1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

SUGAR CANE GROWERS COOPERATIVE )

3 OF FLORIDA, ROTH FARMS, INC., )

and WEDGEWORTH FARMS, INC., )

4 -and- )

FLORIDA SUGAR CANE LEAGUE, INC., )

5 and UNITED STATES SUGAR )

CORPORATION, )

6 -and- )

FLORIDA FRUIT AND VEGETABLE )

7 ASSOCIATION, LEWIS POPE FARMS, )

W. E. SCHLECHTER & SONS, )

8 INC., and HUNDLEY FARMS, INC., )

Petitioners, )

9 vs. ) DOAH CASE NO.:

SOUTH FLORIDA WATER ) 92-3038

10 MANAGEMENT DISTRICT, ) 92-3039

Respondent, ) 92-3040

11 and ) (Consolidated)

MICCOSUKEE TRIBE OF INDIANS, )

12 THE UNITED STATES OF AMERICA, )

FLORIDA DEPARTMENT OF )

13 ENVIRONMENTAL REGULATION, )

and FLORIDA WILDLIFE ASSOCIATION, )

14 Intervenors. )

)

HEARING BEFORE: HONORABLE J. STEPHEN MENTON

16 HEARING OFFICER

DATE: MARCH 28, 1994

19 TIME: COMMENCED: 3:31 P.M.

CONCLUDED: 4:50 P.M.

21 LOCATION: 123 SOUTH CALHOUN STREET

TALLAHASSEE, FLORIDA

23 REPORTED BY: LAURIE L. GILBERT

REGISTERED PROFESSIONAL REPORTER

24 NOTARY PUBLIC

1 APPEARANCES:

2 Representing Petitioners, Sugar Cane

Growers Cooperative of Florida,

3 Roth Farms, Inc.,

and Wedgeworth Farms, Inc.:

GARY P. SAMS, ESQUIRE and

5 GARY PERKO, ESQUIRE

Hopping, Boyd, Green & Sams

6 123 South Calhoun Street

Post Office Box 6526

7 Tallahassee, Florida 32314

(904) 222-7500

Representing Petitioners, Florida Sugar

9 Cane League, Inc., and United States

Sugar Corporation:

RICK J. BURGESS, ESQUIRE

11 Earl, Blank, Kavanaugh & Stotts, P.A.

One Biscayne Tower, Suite 3636

12 Two South Biscayne Boulevard

Miami, Florida 33131

13 (305) 358-3000

-and-

14 WILLIAM L. HYDE, ESQUIRE

Earl, Blank, Kavanaugh & Stotts, P.A.

15 Suite 350

215 South Monroe Street

16 Tallahassee, Florida 32301

(904) 681-1900

Representing Intervenor The United States

18 of America (via Telephone):

19 SUZAN HILL PONZOLI, ESQUIRE and

THOMAS A. WATTS FitzGERALD, ESQUIRE

20 Assistant United States Attorney

Southern District of Florida

21 99 Northeast Fourth Street

Third Floor

22 Miami, Florida 33132

(305) 536-5927

1 APPEARANCES, CONTINUED:

2 Representing Intervenor Florida

Department of Environmental Protection:

GARY SMALLRIDGE, ESQUIRE and

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 (via Telephone):

PAUL L. NETTLETON, ESQUIRE

10 Popham, Haik, Schnobrick & Kaufman, Ltd.

400 International Place

11 100 Southeast Second Street

Miami, Florida 33131

12 (305)539-7222

-and-

13 RUTH P. CLEMENTS, ESQUIRE

Assistant General Counsel

14 South Florida Water Management District

Post Office Box 24680

15 3301 Gun Club Road

West Palm Beach, Florida 33416-4680

16 (407) 686-8800

17 Representing EPRI (via Telephone):

18 JOSEPH P. RUSSONIELLO, ESQUIRE

Cooey, Godward, Castro, Huddleston & Tatem

19 San Francisco, California

1 ALSO PRESENT:

3 Kathy Starke

4 Yvonne

6 * * * * *

8 INDEX

10 ITEM PAGE

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

14 HEARING CONCLUDED. . . . . . . . . . . . . . 68

16 CERTIFICATE OF REPORTER. . . . . . . . . . .69

18 * * * * *

1 (WHEREUPON, THE HEARING COMMENCED AT

2 3:31 P.M.)

3 HEARING OFFICER: Let's go ahead and get

4 started.

5 At this point in time, just let the record

6 reflect that we have on the line Ms. Ponzoli

7 from the U.S. Attorney's Office, along with

8 Kathy Starke; Paul Nettleton on behalf of the

9 District; Tom Watts FitzGerald, also on behalf

10 of the Federal Government; Yvonne,

11 Dexter Lehtinen's office on behalf of

12 Miccosukee Indians; Gary Smallridge on behalf

13 of the Department; Rick Burgess on behalf of

14 the League, Joe Russoniello, who is making an

15 appearance in connection with EPRI --

16 And, Ruth Clements, are you still there?

17 MS. CLEMENTS: Yes, I am.

18 HEARING OFFICER: Okay. She's here on

19 behalf of the District as well. I think those

20 are all the people that are on the phone right

21 now. We'll be adding some more when they get

22 over to Mr. Sams' office.

