1 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

3 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, )

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

4 -and- )

FLORIDA SUGAR CANE LEAGUE, INC., and )

5 UNITED STATES SUGAR CORPORATION, )

-and- )

6 FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )

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

7 INC., and HUNDLEY FARMS, INC., )

)

8 Petitioners, )

)

9 vs. ) DOAH CASE NOS.

) 92-3038

10 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039

) 92-3040

11 Respondent, ) (Consolidated)

)

12 and )

)

13 MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

STATES OF AMERICA, FLORIDA DEPARTMENT OF )

14 ENVIRONMENTAL REGULATION, and FLORIDA )

WILDLIFE ASSOCIATION, )

15 )

Intervenors. )

16 ) _____________________________________________

HEARING BEFORE: HONORABLE J. STEPHEN MENTON

18 HEARING OFFICER

19 DATE: FRIDAY, FEBRUARY 11, 1994

(2:00 P.M. - 3:30 P.M.)

LOCATION: HEARING ROOM 3

21 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.:

4 WILLIAM H. GREEN, ESQUIRE

CAROLYN RAEPPLE, 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., and United States Sugar

9 Corporation:

10 WILLIAM L. HYDE, ESQUIRE

Earl, Blank, Kavanaugh & Stotts

11 Suite 350

215 South Monroe Street

12 Tallahassee, Florida 32301

(904-681-1900)

-and-

WILLIAM L. EARL, ESQUIRE

15 RICK J. BURGESS, ESQUIRE

Earl, Blank, Kavanaugh & Stotts

16 One Biscayne Tower, Suite 3636

Two South Biscayne Boulevard

17 Miami, Florida 33131

(305-358-3000)

Representing Petitioners, Florida Fruit and

19 Vegetable Association, Lewis Pope Farms,

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

20 Hundley Farms, Inc.:

21 KENNETH L. HOFFMAN, ESQUIRE

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

22 Suite C

2700 Blair Stone Road

23 Tallahassee, Florida 32301

(904-877-0099)

1 APPEARANCES, CONTINUED:

2 Representing Intervenor, The United States

of America:

SUZAN HILL PONZOLI, ESQUIRE

4 THOMAS A. WATTS FITZGERALD, ESQUIRE

Assistant United States Attorney

5 Southern District of Florida

Third Floor

6 99 Northeast 4th Street

Miami, Florida 33132-2111

7 (305-536-5477)

8 -and-

9 STEVE MC FARLAND, ESQUIRE (via telephone)

MIKE REED, ESQUIRE (via telephone)

10 KENNETH A. SAXE, ESQUIRE (via telephone)

United States Department of Justice

11 Environmental & Natural Resources Division

General Litigation Section

12 Room 879, 601 Pennsylvania Avenue (20004)

P. O. Box 663

13 Washington, D.C. 20044

(202-272-4016)

Representing Intervenor, Florida Department of

15 Environmental Protection:

16 LEE M. KILLINGER, ESQUIRE

Assistant General Counsel

17 Department of Environmental Regulation

640 Twin Towers Office Building

18 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

19 (904-488-9730)

20 Representing Intervenor, Florida Wildlife

Association:

DAVID GUEST, ESQUIRE (via telephone)

22 LAURA J. ERICSON-SIEGEL, ESQUIRE

111 South Martin Luther King, Jr., Blvd.

23 P.O. Box 1329

Tallahassee, Florida 32302

24 (904-681-0031)

25 * * * * *

1 APPEARANCES, CONTINUED:

2 Representing Respondent, South Florida Water

Management District:

R. BENJAMINE REID, ESQUIRE

4 Popham, Haik, Schnobrich & Kaufman, Ltd.

400 International Place

5 100 Southeast Second Street

Miami, Florida 33131

6 (305-539-7222)

7 -and-

RUTH P. CLEMENTS, ESQUIRE (via telephone)

9 South Florida Water Management District

P.O. Box 244680

10 3301 Gun Club Road

West Palm Beach, Florida 33416-4680

Representing Intervenor, Miccosukee Tribe of

12 Indians:

13 DEXTER W. LEHTINEN, ESQUIRE (via telephone)

Spencer and Klein, P.A.

14 801 Brickell Avenue, Suite 1901

Miami, Florida 33131

15 (305-374-7700)

16 * * * * *

17 ALSO PRESENT:

18 THOMAS E. MOORE

JEFFREY J. WARD (via telephone)

* * * * *

INDEX

ITEM PAGE

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

HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 111

CERTIFICATE OF REPORTER . . . . . . . . . . . . . . .112

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 2:00 P.M.,

3 AT WHICH TIME MR. HOFFMAN AND MS. ERICSON-SIEGEL WERE ABSENT

4 FROM THE HEARING ROOM.)

5 TELEPHONE OPERATOR: Let's take a brief roll call.

6 Mr. Ward?

7 MR. WARD: Yes.

8 TELEPHONE OPERATOR: Thank you. Ms. Clements?

9 MS. CLEMENTS: Yes.

10 TELEPHONE OPERATOR: Mr. Lehtinen? Dexter Lehtinen?

11 MR. LEHTINEN: Here. Yes.

12 TELEPHONE OPERATOR: Mr. Reed?

13 MR. REED: Yes.

14 TELEPHONE OPERATOR: Mr. Guest?

15 MR. GUEST: I'm here.

16 TELEPHONE OPERATOR: Mr. Macfarlane?

17 MR. MACFARLANE: I'm here.

18 TELEPHONE OPERATOR: Mr. Saxe?

19 MR. SAXE: Here.

20 TELEPHONE OPERATOR: And Stephen Menton?

21 HEARING OFFICER: Yes, ma'am.

22 TELEPHONE OPERATOR: If you need further assistance,

23 our number is 1-800-232-1234, and please reference

24 WR-37054. Thank you for choosing AT&T.

25 HEARING OFFICER: Good afternoon. This is Steve

1 Menton in Tallahassee. Let's take an attendance of the

2 people that are here in the hearing room with me,

3 beginning with the petitioners, for the League?

4 MR. EARL: Bill Earl, Bill Hyde, and Rick

5 Burgess, representing the Florida Sugar Cane League

6 and United States Sugar Corporation.

7 HEARING OFFICER: Okay. For the Cooperative?

8 MR. GREEN: Carolyn Raepple and Bill Green,

9 Mr. Menton, and Tom Lodge is sitting in with us.

10 HEARING OFFICER: Okay, and for the Fruit and

11 Vegetable Growers? No appearance this afternoon? Has

12 anybody heard from Mr. Hoffman or Mr. Cole as to their

13 intentions?

14 MR. EARL: I spoke to Mr. Hoffman yesterday.

15 He didn't say expressly he was coming. That was my

16 understanding.

17 HEARING OFFICER: Okay. Well, we'll begin without

18 him, and if he shows up here he's welcome.

19 Okay, on behalf of the proponents of the plan,

20 let's begin with the District.

21 MR. REID: Ben Reid, Popham Haik, for the District.

22 HEARING OFFICER: Okay, for the federal government?

23 MR. FITZGERALD: Tom Fitzgerald, accompanied by

24 Suzan Ponzoli.

25 HEARING OFFICER: All right. Department of

1 Environmental Protection?

2 MR. KILLINGER: Lee Killinger.

3 HEARING OFFICER: Okay, and Mr. Guest is on the

4 phone; is that right? Mr. Guest, are you there?

5 MR. GUEST: Yes, we're here.

6 HEARING OFFICER: Okay.

7 MR. GUEST: Laura Ericson should be there, too.

8 Is she there?

9 HEARING OFFICER: Not yet.

10 MR. GUEST: Okay, she'll be there.

11 HEARING OFFICER: Okay, any other people that are

12 making appearances in Tallahassee? Are there any other

13 appearances that need to be made by phone?

14 MR. LEHTINEN: Yes, Dexter Lehtinen, Miccosukee

15 Tribe of Indians out of Miami.

16 HEARING OFFICER: Okay. All right. Anybody else

17 need to make an appearance? Okay. Let's get started

18 then.

19 This hearing today was scheduled as part of our

20 ongoing struggle to try to finalize witness lists

21 and attempt to narrow the scope of those who are

22 involved in this case as soon as possible, and also to

23 facilitate the discovery process.

24 I don't know if there have been any particular

25 developments that need to be brought to light before we

1 get into the meat of the matters today. Are there

2 any earthshattering developments, settlements anybody

3 wants to reveal? Nobody is even smiling at that one.

4 All right. Then I guess we have to go right to the

5 gist of it.

6 There were a couple of matters left over from last

7 week. The first one has to do with the access into the

8 Park. We had discussed that there would be some

9 overflights, and perhaps the need for a telephone

10 conference hearing to resolve some of those issues

11 because of the time frames that were involved.

12 I did not receive any request for a telephone

13 conference hearing. I don't know what that means in

14 terms of the status of it, and maybe we need to get an

15 update on that.

16 MS. RAEPPLE: The overflight was conducted, and

17 we provided the U. S. Government with the GPS coordinates

18 of the locations where we wanted to conduct the

19 reconnaissance.

20 Mr. Fitzgerald reported back to me that there is no

21 problem with the locations we have identified in the

22 Park, and he has provided us with a draft special use

23 permit, which we reviewed and found acceptable, and we

24 are presently contemplating doing that reconnaissance

25 in the Park next Friday.

1 That's subject to Mr. Fitzgerald verifying the

2 availability of a park official to accompany our witnesses.

3 We are still discussing the Loxahatchee. WE have

4 not been able to reach an accommodation. Mr. Fitzgerald

5 and I have not been able to get our technical people

6 together. I tried to reach him yesterday but was unable

7 to do so. Today his technical person is unavailable.

