1 STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
2
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 ) _____________________________________________
17
HEARING BEFORE: HONORABLE J. STEPHEN MENTON
18 HEARING OFFICER
19 DATE: WEDNESDAY, MARCH 9, 1994
(10:10 A.M. - 12:02 P.M.)
20
LOCATION: HEARING ROOM 2
21 DESOTO BUILDING
1230 APALACHEE PARKWAY
22 TALLAHASSEE, FLORIDA
23 REPORTED BY: SUE HABERSHAW JOHNSON
CERTIFIED COURT REPORTER
24 REGISTERED PROFESSIONAL REPORTER
NOTARY PUBLIC
25
2
1 APPEARANCES:
2 Representing Petitioners, Sugar Cane Growers
Cooperative of Florida, Roth Farms, Inc.,
3 and Wedgworth Farms, Inc.:
4 WILLIAM H. GREEN, ESQUIRE (telephone)
CAROLYN RAEPPLE, ESQUIRE (telephone)
5 ROBERT P. SMITH, ESQUIRE
Hopping, Boyd, Green & Sams
6 123 South Calhoun Street
P. O. Box 6526
7 Tallahassee, Florida 32314
(904-222-7500)
8
Representing Petitioners, Florida Sugar Cane
9 League, Inc., and United States Sugar
Corporation:
10
WILLIAM L. HYDE, ESQUIRE
11 MARK T. KOBELINSKI, ESQUIRE (telephone)
Earl, Blank, Kavanaugh & Stotts
12 Suite 350
215 South Monroe Street
13 Tallahassee, Florida 32301
(904-681-1900)
14
Representing Intervenor, The United States
15 of America:
16 SUZAN HILL PONZOLI, ESQUIRE (telephone)
THOMAS A WATTS FITZGERALD, ESQUIRE (telephone)
17 Assistant United States Attorney
Southern District of Florida
18 Third Floor
99 Northeast 4th Street
19 Miami, Florida 33132-2111
(305-536-5477)
20
-and-
21
KEITH A. SAXE, ESQUIRE (telephone)
22 United States Department of Justice
Environmental & Natural Resources Division
23 General Litigation Section
Room 879, 601 Pennsylvania Avenue
24 Washington, D.C. 20004
(202-272-4016)
25
3
1 APPEARANCES, CONTINUED:
2 Representing Intervenor, Florida Department of
Environmental Regulation:
3
LEE M. KILLINGER, ESQUIRE
4 DONNA LA PLANTE, ESQUIRE
Assistant General Counsel
5 Department of Environmental Protection
640 Twin Towers Office Building
6 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
7 (904-488-9730)
8 Representing Respondent, South Florida Water
Management District: (ALL VIA TELEPHONE)
9
PAUL L. NETTLETON, ESQUIRE (telephone)
10 R. BENJAMINE REID, ESQUIRE (telephone)
Popham, Haik, Schnobrick & Kaufman, Ltd.
11 400 International Place
100 Southeast Second Street
12 Miami, Florida 33131
(305-539-7222)
13
-and-
14
RUTH P. CLEMENTS, ESQUIRE (telephone)
15 T. JOAN LAWRENCE, ESQUIRE (telephone)
Assistant General Counsel
16 South Florida Water Management District
P. O. Box 24680
17 3301 Gun Club Road
West Palm Beach, Florida 33416-4680
18 (407-686-8800)
19 * * * * *
20 ALSO PRESENT:
21 COURTNEY HACKNEY
22 MICHAEL SOUKUP
23 (FNU) ZIMMERMAN
24 * * * * *
25
4
1 INDEX
2 ITEM PAGE
3 HEARING COMMENCED . . . . . . . . . . . . . . . . . . 5
4 HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 82
5 CERTIFICATE OF REPORTER . . . . . . . . . . . . . . . 83
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5
1 PROCEEDINGS
2 (WHEREUPON, THE HEARING COMMENCED AT 10:10 A.M.,
3 AT WHICH TIME MR. NETTLETON, MR. SAXE, MS. LAWRENCE, MR.
4 GREEN, AND MR. FITZGERALD WERE ABSENT FROM THE CONFERENCE
5 CALL SETUP.)
6 HEARING OFFICER: Hello?
7 TELEPHONE OPERATOR: Mr. Smith?
8 HEARING OFFICER: He's here.
9 TELEPHONE OPERATOR: All right, this is the MCI
10 operator, and I have three people on the line, but
11 Mr. Saxe's line is busy. Would you like me to take a
12 roll call and keep trying Mr. Saxe?
13 All right. This is the MCI operator. Mr. Reid?
14 MR. REID: Reid.
15 TELEPHONE OPERATOR: Ms. Ponzoli?
16 MS. PONZOLI: Ponzoli.
17 TELEPHONE OPERATOR: Ms. Clements?
18 MS. CLEMENTS: Yes.
19 TELEPHONE OPERATOR: Mr. Smith?
20 MR. SMITH: Yes.
21 TELEPHONE OPERATOR: Thank you. If anyone needs
22 help hit MCI, star, and "0".
23 MR. REID: Operator, is Mr. Killinger on?
24 HEARING OFFICER: He's here.
25 MR. REID: What about somebody from Peeples, Earl?
6
1 MR. HYDE: I'm here, too. This is Bill Hyde.
2 HEARING OFFICER: Let's go down the list. This is
3 Steve Menton in Tallahassee in the hearing room with
4 Mr. Smith, Mr. Hyde, Mr. Killinger, and...
5 MR. KILLINGER: Donna La Plante.
6 HEARING OFFICER: ...Donna La Plante from
7 Department of Environmental Protection, along with the
8 court reporter.
9 The operator just indicated to me that Mr. Saxe's
10 line is busy, so she's going to continue to try to
11 reach him and add him on when she's able to get through.
12 Ms. Ponzoli, can we go ahead without Mr. Saxe?
13 MS. PONZOLI: Yes, sir. That will be fine.
14 Mr. Menton, I have a deposition, and I have in the room
15 Mr. Kobelinski and his expert, Dr. Hackney, and I have
16 with me my expert, Dr. Soukup, and Mr. Zimmerman, so
17 we have a roomful of people who are listening.
18 HEARING OFFICER: Okay.
19 MS. RAEPPLE: Mr. Menton, this is Carolyn Raepple.
20 I was at the deposition today with Ms. Clements. I am
21 here with her.
22 HEARING OFFICER: Okay. Mr. Reid, are you all
23 alone?
24 MR. REID: No, I have Joan Lawrence with me.
25 HEARING OFFICER: Okay. Anybody else need to make
7
1 an appearance?
2 Okay. This hearing this morning was called in
3 connection with several discovery disputes...
4 TELEPHONE OPERATOR: Mr. Saxe is on the line.
5 HEARING OFFICER: Okay, Mr. Saxe, are you with us?
6 MR. SAXE: Yes. Thank you.
7 HEARING OFFICER: Okay. Are you alone?
8 MR. SAXE: Yes, I am.
9 HEARING OFFICER: This hearing was called to deal
10 with several discovery matters that have been cropping up
11 over the last week. Let me start out by giving an
12 account of what I received and reviewed in preparation
13 for the hearing this morning, and then I want to move
14 right to the merits of this issues.
15 I have received a motion for protective order filed
16 by the Department of Environmental Protection regarding
17 the deposition of Daniel Thompson and also the deposition
18 of a Department representative who is being designated
19 regarding certain areas set forth in the notice, corrected
20 notice of taking deposition. I have also received
21 a motion from the South Florida Water Management
22 District regarding the deposition of Allan Milledge.
23 I have also received an objection to the deposition
24 filed by the League, and I have received the farmers'
25 motion to compel in response to the agency motions.
8
1 Those are all the motions that I have received at
2 this point in time.
3 I know yesterday there were some efforts to reach
4 me regarding other matters which I believe may not have
5 been set forth in these motions, and I have also been
6 told Ms. Ponzoli has filed a motion, but apparently
7 it's going to be worked out regarding Mr. Wedgeworth.
8 MR. SMITH: I haven't had an opportunity to talk
9 about it, but at the proper time I will tell you what
10 we propose to do and see if she wants to argue the
11 motion.
12 HEARING OFFICER: Okay, so I don't have that one
13 before me right now. We won't have to deal with that.
14 In connection with the various matters that have been
15 raised it appears that some of the or most of the
16 discovery issues that have come up regard the extent
17 to which inquiry can be made regarding the settlement
18 negotiations and settlement lawsuits and matters that
19 fall within that same general category.
20 I have gone back and reviewed the main hearings
21 that we had regarding the issues in the past as well
22 as the pleadings that were filed by the parties back
23 at the time we argued this. I think it was the
24 November 29th hearing where we discussed it, November 29,
25 1992, hearing, where we discussed these matters in great
9
1 detail, and I indicated at that time the parameters
2 upon which I thought the discovery could be conducted.
3 Since that hearing there has been nothing filed
4 with me that leads me to any different conclusions
5 than I tried to lay out at that point in time.
6 I think in reviewing the motion, in reviewing the
7 hearing transcript that we anticipated that there could
8 well be some problems when we got to the specifics, and
9 I guess that's why we're here today.
10 But I do want to re-emphasize some of the general
11 principles that I talked about at that hearing back in
12 november of 1992, and as far as I'm concerned until
13 somebody convinces me otherwise they still apply.
14 Those principles were that this 120.57 proceeding
15 is not intended nor will it be a forum to relitigate
16 the federal lawsuit.
17 I think all of the inquiries that take place
18 within discovery in the case should be reasonably
19 calculated to lead to admissible evidence within the
20 scope of this 120.57 proceeding.
21 In that regard I think it's important for all
22 parties to keep in mind the purpose of this proceeding.