23 I know, Mr. Russoniello, you only are

24 probably here for the issues regarding

25 Dr. Landing, but we'll just have to wait until

1 we get everybody hooked up with that one. And

2 we'll go ahead and talk about some of the other

3 issues we need to resolve in the meantime.

4 MR. RUSSONIELLO: That's fine.

5 HEARING OFFICER: Okay.

6 Mr. Neddleton was it, you were asking

7 about Dr. John Davis's deposition?

8 MR. FitzGERALD: No, that --

9 HEARING OFFICER: Mr. FitzGerald.

10 MR. FitzGERALD: -- that was me,

11 Tom Watts FitzGerald. Two weeks ago, the

12 United States and the

13 Department of Environmental Protection deposed

14 John Davis as a designated witness for the

15 Sugar Cane League in Tallahassee. Because of

16 circumstances, that was changed to Tallahassee

17 at the last minute.

18 And because of late delivery of a lot of

19 materials, some of which was not within the

20 control of the League, some of which was, we

21 were unable to complete his deposition during

22 that period of time, because none of our

23 experts had had time to thoroughly familiarize

24 themselves with the material.

25 In addition, Mr. Davis -- or Dr. Davis

1 rather, stated that in several areas, he had

2 yet to form his final opinion. Thereafter, we

3 were advised -- this is Mr. Killinger and

4 myself -- that he would have his final opinions

5 this week. And he was set to be deposed

6 tomorrow by Mr. Killinger, who's taking the

7 lead on it; and the United States had attended

8 and questioned during the earlier session by

9 cross notice as well.

10 I learned just this afternoon while in

11 another deposition that Mr. Killinger is under

12 the belief, communicated from Mr. Hyde over the

13 weekend apparently that John Davis will not be

14 deposed tomorrow, that they were canceling the

15 deposition, did not have opinions or be

16 available apparently until after the conclusion

17 of our scheduled period of discovery.

18 Given the fact that Dr. Davis testified

19 he's been working on this matter for going on

20 six years, I have a little trouble with that.

21 I have some concern over the lack of adequate

22 notice, little surprise. And I think it only

23 appropriate to state -- and I understand

24 Mr. Hyde is the responsible attorney for this

25 witness.

1 But if, in fact, they have unilaterally

2 canceled his deposition and he's not going to

3 have his opinions and be able and available for

4 deposition in the time period alotted in this

5 case, I will file a motion to exclude.

6 HEARING OFFICER: Okay. So you haven't

7 heard from Mr. Hyde directly, but you're just

8 relaying what you've been told by

9 Mr. Killinger.

10 MR. FitzGERALD: I tried to reach Mr. Hyde

11 because he was here in Miami today doing a

12 deposition at the United States Attorney's

13 Office. I'm doing a deposition at the offices

14 of Popham, Haik.

15 As soon as I learned this this afternoon,

16 I tried to reach Mr. Killinger, he's out of his

17 office. I tried to reach Mr. Hyde at the

18 deposition, and they had concluded the

19 deposition of a witness in the United States --

20 or an employee of the United States, and had

21 already departed, so I was unable to track him

22 down. He may be on his way back to

23 Tallahassee.

24 HEARING OFFICER: Where was the deposition

25 scheduled to begin?

1 MR. FitzGERALD: It was scheduled to begin

2 tomorrow morning at 9:00 a.m. in Tallahassee.

3 HEARING OFFICER: Mr. Burgess, you don't

4 know anything about that --

5 MR. BURGESS: I haven't -- I have no

6 notice of the circumstances that have been

7 described.

8 HEARING OFFICER: Do you know if Dr. Davis

9 is going to be available?

10 MR. BURGESS: I -- I do not know. And --

11 and Tom is right, Mr. Bill Hyde and Bob Blank

12 were the attorneys that attended the -- the

13 first round of that deposition.

14 I can, when I get off this call, Tom, try

15 and track Bill down.

16 HEARING OFFICER: Well, track Dr. Davis

17 down if necessary.

18 MR. BURGESS: Uh-hum. Was the -- was the

19 deposition -- let's start with this.

20 You said we were advised that the depo

21 would be this week. Who advised you?

22 MR. FitzGERALD: It was by prior

23 arrangement between Lee Killinger and

24 Bill Hyde --

25 MR. BURGESS: Okay.

1 MR. FitzGERALD: And DEP renoticed.

2 HEARING OFFICER: Okay. DEP did renotice.

3 MR. FitzGERALD: Yes, for tomorrow.

4 MR. BURGESS: So, there was a -- there was

5 a notice for tomorrow. Do you know when that

6 was sent out?