8 Perhaps Monday or Tuesday we will be able to get the

9 technical people together and see if an accommodation

10 can be reached with regard to entry into the

11 Loxahatchee.

12 If that's not available within the next week we

13 would expect to be requesting a telephone hearing on

14 that entry.

15 HEARING OFFICER: Okay, Mr. Fitzgerald, anything

16 you'd like to add?

17 MR. FITZGERALD: I think that's accurate, Mr.

18 Hearing Officer.

19 The 18th for the Park, although I can't solve it

20 right now, I think it's highly probably we would be

21 able to do that. I've got a call in to the Ranger

22 who is coordinating that. He's out on a lunch break.

23 So I wasn't able to catch him.

24 With regard to the Loxahatchee, Ms. Raepple and I

25 discussed this to some degree this morning, and I think

1 I need to sound a note of caution referencing back to

2 our discussion of this two weeks ago now that there is

3 very little likely that we can do towards ironing out

4 the concerns.

5 Having the vegetative specialists of the Coop

6 say, "We think we can do this without causing a problem,"

7 does not get around the statutory and regulatory

8 regime that the Administrator or the Manager of the

9 Refuge has to deal with. If anything, the situation

10 from an intrusion standpoint has gotten worse, not

11 better, because I was at the Refuge yesterday and

12 speaking to the experts, and they have many of the

13 migratories are not simply on roost, they are on

14 nests, eggs in the nests, and there is concern over

15 not solely the water fowl or the high migratories, but

16 the snail kits are in the Refuge now, and they are

17 also in nesting activity.

18 The Refuge Manager feels considerable constraint

19 on his legal position of going forward for a special

20 use permit, and I just don't want to hold out a false

21 hope we will be able to work something out.

22 I suspect that we may have to come back to you.

23 We would still I think second the proposed compromise

24 or alternative mechanism for handling that which was

25 brought up two weeks ago of holding that off until we

1 get beyond the sensitive birding period, which would be

2 mid to late May, something on that order, and we can

3 pin that down with the experts when fledglings are no

4 longer a problem, and the data could be submitted in

5 writing or post-hearing or at the latter part of the

6 hearing if we're still, if that's still going on at

7 that time.

8 HEARING OFFICER: Okay. Well, that raises just

9 a couple of issues.

10 First of all, as I understand the need for access

11 to both the Park and the Refuge, it has to do with the

12 ground truthing of the satellite imagery that has been

13 taken.

14 Is it necessary to do ground truthing in both the

15 Park and the Refuge? Do they have to be done

16 separately? Wouldn't the truthing be the same,

17 irrespective of the location?

18 MS. RAEPPLE: Mr. Hearing Officer, my consultant

19 advised me that it's important to do ground truthing

20 within the area you are interpreting specifically.

21 There is some ability to translate across areas,

22 but because of the unique mixtures within the various

23 areas of the Everglades it is important to ground truth,

24 and I wanted to add it is not my intention to have

25 vegetative specialists causing a problem. I have

1 Dr. Lodge, who is a Ph.D. biologist with an

2 undergraduate degree in zoology who is prepared to

3 talk to the people at the Refuge and explain his

4 knowledge and the methodology that he would propose

5 whereby the nesting birds can be observed and avoided,

6 and he also has scientific studies to show that the

7 Everglades snail kite would not be harmed at all by

8 the experts or harassed by the process.

9 I am hopeful we may be able to allay the fears

10 of the Refuge Manager.

11 MR. FITZGERALD: Mr. Hearing Officer, if in fact

12 we get to that juncture I think we need still to

13 preserve the position we raised two weeks ago, and that

14 is based on the material discussed in my response to

15 their motion where I cited back to the points you

16 raised and the points Mr. Green conceded a year ago

17 when discussing entry, that they still need to

18 demonstrate a certain fairly high level of need and

19 relevancy of this material at this point in time,

20 especially in the fact of the considerations against

21 entry.

22 I'm not second guessing the expert point of view

23 of whether you need to ground truth vegetation in

24 both locations. All I can say is it is something

25 they would have to show, that there is going to be

1 vegetative mapping of that area, that it would be

2 relevant to the current entry and ground truthing

3 that they were unable to do during the 19 or 20

4 entries that occurred over the year-long period that

5 entry was permitted to all the petitioners into the

6 Loxahatchee.

7 I have seen on current satellite imagery related

8 to a vegetative map of the Loxahatchee surface in this

9 case in anybody's discovery thus far, so I'm not sure

10 just where that's coming from and why the sudden drop.

11 We may not need to resolve that right now, but

12 it's something I think you need to hear before we go

13 too much further.

14 MS. RAEPPLE: Mr. Hearing Officer, Ken Ruchie,

15 who is a District employee doing the satellite imagery

16 in the Park and had his deposition taken earlier,

17 testified you could not transfer interpretations

18 from one area to another. I'm surprised to hear Mr.

19 Fitzgerald has a question about it.

20 MR. FITZGERALD: I think she misunderstood. I was

21 at Mr. Ruchie's deposition, and I heard the same thing.

22 Mr. Ruchie did not drop on the table in my view a

23 vegetative map of the Loxahatchee for vegetative

24 purposes that would require verification or ground

25 truthing or review of that sort in order to impeach or

1 examine.

2 So I fail to see why or what somebody's ground

3 truthing in the Loxahatchee at this time. Nobody has

4 seen fit to advise us as to why it's necessary.

5 HEARING OFFICER: Okay. If I understand correctly

6 then there has been some arrangements worked out with

7 respect to the Park, so the only thing left has to do

8 with the Refuge.

9 I think that given the fact that we have worked

10 out a deal on the Park there should be some effort to

11 see if the information that can be gleaned from that

12 access might be extrapolated over and be a basis for

13 reducing the amount of ground truthing or the amount

14 of access necessary within the Park, and then try to

15 work around those concerns, given what the experts can

16 work out in terms of the procedures and what needs to

17 be done, maybe alleviate some of the concerns of the

18 Refuge officials, and if you can't work it out then

19 we'll set up a telephone conference call and take it

20 up.

21 Along those lines I think both parties need to give

22 some thought as to exactly how evidence would come

23 into play at the final hearing, so that we can figure

24 out if it is an issue that can be postponed to the

25 end of the hearing so that we can get around the nesting

1 period and some of the other concerns that the Refuge

2 officials have.

3 So if we do have to have a telephone conference

4 hearing I'd like to hear from both parties on that

5 aspect as well, as to whether or not it's going to

6 cause a problem in terms of the hearing itself if we

7 just wait until May or whenever an appropriate time is

8 and supplement the record, either through late filed

9 depositions where we may still be going on in hearing

10 at that point in time, and it won't be difficult to

11 add them on at the end.

12 So be prepared to address those issues if we

13 have to have a telephone conference call.

14 MS. RAEPPLE: Would it be appropriate to tentatively

15 schedule the telephone conference at this

16 time, simply because I want to expedite the time in

17 which we conduct that telephone conference,

18 should it be needed, since we are very close to the

19 time when it will not be possible for Mr. Downing

20 and Mr. Lodge to have final opinions ready for their

21 scheduled depositions unless they get entry quickly.

22 HEARING OFFICER: My calendar for next week has

23 cleared out, and I am in town. If you have a need to

24 reach me, call my secretary, and we can set up a

25 conference call. I should not have a problem next week.

1 MS. RAEPPLE: Thank you.

2 MR. BURGESS: Your Honor, we do have a pending

3 letter request with the Untied States for one additional

4 day of soil sampling in two different areas in the

5 Loxahatchee. Tom and I have corresponded on it. I

6 haven't had a reply to my latest letter, but based upon

7 what he said here today since we proposed helicopter

8 access, although our is in a discrete area at the very

9 south of the Refuge, within one-half mile of the canal

10 and within a quarter or a half mile of there, we want to

11 get a response.

12 MR. FITZGERALD: I suppose that that would seem

13 intuitively true, but in fact it may not.

14 MR. BURGESS: Okay. So we have to...

15 MR. FITZGERALD: I got a letter last night when I

16 got back because of the depo schedule, and there was

17 dead time, and I have sent that with the earlier, earlier

18 correspondence just involved what exactly are you talking

19 about, where, give me locations and details.

20 I have sent that up to the Refuge and said, "Look at

21 this, and is the same kind of problems? Are the areas

22 discrete enough? Is it limiting enough that it

23 does not raise concern?"

24 We're not trying to issue a blanket, "Stay the hell

25 out," kind of thing. I should know quickly.

1 MR. BURGESS: We may be bringing that up.

2 HEARING OFFICER: Okay, try to work it out and

3 add that onto the telephone conference if you can't,

4 so we can take care of that at one time.

5 Okay. Again as I expressed at the time we set up

6 the first access and then last week, I don't want to get

7 into a situation where we're continuing to rehear this

8 and hear these problems, so we very deliberately set up

9 that first schedule to try to take care of all of the

10 testing that was reasonably known at that time, and I

11 think we're going to have to live with that with

12 exceptions where there are very unique circumstances,

13 so just keep that in mind as you go through this

14 process.

15 MR. BURGESS: To follow up for purposes of

16 clarification, what we're seeking to do is round out

17 the area to show the phosphorus gradients away from

18 the canal. That only came to our attention as a

19 result of the results. We will be prepared to show

20 that, if necessary.

21 HEARING OFFICER: All right. The next issue that

22 I had made a note to bring up, it may be a little bit

23 out of order, but it seemed like it would be simpler to

24 address than other ones, so I put it at the top of the

25 list, because it has to do with the motion to strike

1 filed by the Cooperative with respect to the League's

2 amended petition and the inclusion of the technical

3 mediated plan as an exhibit and the references within

4 the petition to the mediated plan.