23 This is an opportunity to challenge the factual
24 assumptions and scientific basis for the strategies
25 set forth in the SWIM plan, and that is why we are all
10
1 involved in this process, and those are the ultimate
2 issues that will be resolved. I think that focus has to
3 be the focus of all discovery efforts.
4 Now I know we have gone into some extensive
5 discussions regarding the position of some parties
6 that undue coercion has been exerted on some of the
7 decision makers involved in adopting the SWIM plan.
8 As I indicated at the earlier hearings, I will
9 re-emphasize today that this 120.57 proceeding and this
10 Hearing Officer is free of coercion, and I am here to
11 listen to the evidence presented by all parties and to
12 render a recommended order based upon my impartial
13 review, perhaps, well, impartial review. I'll leave it
14 at that.
15 So I think it's important to keep in mind that
16 even if there is some validity to the claims of
17 coercion exerted on other decision makers in this
18 process, I feel no coercion and will feel no coercion
19 in evaluating the evidence presented to me, and I'll do
20 my best to give everybody a fair hearing and to resolve
21 the disputed issues to the best of my ability.
22 So that's the purpose of the 120.57 proceeding, and
23 for those reasons I think we have to focus on the
24 merits of the SWIM plan and the particulars of the
25 scientific evidence that's presented, and I believe
11
1 that all discovery requests need to be framed within
2 those guidelines.
3 Now as I indicated at those earlier hearings,
4 because of the unique nature in which the SWIM plan in
5 this case was adopted, I believe there are some areas
6 that are proper for inquiry into how the SWIM plan came
7 about, and those are the areas that I felt during the
8 last hearing that was not, that made it impossible for
9 me to enter a blanket order prohibiting discussion
10 regarding the federal settlement and the development of
11 the SWIM plan itself.
12 So I think we have some very difficult issues to
13 deal with because of the unique manner in which the SWIM
14 plan came about. We are under some very tight time
15 frames. We have to keep that in mind. That is
16 important in trying to make sure efforts are focused
17 in the right direction.
18 So having stated those general principles I am not
19 familiar with what discovery has taken place, what
20 inquiries have been made, what objections have been
21 made, so probably I could get an update as to exactly
22 where we stand on the discovery process and what the
23 specific objections are.
24 I have reviewed the notice of taking deposition
25 and the attachments thereto. I have some notes that I
12
1 have taken along the way, some comments that I would
2 make, and I also have some specific issues that occurred
3 to me in reviewing the Department's motion for protective
4 order, but why don't we start out by someone telling
5 me exactly where we are in the discovery process, what
6 are we arguing about, and specifically I know that
7 the notices included subpoenas regarding the
8 various documents, etcetera, and after all of the
9 extensive documents that have been produced in this case
10 I wonder if there are any more documents to be produced
11 and exactly where we stand on that.
12 MR. REID: Mr. Menton, this is Ben Reid. I
13 guess since it's my motion along with DEP perhaps I
14 could tell you.
15 First I will state that your comments concerning
16 the hearing really, that thought process, is what led to
17 the motion for protection.
18 The one thing that I recall from that hearing, and
19 you have looked at the whole transcript, it's my
20 recollection that you said if scientists changed ideas
21 or changed views about things and perhaps changed
22 numbers, opinions about numbers, during the negotiations
23 from their current position that that was an area
24 you thought was fair to ask about.
25 HEARING OFFICER: Right.
13
1 MR. REID: Whether there was a secret conspiracy,
2 etcetera, etcetera, I believe you indicated that would
3 not be an area, and that assumption on my part is sort of
4 driving what we're doing here.
5 I think based on your description of your principles
6 none of the discovery that is sought here would be
7 appropriate.
8 It's fairly easy to categorize or summarize
9 what is being sought.
10 With regard to the District, the 30B-6 equivalent
11 deposition, they are asking for all documents that
12 talk about the subject matter of our decision not to
13 contest jurisdiction of the 11th Circuit Court of
14 Appeals, and I'm sure you recall that is the appeal from
15 the District Court consent order that was in fact
16 argued in the 11th Circuit last week or the week before
17 last.
18 Our decision whether or not to take a legal
19 position, whether or not to test jurisdiction or not,
20 is just beyond the parameters of this proceeding.
21 I mean, collaterally, the very same arguments that
22 you're hearing in this, and Mr. Smith has included in
23 his papers, are being made in that Court. They will
24 decide those issues.
25 The second area asks for documents relating to
14
1 coercion regarding the size of the STAs and the
2 phosphorus level. Again my understanding is you have
3 permitted questions about the size but not questions
4 about the in effect the man, the Chairman of the
5 Board of the Water Management District or the Water
6 Management District as a 30B-6, dealing with the issue
7 of coercion and undue influence and pressure and the
8 like.
9 Thirdly, it asked for everything related to the
10 settlement negotiations that went on between '91,
11 between May of '91 and July of '91. Those would be
12 settlement negotiations about the federal case.
13 That is likewise the subject of other litigation.
14 There's a lawsuit pending claiming the Sunshine Law
15 was violated. All the people who were involved in
16 those discussion are being deposed. That case has
17 not been active recently.
18 But again the settlement negotiations are beyond
19 the pale.
20 The last two are new and really only came up during
21 the mediation period, and it has to do with the NPDES
22 permits that the EPA is taking a position or requiring on
23 ENR projects, and those are completely beyond, those
24 weren't in anybody's mind when this thing started.
25 They are part of the SWIM plan (ad verbum).
15
1 With regard to, those are the five...
2 HEARING OFFICER: You said they are part of the
3 SWIM plan?
4 MR. REID: They are not part of the SWIM plan.
5 They came up recently. They came up, now those are
6 the five topics that came up.
7 As for Mr. Milledge, there are three areas or
8 three document production requests and three areas of
9 inquiry. The first area is the same as before, the
10 decision not to context jurisdiction.
11 The second asks for him to produce all documents
12 relating to coercion and the like of all the SWIM plans
13 back from 1987 to the present.
14 The third one frankly I don't understand. It
15 asks for something about documents reviewed or relied
16 upon in preparing testimony in these proceedings. I
17 don't know if they meant documents Mr. Milledge looked
18 at to prepare his testimony or if they're asking for any
19 documents anybody at the District may have looked at
20 to prepare.
21 I think you can put all of those together into
22 two groups. One would be, and I'll set this aside,
23 the NPDES. It's a completely new issue.
24 All the others relate to this continuing argument
25 that's been made by the Cooperative, by Mr. Smith
16
1 specifically, in forum after forum after forum that
2 there was something nefarious about how this all was
3 developed.
4 This argument was started in the federal litigation.
5 The jurisdictional issues were raised by Mr. Smith
6 several times. It went to the United States Supreme
7 Court, where cert was denied, the same arguments, that
8 there's an improper influence and that there's no
9 jurisdiction for the federal court to be doing this, and
10 that the state court exceeded their jurisdiction or
11 exceeded their authority.
12 In the hearings on the motions to approve the
13 consent decree the sugar lawyers argues, feared that we
14 would take the settlement agreement and bring it over
15 to the state and use it, cram it down whatever you
16 want to say to make the settlement agreement become
17 something else.
18 It's ironic that after the federal judge specifically
19 ruled that the settlement agreement was not
20 self-executing, that the state administrative law and
21 the state substantive law would apply and the
22 decision would be made by an impartial Hearing Officer,
23 after he had ruled all that way now those same lawyers
24 are trying to bring the settlement agreement and say
25 we've now got to go into a lengthy discovery about
17
1 that.
2 So the point is the federal lawsuit, Judge
3 Hoeveler specifically found it is not self-executing.
4 Now in the administrative process there was a,
5 in the rulemaking process for the BMPs, the specific
6 position was raised. Everything was settled about the
7 BMP challenge, with he exception of the claims.
8 These claims were litigated, and they were dismissed
9 by Mr. Kendrick, same basic positions, and they were
10 dismissed there, and that was appealed, and that was
11 affirmed.
12 There was a motion to stay this proceeding on the
13 same grounds. You denied that motion. That was
14 appealed, and that was affirmed.
15 So there was a suit in Leon County against the
16 Governor and all the agencies. Again the same arguments
17 were made in the lawsuit.
18 HEARING OFFICER: Mr. Reid, I remember all of
19 that background.
20 Let me ask you a couple of questions regarding
21 some of these items that are on here.
22 If particular going back to the ones regarding the
23 District, number three of that schedule, it references
24 the settlement negotiations and specifically qualifies
25 it regarding the notes of certain meetings that are
18
1 attached to the notice itself, and I have flipped
2 through those, and I don't know exactly what was
3 going on, but it certainly struck me that those notes
4 seemed to relate to the development of certain
5 provisions that may or may not have been incorporated in
6 the SWIM plan.
7 Why is it not relevant to be able to inquire into
8 the notes and the discussions at this time?
9 MR. REID: I'm trying to find the notes. These
10 came out, I suppose it might be relevant to the extent
11 if they raise scientific issues to take the deposition
12 of the person who wrote them. I have forgotten who
13 wrote these notes. Maybe Mr. Smith could remind me
14 whose notes these are.
15 HEARING OFFICER: Mr. Smith, do you know?
16 MR. SMITH: They are Paul Whalen's notes.
17 MR. REID: And Paul Whalen was deposed for a week,
18 I think, and so now they want to depose a District
19 representative about those notes when he was, I will
20 have to check, he was deposed before the most
21 recent interruption, and I'll have to ese if these
22 notes were marked as an exhibit to Mr. Whalen's
23 deposition.