7 MR. FitzGERALD: No, I don't.

8 MR. BURGESS: Okay.

9 MR. FitzGERALD: I'm not in my office. I

10 have been kept apprised by Lee, because DEP had

11 taken the lead on -- on that matter.

12 MR. BURGESS: But no one has been able to

13 confirm this with either Lee or Bill Hyde.

14 MR. FitzGERALD: No.

15 MR. BURGESS: Okay.

16 MS. PONZOLI: I have heard it I believe

17 from Lee today.

18 MR. NETTLETON: Mr. Hearing Officer, this

19 is Paul Nettleton. I -- I am the one who

20 conveyed this information to Mr. FitzGerald,

21 because Lee had called me earlier today and

22 said he was a little confused on where things

23 stood and thought maybe Mr. Hyde had talked

24 with Mr. FitzGerald directly to cancel this,

25 and he was not aware of that.

1 So I'm not even sure where -- where the

2 original information comes from. But Lee

3 was -- was under the impression that Mr. Hyde

4 had canceled the deposition for -- for

5 Dr. Davis as of tomorrow.

6 HEARING OFFICER: Well, had he talked to

7 Mr. Hyde directly?

8 MR. NETTLETON: I -- I am not sure,

9 Mr. Hearing -- I don't want to represent that.

10 My -- he was calling Mr. FitzGerald to try to

11 get a hold of him to find out whether he had

12 spoken with Mr. Hydge to find out what was

13 going on.

14 MR. FitzGERALD: I thought -- this is

15 Tom FitzGerald again.

16 I saw Mr. Hyde briefly this morning in my

17 office before his depo started, as I was

18 walking out the door to come over to Popham,

19 Haik for the depo I'm sitting in on of a Coop

20 witness. And he -- he mentioned nothing to

21 me. But that doesn't really resolve the issue

22 in any concrete way.

23 MR. BURGESS: So the depo was -- it was

24 noticed to begin tomorrow morning at 9:00 a.m.,

25 where was it at?

1 MR. FitzGERALD: At DEP.

2 MR. BURGESS: At DEP.

3 MR. FitzGERALD: A continuation of a

4 deposition of two weeks ago.

5 HEARING OFFICER: Right.

6 MR. FitzGERALD: And it -- I don't know

7 that I saw the formal notice, Rick, but I did

8 see correspondence nailing down the date.

9 MR. BURGESS: Okay. Well, you -- you had

10 said that we were advised, so I'm -- I'm taking

11 it that we offered Dr. Davis for tomorrow, not

12 that somebody just said they wanted it taken

13 tomorrow. And that now we were changing --

14 changing that.

15 MR. FitzGERALD: Well --

16 MR. BURGESS: I -- I don't know that

17 that --

18 HEARING OFFICER: Well, we're -- we're

19 speculating here.

20 MR. BURGESS: Yeah.

21 HEARING OFFICER: Mr. Burgess, you had

22 indicated that the only other issue you had to

23 deal with was with respect to -- to

24 Mr. Schindler?

25 MR. BURGESS: Yes.

1 HEARING OFFICER: Okay. And that's been

2 worked out?

3 MR. BURGESS: Yes.

4 HEARING OFFICER: Because I don't think I

5 have a motion on that.

6 MS. PONZOLI: You did have a motion. I

7 don't know whether it's reached you or not,

8 Mr. Menton. But if -- if he is either going to

9 make him available at a time that the District

10 and the United States can take him, or pull him

11 within two days, an agreement being reached,

12 then -- then we're satisfied with that.

13 HEARING OFFICER: And, Mr. Burgess, you've

14 agreed --

15 MR. BURGESS: Yes.

16 HEARING OFFICER: -- to do that?

17 MR. BURGESS: Yes.

18 HEARING OFFICER: Okay. So that will take

19 care of that one. I don't have that motion,

20 but you'll let Ms. Ponzoli know in the next few

21 days whether you're going to pull him or make

22 him available.

23 MR. BURGESS: That's right.

24 HEARING OFFICER: Okay. And -- and you

25 don't have any issues with respect to the

1 motion to compel those filed by the U.S. and

2 Dr. Landing --

3 MR. BURGESS: No, I don't.

4 HEARING OFFICER: -- or on the Coop's

5 motion to compel regarding Mr. McGee?

6 MR. BURGESS: That's right.

7 HEARING OFFICER: Okay. Why don't you

8 leave your phone line open --

9 MR. BURGESS: Okay.

10 HEARING OFFICER: -- maybe you can go out

11 and have somebody in your office try to track

12 down Mr. Hyde, see if we can resolve this

13 issue --

14 MR. BURGESS: Okay.

15 MR. PERKO: Mr. Menton, while there's a

16 break in the action here, this is Mr. Perko.

