORTER

24 REGISTERED PROFESSIONAL REPORTER

NOTARY PUBLIC

1 APPEARANCES:

2 Representing Petitioners, Sugar Cane Growers

Cooperative of Florida, Roth Farms, Inc.,

3 and Wedgworth Farms, Inc.: (ALL VIA TELEPHONE)

4 WILLIAM H. GREEN, ESQUIRE

GARY PERKO, ESQUIRE

5 Hopping, Boyd, Green & Sams

123 South Calhoun Street

6 P. O. Box 6526

Tallahassee, Florida 32314

7 (904-222-7500)

8 Representing Petitioners, Florida Sugar Cane

League, Inc., United States Sugar Corporation,

9 and New Hope South, Inc.: (ALL VIA TELEPHONE)

10 RICK J. BURGESS, ESQUIRE

Peeples, Earl & Blank, P.A.

11 One Biscayne Tower, Suite 3636

Two South Biscayne Boulevard

12 Miami, Florida 33131

(305-358-3000)

13 -and-

WILLIAM L. HYDE, ESQUIRE

14 ROBERT BLANK, ESQUIRE

Peeples, Earl & Blank, P.A.

15 Suite 350

215 South Monroe Street

16 Tallahassee, Florida 32301

(904-681-1900)

Representing Petitioners, Florida Fruit and

18 Vegetable Association, Lewis Pope Farms,

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

19 Hundley Farms, Inc.: (ALL VIA TELEPHONE)

20 KENNETH F. HOFFMAN, ESQUIRE

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

21 Suite C

2700 Blair Stone Road

22 Tallahassee, Florida 32301

(904-877-0099)

1 APPEARANCES, CONTINUED:

2 Representing Intervenor, The United States

of America: (VIA TELEPHONE)

THOMAS A. WATTS FITZGERALD, ESQUIRE

4 Assistant United States Attorney

Southern District of Florida

5 Suite 627

155 South Miami Avenue

6 Miami, Florida 33130-1693

(305-536-4425)

Representing Intervenor, Florida Department of

8 Environmental Regulation: (VIA TELEPHONE)

9 LEE M. KILLINGER, ESQUIRE

Assistant General Counsel

10 Department of Environmental Regulation

Twin Towers Office Building

11 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

12 (904-488-9730)

13 Representing Respondent, South Florida Water

Management District: (ALL VIA TELEPHONE)

PAUL L. NETTLETON, ESQUIRE

15 Popham, Haik, Schnobrick & Kaufman, Ltd.

400 International Place

16 100 Southeast Second Street

Miami, Florida 33131

17 (305-539-7222)

18 -and-

19 BARBARA MARKHAM, ESQUIRE

Assistant General Counsel

20 South Florida Water Management District

P. O. Box 24680

21 3301 Gun Club Road

West Palm Beach, Florida 33416-4680

1 APPEARANCES, CONTINUED:

2 Representing Intervenor, Miccosukee Tribe of

Indians: (VIA TELEPHONE)

DEXTER W. LEHTINEN, ESQUIRE

4 Spencer and Klein, P.A.

801 Brickell Avenue, Suite 1901

5 Miami, Florida 33131

(305-374-7700)

Representing Intervenor, Florida Wildlife

7 Federation: (VIA TELEPHONE)

8 LAURA ERICKSON

111 South Martin Luther King, Jr., Blvd.

9 P.O. Box 1329

Tallahassee, Florida 32302

10 (904-681-0031)

11 ALSO PRESENT:

12 VICTORIA MINNETT

13 * * * * *

14 INDEX

15 ITEM PAGE

16 HEARING COMMENCED . . . . . . . . . . . . . . . . . . 5

17 HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 49

18 CERTIFICATE OR REPORTER . . . . . . . . . . . . . . .50

19 * * * * *

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 2:03 P.M.)

3 HEARING OFFICER: All right.

4 MR. RICK J. BURGESS: Mr. Menton...

5 HEARING OFFICER: Yes, sir?

6 MR. BURGESS: ...I thought maybe just for purposes

7 of establishing the record, instead of doing the roll

8 call off the record we could, we could begin it at your

9 instruction.

10 HEARING OFFICER: Okay. You know, why don't we

11 start off by finding on, who is on, beginning with

12 Petitioners. Mr. Burgess, I assume you are here on

13 behalf of the League. Who else is here for the League.

14 MR. BURGESS: With me is my partner, Bob Blank, and

15 I believe Bill Hyde is on the line, is that correct.

16 MR. WILLIAM L. HYDE: That's correct, Rick.

17 HEARING OFFICER: All right. What about for the

18 Coop?

19 MR. WILLIAM H. GREEN: Bill Green, and Gary Perko,

20 Mr. Menton.

21 HEARING OFFICER: Okay. Fruit and Vegetable?

22 Nobody for the Fruit and Vegetable? Mr. Cole,

23 Mr. Hoffman? Okay.

24 How about for the Water Management District?

25 MR. PAUL L. NETTLETON: Paul Nettleton here.

1 HEARING OFFICER: Okay. Let me go back to the

2 Fruit and Vegetable. Is there anybody, does anybody

3 know if they intended to be on?

4 Mr. Burgess, do you know?

5 MR. BURGESS: Yes, I believe they were called. We

6 are going to check with the operator on another line.

7 HEARING OFFICER: Okay. I'm sorry. Mr. Nettleton,

8 are you here for the District, did you say?

9 MR. NETTLETON: Yes, sir. I am not sure, I believe

10 office counsel may also be on.

11 MS. BARBARA MARKHAM: That's correct.

12 HEARING OFFICER: Who is that? Who is that?

13 MS. MARKHAM: Barbara Markham, Office of General

14 Counsel.

15 COURT REPORTER: Could you spell your last name,

16 please?

17 MS. MARKHAM: M-a-r-k-h-a-m.

18 COURT REPORTER: Thank you very much.

19 HEARING OFFICER: Okay. Anybody else for the

20 District?

21 All right. How about for the U. S. Government?

22 MR. THOMAS A. WATTS FITZGERALD: Tom Fitzgerald for

23 the United States.

24 HEARING OFFICER: Okay. For the Department of

25 Environmental Protection?

1 MR. LEE M. KILLINGER: Lee Killinger.

2 HEARING OFFICER: All right. The Indians?

3 MR. DEXTER W. LEHTINEN: Dexter Lehtinen,

4 Miccosukee Tribe.

5 HEARING OFFICER: All right. How about the

6 conservation groups?

7 MS. LAURA ERICKSON: David Guest is out of town.

8 He has asked me to sit in in his place. My name is

9 Laura Erickson.

10 If it is all right with you all, I have not yet

11 been admitted to the Bar. I took the Bar this last time

12 in July.