24 MR. SMITH: Yes, they were.
25 MR. REID: They were? Then my point is that
19
1 if you make the distinction that you're making,
2 we are not saying you can't depose the people involved,
3 the scientists, about science that's involved and
4 things which they're doing, but to come in with a
5 broad based thing and start over under the guise, and
6 I think you have to read this whole thing together,
7 Mr. Menton, and that is it's all dealing with this idea
8 of coercion and the heavy handed federal activity
9 that's claimed that somehow the state has succumbed
10 to.
11 It's one thing to depose Mr. Whalen and ask him
12 questions about the things that might be reflected,
13 but it's another to caption it in terms of this and
14 start over with some District designee.
15 Obviously if Mr. Whalen wrote these notes he would
16 probably be the best to talk about it, and he's already
17 been deposed for a week, and I assume about these very
18 notes. So that's the position on that.
19 HEARING OFFICER: Okay.
20 MR. REID: As you say, I mean, I was just going to
21 say this same issue has been litigated about three or
22 four times, and it's been to all the appellate courts in
23 these cases, and it's always been sent back. We are left
24 with a hearing that's fair, the hearing that we're not
25 involved in, and the issue is not whether or not there
20
1 was coercion.
2 It's whether, at the last hearing we talked
3 about the analogy of somebody coming in with a gun to
4 your head and saying, "I want you to do a SWIM plan,
5 and if it turns out it's right and the SWIM plan
6 works and is proper, then the fact it started because
7 of the gun to the head is not really relevant to this
8 proceeding."
9 MR. SMITH: May I respond?
10 HEARING OFFICER: I'll give you a chance,
11 Mr. Smith.
12 MR. SMITH: I've been listening to this for quite
13 some time here.
14 HEARING OFFICER: Mr. Reid, let me just ask you one
15 other question regarding this NPDES permit.
16 MR. REID: Yes, sir.
17 HEARING OFFICER: I'm not sure exactly how that
18 all interplay within the scope of this proceeding, but
19 if that permit and the requirement for that permit
20 affects the strategies or the plans that are in the
21 SWIM plan why isn't it pertinent to evaluate that and
22 point out within the scope of this hearing?
23 It's a dynamic process. At the time the SWIM plan
24 was adopted there was no expectation that such a permit
25 was required. If it subsequently had come to light
21
1 that such a permit is necessary and could impact
2 upon the strategies isn't it important to flush out
3 that as part of the formal proceedings we're discussing
4 here?
5 MR. REID: The problem you have with that is this
6 permit, there will be a process about this permit
7 dealing with this permit, and what they're seeking here
8 is again it goes back to the idea why are you applying
9 for this permit when your lawyer said you didn't have
10 to, and that's the kind of thing they want to litigate
11 over, this permit.
12 This permit is something that has come up. It's
13 not part of the SWIM plan. Maybe there will have to be
14 another proceeding about this. The permit has not even
15 been granted.
16 It's in the process of working through. People
17 who have claims of interest in the subject matter of
18 that permit will have an opportunity to be heard at
19 that time.
20 HEARING OFFICER: Well, again I'm not familiar
21 with the particulars of it or how it impacts or if it
22 impacts at all, but if the contention is that the
23 necessity to obtain that permit necessarily impacts upon
24 the strategies, aren't the petitioners entitled to
25 point that out?
22
1 If there are certain anticipated programs that
2 will not be possible because of the need to get this
3 permit, don't they have the right to point that out as part
4 of this proceeding?
5 MR. REID: I would say this. This is the first time
6 that we've really gotten into the permit, that particular
7 permit.
8 I would say if you are concerned that this permit
9 in someway affects the SWIM plan that we are litigating,
10 then we need to have an opportunity to file something
11 speaking to that subject.
12 HEARING OFFICER: Okay.
13 MR. REID: Because I don't think it does. If they
14 think so, then they can respond.
15 MR. SMITH: I'd be glad to tell him.
16 MR. REID: I'm reading it that we are doing it
17 because of some nefarious reason that we're being
18 controlled by the federal government, and we're
19 applying for an EPA permit because the federal government
20 has told us we have to, even though your lawyers say
21 you don't, that the jurisdictional issue is in some
22 dispute.
23 HEARING OFFICER: Okay.
24 MR. REID: If we're going to get into that we need
25 to go back and actually be heard on that issue so that
23
1 you can have the full story of the permit. That's why
2 I brought it to you for this hearing.
3 HEARING OFFICER: Okay. Mr. Killinger, before
4 I give Mr. Smith a chance, is there anything in addition
5 you wanted to add to what Mr. Reid has said?
6 MR. KILLINGER: Yes, I'd like to adopt virtually
7 every word of what Mr. Reid said. I think it applies
8 to the depo notices that I am objecting to as well.
9 But I think there's an additional overlay for the
10 notices that I objected to that makes it even a stronger
11 argument that the depo of Dan Thompson and the DEP
12 designee should not go forward.
13 Dan Thompson was General Counsel for the Department
14 at the time the negotiations were going on about
15 settlement. Every single thing that Dan Thompson
16 knows, discussed, got documents about, wrote documents
17 about is infused with the attorney-client privilege,
18 which should not be violated under any circumstances.
19 The duces tecum notice attached to this is
20 clearly intended to do nothing more than harass and
21 annoy a witness who is not a designated witness in
22 this case, who is clearly protected by privilege,
23 which makes it outside 1.280 and should not be gotten
24 anywhere near.
25 I think that the notice of Dan Thompson is an
24
1 affront, especially given your prior rulings, and if
2 you look at the duces tecum notice it's not even
3 responsive to anything Dan Thompson should know anything
4 about. It talks about technical issues and technical
5 questions, the documents attached to it in a meeting
6 where Dan Thompson was not even present according to the
7 notes, and the document's author was not identified. It
8 does mention Richard Harvey was at the meeting. He has
9 been deposed. I don't know whether the notes are
10 part of his deposition.
11 The notice is improper.
12 Regarding the NPDES issue that is an issue which if
13 you will read the notice goes to whether an NPDES permit
14 is required for the ENR project. The ENR project is
15 not part of this challenge. It's part of the SWIM
16 process and has reference to the SWIM plan, but it's not
17 part of it. There may be some relevance to whether a
18 permit is required for the use of it, but it's not even
19 put in the context of that. It's put into specific
20 legal decisions and whether or not we know anything about
21 that, about whether or not they should apply for a
22 permit.
23 I think the request for us, to us about what we know
24 of the General Counsel of the Department about why they
25 might have applied, contrary to their counsel's advice,
25
1 if that was the case for an NPDES permit is also
2 improper, and I think that the corporate depo notice
3 for a representative of DEP which was served
4 simultaneously with Dan Thompson's notice and which
5 is identical to it is clearly an avenue to try to get
6 at the same information in a different way.
7 It clearly goes to issues of the federal settlement
8 which are not at issue here, and you have already ruled
9 on that, and it's been argued a number of times.
10 We should not get into it again. It's not part of
11 this proceeding, and I think it's improper.
12 HEARING OFFICER: Okay.
13 MR. REID: Mr. Menton, could I just add one
14 thing? We also raised the issue of the confidentiality
15 of settlement negotiations. I don't want to waive any
16 of that. We obviously adopt everything in the memorandum
17 of November, 1992, that we filed in support of our
18 motion here.
19 HEARING OFFICER: Okay. All right. Mr. Smith,
20 let me give you a chance to respond to this, and let me
21 raise a couple of issues that struck me right off the
22 bat.
23 The first thing that struck me when I received your
24 notice of taking deposition was, number one, regarding
25 the documents relating to the decision not to contest
26
1 jurisdiction.
2 We have discussed them before, and I still have a
3 difficult time understanding why anything that falls
4 within that category is reasonably calculated to lead to
5 admissible evidence this proceeding.
6 That struck me right off the bat.
7 The second thing is with respect to number two,
8 documents relating to coercion, duress, etcetera,
9 etcetera, in the development of certain specific portions
10 of the SWIM plan, to be honest with you when I saw the
11 limitation you put on there in terms of coercion,
12 stress, pressure, etcetera, I thought that was the
13 part that was, you were essentially asking for a
14 characterization of what is coercion, what is duress,
15 what is pressure.
16 MR. SMITH: What is influence.
17 HEARING OFFICER: And what is influence.
18 MR. SMITH: Influence.
19 HEARING OFFICER: If I was presenting the
20 District, you know, I'd probably come back and
21 say that none of this, because there's no coercion,
22 duress, as they have articulated several times.
23 So I don't have a problem with you seeking
24 documents regarding the specific matters, the 50 parts
25 per billion, the sizing of the STAs, etcetera. But
27
1 those are certainly ripe for inquiry in this proceeding,
2 and the development of those numbers and how they
3 came into the SWIM plan as i indicated before
4 are certainly pertinent areas for inquiries, but when you
5 frame them with the coercion, distress, etcetera, I have
6 a difficult time understanding, number one, how they would
7 respond to that, and, number two, how I am expected to
8 make a determination as to what falls within the coercion,
9 distress, etcetera, in terms of this discovery process.
10 But the last items regarding the permit, NPDES
11 permit, again I'm not clear at this point how all that
12 fits within the scope of the SWIM plan. I'd be
13 interested in hearing your version of that, but as
14 Mr. Reid has pointed out at least your request is
15 framed in the notice, you go to the decision to
16 challenge the need for the permit, rather than anything
17 related to how that impacts upon the SWIM plan, and
18 I think that is a significant differentiation.
19 The last paragraph, number five, all documents
20 regarding the decision to agree to the condition and
21 draft permit regarding certain specific criteria,
22 those items certainly seem to be within the scope of what
23 I view as appropriate discovery within this proceeding.
24 But go ahead.
25 MR. SMITH: thank you, Mr. Menton. I had in mind
28
1 what you said, Mr. Menton, at the last comprehensive
2 hearing on this, and have made an effort in this notice
3 to frame this very narrowly in terms of specific
4 events, specific time frames, and specific subjects.