17 We are now on the line.

18 Can you hear us, sir?

19 HEARING OFFICER: Yeah, I can hear you.

20 MR. PERKO: Okay. I'm -- I'm with

21 Jack Lipschutz, Dr. Landing, and

22 Dr. Ron Jones. We are -- we are going to be

23 patching in Donna La Plante from the

24 U.S. Attorney's Office if I can put you on hold

25 for one second.

1 (WHEREUPON, A BRIEF OFF-THE-RECORD

2 DISCUSSION WAS HELD.)

3 MR. PERKO: Mr. Menton, this is

4 Mr. Perko. I believe we have Ms. La Plante on

5 the line as well. So everyone's hooked up.

6 HEARING OFFICER: Are you there,

7 Ms. La Plante?

8 MS. LA PLANTE: Yes, I am.

9 HEARING OFFICER: Okay. The U.S. motion

10 to compel regarding the Landing deposition is

11 essentially, as I read the motion, goes to

12 the -- the subpoena.

13 With respect to the documents regarding

14 the FAMS and MADS studies. The Landing

15 deposition was scheduled for today, as I

16 understand it. I assume that those issues

17 haven't been worked out since everybody's on

18 the conference call.

19 Have there been any developments taken

20 place since the filing of the motion? I've

21 received the motion and the response that was

22 filed by the Cooperative. That included an

23 affidavit from Dr. Landing.

24 MS. PONZOLI: This is Suzan Ponzoli.

25 I have reached an agreement with the

1 U.S. Attorney, and I can recite it into the

2 record, and -- and we can see how the other

3 parties feel about the agreement. It does have

4 some impact on other parties, so they need

5 to -- to say what they believe.

6 But I have an agreement that the

7 United States can live with. I think I do need

8 to give you at least the abbreviated version of

9 this so you can have some feel for -- for where

10 we are.

11 HEARING OFFICER: Okay.

12 MS. PONZOLI: The documents in dispute are

13 for atmospheric testing of mercury. There are

14 some five towers in Florida, four of them are

15 in public land, two are in Everglades Park.

16 It's part of a public/private research program

17 to test for mercury in the Everglades, and

18 Dr. Landing is an FSU professor who also does

19 consulting and has done research on behalf of

20 I guess it's KBN for EPRI.

21 I can give you the entire history of the

22 project, and I think that's necessary if

23 there's going to be a dispute about the

24 agreement.

25 But if I may skip directly to the actual

1 documents and the agreement, if the other

2 parties will agree to that, then we can spare

3 you some of the -- the details of this.

4 HEARING OFFICER: All right. We'll give

5 it a shot.

6 MS. PONZOLI: All right. We'll give it a

7 shot.

8 The actual documents seem to break into

9 two basic categories: The first category being

10 summary tables of preliminary results, and

11 graphs and figures that go with those summary

12 tables of data.

13 The United States has -- under -- and I'll

14 lay it out for you -- reached an agreement with

15 EPRI that we would get an immediate release of

16 those documents, but under a present total

17 confidentiality agreement, with the terms of

18 the confidentiality to be worked out later

19 between the parties; and then if we couldn't

20 agree, we come to you for your ruling on it.

21 I think both of us want to make it clear

22 to you that neither one of us is conceding

23 that, one, any of this should be confidential,

24 or that any of this should be released.

25 So we preserved our position completely.

1 HEARING OFFICER: Okay.

2 MS. PONZOLI: The second set of documents

3 involve other responsive documents which

4 include the raw data, the field notebooks, the

5 lab notebooks, internal data filed,

6 correspondence, that type of thing. The way

7 that set of documents would be handled under

8 what EPRI and I have at least agreed to, is

9 that our expert would be -- Dr. Jones, would be

10 allowed to examine those documents potentially

11 on April the 6th when he's going to be deposed,

12 and I guess we would agree to produce him in

13 Tallahassee on that date, due at the completion

14 of Dr. Jones' deposition, and then go through

15 these documents while we're physically in

16 Tallahassee.

17 If Dr. Jones is satisfied that we really

18 do not need this second category of documents,

19 that we can be satisfied for our purposes in

20 discovery with the summary tables of

21 preliminary results. Then we would simply

22 forego any further discussion of that second

23 category of documents.

24 If Dr. Jones, however, says, no, I see

25 things in the field notes and the lab notebooks

1 that I believe need a summary table, or other

2 things are not as they should be, or we would

3 want to -- to go further into that, then we

4 would need to come back to you and resolve

5 that.

6 Confidentiality would be a blanket

7 confidentiality were to present while we've

8 tried to work out the terms.

9 There are four more Cooperative mercury

10 experts to be deposed this week. And part of

11 the United States' reason for agreeing to this

12 so rapidly is that we want to get this resolved

13 expeditiously.

14 We do not wish to have to redo those next

15 four depositions once we have the information

16 in our hands. We may need to come back to

17 Dr. Landing, because we probably can't get this

18 until tonight or tomorrow morning, even if

19 everyone agrees and we move as fast as

20 possible. But we would not need, we believe,

21 to do those four depositions again.