5 I have been through the motion as well as the

6 response that was filed. I did not receive anything

7 either for or against the motion from the proponents

8 of the plan, so it seems to be a battle going on between

9 the petitioners.

10 Let me just say that when I first got the amended

11 petition that was filed by the League and began

12 reading through it and realized what the attachment

13 was at the back, I went, "Oh, no. Can I read this?"

14 And so I very deliberately did not read the

15 amended petition with the expectation that this issue

16 very well could come up, and before I delve too far

17 into it I thought we needed to discuss it a little bit

18 further.

19 Without getting into some of the issues that were

20 raised in the motion to strike, it seems to me that the

21 real issue is whether or not it is appropriate for me

22 to be reviewing a document that was produced during

23 settlement negotiations, and that's what it comes down

24 to.

25 I don't know. I did not read the amended petition

1 to be an attempt to substitute the mediated plan for

2 the originally adopted plan as was suggested. I

3 don't think that's exactly what the petition said.

4 One thing that I did think was interesting in the

5 motion to strike was the suggestion that the references

6 to the mediated plan should be stricken from the amended

7 petition, but that it could still serve as a basis for

8 cross examination during the final hearing in this case.

9 It seems to me that it's either protected as

10 confidential settlement negotiations, or it's not

11 protected, and I don't see how you can have it both ways.

12 So having said that I'm interested to hear first of

13 all the position of all parties as to whether or not it's

14 appropriate for me to review the mediated settlement

15 plan or if it is in fact confidential settlement

16 negotiations, and if it is confidential settlement

17 negotiations, whether it is a document that could be

18 utilized at final hearing in terms of cross examination

19 of witnesses.

20 So, Mr. Green, it was your motion to strike. I

21 don't know if you want to go first to respond.

22 MR. GREEN: I'll take just a brief stab at it.

23 I feel obliged I think, since I believe I objected a

24 couple of times during the settlement efforts to any

25 discussion of specific matters dealing with that, and

1 actually our motion really didn't direct itself towards

2 that issue.

3 I think I would prefer to say that we think

4 it's inappropriate to attach, because it doesn't have

5 any status as a legally cognizable document because

6 of the statutory development process. We really did

7 not get into the issues, but that's a fair question.

8 The way I would duck that question is we essentially

9 think that it should be stricken without prejudice with

10 regard to the League's efforts to use it in the hearing,

11 but whether you allow it is a separate issue, so I

12 guess I think it's inappropriate to be in the record of

13 these proceedings frankly, but that wasn't the thrust

14 of our motion, because we felt that perhaps inadvertently

15 it might be viewed as a way to bring that plan into

16 these proceedings without going to the proper notice

17 procedures.

18 HEARING OFFICER: Okay, as to that issue I think

19 I clearly understand that we're dealing with the

20 March, 1991, SWIM plan for purposes of this hearing

21 at this point in time until someone shows to me why we're

22 not, and that the mediated technical plan is not the

23 one at issue, so I'm not that concerned about having

24 that as an attachment if everybody is in agreement that

25 we're waiving the confidentiality aspects of it because

1 it developed during settlement negotiations.

2 I think that's the bottom line that we need to get

3 to. It's either that everybody is in agreement the

4 confidentiality has been waived, or it hasn't been

5 waived. If it's waived then there's no sense spending

6 a lot of time on this, and if they ant to attach it

7 as an exhibit that's fine, and we can just go on, and

8 we'll see what happens at the hearing in terms of how

9 it's used.

10 But if somebody is asserting confidentiality,

11 that's an issue we need to resolve.

12 MR. GREEN: Your Honor, we did not wish to waive

13 our right to maintain confidentiality to the extent

14 we have that right, and we did not intend to. I did

15 not address it in our briefs.

16 HEARING OFFICER: I haven't reviewed it to

17 determine its content, to determine if it was

18 confidential. That was just my off-the-cuff impression

19 that it may well be protected.

20 Someone may be able to demonstrate to me that

21 it's not, but...

22 MR. GREEN: I think we briefed that issue

23 briefly in an earlier pleading, but that would be our

24 position, and we would not want to waive that at this

25 point. I know you want to hear from the others.

1 HEARING OFFICER: Mr. Earl?

2 MR. EARL: You are correct, Mr. Hearing Officer.

3 We did not bring it in to substitute. We clearly

4 don't think it should be substituted for what's being

5 litigated.

6 The old song, "Two Different Worlds," that's

7 precisely the situation we find ourselves in. When we

8 deal at DOAH here we are told over and over again

9 this is the plan, the '91 plan is the plan, and when we

10 go to Governing Board meetings as late as two weeks

11 ago when we went to the Lower East Boast Water Supply

12 Planning for all the work being done by the District

13 we are told by the number two man at the District,

14 Mr. McVicker, that it's being used, and it's going to be

15 built into the models that are going on, that there's

16 still a commitment to the mediated technical plan.

17 Our consultants, Mr. Hearing Officer, in trying

18 to get ready for this hearing as late as yesterday,

19 we need to fish or cut bait on this issue. Either it's

20 not going to be part of this, or it is going to be

21 part of this.

22 As late as yesterday we had three consultants

23 call, and they are doing some analysis of Mr. Walker's

24 work, and some of his analysis focuses on the mediated

25 plan as revised, because as you probably know, Mr.

1 Hearing Officer, the mediated plan takes in hydro period,

2 takes in water, takes in sheet flow, solves a lot of

3 the problems the '91 plan doesn't. It has more STAs.

4 And they said, "What should we do? You want our

5 work by X date." I said, "Right now until we get a

6 ruling on this do not analyze the mediated plan.

7 Assume we have been told by the District that we're

8 going forward with the '91 plan."

9 We need to put everybody on notice that if there

10 is a switch to the mediated plan it's going to require

11 more work, more discovery, and it's going to delay

12 this hearing process.

13 So I think that needs to be clear, and I just want

14 to point out I think we may well be wasting our time in

15 this process, because I believe it's a charade. I believe

16 the plan is to shift to this or something comparable by

17 statute.

18 So it's my clients, hey are very unhappy about

19 spending the money and the time and the resources right

20 now working on a plan which we don't think, certainly

21 not in the opinion of the number two man at the District

22 and the Lieutenant Governor when he addressed the

23 Governing Board on January 13th and many others cited

24 in our briefs that really it's where this thing is going,

25 because it's a much better plan.

1 It meets the requirements of the SWIM plan in that

2 it not only takes care of water quality but it will

3 restore the hydro period. The '91 plan, of course,

4 doesn't do that. The mediated plan does, and we

5 think it's natural they shift to the plan, and that's

6 where we are on that.

7 Mr. Hearing Officer, this is an effort to raise

8 this issue, and I did not discuss this with Mr. Green

9 before. I know he has strong feelings on this, but

10 it is necessary, because right now we're not preparing

11 for the mediated plan. We think it's a better plan.

12 We think it takes care of the hydro period. We think

13 it meets the statute, unlike the present plan, but

14 there needs to be a decision on this, and it needs to

15 be done now.

16 We felt the appropriate way was in the pleadings.

17 If it's out and it comes back later, we're looking at a

18 longer hearing and additional time. I want everyone

19 to know that.

20 HEARING OFFICER: Well, Mr. Earl, I think we have

21 discussed this several times in the past at various

22 stages, throughout the development of the mediated plan,

23 and you have, I have consistently heard from the District

24 as part of this proceeding that they're going with the

25 March, 1991, plan.

1 That is the basis upon which I have scheduled the

2 hearing for April 25th and the basis upon which we

3 had been working to establish discovery schedules.

4 So in terms of this particular proceeding I don't

5 think I have any choice, given what's been put before

6 me, but to go forward with that original plan.

7 I agree with you if there is a modification to

8 that, statutorily or through the process of a remand to

9 the District or whatever, we may have to revisit some

10 of the scheduling issues, etcetera, but it's just not

11 before me at this point in time, and all I can do is

12 do what the statute directs me to do, which is to

13 expedite a hearing in the challenges to the plan that's

14 been adopted and that's currently on the table.

15 I agree that if there is an intention at some point

16 to substitute some other plan, this is really a wasted

17 effort, and our people are spending a lot of money and

18 a lot of time, but I'm without an option so far as I

19 view it right now.

20 So I think getting back to the matter that's at

21 hand here, which is whether or not the mediated plan is

22 appropriately part of this proceeding, Mr. Green has

23 indicated now, again I realize nobody has directly

24 researched it, but he does not want to waive his position

25 that that document was confidential because it was

1 developed during the settlement negotiations.

2 So in view of that position what is your feeling

3 as to whether or not it's appropriate to even have it

4 attached as an exhibit?

5 MR. EARL: We think it's appropriate as to that

6 issue, Mr. Hearing Officer, because it's a repudiation.

7 It would not be...

8 HEARING OFFICER: But if it came up in the context

9 of settlement negotiations that were not fruitful, in

10 other words there was no settlement entered as a result

11 of that mediation, isn't it just like if you have a tort

12 case and the parties discuss how much they're going to

13 settle for, and they don't reach a settlement, so you

14 can't use the fact that they threw out some numbers as

15 I mentioned of liability in terms of the trial when you

16 finally get there?

17 MR. EARL: Well, I do believe there is a common law

18 exception in terms of admissibility for documents as

19 repudiations of prior actions, and that's how we view

20 this mediated plan.

