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: WEDNESDAY, MARCH 14, 1994

(10:06 A.M. - 1:00 P.M.)

LOCATION: HEARING ROOM 3, DESOTO BUILDING

21 1230 APALACHEE PARKWAY

TALLAHASSEE, FLORIDA

REPORTED BY: SUE HABERSHAW JOHNSON

23 CERTIFIED COURT REPORTER

REGISTERED PROFESSIONAL REPORTER

24 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 (telephone)

CAROLYN RAEPPLE, ESQUIRE

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)

Representing Petitioners, Florida Sugar Cane

9 League, Inc., and United States Sugar

Corporation:

RICK J. BURGESS, ESQUIRE

11 ROBERT BLANK, ESQUIRE (telephone)

Earl, Blank, Kavanaugh & Stotts

12 One Biscayne Tower, Suite 3636

Two South Biscayne Boulevard

13 Miami, Florida 33131

(305-681-1900)

14 -and-

WILLIAM L. HYDE, ESQUIRE

15 Earl, Blank, Kavanaugh & Stotts

Suite 350

16 215 South Monroe Street

Tallahassee, Florida 32301

17 (904-681-1900)

18 Representing Petitioners, Florida Fruit and

Vegetable Association, Lewis Pope Farms,

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

Farms, Inc.:

KENNETH F. HOFFMAN, ESQUIRE

21 ROBERT DOWNIE, 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 STEPHEN MACFARLANE, ESQUIRE (telephone)

KEITH A. SAXE, ESQUIRE (telephone)

10 STEPHEN BARTELL, ESQUIRE (telephone)

United States Department of Justice

11 Environmental & Natural Resources Division

General Litigation Section

12 Room 879, 601 Pennsylvania Avenue

Washington, D.C. 20004

13 (202-272-4016)

14 Representing Intervenor, Florida Department of

Environmental Protection:

LEE M. KILLINGER, ESQUIRE

16 Assistant General Counsel

Department of Environmental Protection

17 640 Twin Towers Office Building

2600 Blair Stone Road

18 Tallahassee, Florida 32399-2400

(904-488-9730)

Representing Respondent, South Florida Water

20 Management District:

21 R. BENJAMINE REID, ESQUIRE

Popham, Haik, Schnobrick & Kaufman, Ltd.

22 400 International Place

100 Southeast Second Street

23 Miami, Florida 33131

(305-539-7222)

1 APPEARANCES, CONTINUED:

2 Representing Respondent, South Florida Water

Management District:

RUTH P. CLEMENTS, ESQUIRE (telephone)

4 Assistant General Counsel

South Florida Water Management District

5 P. O. Box 24680

3301 Gun Club Road

6 West Palm Beach, Florida 33416-4680

(407-686-8800)

* * * * *

ALSO PRESENT:

BERNIE ROMAN (telephone)

INGUNA VARSLAVANE

PAM GARVIN

* * * * *

INDEX

ITEM PAGE

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

HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 134

CERTIFICATE OF REPORTER . . . . . . . . . . . . . . .135

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 10:06 A.M.,

3 AT WHICH TIME MR. HOFFMAN, MR. MACFARLANE, MR. SAXE, AND

4 MR. BARTELL WERE ABSENT FROM THE PROCEEDINGS.)

5 HEARING OFFICER: Hello?

6 TELEPHONE OPERATOR: Hello. Mr. Menton?

7 HEARING OFFICER: Yes.

8 TELEPHONE OPERATOR: AT&T conference call. I have

9 your parties, with the exception of Mr. Macfarlane.

10 I reached Voice Mail for him, and so I left the 800-

11 number and the I.D. number. Would you like me to take

12 a roll call?

13 HEARING OFFICER: Please.

14 TELEPHONE OPERATOR: One moment. We'll just take

15 a short roll call. Ms. Clements?

16 MS. CLEMENTS: Yes.

17 TELEPHONE OPERATOR: Mr. Blank?

18 MR. BLANK: Here.

19 TELEPHONE OPERATOR: Thank you. Bill Green?

20 MR. GREEN: Here.

21 TELEPHONE OPERATOR: Bernie Roman?

22 MR. ROMAN: Here.

23 TELEPHONE OPERATOR: Is Steve Menton in the room?

24 HEARING OFFICER: Yes, ma'am.

25 TELEPHONE OPERATOR: Thank you for using AT&T.

1 The I.D. number is WR, as in William Robert, 67833.

2 Do you need our 800-number?

3 HEARING OFFICER: No. That's okay. I think we

4 have it from before.

5 Good morning. This is Steve Menton in Tallahassee.

6 Let's take an attendance list of people who are here

7 in Tallahassee, beginning with the petitioners, for the

8 League.

9 MR. HYDE: William Hyde and Rick Burgess on behalf

10 of the League and U. S. Sugar.

11 HEARING OFFICER: For the Cooperative?

12 MR. SMITH: Robert Smith and Carolyn Raepple.

13 HEARING OFFICER: Okay, and for the Fruit and

14 Vegetable Growers?

15 MR. DOWNIE: Robert Downie.

16 HEARING OFFICER: Okay. Let's move to the

17 District.

18 MR. REID: Ben Reid.

19 HEARING OFFICER: Okay, the U. S. Government?

20 MS. PONZOLI: Suzan Ponzoli and Tom Watts

21 Fitzgerald.

22 HEARING OFFICER: Okay, Department of Environmental

23 Protection?

24 MR. KILLINGER: Lee Killinger.

25 HEARING OFFICER: Okay. I don't know if Mr.

1 Lehtinen wanted to be part of this or whether Mr.

2 Guest, did anybody hear from them or know whether they...

3 MR. ROMAN: My name is Bernie Roman. I'm a law

4 clerk for Mr. Lehtinen. He told me to sit in on the

5 conference.

6 HEARING OFFICER: Okay. How about Mr. Guest?

7 Anybody hear from Mr. Guest or know what his status

8 is?

9 Okay. The hearing was established during the last

10 conference call, during which Mr. Guest was represented.

11 I assume if he intends to join us, I'm sure he will

12 find an appropriate way to get us.

13 MS. PONZOLI: Mr. Hearing Officer, I thought

14 that Mr. Saxe of the Department of Justice wished to

15 listen in, and I don't know. Is there any way to plug

16 him in? I guess we lost our operator.

17 HEARING OFFICER: We can call the AT&T number

18 and give them the conference...

19 MS. PONZOLI: I believe Mr. Saxe is 202-272-4016.

20 MR. HYDE: It might be easier for you to call him.

21 MS. PONZOLI: Fine. I'll go do that.

22 MR. HYDE: Get the 800-number and the...

23 COURT REPORTER: WR-67833.

24 MS. PONZOLI: I'll do that.

25 (WHEREUPON, A BRIEF OFF-THE-RECORD DISCUSSION WAS

1 HELD, AND MS. PONZOLI LEFT THE HEARING ROOM.)

2 HEARING OFFICER: Okay, for those of you who are

3 on the conference, Ms. Ponzoli has gone to see if we can

4 add Mr. Saxe onto the line.

5 Is there anybody else on the phone that needs to

6 state an appearance other than the names that were

7 called out by the operator?

8 Ms. Clements, is there anybody that you have with

9 you that's in appearance, or Mr. Green?

10 MR. GREEN: No, Your Honor.

11 HEARING OFFICER: Okay.

12 MR. FITZGERALD: Mr. Hearing Officer, there is at

13 least one very narrow issue we need neither Ms. Ponzoli

14 nor Mr. Saxe for, based on a request for further

15 entry into the Loxahatchee by the League. We can

16 address that to save some time and keep it moving.

17 HEARING OFFICER: Okay. That's fine. There was,

18 what is the status of the issue with respect to the

19 Cooperative's efforts to get into the Wildlife Refuge?

20 I think we talked about there had been some resolution

21 between the parties, but the wildlife issues were

22 still outstanding, as I recall from the earlier hearing

23 that we had.

24 MR. FITZGERALD: That's correct, Mr. Hearing

25 Officer. Ms. Raepple very kindly forwarded a copy of

1 some photos that had been taken by the consultants on

2 the date of the entry into the Park. They landed at

3 five sites out of the 10 selected, and I guess our

4 status has not changed with regard to Loxahatchee and

5 the entry program.

6 Because of the scope and the invasiveness of it

7 we still don't feel in a position to agree.

8 I had indicated to Ms. Raepple when last we

9 discussed it that were there any materials or anything

10 of that nature that their consultants felt would carry

11 the day and persuade us it was not something that would

12 pose any difficulty or potential harm within the scope

13 of controlling regulations and statutes covering the

14 designated habitat that we would be glad to receive

15 those and convey them to experts to review, but

16 we have heard nothing further, so I think we are at an

17 impasse.

18 MS. RAEPPLE: Mr. Hearing Officer, with regard to

19 the Cooperative's request for entry into the Loxahatchee,

20 as was mentioned to you at the last hearing we were

21 at that point about at the time in a critical path for

22 completing our work in advance of the deposition of

23 the Law Environmental experts, and they did conduct

24 entry into the Park and the further reconnaissance they

25 requested at that time and have determined that simply

1 they do not have the time at this time to go back and

2 do reconnaissance they would like to do into the

3 Loxahatchee and still be prepared to provide their

4 depositions at the end of the month.

5 (WHEREUPON, MS. PONZOLI ENTERED THE HEARING ROOM.)