13 HEARING OFFICER: Okay. Hope you passed.

14 MS. ERICKSON: You aren't the only one.

15 HEARING OFFICER: Okay. Is there anybody else on

16 the conference call that needs to identify themselves

17 for the record?

18 MR. KENNETH F. HOFFMAN: Yes, sir. Ken Hoffman. I

19 was off. I thought I was lost. I can hear now.

20 HEARING OFFICER: Okay. Anybody else that needs to

21 be identified for the record? Okay.

22 There is a court reporter in my office with me,

23 just so everybody is aware of that.

24 I have received several different motions, and let

25 me just go through them really quick, just to see if

1 there is anything else that has not made its way to me

2 yet.

3 The Cooperative has filed a request for entry upon

4 land for inspection and other purposes. The League has

5 filed a motion for leave to extend entry and access in

6 order to conduct water quality sampling.

7 I have received a response to both of those motions

8 from the U. S. Government.

9 The Miccosukee Tribe of Indians has filed a status

10 report and continued opposition to stay, and they have

11 also filed an opposition to petitioners' motion for

12 leave during stay to extend entry and access in order to

13 conduct water quality sampling.

14 All those all the motions that have been filed

15 since the last hearing we have had? Anybody else have

16 anything I haven't received or mentioned?

17 MR. KILLINGER: Mr. Hearing Officer, this is Lee

18 Killinger from DEP. I think that given more time to

19 respond to either of the Coop or League motions, the

20 Department would have file something, but I was out of

21 town and didn't receive them in enough time to be able

22 to file a written response.

23 HEARING OFFICER: All right. Well, hopefully we

24 can dispose of them today, and you won't have to worry

25 about filing a written response.

1 MR. KILLINGER: That may be.

2 HEARING OFFICER: Okay. Before we get into the

3 specifics of these motions I would like to get an update

4 as to exactly where we are and what has taken place and

5 what the parties see as the immediate future in terms of

6 the mediation efforts. So why don't we start by hearing

7 from the League and then the Coop and then Fruit and

8 Vegetable if they have anything to add, and then I will

9 take comments from the District and the U. S.

10 Government, the Department of Environmental Protection,

11 conservation, and the Indians.

12 MR. NETTLETON: Mr. Hearing Officer, this is Paul

13 Nettleton on behalf of the District. If there is no

14 strong objection, since I am the one who filed the

15 original status report, I'd be happy to start off.

16 HEARING OFFICER: All right. That's fine.

17 MR. NETTLETON: Again for the record I am Paul

18 Nettleton on behalf of South Florida Water Management

19 District.

20 Mr. Hearing Officer, we filed a status report

21 approximately three weeks ago. I don't intend to rehash

22 that. I think that kind of summarizes where we were at

23 that point in the activities that have been undertaken

24 through the first period of the stay.

25 I just emphasize that during that period I think

1 that can be viewed as it was truly a public process

2 where all parties and nonparties to this particular

3 litigation were invited in and had been given the

4 opportunity to express their views and their concerns

5 with the Statement of Principles and with the whole

6 process in general and where we are going.

7 I think that is important to keep in mind as we

8 discuss where we are at today, is the fact that the

9 settlement discussions are beyond simply the parties in

10 this case, because we recognize the complexities

11 involved and the interests of third parties that are not

12 necessarily litigants here, and my client, the District,

13 has of course expressed great concern that the public be

14 kept advised of the issues involved and so forth, so

15 that an adequate remedy can be reached in the end.

16 What I'd like to do then is just give you kind of a

17 brief thumbnail of where we have gone since three weeks

18 ago after the filing of that status report.

19 HEARING OFFICER: Okay.

20 MR. NETTLETON: I think it's fairly safe to say, at

21 least I know from our standpoint and I know probably

22 from the other signatories to the Statement of

23 Principles and I am sure some of the other parties as

24 well, that there has probably been meetings or

25 discussions essentially every day since that period of

1 some sort towards furtherance of this settlement.

2 These have taken place in terms of internal

3 discussions, which there have been a lot of them, in

4 developing either internal position drafts of provisions

5 we would like to see, that sort of stuff. That has been

6 going on consistently.

7 In the meantime there has also been meetings of the

8 technical group.

9 As we set forth in our previous status report, the

10 technical group has itself broken itself down into I

11 think 10 different working groups. Those groups

12 apparently have assigned work tasks now and are pursuing

13 those. We think that is extremely important to the

14 ultimate outcome of this, getting feedback from them.

15 We have not yet had any significant feedback on at

16 least so far as the final issue so far as the technical

17 plan, the scheduling, some of the research and

18 monitoring issues, which are crucial to a lot of the

19 parties here.

20 That is an ongoing process as we speak.

21 The discussions, we have been having discussions

22 with of course the parties, the agricultural interests,

23 the environmentalists, the United States, DEP, and so

24 forth on our concerns and issues, what we will need to

25 see, what, you know, will protect our interests, and we

1 will be getting feedback as well from the other parties.

2 We have also been having these discussions with

3 third parties to this litigation, and again I want to

4 stress this is important from our standpoint because

5 these discussions, and it runs the gamut. I mean, we

6 have had every county on the east coast, the 298

7 Districts that are not involved in this particular

8 litigation, the Lakeworth Drainage District, and so

9 forth, that have been involved in these discussions, and

10 we recognize the sensitivity of their concerns, and we

11 want to make sure we are meeting their concerns and that

12 ultimately anything that comes out at the end of this

13 process will avoid upsetting the whole process.

14 That's some of the dynamics that are going on.

15 I mean, there are really complex issues that are

16 being discussed and being examined today.

17 Just as an example, one of the most crucial things

18 from our standpoint is of course the funding commitment

19 and the security and certainty of receiving funding to

20 implement the mediation plan that currently stands.

21 Of course, that's a very sensitive issue, but it is

22 an important issue, and even though it may not

23 necessarily be involved in our current litigation it is

24 something that we need to resolve in order to reach

25 closure in the settlement.

1 We are working diligently on that with both

2 internal and external experts with regard to funding and

3 how that can be accomplished.

4 As I said, we have been spending the last three

5 weeks, a lot of discussions external as well as

6 internal, and the various groups have been preparing

7 their own positions and things of what they need to see.

8 The federal government at the meeting this week bit

9 the bullet and threw their draft on the table. That's

10 the draft that has been circulated to date.

11 HEARING OFFICER: Now when you say draft, are you

12 saying the draft of the settlement agreement or the

13 draft of the new SWIM plan or what? I'm not clear of

14 what you are talking about.