22 I -- I -- I guess we would say that under

23 the blanket confidentiality, our experts would

24 be allowed to see the summary tables and the

25 preliminary results, and I believe that the DEP

1 expert, Dr. Atkison, would also need to see

2 them.

3 But that we would hold them close, no one,

4 not the expert nor the party would make any

5 other use of that until a mutual agreement had

6 been reached or we come back to you and you

7 would pose whatever you think is appropriate

8 under the circumstances of the case.

9 I guess, Mr. Russoniello, you'll have

10 to -- to indicate if in your view I've

11 reflected our agreement fairly.

12 MR. RUSSONIELLO: The depositions will

13 remain sealed.

14 MS. PONZOLI: Yes, I'm sorry. We would

15 agree -- the United States would agree for the

16 present that the depositions where -- where,

17 I guess, Mr. Russoniello, whether questions on

18 this area would be sealed. Do you think the

19 whole depo needs to be sealed?

20 MR. RUSSONIELLO: Well, since I'm not

21 going to be there for purposes of identifying

22 what is and what isn't, either you -- either

23 it's going to be necessary to seal the

24 depositions in their entirety, or to work out

25 some arrangement where the parties can agree to

1 the portions of it that relate specifically to

2 these materials. It isn't obvious.

3 I'm only concerned, obviously, about those

4 portions of the depositions that relate to

5 these materials. But I don't know what that

6 will be.

7 MS. PONZOLI: That -- that type of an

8 agreement should be able to be reached pretty

9 rapidly once there's a transcript.

10 MR. RUSSONIELLO: Just -- this is

11 Mr. Russoniello again.

12 Just to emphasize a point that has been

13 made at the beginning by Ms. Ponzoli, and that

14 is that this is without -- the agreement that

15 we have reached, or our understanding, is

16 subject to whatever other objections that any

17 of the other parties or any of the witnesses

18 have to the production on any other grounds.

19 And that it needs to be made clear that by

20 doing this, by entering into this agreement for

21 the preliminary examination of these materials,

22 we're in no way insinuating or suggesting that

23 it would be appropriate to disclose these

24 materials in any public fora, as a matter of

25 fact.

1 We should emphasize, we'll do everything

2 that we can to ensure that there is not any

3 disclosure of preliminary scientific data, no

4 matter how important may be the arguments that

5 it should be, until after final reports are

6 prepared, which is some years hence.

7 MS. PONZOLI: And I think I made it clear,

8 Mr. Russoniello, that the United States is not

9 at all conceding that these are not all public

10 records open to public scrutiny and entirety.

11 We both preserved our positions.

12 HEARING OFFICER: Right. But you --

13 all right. You've reached an agreement where

14 Mr. Russoniello's client is going to make him

15 available for the U.S., and its experts' review

16 as well as the Department's experts, as long as

17 the confidentiality is preserved; and if we

18 need to revisit the issue after the documents

19 have been produced and a deposition has been

20 completed, then both parties need to revisit

21 the argument that --

22 MR. RUSSONIELLO: That's right. We don't

23 actually have custody of the materials. So

24 we --

25 HEARING OFFICER: In Miami --

1 MR. RUSSONIELLO: At the -- yeah. It

2 shouldn't be us that's required to produce

3 them.

4 HEARING OFFICER: Okay.

5 MR. RUSSONIELLO: The notice and subpoena

6 is not directed to us. But we're -- to the

7 extent that there's an EPRI propriety interest

8 in the materials, I think we've -- we stated

9 here, and -- and have reached agreement with

10 regard to that interest.

11 HEARING OFFICER: Okay. What are the

12 positions of the other parties? I know

13 Dr. Landing had filed an affidavit, one of the

14 basis for not producing the documents with the

15 confidentiality agreement with EPRI.

16 But I don't know whether this takes care

17 of that objection on his part or not.

18 Mr. Perko?

19 Mr. Perko, you there?

20 MR. PERKO: Yes sir. This is Mr. Perko.

21 I'd have to refer to Dr. Landing, who's sitting

22 right here, as to whether his concerns have

23 been satisfied.

24 HEARING OFFICER: Dr. Landing?

25 DR. LANDING: Yeah. I -- my concerns with

1 the release of the preliminary data were

2 primarily driven by this agreement to

3 confidentiality that we had with EPRI. I --

4 I believe that I can probably -- I can -- it

5 seems like I can live with this agreement to

6 release the summary tables and figures at this

7 time as long as we all understand the -- the --

8 the importance of this from the academic

9 perspective.

10 These data are subject to our further

11 evaluation and interpretation, and the academic

12 career that -- of myself and of my graduate

13 students is at stake here, that it -- it can't

14 be stressed enough how important it is to

15 preserve the confidentiality of these data.