5 I'm going to get to those particulars, but I want to
6 back up for just a minute and talk about the man with
7 the gun at his head.
8 I don't think this is really the man with the gun
9 at this head. I think this is more the prisoner who has
10 come to love his captor, and the turning point was of
11 course on May 21, 1991, when a decision was made,
12 a surrender of the sword to the federal court.
13 These notes took place when the terms of the
14 surrender were being negotiated.
15 Of course we have taken the deposition of the person
16 who made the notes, but the decisions that were made
17 in consequence of the demands reflected in the notes
18 were made not by these people who attended the meeting
19 but by higher ups, and that's why we have given notice
20 of taking the deposition of designees of the
21 Department and the District.
22 Here's a...
23 HEARING OFFICER: Mr. Smith, I have not been privy
24 to the depositions that have been taken before, so
25 I don't know what those witnesses had to say in the
29
1 process that led to these notes...
2 MR. SMITH: then the question isn't did the prior
3 witness exhaust the subject, but the question is
4 is this a proper area for discovery by somebody from
5 the District to be designated who can talk about
6 coercion or the influence of the decision of the
7 District to do certain things that are in the SWIM plan.
8 We have designated particular things, and I'm
9 coming to that in just a moment. Be patient with me
10 for a minute.
11 The Hearing Officer's job is to find the facts and
12 make rulings of law and to critique agency policy.
13 I'm having a difficult time getting you to utter
14 that portion of your responsibility.
15 HEARING OFFICER: I understand that.
16 MR. SMITH: Every time you mention it you talk
17 about findings of facts, but when you have a
18 District and a Department witness on the stand who is
19 going to testify all the reasons why they think
20 34,700 acres of STAs are necessary and why they think
21 a contingent 50 ppb limitation on influence to the
22 Loxahatchee is necessary in the public interest and
23 necessary in fulfillment of the general parameters of
24 standards of state law and why it's necessary that
25 they have imposed these without any regard here today
30
1 for moderating provisions that would permit the
2 agency as a matter of discussion to make allowance
3 for these factors, they are laying their credibility
4 on the line.
5 Everything that we have asked here we are asking
6 in the name of judging the credibility of the
7 presentation made by the District and the Department
8 in the SWIM plan and the credibility of the witnesses
9 that they will bring here; whether they are scientific
10 witnesses or policy witnesses or fact witnesses or any
11 other kind of witnesses, if they bring a witness here
12 saying this is our SWIM plan, we adopted it, I want
13 to be able to identify those portions of the SWIM plan
14 which I think they did so adopt it because it was
15 dictated to them by the federal government.
16 The trick here is to narrow these issues so that
17 they don't become the dominating feature. I think that
18 is the general concern of the Hearing Office. They do
19 not become the dominating feature of this case.
20 This is not a collateral attack on the jurisdiction
21 of the federal court. It's not a collateral attack on
22 the settlement agreement. This is not something I can
23 litigate before the Hearing Officer.
24 This is not a collateral attack on the jurisdiction
25 of the federal court, but the fact that these things
31
1 overlap, overlap in subject matter with the concerns
2 that are in other courts does not make the illegitimate
3 for consideration hereon the matter of credibility and
4 interest of these state agencies and their witnesses.
5 Now let me tell you particularly about the TOC,
6 the Technical Oversight Committee.
7 As we stated in our motion, the District in its
8 1991 draft SWIM plan, which will be before the Hearing
9 Officer, was fairly forthright in saying that all
10 planning, all research, all monitoring is going to be
11 under the control of the Technical Oversight Committee.
12 And it is going to be the Technical Oversight Committee
13 in the future, long after Mr. Menton has finished
14 with this case, that is going to decide what the
15 Class 3 standard let's say at the S5-A structure or
16 in the area affected by the S5-A structure is going
17 to be.
18 They made plain reference to the TOC in their
19 1991 draft SWIM plan.
20 But then I can only surmise because I need to ask
21 questions of the witnesses who know about it that the
22 federal government says, "Look, you can't refer to this
23 TOC in your SWIM plan, because you and I know the
24 TOC is made up of a majority of federal appointees,
25 and that this was hammered out as part of your settlement
32
1 negotiations," or as I would put it, the terms of your
2 surrender, "that you put a federally dominated committee
3 in the chair of decision making of the South Florida
4 Water Management District in respect to the critical
5 matters that we postponed for decision."
6 Now is the TOC part of the SWIM plan or is it not?
7 I have demonstrated to you in my motion that they
8 tried to purge in this SWIM plan, the March, 1992,
9 SWIM plan, the one before the Hearing Officer, they
10 tried to purge al references to the TOC.
11 That didn't take it out of the world. The TOC
12 is there. The TOC is operating. The TOC is federally
13 dominated. The TOC is deciding exactly the technical
14 issues, and it is part of the SWIM plan, because they
15 failed to purge it all. There are still references.
16 I'm entitled to ask why they made a decision to
17 turn their decision making over to the TOC, and I think,
18 I don't think, I know it occurred within that limited
19 time frame as we have set forth in paragraph three
20 from May 15, 1991, until July 26, 1991, because nobody
21 ever heard of a TOC before then, and by July 26th when
22 they filed the settlement agreement, why, there it was.
23 HEARING OFFICER: Mr. Smith, I have never said
24 you don't have the opportunity to ask witnesses as to
25 how that particular provision was or references that are
33
1 in there came about an dhow it is intended to work
2 within the scope of the long-term planning process.
3 Those are certainly areas that are ripe for you
4 to inquire into.
5 What I'm having a hard time dealing with is why
6 do we have to designate a witness regarding the decision
7 to not contest the continuing jurisdiction of the
8 federal court. What does that have to do with anything?
9 MR. SMITH: It has to do with the interest, the
10 political interest that infuses everything the District
11 and the Department say in this courtroom.
12 I could only say it, Mr. Menton, and you'll just
13 have to judge it. I have presented to you previously
14 a videotape in which when, it demonstrates when the
15 U. S. lawyer threatens to go back to federal court
16 these people trembled in their boots, because for good
17 reason they don't want to be subjected to that.
18 MR. REID: I wasn't trembling.
19 MR. SMITH: To the extent, to the extent that
20 consciousness infuses the presentations by the
21 District and the Department I'm entitled to inquire
22 about their interest and their credibility as
23 reflected by this apprehension they have for good
24 reason, that they are under the control of a federal
25 court, and they feel absolutely bound to put this into
34
1 effect.
2 They are bound. They bound themselves to do
3 this with everything they can through their power, and I
4 submit that their decision, that somebody made a
5 policy decision that despite, I mean, if they want
6 to say, "our lawyer told us the defense wasn't any good,"
7 that's the end of the inquiry, but if they say, "We
8 didn't want to be associated with the farmers in any
9 respect. We'd rather be under the control of the
10 federal court that takes a position presented by the
11 farmers," then that's another matter, but the interest
12 of the District in avoiding the federal court litigation,
13 it would take less time for them to talk about it than
14 we have already spent in this hearing.
15 There are two or three answers that they could give
16 that would absolutely be conclusive, and that would be
17 the end of it.
18 Now I have spoken about the TOC. Let me talk about
19 the contingent limitation, the 50 ppb, into the
20 Loxahatchee. It will take just a moment. This is
21 why the NPDES permit is so important.
22 I want to pass out to you, and for the benefit of
23 those who are on the telephone I'm talking about the
24 SWIM plan, the planning document, at page 104, and
25 I'm talking about the NPDES permit terms as in the
35
1 revised draft, February 15, 1994, on page I-10,
2 Permit Conditions, to compare a provision in the SWIM
3 plan with a provision in the NPDES permit, and I am
4 representing to the Hearing Officer we expect to show
5 that the United States, the same people who gained
6 intervention here by agreeing to accept the power of the
7 Florida APA to make these decisions, the United States
8 in concert with the District have now taken a step to
9 subvert this process by binding the District, voluntarily
10 binding itself to adopt not only this SWIM plan but
11 an extraordinary, an extraordinarily stringent
12 interpretation of this plan that would in effect bind
13 the District not only to make a policy decision that
14 has yet to be made if you take the APA process as
15 being prospective, as you described it, but bind them
16 to interpret that decision in a particularly significant
17 way.
18 Your Honor, what we have here is a case in which
19 this entire area of the Everglades was drained in the
20 early part of this century.
21 It had characteristics that are identifiable from
22 1940 with maps of the period. We have characteristics
23 that were superimposed upon it by the Central and
24 Florida Flood Control District with all these
25 structures beginning in 1948 and completed in the
36
1 1960s, and you have an entire system within there
2 that is predicated upon the farmers' entitlement to
3 be in this and to farm.
4 You will find unequivocally in the decisions that
5 are being made by the United States Congress and by the
6 State of Florida at the time, the presence of
7 farmers in the EAA doing what farmers do, farming, was
8 one of the three essential purposes of this, and they
9 have a right based upon historical precedent to
10 consideration in that light.
11 Now one of the issues her in the SWIM plan is
12 on what conditions they should be permitted to remain,
13 what standards should be imposed let us say upon water
14 quality in the Loxahatchee Refuge which is operated
15 under a licensing cooperative agreement on state
16 land and has been since the fifties.
17 The SWIM plan says that if by a certain time the
18 lower of the long term or Class 3 standard, the
19 Class 3 standard to be determined by this federally
20 dominated Technical Oversight Committee, is not met,
21 then a 50 part per billion limitation will be imposed
22 at the end of the pipe at the S5-A and S6 structures.