15 MR. NETTLETON: This is a draft of a settlement

16 agreement, Mr. Hearing Officer.

17 HEARING OFFICER: All right. What is anticipated

18 in terms of the SWIM plan itself? Is the SWIM plan

19 going to be modified? Is that the nature of the

20 discussions that are taking place?

21 And, if so, the reason I ask that question is is

22 it just causes me some concern as to what the nature of

23 this particular administrative proceeding is and the

24 challenges to the SWIM plan that was adopted by the

25 District in 1992.

1 MR. NETTLETON: If I could respond, essentially, I

2 can't completely answer your questions, because I don't

3 know what is going to come out at the end of the

4 process.

5 What we envision of course is not that whatever

6 comes out will be an amended SWIM plan. What we

7 envision will be some kind of settlement agreement.

8 Now the settlement agreement is likely to require

9 some amendatory revisions to the current SWIM plan. Of

10 course, it is also envisioned and we are still hopeful

11 that all of these petitioners will sign onto the

12 settlement agreement if we can meet their concerns, and

13 if that's the case, of course, the petitions I assume

14 would be dismissed voluntarily, and that would be the

15 end of the particular DOAH proceedings, and we would

16 proceed along the regular path we would go to to revise

17 the SWIM plan.

18 If that's not the case, we will need to deal with

19 that if not all parties did sign the settlement

20 agreement, as exactly how that would affect the current

21 DOAH proceedings.

22 Quite frankly, I don't know the answer to that

23 right now, and we have been kind of moving along in the

24 process in hopes of completely resolving this entire

25 thing.

1 I don't know. Have I answered your question?

2 HEARING OFFICER: Well, you have, I guess. I mean,

3 it just, if you're talking about amending the SWIM plan,

4 obviously if you can get everybody to sign off on the

5 agreement and then more power to you, and

6 congratulations, but I guess I'm just wondering if

7 you're talking about modifying the SWIM plan, whether

8 you're looking at then creating a new point of entry for

9 purposes of other people to come in and challenge either

10 the amendments or the plan itself, and I'm just, we are

11 in new territory here. I don't know exactly how this

12 whole process fits within Chapter 120, and I'm trying to

13 figure out exactly what my role in it is.

14 MR. NETTLETON: To respond to that, Mr. Hearing

15 Officer, we recognize that any modifications or

16 revisions to the SWIM plan is likely to create other

17 points of entry, which is exactly why we are so

18 sensitive to the nonparty concerns that are floating

19 around out there. That's why all of these parties who

20 are not parties to the litigation are involved in these

21 discussions.

22 We are hoping to head off that possibility to the

23 greatest extend possible.

24 On the other hand we recognize the 120 process is

25 there, and that we cannot by contract with any

1 particular party cut off the rights of any third

2 parties.

3 With that in recognition we are doing the best we

4 can under the circumstances and under the law as it

5 exists.

6 HEARING OFFICER: Well, I am not trying to be

7 critical. I guess I am just trying to figure out are

8 these status reports that we are continuing to hold, and

9 by continuing to have this 120 proceeding out over

10 everybody's head, is that a useful thing, or is that

11 something that is just serving to be an obstacle to

12 continuation of whatever path you need to go?

13 I mean, are you in a position where you want to

14 move to have the case remanded to the Water Management

15 District to take what action you need to do and revisit

16 all of those questions later?

17 MR. NETTLETON: I don't think we are at that stage

18 at this point, Mr. Hearing Officer. If other parties

19 have different views, I think that the way that we are

20 heading right now is to try to reach closure within 90

21 days that we set out on.

22 HEARING OFFICER: Okay.

23 MR. NETTLETON: And then at that point we would

24 know where to go from there.

25 HEARING OFFICER: Okay. So you still think you are

1 on track for a 90-day period to have an answer at the

2 end of 90 days?

3 MR. NETTLETON: That's certainly the assumption we

4 are working under. I can assure you, Mr. Hearing

5 Officer, that from our viewpoint we are making progress,

6 and it may be slow and painfully slow at times, but I

7 think because of the complexity of the issues, the

8 number of parties and nonparties that are involved in

9 the discussions that is not unexpected.

10 We certainly do not think we have reached the point

11 of an impasse of any kind which would justify throwing

12 us all back into litigation.

13 We would, of course, request that the stay

14 continue.

15 In deference to some of the comments that

16 Mr. Lehtinen made in his papers, if need be we would be

17 agreeable to coming back before you again in another 30

18 days, which is less than a full 90 days that we

19 originally requested to report again.

20 HEARING OFFICER: Okay. Does anybody have anything

21 they want to add to what Mr. Nettleton has summarized or

22 to some of the comments that I raised? Any of the

23 petitioners?

24 MR. BURGESS: Your Honor, Rick Burgess on behalf of

25 the League and others.

1 I would just echo most of Paul's comments,

2 certainly the point that we are not at an impasse but at

3 a minimum the additional 30 days is warranted.

4 Where you asked what stage of the process we are

5 in, we are in the drafting stage, and that drafting

6 stage has come after numerous meetings, public meetings,

7 and public processes, where all of the parties, indeed

8 on this phone call and others, had input orally into

9 what they would like to see in a settlement agreement,

10 and then they have retreated to the drafting stage.

11 While we are one of the parties that as of yet has

12 not submitted an agreement, I can represent that we are

13 diligently working hard to prepare one, taking into

14 account comments made at the numerous public meetings.

15 There are very difficult issues that remain, and

16 those issues are the type that are going to be

17 negotiated out in the numerous meetings that are

18 scheduled between now and the end of the month, and they

19 are not going to be resolved by simply taking a date

20 certain and saying that everybody has to exchange

21 whatever they have prepared to date by that time. That

22 will not resolve the issue, but the negotiations will.

23 The negotiations can only take place we submit in

24 the context of the ongoing stay.

25 HEARING OFFICER: Just out of curiosity more than

1 anything, is the Mediator the one that is coordinating

2 these negotiations?

3 MR. BURGESS: Yes, he is. Mr. Cormick is

4 coordinating them. My understanding is after the

5 federal government submitted their draft this week, the

6 next meeting of the drafting committee is the 14th or

7 the 15th of September.

8 Next week the District, as Mr. Nettleton alluded

9 to, has a series of public meetings starting on Tuesday

10 to a workshop on Wednesday and the Governing Board

11 meeting on Thursday, to consider issues surrounding the

12 settlement agreement and the Statement of Principles.

13 Mr. Cormick is coordinating not only our committee,

14 the drafting committee, but also the technical

15 committee, which none of us, no lawyers sit on, but

16 technical representatives and parties sit on at that

17 committee and a subgroup of that committee.