16 HEARING OFFICER: Dr. Landing, just so

17 maybe you feel a little bit more comfortable,

18 we have had some issues in the past regarding

19 test results, et cetera, that some dispute as

20 to whether or not they could be released. And

21 there were agreements reached between the

22 parties to preserve the confidentiality of

23 those test results.

24 And at least to my knowledge, there's --

25 there has never been a breach, or had not been

1 a breach of any of the confidentiality

2 agreements, and the parties have abided by that

3 without it ever becoming an issue.

4 DR. LANDING: Well, I -- I'm happy to hear

5 that. It's -- it may be difficult to prove

6 several years from now whether -- or -- or some

7 years down the road whether the knowledge

8 that's made available is, in fact, used in

9 other ways.

10 I specifically reserve -- or have that

11 concern when we're speaking about the actual

12 university files related to these data.

13 It -- it's my understanding that the

14 interest in these data is to understand what

15 the levels of mercury are in rainfall at the

16 sites where we've made these measurements.

17 I believe that the documents I've already

18 provided clearly indicate the accuracy and

19 reliability of the data we produce, and I can

20 see no reason why groups need to look through

21 my individual -- my university files and the

22 files of my graduate students. I think I've

23 made that position clear.

24 So with regard to the second issue of

25 whether my university files will be made

1 available for review by anyone's expert. I am

2 in contact with the university attorneys to see

3 what kinds of rights I may have in preserving

4 that -- those records.

5 And at this point, I haven't been able

6 to -- to have any discussions, formal

7 discussions with the FSU attorneys, because the

8 confidentiality issue seemed to be the primary

9 issue. And with regard to release of

10 preliminary --

11 HEARING OFFICER: Well, we have a little

12 more time as I understand the way we're setting

13 this up, with respect to -- to those documents.

14 Isn't that right, Ms. Ponzoli?

15 MS. PONZOLI: Yes, Mr. Menton. I'm

16 proposing to do this examination of the second

17 set on April the 6th, when I guess I would

18 propose -- I haven't spoken to Dr. Jones -- if

19 he will agree, that we would produce him in

20 Tallahassee. But --

21 DR. LANDING: Well, that -- this is

22 Dr. Landing again. The -- the week of

23 April 4th, we'll be down actually putting --

24 sampling equipment at two more FAM sites in

25 south Florida. So we won't be available the

1 week of the 4th to the 9th.

2 MS. PONZOLI: But, Dr. Landing, I need to

3 tell you, and Mr. Menton needs to know, that

4 the -- the record and the graduate student

5 research and preliminary work of

6 Dr. Wiley Kitchens at the

7 University of Florida, Dr. Ron Jones at FIU,

8 multiple scientists at the South Florida

9 Research Center, have had virtually all of

10 their files opened up in this case for a number

11 of reasons, public records being one, the

12 magnitude of the importance of the issues that

13 we're examining balanced against the -- I guess

14 the individual concerns.

15 And I -- I -- there -- we're in an

16 expedited hearing, we need some -- we need some

17 help and some cooperation on -- on working this

18 problem out.

19 And, Mr. Menton, I would say to you that

20 we have had this subpoena and notice

21 duces tecum on Dr. Landing since the beginning

22 of March. So since the beginning of March, the

23 university has had an opportunity to come

24 forward and present to me whatever its

25 arguments are, and they have not done so. I --

1 I don't think that there's an unlimited time in

2 which they can come forward. I think it should

3 have been done prior to today.

4 DR. LANDING: Can I -- this is Dr. Landing

5 again. I need to interrupt here.

6 The -- the Notice of Deposition that I

7 received in early March was just that, it was a

8 Notice of Deposition, it referred to the

9 production of the documents that are associated

10 with my consulting work which I produced in

11 short order; and additional documents related

12 to the MADS and FAMS projects.

13 I immediately responded to the attorneys

14 through which I received that Notice, and

15 stated that I had a -- a confidentiality

16 problem with releasing that, as well as an

17 intellectual property rights problem with

18 releasing those info-- that information. And

19 that was -- a notice or a letter was returned

20 I believe dated either March 7th or March 9th

21 which stated those objections.

22 Now, I was not served with a formal

23 subpoena to produce those documents until this

24 morning while we were in the progress of taking

25 my deposition on the consulting work.

1 So I'm not sure of what my rights are

2 here, and --

3 HEARING OFFICER: Okay. Okay.

4 Dr. Landing --

5 DR. LANDING: All right.

6 HEARING OFFICER: -- I'm going to give you

7 an opportunity to consult with the FSU

8 attorneys and -- and see if they can get up

9 with the Federal attorneys and -- and resolve

10 any objections.

11 It's -- as I understand it, the -- the

12 immediate time crunch is with respect to the

13 summaries and the grass, and as I have gathered

14 from what we've discussed, Dr. Landing, you no

15 longer have a problem with that in view of

16 Mr. Russoniello's representation that EPRI has

17 reached an agreement with the Federal

18 government for their immediate production,

19 subject to the confidentiality requirement.