6 What we are doing at this time is that they are

7 proceeding with their work, and they are at this

8 point optimistic they will be able to generate the

9 map they are attempting to do without the entry, and

10 we don't know yet whether that is going to be successful.

11 If it is unsuccessful then I will be filing an

12 appropriate motion to delay the depositions, which I

13 don't think will in any fashion delay the hearing,

14 because this is not an issue that is likely to come up

15 in the early stages, but we have not yet determined if

16 we will need to pursue that remedy.

17 HEARING OFFICER: Okay, so at this point they are

18 trying to extrapolate from the information they gathered

19 from the Park into...

20 MS. RAEPPLE: From other location as well as they

21 did some reconnaissance previously over the Loxahatchee

22 at the regulation height, which is 1,000 feet or so,

23 so that they do have some information from the Loxahatchee

24 in that fashion. They have not yet determined if it will

25 be sufficient.

1 HEARING OFFICER: Okay.

2 MS. RAEPPLE: But they don't have time to go back

3 and go into the Loxahatchee and prepare for deposition

4 on our present schedule.

5 HEARING OFFICER: Okay, well, if it does need

6 to come back up, one of the things we have talked

7 about before was looking at a way to get around some

8 of the wildlife issues that Mr. Fitzgerald raised,

9 either by delaying it until the latter part of the

10 hearing or something like that, so those issues can

11 be looked at before we have to bring that back up from

12 the context of the hearing. I just wanted...

13 MR. RAEPPLE: Yes, if it does become a problem

14 then I will attempt to resolve it just between Mr.

15 Watts Fitzgerald and myself and only coming back to

16 you if necessary.

17 HEARING OFFICER: Okay, just so I understood

18 that you have been able to get into the Park and do some

19 of the ground truthing that you wanted to do, is that

20 right?

21 MS. RAEPPLE: Yes.

22 HEARING OFFICER: And that's completed?

23 MS. RAEPPLE: That's completed.

24 HEARING OFFICER: Okay. Now there is another

25 access issue, Mr. Fitzgerald, that you wanted to address

1 with respect to the League?

2 MR. BURGESS: Mr. Menton, we requested informally

3 through correspondence and letters and speaking with

4 Tom that ability to go back into the Refuge to the

5 area where there are two transects, one in the southern

6 part and one in the western part of the Refuge.

7 The transects in the area where we want to take

8 three additional cores on each transect for a total of

9 six are all within 2,500 feet of the canal in the

10 cattail area, what's been defined as the impacted area.

11 We are not asking for permission t fly over,

12 we're willing to do this by airboat access from the

13 canals, go 2,500 feet in, and take soil samples.

14 The reason, Mr. Menton, after we completed our

15 first round of sampling we were allocated a certain

16 number of cores that we could take, and we went further

17 into the interior to judge the impact, and we found

18 very quickly that soil phosphorus reached background

19 levels, and so we want to better define the impact

20 through soil phosphorus closer to the canals.

21 Our consultants have prepared isopleths of the

22 soil phosphorus readings around these areas where the

23 transects are located to be able to determine soil

24 phosphorus content at a distance from the canal to

25 determine impacts going into the center of the Refuge,

1 and we have cores from the two sets of transects, but

2 we are not able to fill in the line to better define

3 the area without taking some ciscrete other cores in

4 discrete areas.

5 I had been hopeful based upon our contacts with

6 Tom that this was gong to be granted informally through

7 the correspondence route.

8 We have gone down to the point now of providing

9 GPS coordinates for the areas that we want to go to.

10 We have defined the stations that we have been at before

11 and where we want to go and are willing to limit ourselves

12 to the one day and entry by airboat to better define

13 the areas.

14 We don't think there is any of the wildlife,

15 migratory birds, that might be attendant to a flyover

16 in a helicopter of other areas in the Refuge.

17 This is total phosphorus only, so it's not CZM

18 data, which takes a longer period of time. These are

19 things after the core is taken where you can have the

20 results back relatively quickly from the laboratory.

21 HEARING OFFICER: Just so I understand, you're

22 talking about in the Everglades, taking from the canal

23 into two different locations for three core samples at

24 each of three different locations?

25 MR. BURGESS: Right, within 2,500 feet of the canal.

1 HEARING OFFICER: You have identified specific

2 sites that you would like to take those samples from?

3 MR. BURGESS: Yes, GPS coordinates. In fact,

4 we have been all working with these when we have

5 exchanged our data samples as the locations of the

6 various sites, and this was in my last correspondence

7 to Tom.

8 This is the area in the south where we would like

9 to take and do our two stations of the LR-18 and

10 LR-19 and LR-21 for the record.

11 HEARING OFFICER: Okay, those are different sites

12 than the ones established during the first access

13 we established close to the canal?

14 MR. BURGESS: Those stations that I just read to

15 you are in fact the stations from the first entry,

16 from our first entry, but what we want to do is better

17 define the phosphorus gradient by sampling within

18 2,500 feet of the canal, at or near those sites.

19 I have my letter dated March 3rd to Mr. Fitzgerald,

20 telling the exact locations, numbers, and the GPS

21 coordinates, which I'd be happy to offer into the

22 record.

23 HEARING OFFICER: Okay. You are saying it's the

24 same sites you had used before, but there's a specific

25 location at those sites now that you want to measure

1 from the canals?

2 MR. BURGESS: Right. Here in the south where we

3 may have the sample at LR-21, and then which might show

4 elevated phosphorus, and then we go up to LR-23, which

5 is that background.

6 We know that somewhere between those two areas the

7 gradient decreases back to background, and we want to

8 define that area.

9 Between that area and that area we want to take

10 another core to define it, so we can draw the line of

11 the phosphorus impact.

12 HEARING OFFICER: All right. Mr. Fitzgerald,

13 what's the problem?

14 MR. FITZGERALD: Well, Your Honor, not arguing

15 disputed facts, I will stick to the procedural.

16 One of the concerns I had, although this is

17 arguably distinguishable from the Coop's proposal,

18 because it's less intrusive, takes less time, was the

19 appearance of not treating all petitioners in an

20 even-handed fashion, but after our last extended

21 conversation on this, as Mr. Burgess pointed out, he

22 provided me with correspondence identifying the

23 locations.

24 Once I had that I was able to give that to the

25 experts and have them look at whether it does pose

1 concerns that raise the environmental and ecological

2 difficulties because of the species.

3 As he points out, because they are heavily invested

4 cattail areas of marginal value to wildlife it does not

5 raise the same level of concerns.

6 We have checked the two areas and understand his

7 proposal is by airboat for one day. I'm sorry. Did I

8 say something humorous, Mr. Smith?

9 HEARING OFFICER: Let's just go forward.

10 MR. FITZGERALD: So a total of three additional soil

11 cores along those two transects going no further in as

12 indicated, the 2,500 feet from the canal, we are

13 not overwhelmingly thrilled about the idea, but we

14 don't have the same difficulties from the Resource

15 Manager's perspective as with the other proposal.

16 Accordingly I think we can agree to do that. It

17 does raise a couple of issues I guess we haven't

18 resolved, and although I understand that the data

19 would be available much sooner, whomever it is who will

20 employ the data may be deposed, and if so we have

21 the procedure of having to redepose people who may

22 be relying on it. I need that identified, because we

23 would not know that.

24 I would also like, as I said in the earlier

25 exchange, to have the raw data as soon as it becomes

1 available from whatever means.

2 The data I would propose for it, and it's key to

3 having a person there available to do it with them, and

4 we'll issue a special use permit under the same route

5 as before.

6 It would be two weeks from today, the 28th of

7 March.

8 HEARING OFFICER: This sounds like reasonable

9 conditions. Can you live with those?

10 MR. BURGESS: Yes, I think I can, other than what

11 we would have to do, the two consultants I think that

12 would in turn rely on it would probably be Dr.

13 Richardson and/or Dr. Patrick.

14 HEARING OFFICER: Dr. Richardson hasn't been

15 deposed yet?

16 MR. BURGESS: Right. Those are set for the 28th

17 or 29th. If we wait two weeks to take the sample we

18 will not have the results.

19 However, we believe that it's going to be

20 generally confirmatory in nature, and we would be

21 willing to provide that information to them at the

22 conclusion, at which time we will also have the soil

23 sampling results, and if it makes a difference to

24 their testimony and their opinions we would offer them

25 to be examined on those specifics and the narrow points

1 prior to the time.

2 MR. FITZGERALD: It may be if they view it as

3 something confirmatory that it can be explored at some

4 length during their depositions, and everybody can

5 evaluate the data and handle it in an interrogatory

6 and follow on and keep it to the absolute minimum.

7 HEARING OFFICER: Let's try to do it that way...

8 MR. BURGESS: Okay.

9 HEARING OFFICER: ...rather than postpone the

10 deposition, etal, because I think it's better to go

11 forward.

12 If there are any new conclusions reached as a

13 result of their test results you will be expected to

14 convey that immediately to counsel, and we'll make

15 whatever arrangements are necessary at that time.

16 MR. BURGESS: Only a limit of time. We are locked

17 into the 28th. If we can do it sooner it would be

18 better.

19 HEARING OFFICER: Okay, let's see if we can

20 work that out.

21 MR. BURGESS: Thank you.

22 HEARING OFFICER: Okay, that takes care of all the

23 access issues, is that correct?

24 All right. There are a couple of other leftover

25 issues from some of our prior hearings.

1 The first goes to the discussions we had last

2 week with respect to...