18 HEARING OFFICER: All right, Mr. Burgess, let me

19 ask you a question similar to what I guess I asked

20 Mr. Nettleton.

21 What do you anticipate seeing as a result of this

22 process? Obviously there is some discussion of a

23 settlement agreement. Is it a settlement agreement that

24 will lead to modifications, and is it a settlement

25 agreement that will include all of the parties or all of

1 the interested persons, so that there would not be a

2 need in the future for a 120 hearing?

3 MR. BURGESS: Well, hopefully it will include all

4 of them. That remains to be seen after the difficult

5 period of negotiations commences surrounding the drafts

6 that are going to be submitted.

7 We would agree as far as what Paul said. I think

8 what we hope to have come from the process is a written

9 settlement agreement that will have various appendices

10 that will based upon the negotiations to date most

11 likely result in necessary amendments to the SWIM plan,

12 and how the District undertakes that is something also I

13 think that is going to be the subject of negotiations.

14 So I think we are working, the document we are

15 working on is the settlement agreement. The settlement

16 agreement is going to reference the SWIM plan, and it is

17 going to reference the technical mediated or mediation

18 plan that the technical committee is coming up with, and

19 as a result of the negotiations we'll decide

20 collectively I hope with the District and others how

21 best to address the pending SWIM plan and the mediated

22 SWIM plan.

23 HEARING OFFICER: Okay. Mr. Green, did you have

24 anything that you wanted to add?

25 MR. GREEN: Mr. Menton, not a lot.

1 Our position is as stated earlier when the

2 mediation began. We still remain pessimistic, but, you

3 know, we are trying our best to be sure that the other

4 parties understand our concerns, and we think we haven't

5 seen any particular movement of parties towards

6 resolution yet, and I have seen some of that frustration

7 from some of the pleadings filed by other participants

8 in the matter, but, you know, we haven't discounted the

9 possibility that that might occur, and we are willing to

10 continue our participation, assuming again that if this

11 all falls apart we won't be handicapped by hearing dates

12 that aren't moved a commensurate amount.

13 The one question you asked, and I haven't really

14 thought through it, but I think it's a good question,

15 does it serve a purpose to keep this SWIM plan challenge

16 lodged in DOAH while mediation goes on, if the whole

17 purpose of mediation is superseded, and there would have

18 to be another point of entry.

19 That's a good question. I know you have asked it

20 in several forums over the months to the Districts, and

21 I understand that it's difficult to answer on

22 Mr. Nettleton's part, but I am beginning to wonder if it

23 does make sense to keep this in DOAH, and I am not

24 suggesting any particular course of action, but in real

25 life maybe we all ought to be thinking about ways to

1 remand this back to the agency for the proper process,

2 because the plan that is being challenged in my humble

3 opinion is not anywhere near what the agency will go

4 with in any event. I can't speak for the agency.

5 MS. MARKHAM: Mr. Hearing Officer, this is Barbara

6 Markham from the Water Management District.

7 I just wanted to let you know that we are

8 considering a number of options if this does not

9 succeed, and one would be to go ahead with the SWIM plan

10 as it is presently lodged before you in this proceeding.

11 So that it is the position of the District that at

12 this point if there is no decision at the end of the

13 90-day stay, you proceed with the SWIM plan.

14 HEARING OFFICER: Okay. Mr. Hoffman, do you have

15 anything you want to add?

16 MR. HOFFMAN: No, that was plenty.

17 HEARING OFFICER: Okay. Mr. Lehtinen, you are the

18 one who wants to dissolve the stay here. Why?

19 MR. LEHTINEN: Well, because I am in agreement with

20 Mr. Green of the Cooperative in the sense that I have

21 seen nothing happen since the stay was entered.

22 The oral discussions, if the oral discussions are

23 utilized there is not agreement on principles. I am not

24 trying to hold parties to their oral representations,

25 but what we said orally in the meeting would indicate

1 that there is no threshold agreement whatsoever.

2 That's why they were adjourned, because of the

3 failure of the oral discussions, and you put off the

4 status, because all of the moving parties were going to

5 draft written proposals that one could put one's teeth

6 into, and as I indicate, not to reject the written, but

7 only the United States took that seriously, and theirs

8 was substantial, but even it lacked all of the critical

9 appendices.

10 When various people say to you there is progress

11 and so forth, it is not progress I know of, and if there

12 is progress then it is progress in secret, that parties

13 that are not part of it and aware of it should not be

14 held to.

15 I am also in agreement with Mr. Green that as long

16 as there is a stay, we attend all the meetings, and we

17 participate in good faith, but the reason for our

18 suggestion that the parties be held to their

19 representations and produce written drafts within a

20 certain period of time is either there is some idea in

21 people's minds as to what they are going to agree on or

22 there isn't.

23 If there isn't, then that stay should be dissolved,

24 and if there is, they ought not to be doing it in

25 secret. They ought to produce the drafts that they said

1 they would produce days ago, because, after all,

2 September 1 was the day they were supposed to cough up

3 these drafts that we thought were in existence when

4 Secretary Babbitt held a press conference and said,

5 "This is all virtually settled."

6 So I can say if it is going to continue, you are

7 not ordering parties, you know, to what they should do

8 ultimately in their own discretion, but as a condition

9 of the stay you should look for an indication of good

10 faith progress, and that good faith progress should at

11 least be moving parties producing their versions of what

12 it would be.

13 You do not want people to look at them and make a

14 qualitative judgment about them. You would look at them

15 and say either they are so far apart that they are no

16 good, but just they have to do something to prove to the

17 public that there is some kind of progress.

18 Now I suspect the reason they are not produced is

19 that nobody wants to produce their drafts that prove my

20 point, that they are so far off a fundamental agreement

21 that the stay would not be justified.

22 But I am not trying to force either issue. It is

23 just simply some progress has to be proven. It cannot

24 be proven until all the parties see what drafts are

25 taking place and the alternate references to various

1 meetings, public and private, really means private,

2 because when you are in the public meetings you know

3 that nothing is happening whatsoever.

4 So anyway that is also indicated by the fact that

5 two of the parties, one a moving party, being the

6 League, and the other, not a moving party, but the Coop,

7 has moved to continue discovery. That doesn't show a

8 very good faith belief in their minds that we are so

9 close that we have reached the thresholds, because in

10 the back of their minds they want to continue discovery

11 as well.

12 So I think that is inconsistent.

13 HEARING OFFICER: All right. We are going to get

14 to the motions in a second. Let me just say I agree

15 with you to the extent that I want to make sure that

16 there is progress being made in the scope of this

17 mediation effort if I am going to continue the stay.