23 It is very significant, and you're going to find the
24 Loxahatchee thing is right at the center of this
25 controversy.
37
1 We are going to urge the Hearing Officer that he
2 find based upon the historical, scientific considerations
3 and under the Rubrix that the Environmental Regulation
4 Commission has given with respect to the moderating
5 provisions in respect to mixing zones and exemptions
6 and alternative site-specific criteria that it is
7 entirely appropriate to create a mixing zone or make some
8 other provision for canal water coming out, traveling
9 down the side, inside the dike of the Loxahatchee,
10 because that water is necessary to go through the
11 Loxahatchee to get to other destinations.
12 We're going to submit that on a scientific basis
13 and on a proper policy planning basis that provisions
14 should be made there.
15 Here is where your critique of agency policy is
16 going to come in. You've got a SWIM plan that says
17 if the TOC decides the lower of these two limits
18 applies, and they'll set what the limit is at a certain
19 time, then 50 ppb will be imposed not in the internal
20 marsh standards of Loxahatchee, not on an average of
21 the testing stations of which there are 17 or 18 in
22 Loxahatchee, but at the end of the pipe.
23 We think you're going to find that is bad policy,
24 not justified by the facts, and should not be a part of
25 their plan.
38
1 HEARING OFFICER: Mr. Smith, how does this get
2 back to the NPDES permit?
3 MR. SMITH: Because the District has undertaken in
4 anticipation of precisely what I have described to
5 bind itself in concert with the United States to make
6 this come out a specific way.
7 Now whether they are entitled to do that is not
8 something before the Hearing Officer.
9 The Hearing Officer hasn't got control over
10 whether an NPDES permit is required. The Hearing Officer
11 doesn't have control over whether EPA can require any
12 such permit. But the Hearing Officer does have concerns
13 about the credibility of witnesses who come here and make
14 factual and scientific and policy laden discussions and
15 testimony concerning the necessity for certain
16 standards affecting the Loxahatchee when these people
17 have committed themselves I say against their lawyers'
18 advice to make it come out in a particular way.
19 Now this bears not only on the Hearing Officer's
20 assessment of the credibility of these witnesses, but
21 it goes into the record as a basis for any reviewing
22 court to make a judgment about the final order that
23 will be made long after Mr. Menton has let his recommended
24 order go, because I need to tell you the APA discipline
25 makes a large room for the exercise of agency
39
1 discretion.
2 We're not going to have, we just cannot afford to
3 have a record that is bereft of any legitimate evidence
4 that we can bring to bear here on the question of the
5 credibility of these witnesses which would be useful
6 also to show the credibility of the final order.
7 HEARING OFFICER: Well, Mr. Smith, I have already
8 raised the issue with Mr. Reid.
9 I mean, as I indicated it seems to me to the
10 extent that the necessity for the NPDES permit impacts
11 upon the strategies or the conclusions that are in the
12 SWIM plan, I think it's ripe for discussion at the final
13 hearing.
14 I was going to give him an opportunity to address
15 it a little bit further, but the problem that I have is
16 when you frame the discovery request in terms of
17 whether or not to take an attorney's advice regarding
18 the need for such a permit, I think we begin to get
19 afield from what is the proper determination that
20 needs to be made in this case.
21 MR. SMITH: Well, I will accept of course any time
22 you have said I have said enough and you're ready to
23 rule.
24 I'm simply suggesting, Mr. Menton, that I don't
25 want to talk to the people who wrote the notes. I don't
40
1 want to talk to the underlines. I want to talk to the
2 people who made the decision, and I think if it were,
3 if Carol Browner were here we'd be asking her, rather than
4 Dan Thompson, but the United States won't produce
5 Carol Browner, so we have identified the Assistant
6 Secretary, who happens to have been the General Counsel.
7 If there are any matters concerning attorney-client
8 privilege, of course they'll be protected. But his
9 whole knowledge isn't infused with that.
10 I express it this way, Mr. Menton, and you can take
11 the least offensive word, if you like, influence.
12 We can talk about the influence of the federal
13 government and the 50 ppb limitation and creating the
14 Technical Oversight Committee. Why did they do it?
15 In changing their sizing from what it was on
16 May 19 to what it was in July, you've got my point.
17 HEARING OFFICER: Well, okay, Mr. Smith, in
18 dealing with that particular request, as I indicated I
19 think the particular provisions of the SWIM plan that
20 you have raised are certainly an area that are entitled
21 to inquiry, and I think you're entitled to inquire of
22 the Department's representatives with the most knowledge
23 regarding decisions that were made in regard to
24 reaching those, but when you characterize them as
25 influenced or duressed or coerced or whatever, to be
41
1 honest with you I think you are hurting yourself in
2 terms of finding who made the decision.
3 MR. SMITH: Then cut it down, please.
4 HEARING OFFICER: I mean, I think you're entitled
5 to inquire as to, from the Department as to who the
6 person was that made the decision...
7 MR. SMITH: At the highest level.
8 MR. KILLINGER: Could I speak to that?
9 MR. REID: I'd like to speak to that, also.
10 MR. KILLINGER: I think you've heard here
11 exactly what's going on. Carol Browner is not
12 here. They have not tried, and my understanding is,
13 to go through the DFR procedures, which they are
14 lawfully obligated to go through to get her for
15 deposition.
16 If they want to talk to a policy maker about
17 policy decisions they ought to talk to a policy
18 maker, not to her lawyer.
19 This is a big difference from Allan Milledge.
20 He was perhaps not involved, but this is a lawyer for
21 the Department. This is improper, and they are trying
22 to switch him, because they know he was in the room.
23 He was advising her legally. It is entirely
24 inappropriate.
25 HEARING OFFICER: All right. Mr. Reid, did you
42
1 want to speak to that?
2 MR. REID: I did. You see, there are two
3 levels that are going on here.
4 If you attempt to limit this request the way
5 you did, Mr. Menton, when you talked about it would be
6 appropriate to ask about why 50 parts per billion,
7 you see, we've been doing that.
8 Every piece of paper virtually from the District
9 has either been produced in this litigation or in the
10 litigation or through public document requests, because
11 it's been a dual production as it's gone on.
12 They have deposed anybody they wanted to depose.
13 We have been meeting and asking for certain witnesses.
14 The other side is taking all of the discovery that
15 they want on the subject matter of the SWIM plan.
16 Now what happens is we've got an overlay here and
17 we found out with the other litigation that the
18 collateral litigation over the coercion, and so if you
19 cut it all away and say he can ask about the SWIM plan,
20 then I would either say it's overbroad or we have
21 already done it, and we've been doing it.
22 So I think this...
23 HEARING OFFICER: I mean, that's what I'm trying
24 to find. I'm trying to frame the discovery requests
25 in a manner that I think is appropriate to this
43
1 proceeding, and as to the due process if the answer
2 is they have already been produced, then that's fine,
3 and we'll take it up from there.
4 MR. REID: Okay.
5 HEARING OFFICER: I do want to get back to the
6 question of Mr. Thompson, because you have not
7 specifically addressed the issues raised with respect
8 to Mr. Thompson.
9 In fact, in your motion to compel I think there
10 is a representation in there that there are no privileges
11 that apply to any of the witnesses that are involved
12 here, and as I understand it, and I'm not privy to
13 all the facts involving Mr. Thompson, and Mr. Thompson
14 was the General Counsel at the time, and I know he was
15 acting as General Counsel in connection with the
16 litigation.
17 MR. SMITH: I'd prefer to have Ms. Browner, of
18 course, and you've got the United States as a party
19 here, and I think if the United States would just produce
20 her we'd be through with it.
21 I want to know why Mr. Thompson, listening to
22 her, made the decision she made in respect to this.
23 I think we're entitled to know that.
24 If she didn't make any decisions in any of these
25 areas, then she can say that, and that's the end of
44
1 that.
2 HEARING OFFICER: That's no Mr. Thompson, though.
3 If you want to, I mean, I don't know what the status
4 is with respect to Ms. Browner and whether there have
5 been efforts to depose her or whether it has been
6 refused. I don't know what.
7 What I need to deal with today is respecting
8 Mr. Thompson, and I have a difficult time understanding
9 how you can depose the attorney for a litigant regarding
10 the specific areas that he was assigned to as an
11 attorney without some showing.
12 I have always understood the law if you are going
13 to depose the attorney or a litigant, there has to be
14 some demonstration as to the particular facts this
15 witness has and the need why that witness has to be
16 deposed.
17 MR. SMITH: Well, here's the answer to that.
18 The practical answer is let the Department designate
19 somebody who knows and postpone the decision about
20 Mr. Thompson.
21 If Ms. Browner was in a room with her underlings,
22 including Mr. Thompson, and said, "You know, the way
23 for us to get the farmers on the stick is to take a
24 common cause with the United States, and so we'll just
25 not contest the jurisdiction, and we'll give them all
45
1 these additional things that they're demanding in
2 terms of the settlement, and we will have a very
3 powerful ally who will help us stick this thing to the
4 farmers."
5 If she said that, the fact that Mr. Thompson was a
6 lawyer doesn't prevent him testifying that he heard her
7 say that if he was in the room. Now if they've got
8 somebody else who was in the room who could say that
9 and we don't have to get to Mr. Thompson, that's fine,
10 and that's why we phrased those the way we did.
11 If it turns out that only Mr. Thompson was the
12 person to whom she said that, then we have to inquire
13 into it, and I think the way to do it is to call
14 Mr. Thompson and let's ask him questions that isolate
15 the particular circumstances and see if they are
16 within or without the privilege. I don't know.