3 TELEPHONE OPERATOR: Pardon me. Mr. Macfarlane

4 is on the line and Mr. Bartell.

5 HEARING OFFICER: Welcome, Mr. Macfarlane.

6 MR. MACFARLANE: Thank you, Mr. Hearing Officer,

7 and I have Steve Bartell here with me.

8 HEARING OFFICER: We just resolved some issues

9 regarding access to the Refuge. I think we have taken

10 care of those. We were talking about some other

11 discovery issues. You haven't missed anything exciting,

12 yet.

13 MR. MACFARLANE: Thank you.

14 HEARING OFFICER: Okay, the next issue I wanted

15 to see where we stood on goes to the depositions from

16 the designees of the Department and from the Water

17 Management District. We discussed those last Wednesday

18 during our conference call.

19 As I recall from that conference call, Mr. Reid

20 was going to designate his Water Management District

21 representative to respond to the issues set forth in the

22 notice sent out by the Cooperative, and likewise

23 Mr. Killinger was going to designate a Department

24 representative, and we were going to try to proceed

25 with his witnesses if possible, and see where we stood.

1 Let me get an update.

2 MR. REID: Your Honor...

3 MR. SMITH: I initiated inquiries to both counsel

4 about taking the District's deposition on Wednesday

5 of this week, since Ms. Ponzoli and I will be in

6 West Palm Beach tomorrow to take Mr. Wedgworth's, and

7 I also asked the Department if they could submit the

8 Department's designee this afternoon or if that's too

9 early on Thursday.

10 That's the time, the schedule that I proposed.

11 I believe the matter that's left over is one of

12 six areas. I think the five areas are settled as to

13 the acreage question, the contingent 50 ppb Loxahatchee

14 discharge limitation, the Technical Oversight Committee,

15 and the moderating provisions I take it was not

16 postponed until today. That's settled.

17 Those are areas of possible inquiry, and the

18 scope of today's discussion is the memorandum,

19 Mr. Reid's memorandum, which he handed me this morning.

20 HEARING OFFICER: I received a memo regarding the

21 NPDES permit this morning. I flipped through it

22 quickly. I did not have an opportunity to review it in

23 any great detail, and I did have that as another issue

24 to discuss, was exactly where the permit issue stood.

25 Let's just talk about the deposition first.

1 MR. REID: The answer is there will be no

2 designees, because in our view if you take away the

3 coercion part there are no topics that have not either

4 been covered by witnesses and documents previously

5 produced or scheduled to be produced.

6 There will be no independent witness who will be

7 designated as the most knowledgeable about these

8 matters. In our view all of this has been covered.

9 For instance, Mr. Whalen as we talked about

10 the notes of the meeting, not only was Mr. Whalen deposed

11 but every other single person with one exception.

12 I understand there is one attendee at that meeting

13 who was not scheduled for deposition. I have forgotten

14 which one it is. But all the rest either have been

15 deposed or are going to be deposed and have had the

16 opportunity to talk about everything at those meetings.

17 So far as why something is in the SWIM plan,

18 Mr. Whalen testified six days I think so far, and

19 this would go to any topic, any subject matter that

20 is covered in the SWIM plan.

21 Mr. Whalen's role was to take the material and

22 put it in the final form and put it together. So

23 Mr. Whalen was deposed about that.

24 With regard to the science that might

25 support this decision or that decision, all of the

1 people who have been deposed. That's what this case is

2 all about.

3 The only thing left would be the fact that the

4 Board of the South Florida Water Management District

5 by a vote which followed a submission of all of the

6 scientific material, a number of days of workshops,

7 several public hearings attended by all interested

8 parties, they made a decision.

9 To the extent why they made the decision, the issue

10 in this case is for the Hearing Officer to determine if

11 that was the right decision based on what they had to

12 rely upon, and that's the evidence before the Hearing

13 Officer.

14 So if you take away, and I went back through the

15 transcripts to try to get a better understanding of what

16 we were looking for, and what I see is, as I said the

17 other day, this entire issue, this entire notice is

18 really focused almost completely on this idea of

19 coercion, why you did it, and Mr. Smith said things

20 like, "I don't want to talk to people, underlings who

21 will give scientific testimony," etcetera, etcetera.

22 So our position will be that all of those

23 witnesses that would deal with the subject have been

24 deposed or are going to be deposed before we conclude

25 the proceeding.

1 HEARING OFFICER: Okay. I am very much at a loss

2 when we talk about this, because I haven't been through

3 the depositions, and I don't know what the testimony has

4 been, and I'm not familiar with the process by which

5 this SWIM plan was actually finally adopted, and so it's

6 difficult for me to understand exactly how all this

7 came about.

8 As I understood what Mr. Smith was looking for

9 was not a witness who could testify regarding specific

10 scientific issues but the ultimate determination as to

11 whether to go with one particular provision that may or

12 may not have been in the federal settlement agreement

13 or go with some earlier version that the Water Management

14 District was looking at.

15 MR. REID: There are two ways of making the

16 decision. Number one is the people who were scientists,

17 who had done the research, and made determinations,

18 perhaps they relied on some of the information and

19 data developed as part of the federal process. Maybe

20 not.

21 You certainly from the very beginning have said

22 people could ask questions about that part of the

23 settlement agreement, if you will. In other words, if

24 the District took positions on science and one position

25 one time and one position another, and the people who

1 took those positions are scientists have been deposed.

2 And that's really, that's been all the discovery in the

3 case about the science.

4 The other part of the decision is the ultimate

5 decision made by the collegial body which is exactly

6 what this whole process is designed to test, and you

7 don't test it based necessarily on the day they said,

8 "All in favor, say aye, and all opposed, say nay."

9 You test it on all of the stuff that they looked at,

10 which is the subject matter of the 200 depositions that

11 are being taken in this case.

12 I think I go back...

13 HEARING OFFICER: Let me see if I, I mean, I guess

14 I understand what you're saying, but again I don't

15 know exactly what Mr. Whalen has testified to, but you

16 said he's the one who pulled together al the

17 information and put it together?

18 MR. REID: Exactly.

19 HEARING OFFICER: I don't know whether he did that

20 on his own volition or whether somebody told him,

21 "Try to pull this information from these people, and

22 don't pull it from these people," or what.

23 MR. REID: For instance, you know, there have

24 been people for years that have done soil samples or

25 people who have taken rainfall measures. There are lots

1 and lots of articles.

2 If you look at the SWIM plan you will find pages

3 and pages listing all of the scientific studies that

4 were relied upon.

5 The SWIM plan was ultimately put together by

6 amassing all of that scientific data and coming up

7 with what we call the SWIM plan. They took the SWIM

8 plan and went through every line of the SWIM plan with

9 Mr. Whalen, what does it mean, why is it there. They

10 took everything they wanted to know about it from

11 Mr. Whalen.

12 They have then gone to the next level and

13 deposed all the people that did the scientific work

14 that led to it.

15 The reason I think we're having trouble is that

16 there's rally been sort of a change. This notice,

17 you tried to divide the notice to make it consistent

18 with the previous ruling, and you said parts about

19 coercion and so forth and so on would not be part of

20 this, but parts about science would.

21 Well, the problem is when you hear what Mr. Smith

22 said, and I've got about eight different places in the

23 hearing last week when he said what he was looking

24 for, he's looking for this same theme that he's been

25 presenting in this forum and the previous administrative

1 forum and all of the others that I went through last

2 time, and it's the same thing. It's "We did it, because

3 they told us we had to."

4 And he will not be happy I think until somebody

5 says, "Yeah, we did it because Mr. Walker, Dr. Walker,

6 or somebody at the federal government said you've got

7 to do it this way."

8 You know, we have had lots and lots of discovery

9 about the subject matter of the SWIM plan, the science

10 involved, and the decisions. The only other level

11 would be the Board level, and that would not be

12 appropriate, because they took a vote, and now you are

13 in effect deciding if the decision the Board made was a

14 proper decision.

15 So that's a problem that we have here, and, you

16 know, when you try to separate the coercion from the

17 other part it is very difficult, because there's been a

18 lot of testimony about whether it's 50 parts per billion

19 as the right number or the wrong number, why you

20 would say you want to have that there, why some people

21 would say their experts say they don't want to have it

22 in there, over and over and over.

23 So I have to say in good faith I cannot say that

24 we have a witness, certainly there is no witness that

25 will talk about the things that Mr. Smith defined when

1 we had the hearing.

2 And I think when we get to talk about the NPDES

3 permit you will see this is exactly the problem. I

4 mean, you will understand I think more clearly the

5 problem I'm having, because with regard to that you

6 are going to find that the theme areas, we're

7 litigating the SWIM plan here, but we have somehow

8 secretly gone over and agreed to adopt everything,

9 to commit ourselves to everything in the SWIM plan

10 through this permit over here, and you're going to

11 find out that's totally false when we talk about

12 what is going on in NPDES.

13 HEARING OFFICER: But I guess, you know, what

14 I have understood Mr. Smith to be looking for, and

15 I'm sure he'll tell me if I'm wrong, is that he wants

16 to understand the process by which the decisions were

17 made that certain things go into the SWIM plan, and

18 certain things don't go into the SWIM plan, or certain

19 studies that the District has conducted before are

20 not going to be included, but certain other studies

21 are going to be included, but that seems to me to be a

22 very legitimate area of inquiry.