18 I do not think though it is my role to begin

19 sticking my nose into the scheduling or the dates for

20 exchanging of drafts and all that.

21 I simply don't have enough knowledge about what is

22 taking place in the mediation process to realistically

23 try to do that.

24 Now I'm hearing from all of the other parties

25 except from you that they are willing to at least still

1 give it a try, and they don't think they have reached an

2 impasse, and I guess I'm trying to figure out from you,

3 do you think there has been an impasse reached, and if

4 not then what will we dissolve the stay and go to

5 hearing on?

6 MR. LEHTINEN: Well, I would say, Your Honor, there

7 is a public impasse reached. So far as the Miccosukee

8 Tribe is concerned in the historical tradition of the

9 treatment of American Indians, they don't know what's

10 going on. They pay me a lot of money every day to go to

11 these meetings. The same questions are asked. I don't

12 have any ideas more than answers to the questions every

13 time what is going to happen to an amendment to the SWIM

14 plan, and I don't have any idea whether the testimony I

15 gave to Congress is accurate or not when I said there

16 were secret side deals, and I don't know, and I still

17 don't know, because none of this stuff happened in

18 public, and I don't think the American Indian tribe

19 should be treated that way. All we are asking for is

20 for these people to do what they told you they'd do 10

21 days ago.

22 HEARING OFFICER: Well, Mr. Lehtinen, just a second

23 though. Mr. Nettleton indicated there have been a

24 number of public hearings in which all kinds of people

25 have been invited to participate, including parties to

1 this litigation and nonparties.

2 I mean, obviously each side is going to be

3 strategizing on their own, but haven't there been public

4 meetings, and aren't they even as late as this week?

5 MR. LEHTINEN: Yes, there have been public meetings

6 for the last 20 years in this state. You have a public

7 meeting the public says, "When will Florida do

8 something," and the State of Florida promises next week,

9 and next week comes, and nothing happens.

10 These meetings are in the historical tradition of

11 the Florida Public Water Law, which is meeting publicly,

12 say you are going to do something, and then next week

13 say you had a problem, you had a flat tire, something

14 broke down, "We promised you the drafts last week, last

15 Wednesday, but we just couldn't get to it. We'll do

16 them next Wednesday."

17 Maybe, Your Honor, one of these days there will be

18 drafts. That is the only reason we say at some point in

19 order to demonstrate the fact that some progress is

20 being made, some kind of drafts ought to be produced or

21 some kind of proposals ought to be produced.

22 That should be a condition of the stay, not

23 ordering them what to do, but if they assert there is a

24 generalized agreement on principles, you see, we have no

25 idea today than we did the day they sat on the steps in

1 Washington and announced the Statement of Principles,

2 and what was in them, because we stated what we would

3 not accept, the District made a statement, the

4 government, the U. S. made a statement, DEP made a

5 statement, the various agricultural interests made a

6 statement.

7 I think they were made in good faith, but if you

8 believe those statements they are no where near

9 agreement.

10 What we are asked to do is believe that despite the

11 public statements and the public hearings that in

12 private there might be some movement.

13 I mean, I guess that's what is meant when they say

14 there is progress, because you sure would not see it

15 from the public meetings.

16 I can tell you at the public meetings the Dade

17 County Commission said it would not accept this plan

18 ever.

19 HEARING OFFICER: Okay. Well...

20 MR. LEHTINEN: It was dead on arrival. That is

21 what the public meetings are saying.

22 I do not cite them for that purpose. I only cite

23 them for the fact that if there is any progress it has

24 to have been other than in public meetings, and

25 therefore at some specific deadline we ought to start

1 seeing that involvement with the people that are not

2 part of the private meetings, so they can be given a

3 deadline to show some progress by a certain date.

4 HEARING OFFICER: Well, that's exactly what this

5 whole process is about, and I think originally all of

6 the parties that asked me to give them 90 days to try to

7 come up with something, and I was reluctant to give them

8 90 days without a continual report that progress was

9 being made.

10 Even if there are not formal written drafts out

11 there now, I am hearing from all of the parties, except

12 from the Indians at this point that they feel that there

13 is some progress that is being accomplished as a result

14 of the public hearings, and that it is obviously an

15 extremely complicated case that is going to take a lot

16 of time to pull together all of the various aspects.

17 There are a lot of parties that are involved in

18 this litigation, and there are a lot of other groups and

19 individuals who will be substantially affected who are

20 not parties to this litigation at this time but

21 obviously will seek to have input into the development

22 of any settlement agreement.

23 So in order to bring all of those various parties

24 and issues to bear, it is going to take time. As long

25 as the main group of participants here feel that they

1 are still making progress and that there are potentials

2 of reaching a settlement agreement I am going to allow

3 the process to continue.

4 But I do want to have another report in 30 days to

5 make sure that we are on track, at least some track that

6 is gaining or offering some benefits in the whole

7 process, because the Legislature has directed that this

8 proceeding be expedited.

9 I don't think that litigation is necessarily the

10 way to solve all of these concerns, and I think

11 everybody needs to have an opportunity to crystallize

12 their positions.

13 That is what I am going to allow them to do, at

14 least for the next 30 days, and we will take it up then

15 and make sure it is still all progress.

16 Let me try to deal with these motions regarding the

17 access to the property. We have discussed some of these

18 before.

19 To make an immediate comment, I don't view that the

20 ongoing testing to be discovery in the true sense of the

21 word, and that I don't think that it requires a lot of

22 distraction from the mediation effort and depositions

23 and exchanging a lot of paper work back and forth.

24 It would seem to me that there would be some

25 benefit in allowing continued access out into the park

1 and into the, well, I guess it is the Refuge, to

2 continue to get some additional data that may serve to

3 help the parties formulate their opinions down the line.

4 This is a fact gathering process rather than

5 discovery in the truest sense of the word.

6 And I'm speaking now with respect to the League's

7 request.

8 I have a little bit more problem with the, and I'll

9 give you an opportunity to respond to it on behalf of

10 the District and the U. S. Government, but those are my

11 preliminary thoughts.

12 I have a little bit more problem with the Coop's

13 request, because I do think that that's initiating a

14 whole new area and may be opening up a new can of worms

15 that is probably not appropriate, given the status of

16 the case at the present time.

17 I just, it seems to me if I understand the Coop's

18 request they are asking to be able to get access to the

19 test area or the trial STA or whatever that has been set

20 up, and I don't know whether that has been the subject

21 of discovery in the past or not.

22 Certainly it is a ripe area for discovery in the

23 future, but I just don't know that it is appropriate to

24 begin opening up that can of worms at this point.