20 DR. LANDING: Well, I --

21 HEARING OFFICER: Right?

22 DR. LANDING: Yes, I'm sorry. I didn't

23 mean to interrupt.

24 There are two other principal

25 investigators on the project who I believe

1 should be informed that this is about to

2 occur. I would like to have some time to do

3 that. But I don't -- I don't think they'll

4 object.

5 HEARING OFFICER: Well, what do you need

6 for time to consult with them?

7 DR. LANDING: I don't think they'll have

8 any objection, as I say, but I don't know if

9 Kirk Poleman at KBN Engineering --

10 We don't have a lawyer from KBN on the

11 line, do we?

12 HEARING OFFICER: No, we don't.

13 DR. LANDING: I don't think they'll have

14 an objection. And -- and Gary Gill at

15 Texas A&M University, I'm sure he's not on the

16 line, he may not even be aware that this is

17 happening.

18 But again, I -- I think these -- these

19 data summaries, the tables and figures that

20 we're speaking of, can be made available.

21 Well, I'm not sure how quickly. I mean,

22 certainly hopefully by tomorrow --

23 MS. PONZOLI: We need them physically in

24 Dr. Jones' hands either tonight, Dr. Landing,

25 or Fed Ex'd to North Carolina so they would be

1 in his hands tomorrow for the Dr. Henry

2 deposition. I mean, that --

3 DR. LANDING: Okay.

4 MS. PONZOLI: -- that really goes to the

5 heart of the agreement between EPRI and the

6 United States, is that we would have expedited

7 delivery of these summary tables of preliminary

8 results and graphs and figures.

9 KBN was aware of this last week. I mean,

10 we've been -- we've been going back and forth

11 on this, Mr. Menton, for -- for weeks. This is

12 not anything new that came up today.

13 In fact, we postponed a hearing from

14 Friday to today at the request of EPRI because

15 the attorney was in the middle of a trial or an

16 arbitration and couldn't participate on Friday.

17 MR. RUSSONIELLO: Well, this is

18 Joe Russoniello. Let's just put -- I don't --

19 I think this -- there's obviously a lot of

20 history in this case that -- sort of contorting

21 some of these things.

22 But EPRI's first knowledge of any of this

23 going on was last Thursday, Thursday

24 afternoon. And so my first involvement in this

25 was really Thursday and Friday.

1 As I've said, I -- we're talking here

2 specifically about EPRI's interest with regard

3 to any of this material. And I can't speak,

4 obviously, for any of the people at the

5 University or Dr. Landing or -- whatever, and

6 any other concerns that they have.

7 But I -- I personally don't know that this

8 particular production; that is, Dr. Landing --

9 that is, EPRI's agreement that with respect to

10 its propriety interest in the summary tables of

11 preliminary results and the graphs and figures

12 demonstrating those results, that they -- that

13 they be provided forthwith, that it has any

14 direct connection to any of these other

15 depositions.

16 And so if it takes Dr. Landing 24 hours

17 for him to get clearance from his associates

18 that they don't -- whatever objections they

19 might have had, they don't really have any

20 longer, as long as EPRI's given up this

21 particular obstruction, seems reasonable.

22 But as far as EPRI dragging its feet or

23 trying to --

24 HEARING OFFICER: Well -- let me just

25 interrupt for a second.

1 As I recall from your affidavit,

2 Dr. Landing, you had already contacted KBN last

3 week, and they were the ones that were trying

4 to get in contact with EPRI; isn't that right?

5 DR. LANDING: Well, again, the -- I

6 pointed out that I'd received a Notice of

7 Deposition that asked me to provide documents

8 that I didn't feel I should provide. And I

9 responded to the lawyers and to KBN in early

10 March. And after that, I assumed that it was

11 out of my hands and things were being taken

12 care of.

13 And as I say, I didn't receive a subpoena

14 until this morning. Now, I don't what --

15 you know, whether I need to respond to a Notice

16 or whether I need to respond to a subpoena. I

17 assume that the subpoena is what counts.

18 MS. PONZOLI: Mr. Menton, the notices in

19 this case are by agreement a subpoena. So I

20 think that the distinction here is -- is one in

21 form, but not in substance.

22 DR. LANDING: And this is Dr. Landing.

23 I -- that's fine. I -- as I say, I don't

24 think there's going to be a problem trying to

25 produce these summary tables and figures. I

1 certainly have some of that information that I

2 could hand over immediately upon returning to

3 my office at the university.

4 And it depends on, you know, the --

5 MR. RUSSONIELLO: Well, he can only

6 produce what he's got.

7 DR. LANDING: Yeah. There's -- there's

8 data in log books which hasn't been entered

9 into computers yet. I mean, we -- it depends

10 on -- on what we're expected to provide here.