17 MR. HYDE: Mr. Hearing Officer, I wanted to
18 interject there is a separate motion that goes to
19 my own notice of taking a deposition as to Mr. Thompson,
20 and while the notice, excuse me, while Mr. Killinger's
21 motion is substantially similar to that in the motion
22 directed to Mr. Smith's notice, I think that my notice
23 and items in it are dissimilar, and I think there are
24 other things in mine.
25 I don't want to interrupt the flow here, but I
46
1 do want to be heard on that particular item that
2 I have addressed.
3 HEARING OFFICER: Well, let's deal with Mr.
4 Thompson. I think we need to take them one at a time
5 and put them to bed.
6 MR. HYDE: This would be dealing with Mr. Thompson.
7 HEARING OFFICER: Okay.
8 MR. HYDE: I have a slightly different view from
9 what Mr. Smith was arguing so far.
10 I'd like to preface I don't have any objection to
11 deposing Mr. Thompson after the legislative session.
12 I think that's one of the grounds that was raised as
13 being inconvenient to depose him now.
14 I do have some concerns, given our informal
15 discovery cutoff date of April 8 and the fact I have
16 depositions literally every day from here on out through
17 that time scheduled, so it may be difficult to do him
18 after the legislative session, but I am willing to work
19 with counsel in that regard.
20 I do think that my notice is no broader than
21 the other notices and submitted by all the other
22 parties in this case.
23 I do think that my notice is specifically
24 responsive to the concerns you identified earlier.
25 Even when I talk about the settlement negotiations
47
1 in the federal litigation I tried to limit it, and
2 I quote, "Insofar as they relate to the factual
3 findings expressed in the settlement agreement and the
4 proposed SWIM plan."
5 As you no doubt heard many times before they are
6 substantially similar and in many respects verbatim,
7 the same, so I think that that kind of request
8 to both the federal settlement agreement factual
9 findings and the SWIM plan is quite relevant and
10 appropriate for production of documents.
11 I think if the documents have already been produced
12 by the Department, fine. Mr. Killinger and I worked
13 it out, and I have accepted his representations
14 regarding other witnesses.
15 The intent here is to seek new documents, and in
16 order to do that every so often we do get new documents
17 that we were previously unaware about.
18 So the intent is to get new documents. If there
19 are no new documents, fine. If there are new documents,
20 if he has nothing he can so state under oath.
21 I presume that Mr. Thompson is an honorable man
22 and will be telling me the truth. If he doesn't
23 know anything about it, which I might find a little hard
24 to believe, given his intimate involvement in this
25 case and his role as Assistant Secretary of the
48
1 Department, he can tell me that, and I will have to
2 accept his representation, unless I get up and prove to
3 the contrary, but these are issues I think that can be
4 dealt wit in the context of a deposition.
5 I do think that my items are very relevant, and
6 i'd like to give you an example of one area where I
7 think it's particularly relevant.
8 One of the issues in this case is whether the
9 discharges are causing violations of the OFW standard,
10 Outstanding Florida Waters standard, as it applies to
11 the Loxahatchee Refuge. I questioned several witnesses
12 in the Department about this, Richard Harvey, Roxane
13 Dow, among others. There's a very important issue
14 here, because depending on how that rule is
15 construed there may well be no violation of the OFW
16 standard even by the Department's likes, if one considers
17 how well the best management practices that are in place
18 by the industry are working.
19 Richard Harvey told me in no uncertain terms that
20 was a legitimate area of inquiry, and it was unresolved,
21 and the issue was kicked upstairs to Dan Thompson.
22 That's why I want to talk to Dan Thompson. That's
23 why, Roxane Dow said the same thing, that the issue was
24 unresolved and was something we are entitled to a
25 resolution on.
49
1 It's an important issue, because some of these
2 Draconian sanctions or limits that are being proposed
3 for imposition on my clients are predicated in
4 substantial part on this often stated public assertion
5 that the OFW is an Outstanding Florida Water, so if
6 there is no violation of the OFW standard then it
7 will be very relevant to these motions.
8 That's a representative sample of the kinds of
9 things I want from Mr. Thompson.
10 I think I recognize at least he was the General
11 Counsel, and I'm not trying to intrude upon attorney-
12 client privilege, but I think at the same time everything
13 that he has done is not infused with that. Mr. Killinger
14 may think that, but I find that hard to believe. Even
15 if that is the case I think it bears on the specific
16 question.
17 HEARING OFFICER: I agree with you, and I think the
18 best way to try to deal with it would be to, I think the
19 onus has to be put to delineate specific areas that they
20 want to inquire into, so we can make at least an attempt
21 of some sort of determination in advance as to what
22 areas are appropriate and do not affect the attorney-
23 client privilege and don't violate that and what areas
24 such as the one you're talking about could be
25 ripe for inquiry.
50
1 If he was the one that a policy determination was
2 kicked upstairs to, it seems to be outside the scope
3 of the litigation issue and back into the policymaking
4 realm, and if he was actually a policy maker and sitting
5 with that hat on, then I think he can be deposed
6 with regard to that.
7 MR. HYDE: My concern was really that we were
8 considering something along the lines of barring any
9 testimony from Mr. Thompson, and the case law would
10 suggest a blanket order would be too broad, and that
11 it should be done only on privileged items being
12 included.
13 I've got some case law for your consideration,
14 Young, Sterm, and Tannenbaum, 416 So. 2d 5, 4, excuse me.
15 It's a very simple case that says that while in
16 effect one can take the deposition of a party's attorney,
17 but it would be overbroad to limit any deposition,
18 and that the limits can only preclude communications.
19 MR. KILLINGER: I think he's correct that the
20 depositions, orders barring depositions are very rare.
21 I think the attorney-client privilege is the one
22 area which is accorded the highest certainty.
23 The burden is certainly on the person seeking to
24 depose a potential deponent to designate why they need
25 the information, why it is within the bounds of propriety
51
1 to seek it, why it is not infused with the attorney-client
2 privilege, and part of the demonstration of that ought to
3 be why they want to do it, perhaps by interrogatory.
4 If he wants a legal opinion abut what are the
5 legal interpretations, or are there other avenues
6 that are not nearly as invasive, harassing, or
7 threatening to the attorney-client privilege, namely
8 interrogatories, and that hasn't been discussed or
9 tried. I'm not sure we would have a problem doing it
10 that way. Nobody brought it up.
11 They are just looking for the deposition of the
12 person who was the General Counsel of the Department and
13 asked for technical information. He is not the
14 appropriate person. They attach documents that talk
15 about technical decisions that were made. People
16 have been deposed already. The arguments are replete.
17 HEARING OFFICER: Mr. Killinger, I think I have
18 already indicated at this point in time that I'm going
19 to put the onus on the petitioners to demonstrate
20 why they need to take Mr. Thompson's deposition and we
21 can talk about other issues later on when we get more
22 specific and get into that.
23 I think you raised some good points, that there
24 may be other ways to do it, and we will have to see how
25 that all plays out.
52
1 I do believe there are some very legitimate
2 concerns that need to be taken into account before you
3 go depose the General Counsel of the Department, and
4 until some of those issues are specifically laid out
5 before me I'm not going to permit it to occur.
6 Now let's talk about the Department's representative
7 who was also noticed, the designee. We talked about
8 some of the issues that Mr. Smith has submitted. Some
9 of these I believe we have, well, maybe we haven't
10 reached any agreement.
11 (WHEREUPON, MR. HYDE LEFT THE HEARING ROOM.)
12 I think what we need to do is rephrase these
13 particular areas into a way that I think that fits within
14 the scope of the permissible discovery and have the
15 Department respond as to whether it is a designee or
16 whether it is someone who has already been deposed.
17 MR. KILLINGER: That's fine.
18 HEARING OFFICER: Going back to the specifics,
19 Mr. Smith, I still do not understand from you why
20 the decision not to object to the continuing
21 jurisdiction is something that will lead to
22 admissible evidence in this proceeding.
23 I don't understand the legal decisions, whether
24 it's...
25 MR. SMITH: It wasn't a legal decision. That's
53
1 precisely the point.
2 HEARING OFFICER: It was a legal decision.
3 MR. SMITH: It was a political decision. That's
4 what it was.
5 HEARING OFFICER: Irrespective of the issues where
6 we are now, and we have to deal with the SWIM plan as
7 adopted, how does that go to the merits of the SWIM
8 plan?
9 MR. SMITH: It goes to the credibility of the
10 proposer of the SWIM plan, the District and the
11 Department. The Department approved the SWIM plan.
12 The District authored the SWIM plan. They vouched
13 for the SWIM plan. They are bound, I mean, the
14 documents show that they are bound to use all of their
15 strengths to shove this thing through.
16 (WHEREUPON, MR. HYDE ENTERED THE HEARING ROOM.)
17 HEARING OFFICER: Well, I think you are entitled to
18 ask the witness why provisions were adopted in the
19 SWIM plan, what scientific basis there was for the
20 provisions of the SWIM plan, whether they agreed with
21 the provisions that were adopted or whether they
22 disagreed, and if they disagreed who made the decision
23 to go with it, but I don't understand when we start
24 talking about making decisions regarding jurisdiction
25 how that relates to the decisions that led to the ultimate
54
1 SWIM plan that was adopted.
2 In any event, I think that particular number one
3 goes to the issues that we have discussed before.
4 I don't think it's calculated to lead to,
5 reasonably calculated to lead to evidence that would be
6 admissible at final hearing in this proceeding, so I
7 don't think there is any designee that has to be
8 addressed with respect to this particular matter.
9 The second issue goes to the 50 parts per billion
10 and the creation of the Technical Oversight Committee.