25 MR. GREEN: Mr. Menton...

1 HEARING OFFICER: Go ahead, Mr. Green.

2 MR. GREEN: ...just a gray area. Frankly, I really

3 didn't know what our alternatives were.

4 Let me explain why I filed it, and we will abide by

5 your ruling.

6 It's intended to be a request for entry as opposed

7 to a motion, which under 1.350 of course allows the

8 recipient a 30-day response period.

9 We haven't gotten anywhere near the 30 days. We

10 haven't gotten a response from the District, though the

11 U. S. gratuitously filed a response.

12 Here's our problem. We think that the testing that

13 we are proposing there could be extremely important. It

14 may turn out to be not important.

15 But either way it would be at our expense. It is

16 not in the Refuge or the Park, an area that is extremely

17 delicate environmentally or anything like that. It is

18 truly a matter of allowing someone to come in and do

19 sampling.

20 Now normally we would wait and hope that mediation

21 would resolve everything, and we would not have to do

22 this, but our people can't, we are sort of at an impasse

23 on this issue.

24 We have to have some resolution of the issues we

25 think before we can settle our differences in the

1 mediation context. It is almost like the chicken and

2 egg sort of arrangement.

3 Now I will say that we have had discussions with

4 the District, and in fact I think after this was filed,

5 and I think there was some interest on the part of the

6 agencies in a cooperative effort, and I don't want to

7 speak for them, but it may be something that we can work

8 out, but it is very important to us.

9 It was not an attempt on our part to divert

10 mediation nor to take a contrary course to the course

11 you have set us on to enable mediation to occur, but

12 simply that we feel that we need to resolve this issue

13 in order to be able to successfully mediate. There you

14 have it, and that is the reason we did it.

15 In terms of intrusion, it is something that people

16 could go in and get done in a few days, the STA time for

17 the E&R is 3,700 acres of flooded former farmland, just

18 sitting out there in the EAA. I mean, it's just a big

19 puddle, basically doing no good for anybody, but it may

20 have some very important information to this case, and

21 whatever way could be worked out that is acceptable to

22 the Hearing Officer and the parties to enable us to test

23 that we would be interested in.

24 HEARING OFFICER: Mr. Green, I understand your

25 point, and It would seem to me that the District should

1 give serious consideration to allowing you access,

2 because if that is a roadblock you ultimately agreeing

3 to a settlement agreement, then it is very likely going

4 to come up in the context of discovery in a challenge

5 that you are going to file to whatever settlement

6 agreement is reached.

7 So in order to avoid that I would think they would

8 try to reach some accommodation so that you could

9 alleviate your concerns or come up with the information

10 that you need.

11 I just think that to establish the precedent of

12 beginning to allow discovery while we are arguably in

13 this stage will just open the door to all kinds of

14 problems, so I'd rather see it done within the context

15 of the mediation rather than in the context of this

16 litigation.

17 You know, as I indicated, we are going to extend

18 the stay for at least another 30 days, and if everything

19 is on progress for the full 60 days that was originally

20 requested.

21 If at the end of the 30 days an impasse has been

22 reached or if at the end of the 60 days and we are back

23 on the litigation track, you can renew that request if

24 it hasn't been granted in the context of the mediation,

25 and certainly I would be inclined to grant it I think,

1 because it seems like the information you are seeking

2 would be pertinent to the ultimate resolution of the

3 issues that are involved in the case.

4 I just don't want to get involved in any piecemeal

5 discovery here and there during the course of the stay

6 while the mediation is going on.

7 MR. GREEN: Okay, sir.

8 MR. NETTLETON: Mr. Hearing Officer, this is Paul

9 Nettleton. We would just like to reserve the right to

10 file our formal response in terms of the litigation of

11 the stay if it lifts and we are back in litigation,

12 because there are some serious concerns with the request

13 which have not been addressed, and we just simply have

14 not had time to do that in the litigation context.

15 MR. KILLINGER: Mr. Menton, this is Lee Killinger.

16 I'd like to make the same reservation on behalf of DEP.

17 HEARING OFFICER: Sure, sure, and I don't intend to

18 be making a final ruling now or to cut off the

19 opportunity for other people to respond.

20 I just, you know, I just think at this point

21 everybody should be focusing on the mediation. If we

22 get back in that litigation mode we can take up that

23 issue instead.

24 Maybe you can reach an accommodation within the

25 scope of the mediation wherein you can provide Mr. Green

1 with the access that he needs, and we won't have to deal

2 with it down the road.

3 MR. GREEN: That's our hope, Your Honor.

4 HEARING OFFICER: Having said that, I don't want to

5 get into discovery during the stay period. I have

6 already indicated that my inclination would be to allow

7 continued testing, as the League has requested, and we

8 have discussed this issue in the past, and my thoughts

9 are that the evidence that was presented at the earlier

10 hearings that we had indicated that the more testing

11 that is done and the more samples that are taken in

12 different time periods, the better the research and the

13 better quality the opinions that can be reached as a

14 result of the testing.

15 So it would seem to me that to allow the continued

16 limited access that exists would serve some useful

17 purpose, and I know the U. S. has filed a response

18 objecting to that and allowing you an opportunity to

19 state your position.

20 Mr. Fitzgerald?

21 MR. FITZGERALD: Mr. Hearing Officer, I find the

22 distinction...

23 HEARING OFFICER: I figured you would. Go head. I

24 figured you would.

25 MR. FITZGERALD: It seems to me there may be an

1 alternative mechanism available. Although we read

2 the...

3 HEARING OFFICER: I'm sorry. You are fading out.

4 I'm having a hard time hearing you.

5 MR. FITZGERALD: Maybe I need to get closer. I am

6 with the District. I think they have always

7 fundamentally felt that the federal government should be

8 at the far end of the table.

9 There may be a way to handle this, and I am going

10 to give this in part, because we read Dr. Davis'

11 affidavit from the July 6th motion or the motion of July

12 6th to suggest that he had not seen anything that was

13 going to change his mind and felt that essentially what

14 came in the future, but of course he did indicate he

15 would like to see a full hydrologic year of data and

16 said that pretty consistently.

17 The main issue at this point is not one of the

18 variances between the test results of the United States

19 and the League and comparing the duplicate samples taken

20 thus far. They are very close together, and it has been

21 related to me by our experts that the very minor

22 differences are largely ones of technique and relatively

23 explicable to anyone familiar with the procedure.

24 That being the case and recognizing the fact that

25 the SWIM plan as it is challenged pays great attention

1 to the 14 marsh stations as test sites, where historic

2 data was derived from, the 14 stations, the United

3 States has always contemplated, as has the Refuge and

4 indeed the District, that long-term monitoring of those

5 stations would have to be established at some juncture.