23 MR. REID: The way to do that is to talk to the

24 people who did the work, and he's done that, but in the

25 case of all of the people and every document, you see,

1 we've been subjected to a huge public records

2 request contemporaneous with this proceeding, and

3 we have been producing on several different fronts,

4 and they have had the opportunity, the way you find

5 the answer to the question you raised is you go to the

6 people who did it, go to the scientists, go to the

7 District, staff people.

8 That's why, you know, we have had this enormous

9 argument about whether District employees are fact

10 witnesses or expert witnesses, and they said, "We want

11 to take every one of the District employees, because

12 we think there's some employee out there who

13 disagrees."

14 You know, they are fully and completely taking

15 discovery of everybody that had anything to do with

16 it.

17 There is no other person that somewhere, now let

18 me take that back.

19 Perhaps some staff person said, "Gee, I'm going

20 to make it 50 parts per billion, because Ms. Ponzoli

21 called me up and told me to." Well, they have deposed

22 that staff person, and they had to ask that staff

23 person that, because they have been deposed.

24 There has been no restriction on who they could

25 depose in the SWIM process.

1 And so I guess what I'm saying is if you depose

2 everybody that had something to do with this then

3 you've had your opportunity to ask for anything you

4 want to ask them, and for me to have to come back and

5 find a witness who is the witness, who is the

6 District designee to testify about why we made the

7 decision, either Decision A or Decision B, I'm saying

8 you can't do that. So that's, you know...

9 MS. PONZOLI: If I may...

10 HEARING OFFICER: Let me give Mr. Smith...

11 MR. REID: I think with the NPDES it will be

12 clearer, because there you are going to find it's

13 completely a different situation, totally.

14 HEARING OFFICER: Let me give Mr. Smith an

15 opportunity.

16 MR. SMITH: I'm surprised we are going over this

17 again. Mr. Reid spoke at great length last time and said

18 he wanted to submit specific objections about NPDES.

19 Now we are talking about all of the issues.

20 If Mr. Reid had come here with book, line, and

21 page of testimony by these underlings about why they

22 adopted thirty-four seven instead of 15,000 in acreage

23 I might be able to address it in the terms in which he

24 wishes to pose it.

25 You see, Mr. Menton, I think they took the

1 thirty-four seven instead of 15 because Mr. Lehtinen

2 got up on May 21st, 1991, and said, "That's what it's

3 got to be," and they could designate the Executive

4 Director of the District, just take a shot at the

5 Executive Director of the District to testify about

6 this.

7 HEARING OFFICER: Hasn't he been deposed? I mean,

8 the Executive Director, hasn't he already been

9 deposed?

10 MR. REID: Mr. Creel? I don't know. You haven't

11 asked for him, I take it.

12 MR. SMITH: Well, you see...

13 MR. REID: The Director, I mean, I think the

14 Director who was there at the time is dead.

15 MR. SMITH: He wasn't Director at the time? Well,

16 I don't know who the person is who knows at the highest

17 level why they adopted thirty-four seven. If they

18 want to produce a Board member who says, "I don't have

19 any other information; that's what was passed up to

20 us," then okay, but they made the same thing about

21 the contingent 50 parts per billion Loxahatchee

22 discharge.

23 All Mr. Whalen knows is he was at a meeting on

24 May 21 and May 24 in which Dr. Maffei demanded that,

25 saying the people up above him, and I don't know who

1 they were, say, "We've got to have it," and so it

2 comes in from that side, and we will depose

3 Dr. Maffei next week about that, but on the

4 District's side we don't know why they agreed to

5 that, except that Dr. Maffei says, "We've got to have

6 it, or we go back to federal court."

7 Now Mr. Reid would like to be the impresario

8 and be in charge of collating all of these bits and

9 pieces of underlings' testimony about why they did what

10 they did, but Mr. Reid is not a witness.

11 We need to have the reason, we need to have the

12 reason stated in that of the person at the highest

13 level of policymaking by the District, because they

14 are now committed to something that that person can

15 testify to, and we need to explore the interest, the

16 motive, and the credibility of their continuing to vouch

17 for this.

18 This is the nub of it, that as the Hearing Officer

19 said at last week's hearing, this is a continuing,

20 a prospective enterprise, the development of this

21 SWIM plan. When you allocated to the District and

22 the Department the burden, as I believe you did, of putting

23 on a prima facie case, they are vouching for their

24 SWIM plan. They are privileged at this moment to

25 withdraw it, to put in something else, I suppose.

1 But they are vouching for it, and these questions

2 go to the credibility and the interest and to the

3 motive of these agencies in vouching for it, and

4 it's not satisfied by breaking it apart into these

5 little sections.

6 HEARING OFFICER: Well, this goes back to what I

7 said earlier. I have a difficult time understanding it,

8 putting it all in context, because I haven't sat through

9 the depositions and I don't know what the testimony has

10 been, but it certainly seems to me that the petitioners

11 have the right to inquire of the chain of command and

12 figure out when this was put before the District and

13 why it was put there.

14 MR. REID: Mr. McVicker is the number two person

15 who was there at the time, who has been deposed. I

16 don't know if you finished him or not, but he was

17 deposed.

18 With regard to the size of the STAs, he talks

19 about there's an attachment to the SWIM plan, either

20 "E" or "F", I can't remember which one, and he goes

21 through calculations as to how it was adopted.

22 The person who prepared that attachment, Dr. Fontaine,

23 was deposed.

24 That's my point. Everybody that's on here has

25 been deposed about all of these subjects.

1 HEARING OFFICER: Okay, and again...

2 MR. REID: I don't know who else to produce.

3 MR. BURGESS: Do you know when he was deposed?

4 MS. PONZOLI: Wasn't it begun?

5 MR. BURGESS: It wasn't, I'm sorry, then he was

6 deposed, it's been set for next week.

7 MR. REID: He was deposed for three days in the

8 Sunshine by settlement and by the same lawyers, and he

9 was deposed for three days about why, about the

10 settlement, whether it violates Sunshine, and in great

11 detail about all of these same meetings, by the way,

12 but he'll be deposed in this case.

13 That's my point. All the people that have done

14 this, all the District people up the ladder, are

15 available for deposition, and it's...

16 HEARING OFFICER: Let me see if I can get

17 a clarification as to how the process came about.

18 I would assume like with any broad decision that

19 I have ever seen happen that staff got together, put

20 together recommendations and put together a suggestion

21 and put it before the Board.

22 The person who was primarily responsible for

23 putting that agenda together and assembling documents

24 and what was presented to the Board would seem to be

25 very knowledgeable about how that came up.

1 MR. REID: He was deposed for six days, Mr.

2 Whalen, and everybody else on, all the people whose

3 stuff he relied on were deposed or were going to be

4 deposed.

5 I'm not saying, I started out obviously I think,

6 well, the coercion, you see, coercion...

7 MR. SMITH: Collusion. Give credit to my

8 formulation, please.

9 MR. REID: Mr. Smith, he admits it. That's the

10 point. He has, you said it's irrelevant, and he's

11 admitting over and over that's what he wants to do it

12 for.

13 HEARING OFFICER: Let me see if I can try to get

14 to the bottom of this.

15 When you start talking about terms like collusion,

16 coercion, etcetera, those are all subjective terms,

17 and those are something that is going to be in the eye

18 of the beholder, whether it be the petitioners or the

19 respondents or me ultimately. I mean, if you start

20 trying to color a witness' knowledge or attitude that

21 way I think you're asking for trouble.

22 I do think you're entitled to inquire into the

23 decision making process that occurred in the adoption

24 of the SWIM plan. I have never tried to preclude

25 you from doing that.

1 I don't know what depositions have been taken or

2 what has transpired, but I guess I'm struggling to

3 figure out what witnesses you are looking for, Mr. Smith,

4 that haven't already been deposed, and why isn't

5 Mr. Whalen's deposition satisfactory.

6 MR. SMITH: Because Mr. Whalen simply attended the

7 meeting and passed the information up the line. He

8 did the mechanical work of using his computer scanner

9 to take sections of the settlement agreement and put it

10 into the SWIM plan. Who told him to do that, and why?

11 HEARING OFFICER: I agree you're entitled to know

12 that.

13 MR. SMITH: All right. So I'll take half a day,

14 Mr. Hearing Officer. I'll take half a day with whomever

15 they produce.

16 MR. REID: My problem is I cannot designate a

17 witness based on that designation. I have produced

18 everybody. I have produced the people up the line.

19 This is all done in the open, in the Sunshine. They

20 know everybody that every put their fingers on any part

21 of the SWIM plan and had the opportunity to ask for it,

22 and in most cases they have asked for the depositions.

23 The problem I have is going back and taking

24 somebody again, a separate deposition, like let's say

25 Mr. McVicker. He is obviously above Mr. Whalen. If he

1 says Mr. Whalen kicked it upstairs, then it ultimately

2 had to get up to Mr. McVicker. He can be deposed.

3 The problem is he wants me to go out and try to

4 find a person who I will then represent as the person

5 who made the decisions, and I can't do that. I'm saying

6 take everybody's deposition and ask a lot of these

7 questions. That's my problem.

8 HEARING OFFICER: Is there anybody in Mr. Whalen's

9 deposition who was identified as having been one

10 to whom he was reporting or who instructed him?

11 MR. SMITH: I don't have any memory. I suppose if

12 Mr. Reid were contending it was he, he would bring us a

13 name and citation to the page. It's like a shell.

14 Mr. Reid says it's there, and then he says it's not

15 there.