21 HEARING OFFICER: But if the mediated plan was

22 never adopted, how can it be a repudiation?

23 MR. EARL: It was prepared. It was agreed to by

24 representatives of the District. It has not been

25 formally adopted by the Governing Board. It has not

1 gone through the statutory process, and it has not gone

2 through the commenting process with agencies, which is

3 why I say if it does we are looking at a much longer

4 process if those changes are made and if it's modified.

5 HEARING OFFICER: Mr. Reid, did you have

6 something you wanted to add?

7 MR. REID: I'm just, we keep coming back to the

8 same issue. This is the straw man that's put up again

9 so we can knock it down again.

10 At this point the Governing Board has taken an

11 action, and until the Governing Board takes another

12 action we only have the one action that they have taken,

13 and we specifically discussed this at the hearing before

14 last, and I understand that in some of the document

15 requests there has been a request for documents

16 relating to the depositions or the subject matter

17 listing the mediated plan.

18 Until the, only the Board can adopt the SWIM plan.

19 Lieutenant Governor McKay, with all respect, can't,

20 and Mr. McVicker can't, and so if they are going to

21 claim because of something Mr. McKay said at a Board

22 meeting, I missed the point entirely.

23 And we just keep, they keep bringing it up, and

24 then they say, "But I'm telling you," and there are

25 these veiled threats that we are dragging people through

1 things and costing them money.

2 There's an easy remedy. If they are sure the

3 mediated plan is going to be the one they can always

4 drop this proceeding. They filed the proceeding.

5 We just keep coming back to this every time.

6 All I can say is this is the SWIM plan that was

7 adopted, and nothing else has happened, and I don't

8 know why we keep having to come back every time.

9 HEARING OFFICER: What's the position of the

10 federal government with respect to confidentiality?

11 MR. REID: I think it certainly came out of

12 settlement. I haven't thought about it specifically

13 other than just generically.

14 It certainly was part of settlement discussions,

15 and I don't know of any common law exception to settlement

16 called repudiation.

17 I mean, I think it's exactly what you say. Any time

18 if you're asking for "X" dollars and you offer to settle

19 for "Y" dollars, I guess you could say that's a

20 repudiation of your "X" dollar demand that you previously

21 made, but more importantly as you point out perhaps

22 in some legal action when you're talking about action of

23 a body here, the Board, that hasn't happened.

24 MS. PONZOLI: We have a position. It is getting to

25 be a rare day where I will agree with Mr. Green and

1 Mr. Earl. I agree with Mr. Green that it is confidential,

2 and that was throughout the settlement discussions.

3 The United States took the settlement position that they

4 are confidential.

5 I agree with Mr. Earl that as far as I'm concerned

6 it's out, and I think it is out. We are here on the '91

7 SWIM plan. Those settlement discussions failed. The

8 people on each side of the table would have loved to

9 have seen them succeed. They failed. I don't think

10 they can be used as a repudiation, I think they are an

11 admission that they actually thought certain things would

12 work.

13 They are not part of this proceeding. We have

14 agreed to litigate on what the Board has put before us.

15 I think there's a lot of benefit to litigating what

16 is before us, but there are issues of fact that were

17 established that will push things forward in an

18 expeditious way, however they end up.

19 I think there is a very great benefit to that,

20 but I think they are confidential.

21 I have been asked for all of my settlement

22 documents from various experts. I intend to not produce

23 them. I think it's wholly inappropriate.

24 HEARING OFFICER: Mr. Killinger, do you have anything

25 you wanted to add?

1 MR. KILLINGER: I agree with what everybody said.

2 I think it is confidential, and so are all the

3 documents associated with it.

4 I don't think they should be requested as a matter

5 of good faith, so we don't have to go through a listing

6 of every single one of those documents on an exception

7 or privilege list. It could be a categorical list to

8 request those generated during the settlement process.

9 MS. PONZOLI: I agree.

10 MR. EARL: Mr. Hearing Officer, if I may be

11 heard on that, that is to make this, we have one thing

12 that's called a mediated technical plan which arose

13 after the settlement, and there is a whole separate

14 issue here which was in the first pleadings, and as

15 you recall it relates back to the secret settlement

16 agreement between the state and federal government,

17 and that consent decree that they generated that

18 mandated that these provisions that are now in the '91

19 SWIM plan be in there and be taken verbatim out of

20 the consent decree and put into this document.

21 Those are very much at issue. Anything relating

22 to that settlement is very much at issue in this.

23 MR. REID: We violently disagree with that, by the

24 way.

25 HEARING OFFICER: Okay, I figured that was going to

1 come to a head at some point, but I thought Mr.

2 Killinger was simply talking about settlement negotiations

3 with respect to the technical mediated plan; is that

4 right?

5 MR. KILLINGER: Yes, but similar settlement

6 documents are inappropriate.

7 MR. FITZGERALD: You recall you ruled they could

8 require in depositions to the extent of the derivation

9 of the numbers, and that was it, and we have taken that

10 ruling and acted upon it.

11 MR. REID: But not people sneaking around and doing

12 bad things. You excluded that.

13 MR. FITZGERALD: Yes. That's another issue.

14 HEARING OFFICER: That is another issue that I think

15 we need to deal with. We need to deal first with the

16 confidential technical mediated plan and all the issues

17 related to that, and if there are some ongoing disputes

18 regarding discovery into the settlement litigation

19 we will have to revisit that. There is no pending

20 motion. There is nothing before me with respect to

21 those issues right now.

22 We have talked about those at length in prior

23 hearings, and before I would try to categorize or

24 characterize exactly what I said I want to go back and

25 look at it again and try to remember the context in which

1 it came up.

2 MR. REID: And we do have I think one of our

3 motions to strike which actually covers that, so there

4 is a motion in the record.

5 MS. PONZOLI: We will intend to keep the two

6 issues separate and discuss today the technical mediated

7 plan settlement. That was our guideline here.

8 MR. GREEN: I guess I started it, so I think I

9 would like to comment on a couple of things that have

10 been said.

11 Number one, we think the plan we are litigating

12 is technically flawed and indefensible. We think the

13 mediated one is even more so. I want the record to

14 be clear on that.

15 We don't care which one. They are bad issues.

16 Number two, as I understood the people going around

17 doing bad things issue, to the extent the settlement

18 agreement dictated the legal policy or factual conclusions

19 of the SWIM plan, which I understand, it's our

20 understanding of the numbers, just for the record Your

21 Honor will have to tell me if I've erred.

22 The third point, the mediated technical documents

23 may have, they were done sort of in the open, with the

24 doors open in one sense, and in the other sense

25 is it an admission, or is it a concession? I would

1 argue, and the reason we filed our motion is we have a

2 very different view from Mr. Earl on the plan obviously.

3 He thinks it cures some defects of this plan, in the

4 original plan.

5 We think it's still indefensible, and we are

6 anxious to get to hearing on either plan as soon as

7 possible, because we're going to prove that. Thank you.

8 MR. FITZGERALD: Is that a stipulation on the

9 burden of proof?

10 MR. EARL: I apologize. I just did not want the

11 correct statements of counsel to be misinterpreted as

12 going into another issue. I apologize.

13 HEARING OFFICER: Okay. Again with respect to the

14 settlement issue, there's nothing pending before me

15 now, and I'm not going to get into it.

16 MR. GREEN: Right.

17 HEARING OFFICER: If there is a dispute over it,

18 then bring it up through a motion, and I will go

19 back and try to make sure I'm consistent in the way I

20 approach it.

21 We talked about it in length earlier, and it

22 was very extensively briefed, and I thought I laid out

23 what my thinking was on those particular issues, and

24 if there are any disputes we will have to take those up

25 separately.

1 Getting back to the technical mediated plan,

2 although it was ont an issue that was specifically

3 raised with the motion to strike, based upon what

4 I'm hearing from them today there are several

5 parties, including the Cooperative as well as the

6 federal government, who are not waiving the

7 confidentiality aspect of the document, because it

8 was developed within the context of the settlement

9 negotiations.

10 I don't think anybody has looked specifically at

11 the law, but I think the safest course to go would

12 before me to refrain from any review of that technical

13 mediated plan.

14 I have obviously read the allegations in the

15 amended petition that was filed by the League. I

16 don't think there is any great prejudice with respect

17 to that, since I have known all along that there have

18 been efforts to develop that plan, but I will not

19 review that technical mediated plan any further until

20 either there is an agreement between all parties

21 that the confidentiality aspect has been waived, or

22 somebody demonstrates to me that it does not fit

23 within the protection of settlement negotiations as

24 I off the top of my head currently interpret it to fit.

25 So in that regard I think we also have to

1 come to some understanding as to how we are going to

2 approach discovery with respect to that technical

3 mediated plan.

4 And likewise until someone demonstrates to me

5 the contrary, I believe that those issues are not

6 appropriate for discovery, because they have arisen

7 within the context of settlement negotiations.

8 If you disagree with that or have particular

9 questions that you think fall outside the scope and

10 seen an answer, file a motion to compel, and we'll

11 take it up that way.

12 But I don't want to see a lot of time wasted on

13 discovery regarding the development of the technical

14 mediated plan when that's not what's before us now.

15 So I think that takes care of the issues with

16 respect to that plan. the only other aspect of that

17 would be in the context of using it for purposes of

18 cross examination during the hearing in this matter,

19 and that was an issue that was alluded to within the

20 District's motion to strike.

21 At this point I don't see why it's any different

22 than discovery, to be honest with you, but I don't know

23 that I need to reach a conclusion on that right now,

24 but unless someone presents me with some case law or

25 something to convince me otherwise, my impression of the

1 final hearing would be to treat it the same way as

2 a discovery question, that it is confidential and

3 privileged, and it's not totally appropriate to get into

4 it.