6 That has not occurred as yet, although it would

7 have in the last year, were it not being done in any

8 event through the League's entry and the duplicate

9 samples taken by the United States.

10 That data of course is being shared and has been

11 shared.

12 It seems to me that rather than put you in the

13 awkward position of ordering a stay on the one hand and

14 discovery on the other, because that is what it is, it

15 is discovery, they would not be in there but for the

16 force of your order, and our deference to that order and

17 subsequent issuance of the special permit without

18 application by the League.

19 Taking all of that into account it seems to me we

20 can avoid any conflict at all, because the United States

21 is prepared to go ahead and take samples as necessary

22 over the next several months or until such time as we

23 working with the District, and this is something we have

24 and we will continue to do, discuss with them, can

25 establish formal testing and sampling programs for the

1 14 marsh stations.

2 By doing that and sharing samples, and I would not

3 even insist that we would only share data, for the

4 limited period the League is requesting I would be

5 prepared devote two months to provide actual water

6 samples, but we would essentially do it under our

7 auspices, and we would not have the problem of the new

8 special use permit, and you would not be required to

9 issue an order contrary to the spirit and the purpose of

10 the study, and presumably everybody would be somewhat

11 equally unhappy, but that's why I presented it as a

12 compromise.

13 HEARING OFFICER: Mr. Burgess?

14 MR. BURGESS: I wish that the compromise had been

15 presented in the context of my numerous requests for

16 comments rather than total rejection of the things I

17 requested in the motion.

18 I think that the proposal as far as it includes a

19 proposal to share data past December, or I guess past

20 November of this year, I certainly accept it, and we

21 would look forward to receiving any data that the United

22 States and/or the District would continue after that

23 period of time to collect at those 14 stations.

24 But we are dealing with, as you know, from

25 beginning last October when we presented evidence at

1 hearing, a request for a continuous and uninterrupted

2 12-month sampling period.

3 We are two months away from that under the existing

4 order. It has taken us historically only one day per

5 month in the middle of the month to collect that data.

6 So we have for the last three months been willing

7 and are continuing to be willing to shoulder the total

8 expense of the helicopter for that one day to allow

9 Dr. Davis, who has been collecting these samples, to

10 continue to collect the samples, to have one year's

11 worth of data that he has requested that he has said is

12 necessary for him to be able to complete the evaluation

13 of the 12-month rolling average called for in the SWIM

14 plan and to formulate his opinions.

15 I think that after the protocol that Mr. Fitzgerald

16 is speaking about, what in essence I think he is

17 alluding to is something that is required in the federal

18 settlement agreement, and if he is going to start that

19 process by himself or in concert with the District we

20 would be willing participants, but for this purpose here

21 in September to be able to collect two more months we

22 think is important, and we hope that we don't need to

23 use it in the context of litigation. We are not saying

24 that we didn't originally request it as part of

25 litigation. Obviously we did.

1 But to continue now for two more months has

2 relevance not only to resumption of litigation but also

3 to the mediation process that is presently ongoing.

4 It's no secret that one of the things we would like

5 to influence in any change to the SWIM plan would be the

6 water quality standards that the United States and

7 others are advocating in the context of this mediation,

8 and so we think that continued development of this

9 evidence will further our case in the negotiations and

10 the mediation. It has relevance outside the scope of

11 the litigation.

12 I don't think this is an awkward position,

13 Mr. Hearing Officer, for yourself to be in, because I

14 don't think as you pointed out that it is in essence

15 classic discovery that requires time away from the

16 mediation for lawyers or consultants.

17 Basically there has been one federal

18 representative, one League consultant, one day a month

19 that we are requesting continue for two more months.

20 MR. FITZGERALD: Mr. Hearing Officer, Tom

21 Fitzgerald.

22 I think Mr. Burgess has just effectively conceded

23 my point. He says he wants this for mediation and

24 negotiations purposes, because that places the veneer to

25 make it attractive. It makes it appear to you that this

1 is some driving point of the negotiations.

2 In point of fact the technical group discussions

3 that have been alluded to, including public briefing

4 held just three days ago in West Palm, made clear that

5 the interim standards are not even an issue. That is,

6 the Authority agreed there would be a 50 part per

7 billion interim. What possible relevant data could have

8 to that no one could articulate to you.

9 It would only have relevance to the long-term,

10 final standards, which is something that has not been

11 resolved and will be resolved only by a research plan to

12 be implemented ultimately under any settlement in a

13 fashion similar to what's in the SWIM plan.

14 But if in fact this has some bearing on

15 negotiations and mediation it is discovery. It is part

16 of the process. They are asking you to give them the

17 discovery now during a stay, so that they can use that

18 to better their position in negotiation for mediation.

19 That is exactly my point. This is discovery during

20 stay.

21 HEARING OFFICER: Well, as I recall Dr. Davis'

22 testimony from last year, he claimed at the time that he

23 needed to have a full hydrologic year in order to

24 accurately test or to accurately be able to reach a

25 conclusion.

1 Whether that's true or not, Dr. Davis obviously

2 believed it.

3 We are two months away now as a result of this

4 mediation effort, and at least in order to get rid of

5 any concern that Dr. Davis might have that he never had

6 the full opportunity to complete his testing I think we

7 ought to go ahead and let him do it and give him the

8 next two months to finish that off, and then we can take

9 it from there.

10 It is just not that big of a deal, I think, and we

11 are wasting a lot of time arguing about it. We might as

12 well go ahead and let Dr. Davis complete his tests, and

13 we'll take it from there.

14 MR. BURGESS: Mr. Hearing Officer, also in our

15 motion was a request that the September 7th date

16 previously set as the termination or the close of

17 discovery and the November hearing date would be moved

18 still to mid-September, which is more representative of

19 the other times or the other months we have been

20 sampling.

21 We in fact requested either September 21st or 22nd.

22 So I guess in order for complete relief if we are

23 going to be issuing an order I would also like the

24 ability for extending it into October and November to

25 change the September hearing date, I am sorry the

1 September sampling event until September 21st and 22nd.

2 HEARING OFFICER: Okay. I think that is

3 appropriate.

4 MR. FITZGERALD: Mr. Hearing Officer, on that

5 point, the fact is it is not appropriate. I discussed

6 that with our consultants, and the notion of taking

7 uniform samplings over an extended period is contrary to

8 the basic scientific protocol for this type of sampling.

9 One is supposed to take sampling randomly over a

10 time period to generate the results.