11 Thee semantics of coercion, duress, pressure, I think
12 it's difficult or impossible to respond to those
13 characterizations, but in terms of the decision maker and
14 who made the decisions regarding the provisions that
15 were ultimately incorporated into the SWIM plan the
16 District should designate its person most knowledgeable
17 regarding those areas and make that person available for
18 deposition if the person has not already been deposed.
19 The settlement negotiations, number three, from
20 May 15th relating to the matters in the notes, I think
21 the notes reflect some discussion of pertinent matters
22 that are appropriate for inquiry. To the extent the
23 Department has witnesses knowledgeable regarding the
24 notes, the meetings, and the discussions that haven't been
25 deposed, they should be made available for deposition.
55
1 Number four, the decision to submit the NPDES
2 permit we have talked about earlier. I'm not sure what
3 the Department's position exactly is, whether there is
4 a witness or another, how the Department was involved
5 in the District's decision regarding the permit, and
6 I don't know what you are looking for in that regard.
7 Maybe Mr. Smith can explain.
8 MR. SMITH: I'm looking for the person at the
9 highest level, if not Mr. Thompson as the Assistant
10 Secretary, who will say they were on the phone with EPA,
11 and they were on the phone with the District or they
12 weren't, they say they agree or don't agree that
13 they ought to have a permit, and/or they ought to be
14 required to have a permit, and we agree or we don't
15 agree, or it wasn't consciously done, knowing the impact
16 on the SWIM plan.
17 HEARING OFFICER: Well, I guess, I mean, wasn't
18 that a District decision?
19 MR. SMITH: I don't know. If it was, it would
20 take five minutes to say, "I don't know what you're
21 talking about, and nobody knows here what you're talking
22 about. It was a District matter." I doubt it.
23 HEARING OFFICER: All right.
24 MR. REID: Mr. Menton?
25 HEARING OFFICER: Was that Mr. Reid?
56
1 MR. REID: Yes. I wanted to not get passed on
2 item four and five, ours on this subject here, since it's
3 brand new here.
4 HEARING OFFICER: Okay.
5 MR. REID: We have a serious relevance argument,
6 I think, and we'd like to brief that.
7 HEARING OFFICER: Okay. That's fair enough. What
8 we need to do is give them an opportunity to, Mr. Reid,
9 this goes to the Department's witness.
10 MR. REID: I understand, but it's on mine.
11 I didn't want to get past it.
12 MR. KILLINGER: It's the same on both.
13 MR. SMITH: It's a District witness as well.
14 MR. REID: They are both identical.
15 MR. KILLINGER: It might e more expeditious to hear
16 from the District if they have made a decision before
17 we need to depose even for a period of 15 minutes to
18 talk about this, the other person in the Department,
19 especially given it may be the Assistant Secretary, and
20 that imposes additional burdens.
21 HEARING OFFICER: Mr. Killinger, I want you to make
22 inquiry within the Department to determine who, if
23 anybody, was involved in the decisions that were made,
24 and then we can discuss that a little bit further.
25 MR. KILLINGER: I will.
57
1 HEARING OFFICER: Okay, and it would also go to
2 number five on the list that's on there, and in the
3 meantime, Mr. Reid, you should be prepared to give you
4 response with respect to the District's witnesses and
5 the relevance of the permit and how it's going to
6 interplay into the SWIM plan.
7 MR. REID: Yes, sir.
8 HEARING OFFICER: Okay. Those are the five items
9 I believe that were listed within the motion. Wasn't there
10 a sixth in the...
11 MR. SMITH: Yes, we would intend to inquire about
12 the decision both by the District through its
13 designee and the Department through its designee not to
14 invoke in the SWIM plan any of the moderating
15 provisions which are part of the water quality standards
16 adopted by the ERC.
17 HEARING OFFICER: Okay. Well, as I have understood
18 the District before, they at least argue that the
19 moderating provisions were considered, so when you
20 frame it that way, whether they were or were not
21 considered you are certainly entitled to inquire of
22 the witnesses as to how they were applied or where
23 they appear. I think that's appropriate.
24 MR. SMITH: The only thing I can tell you is I have
25 read that some lower echelon person, says, "We didn't
58
1 think the Department would approve them, so we didn't
2 apply."
3 Now if that's the best answer and the only answer
4 they've got, then their designee would know whether and
5 to what extent there was any discussion at higher levels
6 that went beyond that kissoff, and that puts us in the
7 Department's court. The Department said that
8 didn't apply, so you have a copy of the
9 agreement that neither the District nor the Department
10 would take responsibility for considering the provisions
11 that the ERC said not be considered for protection of
12 the farmers.
13 MR. REID: Let me just make a note here that we
14 have a disagreement or did previously about whether
15 these are required. I don't want his exuberance that
16 these apply to lose wight of that point.
17 HEARING OFFICER: Okay, and I'm not privy to what's
18 gone on during the discussions or discovery or what
19 witnesses have said during the process. We talked
20 about the moderating provisions before, and for some
21 reason I have in my mind that there was a representation
22 that there were witnesses who were going to testify as
23 to how the moderating provisions were applied within
24 the confines of the SWIM plan. Whether I misunderstood
25 or not I don't know.
59
1 The point for discovery purposes is certainly the
2 petitioners are entitled to inquire as to who the
3 Department and the District representatives are
4 regarding the decision either to apply them or not to
5 apply them and how they were applied.
6 In that regard I think both the District and the
7 Department should respond to that particular area, and
8 they should indicate who the witnesses are that have
9 knowledge in that regard.
10 Okay? Those deal with the main areas that I think
11 were raised in the notice that Mr. Smith has filed and
12 the objections that have been submitted by the Department.
13 Are there any other particular discovery matters
14 that we need to take up today?
15 MS. PONZOLI: Mr. Menton, yes, I have the motion
16 to compel the completion.
17 HEARING OFFICER: Ms. Ponzoli, I'm losing you.
18 MS. PONZOLI: Yeah, I heard. I think there's an
19 airplane going over. I don't know what the problem
20 is.
21 I have a motion to compel, Mr. Menton, the completion
22 of Mr. George Wedgworth's deposition.
23 MR. SMITH: There is no objection to that.
24 Can you hear me, Ms. Ponzoli?
25 MS. PONZOLI: I can hear you, Mr. Smith.
60
1 MR. SMITH: We propose, there has never been any
2 problem, and we'd like to do it as West Palm Beach
3 rather than Miami, however, and we propose doing it at
4 10 o'clock on Tuesday morning.
5 MS. PONZOLI: Ten o'clock Tuesday morning in West
6 Palm Beach will be fine. Will you go the full day
7 with me, approximately?
8 MR. SMITH: Absolutely.
9 MS. PONZOLI: All right, then it's resolved, Mr.
10 Menton. We don't need to go through the details.
11 HEARING OFFICER: Okay. I don't have your motion
12 anyway.
13 MR. HYDE: Mr. hyde, two things. Just a request
14 from Ms. Ponzoli to get back with me on scheduling the
15 final day or two of Ron Jones which we agreed.
16 MS. PONZOLI: I would be happy to schedule the
17 final day of Mr. Jones' deposition. I think it has been
18 going back between us a number of finalizations.
19 MR. HYDE: Okay, I just wanted to, I had not heard
20 specifically.
21 The second thing is I'm a little unclear as to where
22 my notice of taking deposition on Mr. Thompson has been
23 left.
24 HEARING OFFICER: I think the appropriate way to
25 deal with this, Mr. Thompson's deposition, is to
61
1 grant the protective order at this time now for the
2 deposition scheduled this week.
3 I do not necessarily mean to imply that he
4 will not be available to be deposed upon a proper showing
5 of his involvement in matters of a policy nature as
6 opposed to the attorney-client nature or upon some other
7 showing that comports with the standards that have been
8 enunciated by the courts.
9 I will give you an opportunity, but I will put the
10 burden on the petitioners to come forward with a
11 demonstration as to the areas and the need for his
12 deposition.
13 MR. REED: About Mr. Milledge?
14 MR. HYDE: Let me ask this question first concerning
15 Dan Thompson. How am I going to do that without
16 questioning Mr. Thompson?
17 HEARING OFFICER: Well, I think you ask other
18 witnesses who either say, "I didn't make that
19 decision, I kicked it up to Mr. Thompson, and he made
20 the decision," and if that's what comes down then you
21 lay it out in a motion, and I'll take a look at it,
22 or if you and Mr. Killinger can reach some arrangement
23 or agreement and see if you can have him testify in
24 that regard without the motion process, but if you
25 have to go through the witnesses that were below him
62
1 and said he was the one who made the policy
2 determinations...
3 MR. HYDE: But there is also a legitimate area of
4 inquiry regarding a lot of other documents and factual
5 findings that frankly at this point it would be
6 difficult to go back and depose underlings to find out
7 what decisions had been kicked up or what he had
8 knowledge about.
9 I would propose an alternative way just to simply
10 schedule him for a deposition and have us tailor or
11 questions narrowly to him, and that Mr. Killinger and
12 Mr. Thompson can make appropriate objections to these
13 as inappropriate questions, but I don't really see how
14 I can be barred from taking even that minimal step,
15 and I think putting that kind of burden is really contrary
16 to what the case law does say about attorney depositions.
17 HEARING OFFICER: Okay, I haven't seen all of the
18 cases, and I'll give you an opportunity to submit
19 those.
20 My understanding of the law is that there needs to be
21 a demonstration as to the reasons why an attorney is
22 being deposed, an attorney involved in litigation.
23 There has to be some demonstration as to the
24 knowledge he may have or the areas that he can testify
25 to alone that are not within the scope of the
63
1 attorney-client privilege before that deposition can
2 go forward.