5 So if you try to get into it at the final hearing,

6 you will need to address that beforehand and convince

7 me otherwise.

8 MR. GREEN: Thank you.

9 HEARING OFFICER: Anything else with respect

10 to that at this time? Okay. That was the easy one.

11 All right, I think the next issue we have to deal

12 with related to the witness lists and the statements of

13 issues that various parties have filed.

14 Probably the best way to approach is to let me

15 go through exactly what I have received at this point

16 and the documents that I have reviewed.

17 Sometimes it gets filed, and it doesn't get to me

18 for a day or two, so it may be that there are some

19 things that are in the Clerk's Office or in my

20 mailbox, so if you come across some different ones,

21 then bring those to my attention, just so I'll know

22 there is something else out there.

23 But at this point I have received an amended

24 petition by the Cooperative, an amended petition

25 filed by the League, I have received a joint overview

1 of the statutory compliance that was filed on behalf of

2 respondents, I have received the League's disclosure

3 of expert and fact witnesses, the respondent and

4 intervenors' first and second witness lists, the

5 Cooperative's statement of ultimate facts, the League's

6 pretrial disclosure of issues and witnesses, and the

7 respondent and intervenors' statements of issues

8 and witnesses, the Cooperative's designation of

9 expert and fact witnesses, and a response to the

10 respondents' overview that was filed on behalf of the

11 League.

12 (WHEREUPON, MR. LODGE LEFT THE HEARING ROOM.)

13 Are there any documents that I have missed in this

14 so far? Did anybody else file anything I haven't got?

15 MR. EARL: For convenience only we have, after

16 talking with Mr. Hoffman and Mr. Green we have combined

17 one list, Mr. Hearing Officer, I have given it to

18 counsel, of all of the petitioners' witnesses.

19 MR. REID: Could I just ask a question? The

20 dotted line...

21 MR. EARL: That's where the break is...

22 MR. REID: Among the petitioners?

23 MR. EARL: Yes.

24 MR. REID: Okay. So 1 through 21 would be

25 the League witnesses, and 22 through 36 would be the

1 the Coop's witnesses and so forth?

2 MR. EARL: 37 and 38, FFE.

3 MR. REID: Thank you.

4 MR. GREEN: There may be one jointly listed.

5 MR. EARL: There was a typo in the one that was

6 mailed. This is the corrected copy.

7 HEARING OFFICER: Okay. Let's see if we can take

8 up the issue with respect to the witness list first.

9 As we discussed at the last hearing, there seemed

10 to be a difference in approach between those parties

11 aligned in support of the plan and those parties

12 aligned against it as to how they approached the last

13 exercise in terms of the 30 witnesses, etcetera.

14 As a consequence of that I guess that's why all

15 these amended witness lists and the first and second and

16 third list and all that have been filed, and I don't

17 know where that ultimately comes out.

18 I hope it has served to get a handle on who the

19 witnesses are and narrow perhaps the number of

20 witnesses, etcetera, but those are some of the things

21 we need to talk about today.

22 From the last hearing there were a couple of

23 things that I'm curious as to what has developed. We

24 talked about trying to reach some stipulations with

25 respect to foundation witnesses and standing witnesses

1 in particular.

2 I don't know whether there has been any effort

3 or any success in that regard and how that may impact

4 upon the most recent witness lists that have been

5 submitted.

6 MR. EARL: Mr. Menton, we have sent five proposed

7 stipulations to counsel. I have heard from Mr.

8 Nettleton, and he said he hasn't had time to go

9 through them.

10 We submitted them on issues of standing, as we

11 mentioned, and on some basic allegations in the

12 complaints, on I believe Dr. Lefohn, Dr. Krupa,

13 and Mr. Waller. We are preparing others and hope to

14 work through that. There has been no agreement yet.

15 HEARING OFFICER: So at this point your witness

16 list includes all the foundation witnesses you

17 indicated may be, or it's possible could be eliminated

18 through stipulations down the line? So the list

19 could be narrowed further as a result of stipulations?

20 MR. EARL: And in fact Dr. Lefohn and Dr. Krupa

21 were moved up to the first witness list, because

22 Ms. Ponzoli declined at the last hearing to agree to,

23 they are the ones who did the precipitation to phosphorus,

24 they have been moved up, but we are still hopeful we can

25 resolve that.

1 MR. HOFFMAN: Ken Hoffman for the Fruit and

2 Vegetable Association. The witnesses that are shown

3 in the document Mr. Earl referred to are all of the

4 witnesses, only includes those witnesses we would

5 call, assuming standing is agreed to.

6 I assumed that based on the oral representations

7 at the last meeting, and I haven't heard disagreement,

8 and that's our assumption.

9 If we have to have standing witnesses we need to

10 add back on some.

11 From my clients' view that's the stripped down

12 list.

13 HEARING OFFICER: Okay, just so I'm clear,

14 Mr. Hoffman, I don't think that I received anything

15 from you other than what's within that in terms of

16 your witnesses?

17 MR. HOFFMAN: Correct.

18 HEARING OFFICER: But as I understand, on

19 page three of the document Mr. Earl just handed me,

20 number 37 and 38 are the two witnesses now you're

21 listing, assuming that standing witnesses can be

22 eliminated as a result of stipulations?

23 MR. HOFFMAN: Correct.

24 HEARING OFFICER: And if they can't be, then you

25 may need to add some witnesses to address the standing

1 issues?

2 MR. HOFFMAN: Correct.

3 HEARING OFFICER: Okay. But for Mr. Earl and

4 Mr. Green the standing witnesses are listed on here

5 until such time as you are able to determine that

6 there are stipulations that eliminate them, is that

7 right?

8 MR. EARL: Yes, sir, and as I mentioned last time

9 two of those witnesses may be necessary to testify about

10 other things dealing with the EAA practices beyond

11 standing.

12 MR. REID: So I understand, you will tell us

13 which of your witnesses you consider to be foundation

14 or standing witnesses and give us a chance to agree

15 or not?

16 MR. EARL: They are all listed. That's list

17 number two, Counsel.

18 MR. REID: Oh, I'm sorry. Let me find it.

19 I can assume that 1 through 22 on petitioners'

20 consolidated list number two are all standing or

21 foundation witnesses? I guess then I just need to

22 know for what, I mean, for what?

23 MR. EARL: Well, some of these individuals on

24 list number one would also be obviously presented as

25 foundation.

1 MR. REID: I was trying to find out just as a

2 process if you were going to tell us which ones you

3 believe are foundation or standing only, and then

4 we'll either agree or we won't agree.

5 MR. EARL: Mr. Menton, I think that's what the

6 list number two was for. That's what it was for.

7 MR. REID: It didn't say that. I'm just asking.

8 I'm not arguing.

9 HEARING OFFICER: List number two had a different

10 definition at the last hearing than what we have now.

11 MR. REID: Now I understand. List number two is

12 all foundation or standing.

13 MS. PONZOLI: For them, not us.

14 MR. BURGESS: That's not true.

15 MR. FITZGERALD: Can we have one version from

16 Column C?

17 MR. REID: To go back to what I said to start

18 with, if they will just tell us which ones...

19 MR. EARL: Mr. Burgess points out properly that

20 some of these, of course, are rebuttal witnesses, too.

21 The Hearing Officer asked us to list those.

22 MR. REID: I think the way of doing it is the

23 correct way. He's giving us proposed stipulations, and

24 we'll respond.

25 MR. BURGESS: We expect to offer proposed

1 stipulations to the 44 secondary witnesses.

2 MR. EARL: We misunderstood, Mr. Hearing Officer.

3 We understood that they were then coming with their

4 foundation witnesses. We now are told I believe now

5 their list number two is not foundation witnesses.

6 MR. REID: No, it's not.

7 HEARING OFFICER: Before we get to this and confuse

8 some people further, let's make sure we're working from

9 the same list here.

10 The first list, list number one on this document

11 that Mr. Earl handed me is a listing of all of the

12 petitioners' witnesses that they intend to call at the

13 hearing, with the only exception being Mr. Hoffman's

14 standing witnesses if they are necessary, correct?

15 List number two includes an additional list of

16 witnesses who may be necessary if stipulations regarding

17 standing and some of the foundational documents cannot

18 be reached, as well as some rebuttal witnesses, as Mr.

19 Burgess has pointed out, so that potentially a good

20 portion of list number two may be eliminated through

21 stipulations, but there may still be some that will be

22 called as rebuttal witnesses if necessary, and we

23 will have to see how that develops.

24 MR. REID: What's list number three?

25 MR. EARL: With one exception, Mr. Menton, and

1 that is in addition, it doesn't just relate back

2 to documents, but field work and testing and other

3 things, things like survey work done by the individuals.

4 When we used foundation we used it broadly, so

5 we hope we will be able to stipulate and not put two

6 surveyors on, or Mr. Waller and why he located the

7 water measuring stations and so on and the results of

8 his conclusions, his report on that. That's the

9 type we're talking about.

10 MR. REID: And list number three would be what?

11 HEARING OFFICER: List number three as I understand

12 it from the last hearing are those witnesses who are

13 not on their witness list but those who they do with to

14 pursue discovery from.

15 As I recall from the hearing we had, is that

16 right...

17 MR. REID: This is a new list number three, I

18 think.

19 MR. EARL: This is, Mr. Green provided it. I

20 guess he should explain what it is.

21 MR. GREEN: Well, we thought you asked for this,

22 Mr. Menton, when we talked about Cole, Haith, Herbert,

23 and Missimer, and I didn't catch all that. I apologize.