16 HEARING OFFICER: Well, Mr. Smith...

17 MR. SMITH: All right.

18 MR. REID: We have had six days of depositions.

19 He could have asked any questions he wanted to ask.

20 I don't know, I wasn't there, I haven't heard any

21 motions that go to the point that he was told not to

22 answer anything, and so...

23 HEARING OFFICER: All right. From the standpoint

24 of the District was there one person who was primarily

25 responsible for assembling the documentation for the

1 preparation of the SWIM plan and presenting a

2 recommendation?

3 MR. REID: Mr. Whalen pulled, assembled and pulled

4 together the materials.

5 HEARING OFFICER: Okay, and Mr. Whalen has been

6 deposed. Now if there are references in Mr. Whalen's

7 deposition to someone directing him, then clearly you're

8 entitled to produce those witnesses.

9 That's what I'm having a hard time in the abstract

10 of deposing. The District is telling me now Mr. Whalen

11 was the primary person responsible for assembling the

12 documentation. If you want to pursue who gave

13 Mr. Whalen his direction, then I think you're entitled

14 to do that, but the District from what I'm gathering is

15 saying Mr. Whalen is the designee most knowledgeable

16 about how these matters were pulled together.

17 So where do we go from here? I mean, what does

18 Mr. Whalen say, and why, is it Mr. McVicker who's the

19 one he was told or given his marching orders by?

20 MR. SMITH: You're asking me questions, Mr. Hearing

21 Officer, that only the District knows the answers to.

22 HEARING OFFICER: Well, I don't know why Mr.

23 Whalen wasn't asked. I mean, I would assume he was

24 asked in his deposition.

25 MR. SMITH: As to who he reported to? I think

1 Mr. Whalen conceded his work was strictly mechanical,

2 and the fact that he wasn't asked or if he wasn't

3 asked doesn't preclude our asking the District to

4 identify that person today, and produce that person.

5 Are you saying it's Mr. McVicker?

6 HEARING OFFICER: Well, he's not saying that.

7 MR. REID: I'm saying I can't.

8 HEARING OFFICER: He's saying Mr. Whalen was

9 the one primarily responsible to putting together that

10 information.

11 MR. REID: If they think it's mechanical, they

12 spent six days taking his deposition about every single

13 line in the SWIM plan practically.

14 I'm saying they have taken everybody's deposition

15 that they want to take, and within that group of people

16 and within that population have got to be the people.

17 I know, I don't know that I can find a person who

18 said, "I decided 50 parts per billion." I don't know

19 that I can find a person who can ever say that.

20 I'm saying among the population of people that

21 had anything to do with this there's got to be one of

22 these people, and they have deposed them all.

23 MR. SMITH: I think if we start at the other end

24 of the line and rather than from going from the bottom,

25 if we start at the top and go down we'll get to the

1 answer, so I respectfully ask that they bring us

2 Allan Milledge, the then Chairman, who would be a

3 logical person to designate.

4 "Mr. Milledge, do you have any knowledge as to

5 why you chose thirty-four seven instead of 15,000?"

6 "I haven't the slightest idea. That came up from

7 Mr. Whalen." If that's the way it is, that's the way

8 it is.

9 We've got to identify this way. Mr. Reid says

10 we have identified it. We've got to.

11 Did Mr. Whalen exercise all discretionary power

12 invested in the District? If that's so, the Hearing

13 Officer is confronted with a different kind of case

14 than if the Board sid, "Well, shall we apply the

15 moderating provisions or not?" And there's this to be

16 said and that to be said, and we think under the,

17 because of the information we have been given by Mr.

18 Whalen that we should not apply the moderating

19 provisions in the Loxahatchee.

20 HEARING OFFICER: We're arguing about a lot of

21 things that I really don't know there's a dispute over.

22 I mean, it seems you are entitled to inquire into

23 how these issues came about.

24 Now maybe the dispute is whether you start at the

25 top and go down or start at the bottom and go up. I

1 don't know what the depositions have shown, but it seems

2 to me what you want to do is track that through, how the

3 information got there.

4 The most logical way to do that is to go up the

5 ladder and figure out who the decision maker was.

6 MR. SMITH: Or if it's a matter of discretion I'd

7 say you start at the top and go down the ladder. If

8 they have delegated all the powerful discretion down to

9 Mr. Whalen, then we've got a very simple case, and

10 I want to see who is the person at the top, who takes

11 responsibility for the District exercising these...

12 HEARING OFFICER: Well, the District Board, the

13 District Board voted as a collegial body to adopt the

14 SWIM plan. That's the way the process is set up.

15 Once that decision is made, that's the decision of the

16 Board.

17 Now that's based upon a recommendation I would

18 assume of staff that put together something to be put

19 before them, so, you know, I think you're entitled to

20 inquire as to how that staff recommendation came about,

21 who was responsible for making a determination that

22 in that recommendation where they came from. You are

23 entitled to inquire into all that, and if Mr. Whalen

24 is the person who was primarily responsible for

25 putting together the staff recommendation, which I don't

1 know, but I'm gathering from Mr. Reid that he is, then

2 I think you're entitled to inquire from him as to where

3 he got his information from and what prompted him to

4 make the decisions that he made. That's certainly very

5 ripe for inquiry into this case.

6 MR. SMITH: Well, then I would say if Mr. Whalen

7 is that person all they'd have to do is bring him

8 back and let us ask him that question.

9 MR. REID: And I object to bringing people

10 back who have been deposed with six days of depositions

11 already when they had every, I don't even know if anybody

12 from the District was there. I wasn't there. I think

13 it's completely inappropriate to require us to start

14 bringing witnesses back when they had six days of a

15 person for a deposition, and Mr. Smith has been making

16 these same arguments, and why weren't they asked?

17 HEARING OFFICER: I can't believe these questions

18 weren't asked.

19 MR. REID: I can't either, and I guess if I'm

20 required I'll go back and read the whole six days and

21 show that they were, but I can't, either, but they

22 certainly had the opportunity whether they were

23 asked or not, because Mr. Smith has been making this

24 same argument before this proceeding was even filed.

25 He made this argument in the BMP, and that's the one

1 that went up on appeal, and we made it in the state

2 courts all over Florida, and now we're making it

3 here.

4 It wasn't anything new that came up after Mr.

5 Whalen's deposition, the federal coercion and why

6 the things got there.

7 In fact I'd have to check the dates, but I guess

8 Mr. Whalen was deposed since we had the first hearing

9 back in November, is that correct?

10 MS. PONZOLI: I don't have that.

11 MR. REID: I believe you made a distinction about

12 what was proper and what was not proper the first time we

13 had this argument.

14 I would object vigorously to having to bring back

15 witnesses. If we start that, what's the end?

16 HEARING OFFICER: Ms. Ponzoli, you had your hand

17 up before. Did you have something you wanted to speak

18 to?

19 MR. FITZGERALD: If I could comment, I have to

20 meet with people to prepare for something else, so

21 I beg your indulgence if I can be excused.

22 (WHEREUPON, MR. FITZGERALD LEFT THE HEARING ROOM.)

23 MS. PONZOLI: I guess, Mr. Hearing Officer, I

24 wanted to address the issue of Mr. Smith's referral to

25 the people who participated in the meeting specifically

1 in the question about the exhibit.

2 Four of them were Ph.D.s, and a significant

3 number of them don't have Ph.D.s and probably know

4 more than Ph.D.s.

5 They aren't underlings. They are scientists

6 making decisions.

7 I think that's part of the problem, is how

8 decisions are made, and I think he's looking for

9 something, he's looking for a magic decision maker in

10 government, entities that don't exist.

11 A large number of decisions were made right

12 there with those four Ph.D.s, and people who know more

13 than the Ph.D.s. And that's just a problem. He doesn't

14 like that answer, but that is the answer.

15 HEARING OFFICER: Okay. Let me to this. Mr.

16 McVicker is scheduled for deposition next week, is that

17 correct?

18 MR. BURGESS: Yes.

19 HEARING OFFICER: Okay. I think at that time you

20 can inquire into these areas obviously, since he was

21 Deputy Director of the Water Management District.

22 We may get further clarification as to how some of these

23 issues came about.

24 In the meantime I think you need to go back and look

25 at Mr. Whalen's deposition and determine whether he

1 made reference in that deposition or the questions

2 were asked as to how that process occurred, or whether he

3 took instructions from someone, and who that

4 someone was, and how it all came about.

5 As I'm understanding what the District is telling

6 me now, if they had to designate someone responsible

7 for pulling together the information to Mr. Whalen,

8 if you feel that the answers Mr. Whalen gave were not

9 adequate to explain the decision making process you

10 need to demonstrate to me why that is, and we'll take

11 it from there.

12 I agree with you that you're entitled to inquire

13 into the decision making process and how it came about.

14 What I'm hearing from the District is all that has been

15 done, so, you know, I need to understand why it

16 hasn't been.

17 Take Mr. McVicker's deposition, go back through

18 Mr. Whalen's deposition, and if there are specific

19 areas in Mr. Whalen's deposition that you can point

20 to me that there are some mystery witness that he

21 either identifies or doesn't identify, then let's take

22 that up, and the witness should be deposed.

23 I think that's the only way to deal with it.

24 I don't know what happened in all these depositions,

25 and I'm, you know, agreeing with you in concept that

1 you have a right to explore the decision making

2 process, but I'm hearing from the other side that

3 that's already been done.