3 MR. HYDE: I understand what you're saying, and I
4 can see there should be a burden on my side to
5 demonstrate relevancy or inquire, but I guess I'm a
6 little hard pressed to figure out how I can test the
7 adequacy of my knowledge without even asking what he
8 knows. That's where my problem lies.
9 HEARING OFFICER: Well, one thing you can do is
10 lay out the areas in your motion and give Mr. Killinger
11 an opportunity to voide his objections in terms of
12 it all falls in attorney-client, and we can look at it
13 and discuss it and get a little better guidelines as
14 to how the deposition can proceed.
15 MR. HYDE: Okay. We will try to respond
16 accordingly.
17 MR. REID: Mr. Menton, understand he was obviously,
18 Mr. Milledge, the Chairman of the Governing Board
19 part of the time. Are we required to produce
20 Mr. Milledge, or are we required to produce a
21 designee to the extent there is a designee that will
22 suffice?
23 These are the same subject matter areas. It would
24 seems designee to the extent we haven't already
25 produced the people...
64
1 HEARING OFFICER: You mean just in terms of a
2 District representative as to how...
3 MR. REID: Well, as to these items. We had
4 Mr. Milledge with three items listed, and we had a
5 designee with five items, and they are all essentially
6 the same.
7 The subject matter is the same. There's, one's
8 a little shorter.
9 My question is may we have a protective order as
10 to Mr. Milledge unless he turns out to be the
11 designee, of course, by having a protective order for
12 Mr. Milledge and just proceed assuming a 30B-6 type
13 deposition?
14 HEARING OFFICER: Okay, Mr. Smith, is there anything
15 unique about Mr. Milledge or is it just some
16 representative of the District with knowledge of these
17 matters?
18 MR. SMITH: Mr. Milledge was named because he
19 was the Chairman, and I assumed the Chairman made the
20 policy decision.
21 That doesn't necessarily mean that Mr. Milledge
22 has to be the one to testify about it, but it does
23 mean that I want the person who can say Mr. Milledge
24 made that decision because, and I want the equivalent
25 of Mr. Milledge if we spare him the indignity of
65
1 giving his deposition.
2 I'm willing to work, I'm willing to work, I don't
3 know why we are embarrassed to have a Board member give
4 a deposition, but I'd be glad to proceed with a
5 designee first if Mr. Reid thinks he can satisfy
6 what seems to be my legitimate concerns, and he knows
7 I'm talking not about some underline who will give me
8 scientific testimony. He knows I'm concerned with
9 someone who made a decision in the circumstances in my
10 notice.
11 MR. REID: With all respect, I have a feeling we're
12 going to be back on this one, Mr. Menton.
13 HEARING OFFICER: It wouldn't surprise me.
14 It wouldn't be the first time, either.
15 MR. REID: Okay. I wanted to make it clear.
16 HEARING OFFICER: Okay. Well, why don't you take
17 it this way, Mr. Reid. Put up your designee, let him
18 be deposed, and if that doesn't satisfy him we may come
19 back.
20 I do think there are some unique issues when you
21 talk about members of a collegial decision making body.
22 Nobody addressed those in arguments so far in
23 terms of how you go about depositing all members or just
24 certain members of the Board.
25 MR. SMITH: I think that's not a problem.
66
1 HEARING OFFICER: Mr. Reid, for purposes of
2 getting the discovery going, come up with who you
3 believe is the appropriate designee, and if Mr. Smith
4 isn't satisfied then we'll take it back up.
5 MR. SMITH: I will depose the designee and find out.
6 MR. REID: I want to make it clear so I don't
7 get in trouble here that our position may be that that
8 person has already been deposed.
9 HEARING OFFICER: All right. If that's your
10 position, then lay that out.
11 MR. REID: I don't want to surprise anybody.
12 HEARING OFFICER: Okay, Mr. Green had tried to
13 reach me yesterday, and he's not on the conference
14 call today, regarding some discovery matters. Are there
15 other issues that are not pending in motion form?
16 MR. SMITH: Yes. What it was, and I think it's
17 covered, he's in the midst with somebody from the
18 U. S. Attorney's Office, Mr. Watts Fitzgerald, I guess,
19 in deposing this critical United States expert
20 witness, Mr. Walker...
21 MS. PONZOLI: Mr. Menton, if we're going to
22 represent what's going on in that depo I would prefer
23 to go and retrieve Mr. Fitzgerald and Mr. Green and
24 bring them in from the next room. I don't feel
25 competent to represent what's going on in that deposition.
67
1 HEARING OFFICER: That's fine. I just didn't
2 know if there were any other matters that we needed to
3 discuss today while everybody was on the phone, but
4 if they have worked it out...
5 MR. SMITH: They haven't worked it out. They
6 specifically asked me to, because it precisely bears
7 upon that period, May 21 to July and Mr. Walters'
8 knowledge...
9 MS. PONZOLI: Mr. Menton, may I retrieve
10 Mr. Fitzgerald? I don't think that the United States
11 will have a fair representation here if Mr. Green
12 asked Mr. Smith to argue this and I had no knowledge,
13 and Mr. Fitzgerald and I have not conferred, and I cannot
14 represent our position.
15 I can get him in one minute.
16 HEARING OFFICER: Okay. Let's take about a five-
17 minute break. Then we'll come back.
18 MR. SMITH: Get Mr. Green, too, so he can argue
19 his own motion.
20 MS. PONZOLI: I think that's the best way.
21 HEARING OFFICER: Okay, why don't we take about a
22 five-minute break. We'll keep the phone line open.
23 (WHEREUPON, THE HEARING WAS RECESSED FROM
24 11:37 A.M. TO 11:45 A.M., AT WHICH TIME MR. REID WAS ABSENT
25 FROM THE TELEPHONE CONFERENCE CALL LINE AND MR. GREEN AND
68
1 MR. FITZGERALD WERE PRESENT ON THE TELEPHONE CONFERENCE
2 CALL LINE.)
3 MR. GREEN: We were in the deposition of
4 Dr. William Walker...
5 HEARING OFFICER: I lost you, Mr. Green.
6 MR. GREEN: We have phone problems. Sounds like
7 somebody's dropping cans. It just stopped.
8 HEARING OFFICER: Hello?
9 MR. GREEN: Mr. Menton, can you hear me?
10 HEARING OFFICER: Yes.
11 MR. GREEN: We were deposing Dr. William Walker,
12 who is one of the five technical architects of the
13 settlement agreement, which as you know is protected.
14 HEARING OFFICER: Okay.
15 MR. GREEN: I have been...
16 HEARING OFFICER: Could all parties on the
17 conference call please refrain from dropping whatever
18 you're dropping?
19 MR. GREEN: Okay.
20 HEARING OFFICER: Okay. Mr. Green, go ahead.
21 MR. GREEN: Okay. I am inquiring, I began to
22 inquire of Dr. Walker's understanding of how the
23 definition of imbalance of flora and fauna contained
24 in the settlement agreement which does not by the way
25 appear, how it came into being, because it was my
69
1 understanding it translated into the SWIM plan, and
2 it's a fair subject for discovery.
3 He was instructed not to answer by Mr. Fitzgerald.
4 HEARING OFFICER: You talked about, there was a
5 provision that you inquired about regarding fauna?
6 MR. GREEN: The definition of imbalance of flora and
7 fauna in the case of the Park and Refuge on page three
8 of the settlement agreement. This definition was
9 generated during the settlement discussions.
10 HEARING OFFICER: Is that the same definition
11 that appears in the SWIM plan?
12 MR. GREEN: That's my understanding, Your Honor.
13 MR. HYDE: It's verbatim.
14 MR. GREEN: It becomes the law. Its then
15 the interpretation of the water quality standards and
16 has the effect of a regulation.
17 There were a couple of other areas relating to the
18 limitations if the STAs failed to achieve reductions
19 that in turn...
20 HEARING OFFICER: The conference call is picking up
21 all kinds of background noise. So if you are on the
22 phone please try to keep it down. I'm having a very
23 difficult time understanding Mr. Green. Are you there?
24 MR. GREEN: Yes.
25 HEARING OFFICER: Okay. You said there were...
70
1 MR. GREEN: Two or three other areas, Your Honor,
2 that essentially revolved around what the legal
3 requirements or the policy requirements were with regard
4 to how discharges into the Refuge would be treated.
5 For example, there's a default provision that
6 indicates if the Class 3 phosphorus criteria in the
7 Refuge were not met by a certain date, then a certain
8 concentration limit would be required to be met at the
9 outfall.
10 I wanted to know how that standard and criteria
11 was developed, and I was told if my recollection is
12 right that was a policy decision and was not allowed
13 to inquire further.
14 In general, Your Honor, we believe that the
15 settlement agreement reflects numerous determinations
16 of facts and policies that have been transferred,
17 and it's our understanding we're entitled to discover
18 how these policy determinations were made.
19 HEARING OFFICER: Mr. Fitzgerald, are you there?
20 MR. FITZGERALD: Yes, sir, I am.
21 HEARING OFFICER: Okay. What's your version?
22 MR. FITZGERALD: Well put, Mr. Hearing Officer.
23 I don't accept necessarily counsel's characterization.
24 I think he may be wrong on one of the points about whether
25 or not the witness was...
71
1 HEARING OFFICER: I'm having a hard time hearing
2 you. Speak up a little bit.
3 MR. FITZGERALD: A great deal of time yesterday we went
4 through the process of virtually page by page in the
5 federal settlement agreement.
6 Dr. Walker was permitted to answer at great length
7 on the derivation of the limits for the Loxahatchee
8 and the National Park, which by strange coincidence
9 appear as well in the SWIM plan.
10 It has been my understanding since your ruling
11 that the technical work done in the federal settlement
12 efforts amongst the parties to that agreement that
13 were carried forth into the SWIM