24 It was my understanding you said folks like that

25 ought to go to list three. We do not intend to call

1 them. They are doing work currently. We would only

2 call them if something occurred in the hearing that we

3 felt we had to turn them on to do rebuttal testimony.

4 They have been deposed. We put them on list three.

5 I mean, we could drop them, but out of an abundance of

6 caution we said, "Well, here they are."

7 HEARING OFFICER: Okay. If something comes up you

8 obviously are going to let us know, well enough in

9 advance, so we will be able to prepare accordingly...

10 MR. GREEN: Yes, sir.

11 HEARING OFFICER: ...and there will be an

12 explanation as to why they are suddenly necessary and

13 were not necessary before?

14 MR. GREEN: Yes, sir. That's our understanding.

15 And then the adverse witnesses are witnesses that

16 Mr. Earl or we might call but, at hearing, we're also

17 deposing.

18 MR. REID: None of those would be foundation or

19 standing witnesses, the adverse witness list?

20 MR. EARL: The adverse witnesses may well be.

21 MR. HYDE: They may well be foundation witnesses.

22 MR. REID: Okay, so again you'll let us know,

23 and we'll see if we can stipulate to it.

24 MR. EARL: I don't think we will be able to.

25 Some of these will be part of our case in chief.

1 Others may or may not be.

2 MR. REID: All I was suggesting was if there are

3 witnesses that are solely foundation or standing, I

4 didn't mean to go beyond that, that you'll let us

5 know, and we'll see if we can stipulate.

6 MR. EARL: I assume to be reciprocal you will

7 do that?

8 MR. REID: Sure, we will.

9 MR. GREEN: And, Mr. Menton, with these folks,

10 discovery is ongoing. We have been busy beavers the

11 last week or two. It may be we will all add more

12 adverse witnesses. We have been learning a lot of

13 interesting things.

14 MR. REID: What?

15 HEARING OFFICER: Okay. That brings up two other

16 points that sort of carry over from last time, and the

17 first has to do with the generic witnesses. I assume

18 most of those have now been identified and placed on

19 the appropriate list. The only one I saw in looking

20 through here is number...

21 MR. GREEN: Number 35 on page three?

22 HEARING OFFICER: Yes. 36, manufacturers'

23 representative on microfiltration.

24 MR. GREEN: Would you like to hear about that?

25 HEARING OFFICER: Yes.

1 (WHEREUPON, MR. HOFFMAN LEFT THE HEARING ROOM.)

2 MR. GREEN: Our client has, as I think everyone here

3 knows, has sponsored research in the EAA on a phosphorus

4 removal technology which also removes mercury, called

5 microfiltration.

6 We want to bring that evidence to the hearing, and

7 we may even be asking you for permission to

8 demonstrate the technology in the hearing, if we

9 can do it, and we, at this point we are trying to find

10 a manufacturer's representative to run the device.

11 It's not expert testimony. It's someone who could

12 give you a demonstration. We are doing that as quickly

13 as possible.

14 But this is not the kind of witness that someone

15 would depose for two weeks. It's simply a demonstration

16 type witness.

17 HEARING OFFICER: So the main witnesses you have on

18 microfiltration are listed above?

19 MR. GREEN: Yes, sir, Kevin Boehmer, and

20 Dr. Earl Shannon. Numbers have changed. Boehmer and

21 Shannon ar both with CH2M Hill. They are now 35 and

22 27.

23 HEARING OFFICER: Okay. When do you expect to

24 have the manufacturer's representative identified?

25 MR. GREEN: Like in the next two to three days.

1 We have been in depositions, and frankly I had hoped

2 by today to have had that person identified.

3 HEARING OFFICER: Okay, I think by next week let's

4 have him identified and have him specifically listed.

5 I don't want to have any new witnesses popping up

6 at the last minute that haven't been fully disclosed

7 with an opportunity to depose, if they choose to do

8 so.

9 That brings us to the question of additional

10 adverse witnesses, others that may be identified in

11 discovery.

12 You know, at this point I would think that

13 everybody has a pretty good idea as to who they need

14 to call. If you've got some more you want to add, I

15 mean, when will we know?

16 MR. EARL: May I give you an example? There is

17 this federal science subgroup, federal objective study,

18 that comes to a lot of major conclusions regarding the

19 over-riding impacts of hydro period on the Everglades

20 ecosystem.

21 I took the first deposition in that last week,

22 Mr. Hearing Officer, and identified several people,

23 including one we had not set down for deposition at

24 the Water Management District, Mr. Unsel, who actually

25 drafted that report. He's got to be set down.

1 In addition Mr. Scheidt, who we had been previously

2 deposing in this case, I learned was an author of one

3 of the sections of that report and is their expert

4 on Water Conservation Areas, so he needs to be deposed

5 on that. He was not deposed on the conclusions in the

6 report.

7 Those are two examples. He's already on the list.

8 Mr. Unsel is an example.

9 If he provides the testimony I believe he will,

10 I may have to add him.

11 We are dealing again with agencies with

12 hundreds of employees, hundreds and hundreds of

13 employees, Fish and Wildlife, South Florida Water

14 Management District, the DEP, the National Park Service,

15 and as I told you the federal study which just came out

16 January 15th is a major development. They admit for the

17 first time that hydro period is a major impact on

18 the Everglades ecosystem, and we've got to pursue that.

19 That is one specific example where we may have other

20 witnesses.

21 HEARING OFFICER: Well, as I have said several

22 times, we can't lose sight of what is at issue in this

23 particular proceeding, which is the March 1st, 1992,

24 SWIM plan or March whatever, 1992, SWIM plan. That's

25 what I'm going to have to write my recommended order on.

1 It's not going to be on the federal task force report,

2 etcetera.

3 So, you know, I didn't, as I indicated, I will give

4 you some leeway to explore some of those issues for

5 purposes of any inconsistent statements, etcetera, whatever

6 you may need, but I don't want to get into a position

7 where we're trying the federal task force report as part

8 of the litigation in this.

9 MR. EARL: No, sir. If I may, I didn't make myself

10 clear.

11 The importance of the federal task force to the

12 SWIM plan at issue in this case is the primary legislative

13 mandate under 373 is the SWIM has to do two

14 things. It has to cure water quality problems, and

15 it has to have strategies to cure hydro period,

16 actually restoring the Everglades hydro period, is what

17 the Legislature said.

18 We have told them from day one in letters,

19 appearances before the Governing Board, that you can't

20 take one little issue, which is a big issue, which is

21 water quality, and pull it out of context and deal with

22 it, which they are trying to do in the SWIM plan, and

23 they have always said, "We can do that in isolation,

24 and it's no problem," and that's what they did with the

25 SWIM plan.

1 This federal report is so important because some

2 of the very same people who were involved in that process

3 now say and admit in there that the dominant impact

4 on this ecosystem, sometimes over-riding impact,

5 is the hydro period that we're talking about.

6 Water made this system, and you have to change the

7 water to change the water problems in the Everglades.

8 HEARING OFFICER: Mr. Earl, I understand the point

9 you're making, but I'm trying to say that for purposes

10 of this proceeding and the recommended order that I have

11 to write, I think you have to keep in mind how you

12 bring that within this framework, and as I said, you

13 know, if there are witnesses who prepared the SWIM

14 plan at issue in this case and also served on the task

15 force, then I think you can explore some of those

16 issues, but when you talk about witnesses who may or may

17 now know anything about this SWIM plan I just don't know

18 how much we need to get into that.

19 I don't know how you're going to tie it back to the

20 issues in this case.

21 MR. EARL: It ties back to the fact, and we will

22 brief it, but it ties back to the fact that hydro period

23 is the dominant issue, and these are admissions against

24 interest.

25 MS. PONZOLI: Mr. Menton, I really think I can

1 understand Mr. Earl is focused on this and has been for

2 six years now, and he's got ahold of something, and

3 he's not going to let go.

4 We have given him one deposition. It was pointed

5 out to him in that deposition that that committee convened

6 and assumed that the mediated technical plan would be

7 in place if water quality issues were addressed, and

8 they were looking at hydro period.

9 I think the proceed down this rabbit trail is a

10 waste of time. I can show you a deposition schedule

11 that has days where up to seven Ph.D. witnesses are

12 being deposed at multiple locations for extended periods

13 of time.

14 I think I'm not going to say no to an individual

15 deposition, because one more deposition here or there

16 in this schedule isn't the end of the world. It's the

17 pursuit of this that is a problem and the additions of

18 witnesses.

19 But I'm not going to agree about Mr. Scheidt. He

20 has been deposed before.

21 If you want me to file an affidavit on the federal

22 task force and try to put this to bed I could do that.

23 I think we are wasting time. I think the

24 deposition showed that. I think that Mr. Earl can

25 characterize it any way he wants. The deposition did

1 not show his characterization.

2 HEARING OFFICER: Well, this comes back to some

3 of the things we have talked about before.

4 I'm not going to get into telling the parties

5 how to conduct their discovery so long as it's within

6 the parameters of what discovery is, and that's something

7 that could reasonably lead to evidence that would be

8 admissible at the final hearing.

9 Then I can see where there are some aspects of the

10 task force report as I understand what it is and what

11 it deals with that could be relevant, particularly

12 with respect to witnesses who may have been involved in

13 both, if there are any. I don't even know if there are

14 any.

15 Certainly if there are, then it may be useful to

16 at least inquire as to their role in the task force

17 report and whether the conclusions they reached as

18 a result of that are different than the conclusions

19 they reached in the preparation of the SWIM plan.