4 So we're wasting a lot of time arguing about this.

5 If it hasn't been done show me why it hasn't been

6 done and where it is evidenced in the record.

7 MR. SMITH: We will never be able to show you

8 Mr. Whalen claimed to have decision making authority.

9 He didn't. Mr. Reid is attributing that to him, and

10 if they are saying Mr. Whalen made the decision to

11 adopt this SWIM plan...

12 MR. REID: No.

13 MR. SMITH: ...in these respects, that's what I

14 want to hear.

15 MR. REID: I'm not saying that for the record.

16 MR. SMITH: That's what I want to hear.

17 MR. REID: I'm not saying that.

18 HEARING OFFICER: The Board made the decision.

19 MR. REID: Correct.

20 HEARING OFFICER: I don't know if it was amended

21 from suggestions put together by staff, but it's typical

22 in any collegial body that the staff probably assembled

23 the documents, put together a recommendation, and put

24 it before the Board.

25 You're entitled to explore from the staff how they

1 came about with that recommendation and what that

2 recommendation included and why they made the choices

3 they made in reaching that recommendation,and I guess

4 Mr. Whalen was the person who put together the staff

5 recommendation, and then it's up to the Board to vote

6 whether to go with the staff recommendation or not.

7 MR. REID: Mr. Menton, the NPDES is a separate

8 issue, because it's a relevance issue...

9 HEARING OFFICER: Okay.

10 MR. REID: ...as opposed to the other notice

11 issues.

12 HEARING OFFICER: Okay. I quickly reviewed your

13 motion this morning, and there were a couple of

14 matters in my mind in reviewing it, and specifically

15 one of the problems, and this is a very difficult

16 issue in administrative law, and I think it's one that

17 comes into play in a lot of matters in connection with

18 this case, but on page four of your memorandum you

19 indicate that all matters pertaining to the NPDES

20 permitting of the ENR project occurred subsequent to the

21 formulation of the March 13, 1992, SWIM plan and, ipso

22 facto, could not have had any impact on the strategy

23 or conclusions that are in the SWIM plan.

24 I guess the thing that struck me in reviewing

25 that statement is that it appears that what you are

1 suggesting there is that the whole purpose of this

2 120.57 proceeding is essentially to sit in an appellate

3 capacity to review the decision that was made in

4 connection with a status SWIM plan that was adopted

5 at the time of the presentation to the Water Management

6 District Board.

7 And let me just say that I think that the purpose

8 of the 120.57 proceeding is really different than that.

9 I think that the purpose of a 120.57 proceeding is to

10 serve as a forum in which parties can come in and

11 present evidence regarding the factual assumptions that

12 are included within the SWIM plan, and also the

13 overall advisability of the adopting a course of action

14 that's set forth within the SWIM plan.

15 So by nature it's more a dynamic process, and

16 essentially what we're trying to do is provide a forum

17 to resolve issues so that the final policy of the

18 Water Management District can be concluded.

19 As a consequence there will be some changes that

20 occur from the time the particular agency action that is

21 proposed, that particular date and the date that we go

22 to hearing, and it gets to be a very difficult issue.

23 I'm not, I'm reluctant to begin to even get

24 into it, but I do think that if there is evidence that

25 has come to light subsequent to the date the initial

1 policy was adopted it's not necessarily precluded from

2 this simply because it came to light after the date

3 that the plan was adopted.

4 MR. REID: This was done rather hurriedly. Perhaps

5 I should have expounded a little more at the end, and

6 I apologize.

7 I understand exactly what you're saying about the

8 ongoing situation, but if you think back to the

9 discussions you had about what has some to be known as

10 the technical mediated plan, there was an attempt made

11 to get into that, because it relates to the same body

12 of water and a lot of things in general, and the ultimate

13 decision was made it would not be part of this

14 program, because it was not adopted, and the Board had

15 not changed or revoked the SWIM plan we're litigating,

16 and this is somewhat analogous in some respects.

17 The problem is, and again in the shortness of

18 time it created part of the problem, for a period of

19 time it was not thought that an NPDES permit would be

20 required. Here we're talking about...

21 HEARING OFFICER: For the ENR or the...

22 MR. REID: For the ENR. This was, we are only

23 talking about the ENR. That's really where it has come

24 to issue.

25 MR. SMITH: We take issue with that.

1 MR. REID: Ultimately the ENR is going to be part

2 of the STAs.

3 MR. SMITH: The ENR is the hook by which this

4 colors everything under the settlement agreement.

5 MR. REID: The ENR is part of STA No. 1. It's

6 designed to be part of that.

7 The EPA took a position during the settlement

8 discussions during that time period that an NPDES

9 permit they thought would be required.

10 Because of the exigencies of the circumstance,

11 there was a lot of water that needed to be discharged

12 and problems, the District applied for such a permit,

13 reserving its right, taking the position they didn't need

14 one, but contesting jurisdiction.

15 Now that process has started in the federal system,

16 and there has been a draft permit which I think is

17 probably equivalent to the notice of proposed action in

18 the state context.

19 And we are in the period where the record is

20 being made, and it will go to EPA, federal hearings, and

21 so forth, and the permitting process will take place.

22 At this point the District in addition to

23 reserving its right, taking a position, we're filing

24 this under duress, but we're taking a position that

25 jurisdiction is all we have to. We have not filed a

1 very thick document contesting in many respects

2 portions of that permit. You would have to go through

3 all of that to see what we're doing.

4 That process is not anywhere close to being over.

5 There may never be a permit. There may be a permit

6 that's exactly like the draft permit or one that's

7 different.

8 The reason it comes into this case is that

9 Mr. Smith takes the position that we have made this

10 proceeding a sham, because we have secretly gone over

11 and agreed with the federal government under

12 permitting under the guise of an NPDES permit, have

13 agreed to certain requirements, certain levels, limits,

14 whatever, we have agreed to the same things we're

15 litigating here.

16 Because the permit does look in some respects

17 like the SWIM plan he says that filing a permit means

18 we have agreed, we have committed to that.

19 HEARING OFFICER: You're saying the permit looks

20 like the SWIM plan, for what, for the ENR?

21 MR. REID: Some of the approach in the salinity

22 limits and so forth, not the SWIM plan in general, but

23 some of the technical requirements.

24 HEARING OFFICER: Okay.

25 MR. REID: He's saying we have gone over and we

1 have committed, and he says that over and over in the

2 papers, and last week he said it at the hearing.

3 But he says therefore he's entitled to know why have

4 we sold out the state, so to speak. It's part of the

5 coercion, why have we gone over in the federal context

6 of this permit and agreed to everything that is now

7 going to bind us over here ultimately, and this

8 proceeding is a sham.

9 That's his position. That's why it's relevant.

10 I'm saying it's not relevant, because, number one, it's

11 premature. It's not going to have any, if that permit

12 goes away, if they decide we're right on jurisdiction

13 and that they don't require a permit, then nothing is

14 going to happen.

15 What he's asking you to do is to bring the whole

16 administrative procedure, federal administrative procedure

17 into this case, and that's the problem.

18 HEARING OFFICER: I don't want to litigate the

19 federal standards.

20 MR. REID: We have no choice, because we're

21 going to have to come in and show what we're doing and

22 why we're doing it in the federal context.

23 HEARING OFFICER: Well, I guess the question that

24 I have in this regard is, and I don't know if this is

25 true or not, but if there is a federal permitting

1 requirement applicable with respect to the ENR which

2 may not be resolved at this time, isn't it arguable

3 that such a permitting requirement would also be

4 applicable to the STAs? And if that is in fact the

5 case doesn't that by necessity bring in the question

6 whether or not the SWIM plan would be able to be

7 implemented in its current form if there are certain

8 federal issues that are out there that are

9 unresolved, and isn't that pertinent?

10 MR. REID: I would say no. We would be getting

11 ahead of ourselves.

12 In other words, there may be a lot of reasons

13 unrelated to the SWIM plan that something might happen.

14 There may be the Legislature. The funding may never

15 get done.

16 I mean, there are a lot of other reasons. We're

17 here to litigate the SWIM plan. Once you find the

18 SWIM plan to be appropriate, there may be other reasons

19 that will confound the District being able ultimately

20 to do what the SWIM plan said, things that are

21 completely permissible that would be allowed.

22 They are saying one of these confounding,

23 potential confounding issues might be this NPDES permit,

24 and I'm saying we shouldn't have to come and show you

25 that we're going to be able to get the NPDES permit,

1 and it's going to look like the SWIM plan you're going

2 to approve, if you approve it. I shouldn't have to go

3 around to these other issues.

4 HEARING OFFICER: Even if you don't have to go in

5 and show to me that you can get the permit doesn't

6 Mr. Smith have the right to come in and show that the

7 SWIM plan is not feasible because...

8 MR. REID: The federal government won't agree?

9 He would never say that.

10 He'd be saying in effect that the state process

11 is subservient to the federal permitting decisions.

12 He would say that, "No, no, no, we can't let the feds

13 tell us what to do. You have to decide if this SWIM

14 plan is right under state law, and once you decide

15 that there may be something else over here that might

16 have an effect on it or might not."

17 It's all premature, because if tomorrow that

18 process ended, there would be no, you would not get

19 to it. It's speculative.

20 (WHEREUPON, MR. HYDE LEFT THE HEARING ROOM.)