11 I didn't know you were going to take that

12 particular tact, since we had already on the 16th, I am

13 sorry, the 6th of July agreed that they would test

14 through September 7th, and we have September 7th set up

15 as the test date.

16 I would request before you rule on that point of

17 getting an affidavit that would more adequately express

18 why that in fact is not a valid concern. There is no

19 reason to alter our schedule.

20 MR. BURGESS: Your Honor, if I could respond,

21 historically for some of these months our access has

22 been limited to the times when Mr. Fitzgerald's client

23 has said they are available, and to allow us access for

24 that one day, and we have worked with them on a

25 continuing basis to reach agreement to try and reach

1 access during the middle of any month.

2 On August 11th, fully three weeks ago, I wrote to

3 Mr. Fitzgerald and asked him to allow the change of the

4 dates from September 7th to September 21st and 22nd.

5 So while I understand that he had set the 7th as

6 the terminus, following the order that you entered at

7 the last hearing, we have requested an alternate date

8 for the same reasons that I have given you here as early

9 as August 11th.

10 So we would just, it doesn't need to be the 21st

11 and 22nd, but we would like it not to obviously

12 terminate now on September 7th and for us to be able to

13 negotiate a mid-month date with the Refuge personnel.

14 HEARING OFFICER: All right. Mr. Fitzgerald the

15 issues you raise really go to the determination as to

16 whether the testing protocol itself is valid, and those

17 are issues for cross examination. We don't need to get

18 into that, and I don't need affidavits at this point in

19 time.

20 Why don't you sit down with Mr. Burgess and see if

21 you can work out a date.

22 I do think as I indicated earlier that in view of

23 the extended stay that we are granting here that there

24 is some benefit to allowing Dr. Davis to going ahead and

25 completing his testing throughout the hydrological year,

1 simply to meet the concerns he felt he needed in order

2 to accurately reach his results.

3 So the two of you can get down and reach some

4 accommodation. I think it is unnecessary to try to

5 schedule it the day after a holiday. It will put

6 everybody in a bind. So come to some agreement on it,

7 whether it is the 21st, 22nd, or somewhere in between.

8 MR. FITZGERALD: Mr. Hearing Officer, if you are

9 granting the League's motion I assume that you are also

10 entering whatever orders were orally, that they will

11 also assume all expense for the helicopter and related

12 activities in order to accomplish it.

13 HEARING OFFICER: That is what I expect the League

14 to do if they are going to go ahead with the testing.

15 MR. BURGESS: Absolutely, Your Honor. The only

16 thing that gives me cause is related activities.

17 The last 10 months the only expenses that we have

18 had to incur is for the helicopter. If there is

19 something else, Tom, that you are alluding to, let me

20 know.

21 MR. FITZGERALD: I am just leaving the door open if

22 there is something that we are not aware of now.

23 MR. BURGESS: I figured as much. Okay.

24 HEARING OFFICER: Okay. Well, I think that takes

25 care of all the motions that we have.

1 Let me see if I can get an understanding.

2 We just pushed the hearing date back until I think

3 we were at, what, December now, but obviously we left

4 open the possibility of revisiting that issue once we

5 find out what the results of the mediation effort are.

6 Just for purposes of concluding this hearing, I

7 would assume that we are now in a posture where the

8 hearing in this case will not take place until after the

9 first of the year, is that right?

10 MR. FITZGERALD: Yes.

11 MR. BURGESS: Right.

12 HEARING OFFICER: I just don't see that we are on a

13 course that we would be able to do anything but that.

14 So we'll, I will do an order that will extend the

15 stay for an additional 30 days, we'll reschedule a

16 hearing sometime in early October.

17 Anybody have a calendar in front of them?

18 MR. GREEN: The 4th is a Monday.

19 HEARING OFFICER: All right. Do you want to do it

20 on the 4th?

21 MR. GREEN: I think that would be a good idea.

22 HEARING OFFICER: Are there any public hearings or

23 anything scheduled in the mediation that would impact on

24 that?

25 MR. GREEN: Not currently, Mr. Hearing Officer.

1 HEARING OFFICER: All right. Why don't we do the

2 4th at the same time, two o'clock, and, Mr. Green, do

3 you want to set up the conference call?

4 MR. GREEN: Yes, sir, we'd be happy to.

5 Mr. Menton, let me make one statement for the

6 record just briefly. I don't mean to be petty, but I

7 think that Mr. Fitzgerald inadvertently indicated that

8 everyone agreed to a 50 part per billion interim limit.

9 We have not. Thank you.

10 HEARING OFFICER: Okay.

11 MR. FITZGERALD: To be perfectly clear,

12 Mr. Hearing Officer, the technical media planned basis

13 for much of the discussion in which we anticipate will

14 ultimately under whatever settlement exists calls for 50

15 parts per billion. No one has technically signed on for

16 that, because we have no final agreement.

17 HEARING OFFICER: All right. We will set a

18 conference call for October 4th at two o'clock. I will

19 enter an order extending the stay for an additional 30

20 days, and if things are on track, as I indicated, I will

21 give you another 30 days for you to come up with your

22 results.

23 As a consequence of that the hearing at this point

24 will be put off at least until the beginning of the year

25 and then we'll see where we are as this matter

1 progresses.

2 Okay. Anything further?

3 MR. GREEN: No, I don't think so.

4 HEARING OFFICER: Okay.

5 (WHEREUPON, THE HEARING WAS CONCLUDED AT

6 3:00 P.M.)

7 * * * * *

1 CERTIFICATE OF REPORTER _______________________

2 STATE OF FLORIDA )

3 COUNTY OF LEON )

4 I, SUE HABERSHAW JOHNSON, Certified Court

5 Reporter, Registered Professional Reporter, and Notary

6 Public in and for the State of Florida at Large:

7 DO HEREBY CERTIFY that the foregoing hearing was

8 taken before me at the time and place therein designated;

9 that my shorthand notes were thereafter reduced to

10 typewriting under my supervision; and the foregoing pages,

11 numbered page 1 through page 49, are a true and correct

12 record of the proceedings.

13 I FURTHER CERTIFY that I am not a relative,

14 employee, attorney, or counsel of any of the parties, nor

15 relative or employee of such attorney or counsel.

16 CERTIFIED THIS 7th DAY OF SEPTEMBER, A.D. 1993,

17 IN THE CITY OF TALLAHASSEE, COUNTY OF LEON, STATE OF

18 FLORIDA.

19 STATE OF FLORIDA )

20 STATE OF LEON )

21 The aforesaid instrument was acknowledged before

22 me this 7th day of September, 1993, by SUE HABERSHAW

23 JOHNSON, who is personally known to me.

CHRISTINE WHEELER

25 Notary #AA711091