20 So that's why I have allowed Mr. Earl some leeway

21 in this regard, but what I said at the hearing before and

22 what I want to reiterate is when we start talking about

23 witnesses who are distantly removed from the SWIM plan

24 that's at issue in this case, I don't know that you are

25 going to be able to tie that into the issues we're

1 going to have to deal with ultimately.

2 I understand your theories about hydro period,

3 but I don't think that you do that by taking federal

4 task force report witnesses whose job may have been

5 totally unrelated to the planning process. You may have

6 your own witnesses who can testify to the conclusions

7 that were reached, and I just don't know how much we

8 need to go off on on some witnesses that weren't

9 involved in the SWIM planning process.

10 That's the point that I was trying to make before

11 and reiterate again today.

12 MR. HYDE: Mr. Menton, I think we may have strayed

13 a little bit from what I perceived the real purpose of

14 this list of adverse witnesses.

15 I think it's real important to remember that the

16 petitioners, and I include the Coop and the fruit and

17 vegetable people, as well as the League in this, are

18 still learning an awful lot about this SWIM plan.

19 We are discovering aspects in the discovery

20 process, and we have come up with what we think are some

21 very good and substantial and for the proponents of the

22 plan some very damning testimony.

23 We trust it will continue during the discovery

24 process, and as it occurs, it may well be appropriate to

25 list one of those people as an adverse witness here.

1 That is the primary purpose for which we make this

2 list available.

3 HEARING OFFICER: Mr. Hyde, I think you brought us

4 back to the point that started all this, and that has

5 to do with listing at the end of other adverse witnesses

6 who may be identified during discovery, and the reason

7 why I brought this up is that I want to make it clear

8 that I'm not going to be amenable to simply adding

9 names on because you heard them during discovery for

10 the first time.

11 I'm going to want to understand before I agree

12 to others being added to this list that they could not

13 reasonably have been discovered beforehand and

14 listed, because I don't want this process to turn into

15 a never ending supplementation of the witness list.

16 The reason we have been going through this exercise

17 is for everybody to get down to the bottom line and

18 list who they intend to call as part of their case.

19 We are far enough along the process where we should have

20 a pretty good grasp on that.

21 But before you go adding new names to this list

22 you are going to need to demonstrate to me the necessity

23 for doing so, and that's the point I want to make.

24 MR. HYDE: I don't think we have any difficulty

25 on that.

1 MR. REID: Could I make a request, and that is you

2 enter an order that stops the listing as o, say,

3 today, the lists that have been filed, with the right

4 to add if good cause can be shown?

5 We are in this never-never land of not knowing what

6 we can do, and it seems to me we need to have a

7 deadline that stops it.

8 I understand there are some people who take the

9 position we're not still operating under the original

10 order that had limitations and cutoffs and all that,

11 but I would suggest that we need a cutoff, and I'm

12 willing to say today, and then if I come up with something

13 later...

14 HEARING OFFICER: That was going to be my bottom

15 line when we finally got to the end of this process,

16 and that is I assumed as a result of the exercises we've

17 been going through, number one, that all known witnesses

18 have been disclosed at this point, and I was going to

19 ask both parties to do what Mr. Earl did here and the

20 respondents have done, to consolidate all their

21 witnesses together and make sure we have them on the

22 list, and there are no additions to this list without

23 coming to me beforehand and telling me.

24 That's what the bottom line out of this process

25 was going to be.

1 MR. GREEN: May I speak to that? We've got a

2 problem, and I want to bring it to your attention,

3 relating to Mr. Scheidt and relates to the respondents in

4 this case. It relates to list number one.

5 Based on our information and belief, employees of

6 the federal government, the Water Management District,

7 and DEP have taken steps to force our mercury experts out

8 of this case, to conflict them out.

9 Basically any expert that is world class is going

10 to have contracts with different folks. I will not go

11 into details, because maybe life is like that. I'm not

12 implying that anyone has done anything improper. I hope

13 not. It may turn out they have. We hope we will find

14 out.

15 What that means is Mr. Gherini and Dr. Pollman

16 may be forced out of this case because of efforts taken

17 by respondents' employees to get them out of the case.

18 I would not be too concerned about that, except that

19 Dr. Pollman has been working on this case since 1989.

20 He's our prime technical coordinator. I would not be

21 too concerned about it except that mercury is a big

22 issue, and you remember I vociferously resisted the

23 mercury issue when we first started, because I thought

24 it was irrelevant.

25 The United States went into private property to do

1 sampling, and we resisted that, and we wasted a lot of

2 your time talking about protective orders and so forth.

3 They had a theory that phosphorus enrichment

4 basically made the Everglades' mercury problem worse, and

5 Dr. Jones testified to you as a part of that entry

6 effort that the United States was seeking. And he

7 said he was going to have his hypothesis tested out.

8 We learned in his deposition he hasn't been asked

9 to analyze his data. When I say analyze, I mean

10 interpret it. He's got data.

11 We don't have all his data yet. We tried to

12 have a simultaneous exchange, and we still haven't

13 gotten it all. We don't know why.

14 Again I'm not impugning anybody's integrity,

15 but we don't have it, and the deposition is over.

16 Hopefully we will be able to finish it.

17 But we are very concerned, because the best judgment

18 of the people we've been able to bring to bear on this

19 case is that the mercury problem in the Everglades

20 has totally been misdiagnosed, that the SWIM plan will

21 make it worse. That's our best judgment based on

22 what we have seen.

23 And at the same time we find that our mercury

24 experts are being conflicted out of the case by the

25 government. That causes us grave concerns.

1 MR. REID: Could we find out how we are conflicting

2 them out? I mean, I haven't seen any pleadings on

3 this.

4 MS. PONZOLI: Some of us don't know what you're

5 talking about, so your insinuations and innuendoes

6 are...

7 MR. GREEN: No, no, no. Wait a minute.

8 HEARING OFFICER: Let's stop for a second. I

9 think that there are some underlying...

10 MR. GREEN: Here's, let me tell you where I'm

11 getting. We may have to find two mercury experts.

12 I want to protect my clients' rights to due process.

13 We are pushed as far as we can in this trial, and

14 we understand that. That's your job, Your Honor.

15 We're trying our best to get there, with everyone

16 else.

17 But we're saying right now we have cause for

18 replacing Dr. Pollman and Mr. Gherini, because they are

19 conflicted out in the last week or two.

20 MS. PONZOLI: How are they conflicted out,

21 Mr. Green? I think you need to be explicit and fair

22 with all of us. Tell us what the conflict is.

23 HEARING OFFICER: I think they are entitled to know

24 that at some point, because as I have indicated all

25 along if for some reason there has to be a substitution

1 of witnesses, if one of these witnesses drops dead

2 tomorrow or something and you need to substitute,

3 then that's fine, and I will not have a problem with

4 that, but I am going to want to know the reasons

5 before I will allow substitution.

6 MR. GREEN: Okay. Well, what I know at this

7 point is that Mr. Jerry Stober, Dr. Tom Atkeson of DEP,

8 Jerry Stober of EPA, Larry Fink of the Water Management

9 District are involved in other projects involving

10 mercury in Florida, and I am told by sources that I

11 believe are reliable that...

12 MS. PONZOLI: Who are the sources? You need to be

13 candid here.

14 MR. GREEN: I'm not being cross examined,

15 Ms. Ponzoli. I would appreciate it if you would stop

16 interrupting me.

17 HEARING OFFICER: Let him finish.

18 MR. GREEN: I am trying my best.

19 HEARING OFFICER: Let's have him have his say, and

20 then I'll make a judgment as to whether we need more

21 information at this time.

22 I'm again not sure it's ripe for today. If you

23 find yourself in a situation where you need to

24 substitute witnesses, I have always left that option

25 open, but I am not going to do it simply on the face of

1 a motion. I will want to know why.

2 MR. GREEN: And that was my understanding, because

3 I didn't want to wait until later.

4 Dr. Scheidt, who Ms. Ponzoli has said she would

5 resist the deposition of, is a person who was involved

6 in the E-map study of the Environmental Protection

7 Agency data we just got in the past seven or eight

8 days, which we believe confirms our theory.

9 That is a very important deposition. He's never

10 been deposed on mercury. We would urge you to rule on

11 that if necessary today, so we can get on with that

12 deposition.

13 Those are my only two point, Your Honor. Pollman

14 and Gherini need substitutes on mercury, and we do

15 need to get to Mr. Scheidt.

16 MS. PONZOLI: May I speak?

17 (WHEREUPON, MR. HOFFMAN ENTERED THE HEARING ROOM.)

18 HEARING OFFICER: Let me just make sure I understand.

19 Are you telling me now that you need a substitute for

20 Pollman and Gherini...

21 MR. GREEN: On mercury.

22 HEARING OFFICER: ...or are you still not clear

23 as to whether or not they will be conflicted out or

24 not?

25 MR. GREEN: They are conflicted out.

1 MR. FITZGERALD: Mr. Hearing Officer, we have

2 Dr. Pollman set for deposition all next week. Is he

3 only being pulled on mercury, or is he being pulled on

4 mercury uptake and every other matter for which he has

5 been previously designated by the Coop? We need to know

6 that. We are starting a deposition Monday morning.

7 MS. PONZOLI: We would still want to do him on

8 mercury.

9 MR. GREEN: I think you should. He'll tell the

10 truth.

11 MS. PONZOLI: Dr. Jones told the truth.

12 MR. GREEN: Did I say he wasn't telling the

13 truth, Ms. Ponzoli?

14 HEARING OFFICER: Come on. We don't need this.

15 I'm not clear on the answer to that. Are they

16 withdrawn for all purposes or simply on mercury issues?