21 MS. PONZOLI: If I may, Mr. Hearing Officer,

22 I think it's even more problematic than that, because

23 if as Mr. Reid reflected the EPA has taken the position

24 that they believe an NPDES permit is appropriate for

25 the ENR, the District filed for one, but under

1 reservation.

2 But you need to realize there may be potentially

3 at some point in the future litigation over these

4 issues.

5 Mr. Smith will be a litigant in that litigation,

6 and I am very afraid that he is going to come after my

7 federal people to do his discovery for the federal

8 litigation inside this SWIM proceeding. In fact,

9 there have already been indications, because he's asking

10 for my policy people who made NPDES decisions. That

11 is totally inappropriate discovery in these SWIM

12 challenge proceedings.

13 We have run down a lot of different avenues, and

14 when they wanted to do the science subgroup, I let them

15 come and do my people. We have gone down a lot of

16 avenues to satisfy their needs and their discovery

17 needs, but we are going into wholly new territory

18 here.

19 HEARING OFFICER: Mr. Smith, where are you going

20 with this?

21 MR. SMITH: I'm going to discover that the

22 District knowingly has committed itself to dispense

23 with the moderating provision in the S5-A structure.

24 (WHEREUPON, MR. HYDE ENTER THE HEARING ROOM.)

25 Although that is an outing before the Hearing

1 Officer, they have knowingly committed under duress,

2 if he doesn't like the word coercion, and in order to

3 get along with their federal counterparts to insert as

4 a condition of a permit that their own lawyer, Mr. Reid,

5 told them EPA had no jurisdiction to require of them,

6 to commit to elements of the SWIM plan and to

7 particular elaborations or more stringent elaborations

8 of it, and we're not trying to litigate that permit,

9 but we're trying to litigate the credibility of the

10 witnesses that they bring here for the SWIM plan.

11 HEARING OFFICER: You can inquire as to how the

12 District reached its decisions regarding the application

13 of the moderating provisions to any particular point.

14 I think that's wholly appropriate within this case.

15 But if it's framed that way I don't have any problem

16 with it.

17 But what I don't want to do, I would assume

18 Mr. Reid doesn't have any problem with asking those

19 questions.

20 MR. REID: No, and I assume once again he deposed

21 everybody around. The moderating provisions are covered

22 in the SWIM plan, by the way. I assume they have

23 asked that. I assume they will as the people all about

24 them.

25 HEARING OFFICER: All right, so where is the dispute

1 here? What is it that you are asking for, Mr. Smith,

2 that they are not giving you?

3 MR. SMITH: I want the person in the policy

4 making decisions to say why did they agree to this

5 draft permit that has these specific conditions in it.

6 HEARING OFFICER: Okay. Let me hold you right

7 there.

8 As I understand what mr. Reid is saying, they haven't

9 agreed to it. They filed a permit application with a

10 reservation to contest jurisdiction.

11 Why do we even need to get into that?

12 MR. SMITH: Because, you see, you never get to

13 it under Mr. Reid's scenario. I would like to ask why

14 they didn't object in December, in January, or in

15 February, or thus far in March.

16 If Mr. Reid thinks they've got the opportunity to

17 object in April, May or June that's fine, and we're

18 asking that the hearing, whether they objected, but

19 what we're saying is this District has moved from a

20 SWIM plan to SWIM plan number two, which is an

21 elaboration of the SWIM plan with particular elements

22 more stringent on farmers than even those proposed in

23 the SWIM plan.

24 As long as this does not become the litigation of

25 the federal issue and as long as this is concentrated

1 upon the credibility of the witnesses who the District

2 brings here and the United States brings here and the

3 Department brings here to vouch for this SWIM plan,

4 I believe we're entitled to wide latitude, and we do

5 not have to worry about where the thing is going.

6 You shut it off when it becomes a feature of the case

7 overpowering in its influence, the central inquiries

8 about the SWIM plan.

9 It doesn't mean you shut it off before it ever

10 gets started. It means you shut it off when it becomes

11 a feature of the case.

12 MR. REID: Maybe we're dealing with semantics

13 here. there's certainly nothing wrong with talking

14 to witnesses about the subject of moderating provisions

15 as it's manifested in the SWIM plan.

16 The problem is it goes to a level that they're

17 saying, "You agreed on the federal government in a p

18 permit not to have moderating provisions, so why did

19 you commit to not having moderating provisions in that

20 permit over there?"

21 MR. SMITH: Yes.

22 MR. REID: That's what he wants. That's beyond

23 the scope, because that gets to the whole issue of why

24 we did what we did, and we are going to have to come in

25 and talk about everything we did that led to the NPDES,

1 that decision, and there were Board meetings on it,

2 and on and on.

3 MR. SMITH: I'll tell you why they did. I'll tell

4 you why they did, because the feds threatened them

5 with prosecution. That's what I expect to prove.

6 HEARING OFFICER: but if the SWIM plan provisions

7 are adequate under Florida law and they simply have

8 carried over the SWIM plan provisions into the federal

9 permit, what does it matter?

10 MR. SMITH: Because they haven't just done that.

11 Now you're just going to have to take my hypothesis

12 of what discovery is going to show. You just don't shut

13 out discovery of their motives.

14 I represent to you, sir, that they haven't just

15 taken the SWIM plan and put it into the federal permit.

16 What they have done is taken the settlement agreement

17 and put it into the federal permit, and they have not

18 mentioned the SWIM plan in the federal permit, and they

19 have not mentioned these as having any influence.

20 They have not made these conditions of the federal

21 permit subject to what may come out of it. It is a

22 direct obstruction of the settlement agreement.

23 I represent that to you, sir. Why did they do

24 that? Why did they agree to something that so

25 undercuts the authority and autonomy of the SWIM plan?

1 HEARING OFFICER: Why does it have anything to do

2 wit the validity of the SWIM plan?

3 MR. SMITH: because it shows their interest and

4 their motive in vouching for the SWIM plan at present,

5 and its prospective adoption. It shows they are

6 standing behind it, despite the influence of the

7 possibility of changing their mind under Florida law,

8 which the APA process is designed to promote.

9 Despite that being in place they cannot change

10 their mind. They have got Big Brother looking over

11 their shoulder saying not only does the settlement

12 agreement get adopted by Mr. Menton, through everything

13 that you can bring about, but a particular interpretation

14 of it in the Loxahatchee means that "Instead of fixing

15 the Class 3 standard by reference to the internal

16 large stations where the testing is taking place, as

17 specified in the SWIM plan, we are going to do it at

18 the end of the pipe, at S5-A and S6, and if the Class 3

19 standards are not being satisfied as the Technical

20 Oversight Committee determines them to be at the end

21 of the pipe, then we're going to revoke your permit,

22 and we're going to discipline you, and we're going to

23 do other bad things to you in consequence," and they are

24 driven by this duress even now.

25 HEARING OFFICER: Well, Mr. Smith, I'm going,

1 the problem I have is if we get into all of these

2 issues I'm going to have to sit down and try to figure

3 out what are the applicable federal standards and

4 whether they have been properly applied.

5 I mean, this case is already so complex I have

6 great doubts about my ability to be able to pull it

7 all together. How when you start pulling in all these

8 extraneous issues as well am I going to try to figure

9 out what the appropriate federal standard is and how

10 it interplays...

11 MR. SMITH: No, no, no. All you have to decide is

12 the believability of their witnesses. That's all you

13 have to decide. "How much credence should I give

14 this witness?" That's the point of this. "How much

15 credence should I give this witness?"

16 Who is the man they now say is the point person,

17 here comes Mr. McVicker. Mr. McVicker is going to

18 testify, they're going to bring him on to testify, I

19 suppose they'll bring him on in the prima facie case,

20 that "This is our SWIM plan, and we are proposing this,

21 and we stand behind it because of this, this, and this,"

22 and I'm suggesting to you that the real reason he's

23 standing behind it is because thought the science is

24 bad he's suffering under this I say coercion, I say

25 collusion, Mr. Reid says duress, of a collateral

1 proceeding that their very position is we ought not to

2 be subjected to this, but they have subjected themselves

3 to it.

4 It's a question of degree, and I think in

5 discovery we are entitled to if it may lead to the

6 discovery of relevant evidence we ought not to be

7 throwing ourselves at it, but you ought to be looking

8 towards conducting this hearing and listening to the

9 witnesses and deciding on their credibility and what

10 their interest was.

11 If they are paid lots of money, you take that into

12 consideration. If they have a 10-year project funded

13 by the federal government you take that into

14 consideration in evaluating their testimony.

15 I say you also take into consideration when the

16 District and the Department come here vouching for

17 this SWIM plan even now, two years after they have

18 adopted it, when they know there are some very serious

19 things wrong with it. You take into consideration

20 the duress they suffer under in consequence of the

21 collateral federal demands. That's all.

22 MR. KILLINGER: Mr. Menton, could I leap in here

23 just a second? I think we are making more out of this

24 than we need to.

25 HEARING OFFICER: That's not unusual.

1 MR. KILLINGER: It seems to me this is exactly

2 the same situation we have in a third-party permitting

3 challenge where a third party comes in and says, "Wait

4 a minute. DEP cannot grant this permit because this

5 guy is going to need a Corps permit, and the Corps

6 will not grant him one."

7 It comes up routinely all the time. It's simply

8 not an issue to be dealt with in these proceedings

9 any more than the issue of title to real property is

10 something the Department considers in determining

11 whether or not to give a permit. It's not something

12 that normally gets done.