17 MR. GREEN: Mr. Gherini is out of the case on

18 mercury. Dr. Pollman it is my understanding is out

19 of the case on all issues, and it's just a question

20 of transition.

21 HEARING OFFICER: So that the deposition scheduled

22 for Dr. Pollman next week will not go forward?

23 MR. GREEN: I think it should go forward. His

24 work, he will have done work we will introduce in

25 evidence one way or the other, yes, sir.

1 HEARING OFFICER: Okay. So you are saying he

2 will not be called live as a witness, but you are going

3 to use his work?

4 MR. GREEN: Well, he hasn't, yes, sir, he said a lot

5 of his work is complete on phosphorus, and to the extent

6 that he's been allowed to formulate opinions on mercury

7 up to this time we reserve the right to call him, but

8 we need an interpretive expert on mercury, and we have

9 been denied that because of conflicts.

10 HEARING OFFICER: Okay. I'm having a hard time

11 understanding what you're saying, Mr. Green.

12 Are you saying he's been withdrawn as a witness,

13 but you're still going to use some of his work, especially

14 on phosphorus and even mercury? How are you going to

15 get his work in if he's not going to testify? Will you

16 be looking for a stipulation?

17 MR. GREEN: We will subpoena him if necessary.

18 Let me try again.

19 HEARING OFFICER: Okay.

20 MR. GREEN: It's hard for me to explain, because

21 we've been involved in this for a long time.

22 On phosphorus, most of his work is completed. I

23 hope it will be completed by next week, and he'll be

24 fully deposed on it.

25 He was to interpret mercury results of the entry

1 that's just been completed a week or two ago.

2 HEARING OFFICER: The ENP?

3 MR. GREEN: ENR and the Holey land and

4 Water Conservation Area 2-A. Because of a concern about

5 conflicts raised by employees of the Department who

6 I mentioned, and I'm not, please don't misunderstand

7 me, I'm not trying to impugn anyone's motives or

8 anything else, but a conflict was raised. He said, "I

9 can't do mercury." I filed a new witness stipulation

10 that said Mr. Gherini would be doing mercury. Now

11 Mr. Gherini has been conflicted out of mercury, on

12 interpreting the mercury data, so we need someone to

13 interpret the mercury data.

14 And to the extent there is any further work,

15 rebuttal work or response to discovery on phosphorus,

16 we need another person.

17 HEARING OFFICER: All right. Is Mr. Pollman

18 still going to testify on phosphorus research?

19 MR. GREEN: Yes, sir.

20 MR. REID: I thought you said he is out on

21 everything?

22 MR. GREEN: He's out of any further work, but his

23 testimony will come into this hearing whether it's

24 voluntary or subpoenaed. It isn't all of it.

25 He's been in this case for a year and a half, two

1 and a half years, however long it is.

2 MR. FITZGERALD: I'm unclear on something, and

3 it's probably a reflection of my ignorance, but

4 as I recall Mr. Gherini is not based or living in any

5 of the areas that would fall within the reach of the

6 subpoena rule for this proceeding, so how is he

7 involuntarily dragged in to testify?

8 MR. GREEN: We're talking about Pollman.

9 HEARING OFFICER: Anybody can be subpoenaed for a

10 deposition.

11 MR. GREEN: Right.

12 MR. FITZGERALD: I thought he was in Atlanta. I'm

13 talking about testimony at trial. He said he's going

14 to have his testimony. He said he's conflicted. Of

15 course, obviously he wants it both ways. Now we're

16 hearing this Friday afternoon.

17 The mercury materials or the people he's talking

18 about from the agencies, and I don't know what their

19 involvement is in this or what we'll hear at hearing,

20 but I know certainly Mr. Scheidt at EPA, and the EPA work

21 that is being done has been done on mercury and was

22 something Mr. Green cited you well over a year ago,

23 the fact they were doing the study. I'm having a little

24 trouble getting this all together in a time frame

25 that makes sense.

1 I don't understand if Mr. Pollman is out because of

2 a conflict how he gets dragged in as a witness at

3 hearing and how that impacts what we do next week.

4 MS. PONZOLI: May I address the mercury issue?

5 He raised it first.

6 If I had my mercury case ready to present to you,

7 I would present it to you, because it is a very

8 important case in Florida, and it is linked in our view

9 to phosphorus, and our witness said so for two days.

10 We did not have that case ready for you. It is

11 not ready. Massive amounts of research are being done

12 on this issue, but I allowed discovery when they asked

13 for my experts' documents, who they knew Dr. Jones was

14 doing work, and I gave them discovery, and if there's

15 a piece here or a piece there that they didn't get that I

16 think they have, I will give it to them again.

17 I just want you to understand, because things

18 have been alluded to that are very important.

19 I have not said that I am presenting an affirmative

20 case on mercury, and yet my mercury sat through two

21 solid days of questioning on every thing he ever had,

22 but I don't have any idea, what I want you to understand

23 is we don't know what their mercury case is, what the

24 misdiagnosis, what the big issue is. They haven't told

25 us.

1 HEARING OFFICER: Well, this is why we need to

2 go through this process, because we need an understanding

3 of exactly what it is that's going to be offered on

4 both sides of the fence here at the final hearing.

5 Dr. Jones testified back when we went through

6 the process of determining whether there would be

7 access to the EAA, he went through some discussion

8 as to what his hypothesis was about the methylization

9 of mercury or phosphorus into mercury, whatever.

10 But at that point in time I was certainly under

11 the impression that that theory could very well come

12 into this case.

13 MS. PONZOLI: And if I had it ready I would give

14 it to you.

15 HEARING OFFICER: If it's not going to be offered,

16 I mean, certainly some time based upon the way

17 Dr. Jones' presentation went at that hearing, I was

18 under that impression, and I would have thought it was

19 ripe for discovery, too.

20 MS. PONZOLI: It was ripe for discovery. Just

21 because something is ripe for discovery, I don't think

22 it means it is ripe for presentation at trial.

23 HEARING OFFICER: Okay. Well, that's fine.

24 That's what I want to get clear your understanding on,

25 because if it is not going to be presented at trial then

1 we need to have that communicated so that I'm aware of

2 it and so that other parties are aware of it, so that

3 they don't have to spend two or three days...

4 MS. PONZOLI: He knew that. It is his issue he

5 is bringing to trial, but he won't tell us what the

6 issue is, how he intends to present mercury at trial,

7 and I have told him repeatedly, but this is important,

8 Mr. Menton, in regard to Mr. Scheidt's deposition,

9 in regard to Mr. Stober's deposition, and in regard to

10 a whole lot of mercury work that he wants to do,

11 tell me where we're heading with this, and I will not

12 resist it.

13 HEARING OFFICER: I have heard some allusions on

14 his part that the establishment of the STAs may

15 actually exacerbate the mercury problem. Exactly

16 how that occurs from a scientific standpoint I don't

17 know, but I have gathered from some of the statements

18 he has made throughout the course of this proceeding

19 that's what he was looking to establish.

20 MR. GREEN: That's correct, Your Honor, and there

21 is an additional element of this case that we basically

22 believe that Dr. Jones' hypothesis is backwards.

23 Based on available information, and we're still

24 taking in data, that if you reduce phosphorus you are

25 going to increase mercury in fish in the Everglades, and

1 if that's true, and I'm not saying it is, but if

2 that's the case, then the best information, the whole

3 plan doesn't make any sense.

4 MS. PONZOLI: Would you tell us which expert has

5 that theory, so we can depose him and have some study?

6 I think that's very important.

7 MR. GREEN: I suggest you talk to Mr. Pollman.

8 MS. PONZOLI: We are deposing him Monday.

9 MR. GREEN: That's right.

10 MR. KILLINGER: Can I jump in? I think there

11 were some statements by certain parties, and I have to

12 object, about people attempting to conflict someone out.

13 I think if someone has a conflict, and I don't

14 know the details of this, but if somebody has a

15 conflict, it's one which exists, and I don't know that

16 it's appropriate to be assigning intent to anybody else

17 about the use of a conflict to accomplish a specific

18 goal. I don't think it's appropriate to allude to it.

19 It may have been recounted that it happened, but it

20 started off...

21 MR. GREEN: I'll accept that clarification. I agree

22 I did. Thank you.

23 HEARING OFFICER: All right, well, let's see where

24 this leaves us. As I understand it then Dr. Pollman

25 is scheduled for deposition next week. Mr. Green, you

1 are still reserving the right to present Dr. Pollman's

2 testimony through subpoena or perhaps through him being

3 called voluntarily on the phosphorus issue, but that

4 he will not testify on the mercury issue? Is that what

5 you're saying?

6 MR. GREEN: He might be subpoenaed on the mercury

7 issue.

8 MS. PONZOLI: Is Dr. Presley your new mercury

9 expert? He was at the deposition.

10 MR. GREEN: We have been trying to find in the lat

11 week and a half a mercury expert, and there are about

12 five in America we think, maybe six.

13 We have talked to Dr. Presley. We have brought him

14 on board. And he has a lot of capabilities in these

15 areas that are important, but we need an expert on

16 mercury cycling, and we had one, and we don't have him

17 any more.

18 HEARING OFFICER: Okay. Well, I think probably

19 the proper way to do this is go back to the idea

20 that the witness list is final. If there are any new

21 names that come up, then we need to bring those up

22 with an explanation as to why, and if one of them, the

23 reasons that he's being substituted for a witness who

24 developed a conflict late in the game, then that may

25 well be an acceptable reason, but we will need to

1 address that at the time it occurs, which should be

2 as soon in the process as possible.

3 MR. GREEN: Thank you