13 It think that what we're doing here is angling for

14 a delay in the proceeding by saying we have to wait

15 and see what the Corps or EPA decides about the NPDES

16 permit before we can get on with this proceeding, because

17 that may ultimately derail it down the road.

18 I have seen that tried a number of times in

19 permitting cases with a regular dredge-and-fill permit

20 where they say, "The Corps won't permit it, so let's

21 wait and see what the Corps does," or "The county

22 won't permit it, so let them condemn the land or

23 something." They need to get title to it, so you have

24 to wait until that happens.

25 I don't think it's something we need to deal with.

1 I think it's exactly as Mr. Reid argued, that if

2 something down the road intervenes in this and prevents

3 the District from effectuating what it has thrown on

4 the table as a non-self-executing plan that that is

5 a problem but it's a problem to be considered at the

6 time it arises and not now.

7 HEARING OFFICER: Well, I guess the one area that

8 causes me a little bi of problem in talking about

9 the permit is if there is a requirement for a federal

10 permit that impacts upon the SWIM plan and whether it

11 can be implemented, then I think that, and it wasn't

12 considered, I mean, I think that that can be brought out

13 in the scope of this proceeding as to whether or not

14 it should have been considered and whether or not it

15 impacts upon the process and whether or not the SWIM

16 plan can be implemented as it's proposed to be, but

17 I don't want to get into a whole rigmarole as to

18 what the federal permit requires.

19 MR. REID: I don't think, I mean, if he's going

20 to come in and say, "You're doing all this bad stuff

21 because of your actions in the federal permit," then

22 my defense is to come in and bring the whole thing in

23 here and show wy we did it, what we did, and all the

24 requirements and on and on.

25 I think it's very analogous to the situation that

1 he was making, that there may be other contingencies

2 some day that might make a difference. You know,

3 Florida may secede from the Union.

4 HEARING OFFICER: Well, I mean, don't you think

5 it's appropriate for him to be able to ask a witness,

6 "Did you consider whether you needed a federal permit

7 at the time you drafted the SWIM plan?"

8 MR. REID: I suppose he could ask the witness

9 that in the course of the discovery.

10 HEARING OFFICER: Right. I think that's an

11 appropriate question. If the witness says no...

12 MR. REID: I assume they have asked if they wanted

13 to know about that. I mean, they have had all the

14 witnesses, as I said before.

15 But now they're asking for a designee to explain

16 why we did what we did and all that.

17 HEARING OFFICER: I don't think you need to explain

18 why you went and applied for the federal permit or

19 what all took place in those discussions.

20 MR. REID: You see, this whole issue is again

21 because of the Sunshine requirements of the process.

22 This whole issue was discussed in open meetings of the

23 Board. The whole decision, everything, the decision to

24 apply for the permit or not apply, there was talk

25 about filing a suit against EPA to get like a

1 declaratory action, it's all in the public record,

2 and hey were all there at the public meetings and

3 had transcripts, I'm sure.

4 So this is certainly if anybody wanted to ask

5 about it they could have asked about it, but I have a

6 problem, number one, I think it's completely

7 irrelevant, but if they want to ask that question or

8 did back when the SWIM plan was adopted if it was in

9 somebody's mind, they could have asked them, because

10 they were asking them everything else.

11 HEARING OFFICER: Okay. Let me do it this way.

12 I don't think you have to produce a witness who

13 explains why you did what you did in a connection with

14 the application of the federal permit.

15 I don't think that we need to get into that whole

16 process.

17 But I do think that in connection with the

18 witnesses who were involved in drafting the SWIM plan

19 it is proper to ask someone if they considered that

20 the need for a federal permit and whether that was

21 taken into account, and if they haven't done it then

22 that stands on its face. They haven't done it. And

23 if that consequently makes it impossible to implement

24 the SWIM plan, then someone can come into the hearing

25 and demonstrate to me the SWIM plan isn't going to work

1 because they don't have a federal permit, and then

2 that's what my recommendation will be, to abandon the

3 whole thing and do what you need to do for the federal

4 permit and figure it out from there.

5 MR. HYDE: Mr. Menton, we'd like a clarification

6 in one small respect.

7 We also would like to be deposing the same witnesses

8 that are coming up, and it would concern the subject

9 matter of the NPDES permit but primarily in the context

10 of discovering what they are doing in that regard,

11 such as additional studies or various steps to

12 implement it.

13 I don't think we're trying to question whether it

14 should or should not be issued, but rather finding out

15 what they're doing.

16 Maybe they're doing a study or implementing a

17 program or something like that. That would have some

18 very direct relevance to this proceeding, because as you

19 can see from the argument we have heard so far they are

20 inextricably intertwined, and so we would like to not be

21 barred from making that inquiry.

22 HEARING OFFICER: Let me see if I understand

23 what you're discussing. You want to be able to inquire

24 into witnesses what they are doing in connection

25 with obtaining the federal permit for ENR? Is that

1 what you're saying?

2 MR. HYDE: Yes. For example, if they are, we

3 could pose a question to them, let's say one of the

4 subject matters has to deal with the ethicacy of the

5 proposed stormwater treatment area, whether they

6 have been generating new studies or generating a new

7 set of data to see just how well they're going to

8 work. That would be something clearly relevant to

9 this.

10 HEARING OFFICER: Well, I think if they're

11 generating new studies with respect to the STAs, yes,

12 that's a proper area, but if it's just being done in

13 connection with the federal permit requirement then...

14 MR. HYDE: I think it would have to obviously be

15 tied into the subject matter of the SWIM plan.

16 I gave you example. There could be other examples,

17 too, such as the alleged violations of state water

18 quality standards. That might be another that would be

19 an appropriate area of inquiry.

20 Another would be the limitations proposed for the

21 Loxahatchee Refuge in particular, which are part and

22 parcel of the NPDES permit, to my knowledge.

23 And so they, we don't want to have a situation

24 where simply because something is being done in the

25 NPDES permit it is somehow insulated from the remainder

1 of the discovery effort.

2 HEARING OFFICER: Well, I agree with that.

3 Because it's being done in the context of the NPDES

4 permit doesn't necessarily preclude it form being...

5 MR. REID: Obviously the way it could come up is

6 if they, it's hard to imagine, but if some subject

7 matter came up and we believed that it was solely

8 permit related and they didn't, we'd be back to talk

9 about it at the hearing. That's the way it would come

10 up, if we had a disagreement over it.

11 It's hard to imagine a hypothetical. We are doing

12 what you have to do under the federal APA to prepare,

13 and, you know, I guess the same is true, I guess they

14 will be parties to that as well. So I guess they're

15 doing studies for that.

16 MS. PONZOLI: Mr. Menton, I need to make clear

17 is he talking about discovery of the state or is he

18 talking about discovery of the federal people, because

19 I am getting very uneasy about discovery for what

20 will be federal litigation inside of this litigation.

21 That is very tricky territory.

22 So I need to be clear. Is Mr. Hyde talking

23 about deposing state people?

24 MR. BURGESS: I don't want to speak for Bill, but

25 I think Mr. Reid said earlier the whole area is premature.

1 I think that's where we are here.

2 We are confronted with this memorandum which

3 ostensibly I suppose is not in the nature of a motion

4 for protective order and is directed to Mr. Smith's

5 seeking to have the District nominate or designate

6 someone most knowledgeable on a certain subject here.

7 We are handed it here this morning and reading it

8 for the first time.

9 We most certainly do intend to inquire, for

10 instance, of Mr. McVicker as to the points that

11 Mr. Reid brought out with respect to the considerations

12 that went on before the District adopted a SWIM plan

13 as to the potential need for any additional permits,

14 such as the NPDES permits, but we also would intend

15 to inquire during the course of that deposition as to

16 what they have done since they have learned of EPA's

17 desire that they apply for an NPDES permit in the

18 context of assuring that the ENR, which is a part of

19 the STAs, it will be incorporated under present design

20 into STA 1, and that STA 1 is part of the SWIM plan,

21 and what they are doing, whether additional permits will

22 be required for the remainder of the STAs in addition to

23 STA 1, that is a process, part of the dynamic process

24 that you alluded to that they are undertaking at the

25 moment, and where that leads us with respect to

1 witnesses from EPA or NPDES we will meet that at that

2 time and possibly have to be back before you, but

3 trying to prejudge that interest or that inquire at

4 this point when clearly we think it would lead to

5 admissibility or relevant evidence I think is premature.

6 HEARING OFFICER: Mr. Reid?

7 MR. REID: This is so hypothetical I can't imagine

8 or respond at this point.

9 HEARING OFFICER: Do you disagree he should be

10 able to inquire of witnesses...

11 MR. REID: If we're doing something that impacts the

12 SWIM plan, obviously it's relevant, but you see I just

13 see this whole crack opening up if we are, things that

14 we are doing that we are required to do under the

15 permit that we're litigating about if we litigate the

16 federal APA, you know, there will be a line, and we

17 will have to deal with it as it comes along.

18 HEARING OFFICER: I don't know any other way to do

19 it other than, Ms. Ponzoli, if you feel that you're

20 getting into areas that jeopardize your preparation,

21 make your objections, get a hearing, and we'll try to

22 resolve them that way.

23 I mean, it has to be tied to the SWIM plan.

24 MS. PONZOLI: I don't have a much difficulty with

25 the questions they will be asking of people who are set.

1 My main difficulty is, as Mr. Reid said, the crack

2 becoming an avenue, and we set all these new

3 depositions when we have three weeks of brutal