11 We can certainly provide some information at

12 this time.

13 But I will definitely try to reserve

14 whatever rights I may have to protect the --

15 the intellectual property which I consider to

16 be --

17 HEARING OFFICER: Okay. That really --

18 DR. LANDING: -- contained in these other

19 things.

20 HEARING OFFICER: -- goes to the second

21 issue.

22 Doctor, with respect to the -- or with

23 respect to the KBN, or your colleague from

24 Texas A&M or Texas Tech, or wherever it was --

25 may have, because of the confidentiality that

1 has been established in order to protect EPRI's

2 propriety rights, they're going to be protected

3 for the time being.

4 DR. LANDING: Well, then I can --

5 HEARING OFFICER: Any objections --

6 DR. LANDING: Yeah. I can get on the

7 phone with them, it's -- it's still early

8 enough that I can alert them to the fact that

9 this is occurring. As I say, I don't think

10 there'd be any objection.

11 HEARING OFFICER: Okay. And -- and if

12 there is, it's still all subject to the

13 confidentiality agreement, they'll have an

14 opportunity to come in and be heard before the

15 defendant releases that data to -- to anybody

16 else.

17 So the documents -- or the data that you

18 have in your hand and available, go ahead and

19 get those produced, and -- and if KBN or your

20 colleague has a problem, we can listen to them

21 before it gets disseminated any further.

22 MR. PERKO: Mr. Menton, this is

23 Gary Perko, on behalf of the Cooperative.

24 I hate to interject any more complexity

25 into this.

1 But although we're not asserting a

2 protected interest in this data, we certainly

3 have an interest in the issue, and would

4 request that those documents also be provided

5 to us.

6 Of course, we will agree to keep that

7 information confidential, as the other parties

8 have.

9 HEARING OFFICER: All right. Well, you'll

10 need to work with Mr. Russoniello and make sure

11 that you can come to some sort of agreement

12 with him on that.

13 MR. RUSSONIELLO: No, I'm assuming,

14 Mr. Menton, that for purposes of the use of any

15 of this material at deposition, that all the

16 parties are bound by the strict

17 confidentiality.

18 HEARING OFFICER: That -- that's

19 absolutely --

20 MR. RUSSONIELLO: Right. And so that we

21 don't need to really revisit the issue of what

22 to do with that until we get to the point that

23 somebody wants to try to use the information

24 beyond the deposition.

25 HEARING OFFICER: Okay. Mr. Perko, you

1 understand that, of course.

2 MR. PERKO: Yes, sir.

3 MR. RUSSONIELLO: Great.

4 MS. PONZOLI: Mr. Menton -- Mr. Menton,

5 may I request a time frame for Mr. Landing to

6 have either his personal attorney file a brief

7 that the United States can deal with, or the

8 University to file on his behalf a brief so

9 that we know what we're dealing with as --

10 HEARING OFFICER: I --

11 MS. PONZOLI: -- if we could just set a

12 time frame, and if they want to come forward

13 and -- and object to this agreement that EPRI

14 and the United States have agreed to, that

15 they -- they get their -- their objections and

16 a legal brief before you in a certain time

17 frame so I'll have time to answer it before we

18 come back before you.

19 HEARING OFFICER: Okay. And that -- that

20 has to do with the second issue then, right,

21 the -- the records of -- and logs of graduate

22 students --

23 MS. PONZOLI: Yes, sir. Yes, sir.

24 HEARING OFFICER: Okay.

25 MR. RUSSONIELLO: Well, I -- there's also,

1 if I might interject -- this is Joe Russoniello

2 again.

3 There's this other threshold issue of

4 whether anybody's going to consider any of that

5 material -- oh, I see what you're saying, that

6 the university may not want to produce it at

7 all.

8 MS. PONZOLI: That's right. I'm afraid --

9 I'm afraid we're going to have the university.

10 MR. RUSSONIELLO: Disregard my --

11 disregard my impudence. Thank you.

12 HEARING OFFICER: Dr. Landing, you have

13 indicated you've already tried to contact the

14 university attorney?

15 DR. LANDING: That's correct. They --

16 they don't get involved until -- until there's

17 a formal -- until someone like myself is

18 actually formally involved in something like

19 this.

20 And they didn't consider a Notice of

21 Deposition to be the -- the level of

22 involvement that a subpoena represents. And so

23 at this point, I'm starting -- they've been --

24 I talked to them Friday. You know, I'm in a

25 deposition today. And there's just a limited

1 amount of time that I've had --

2 HEARING OFFICER: I understand, and

3 everybody's working under real time crunches

4 here.

5 I would ask that you contact your attorney

6 and have him get in direct contact with

7 Ms. Ponzoli as soon as possible.

8 DR. LANDING: Okay. I can do that.

9 HEARING OFFICER: And see if there is

10 going to be some objections on that. And

11 hopefully that can occur within the next day or

12 two.

13 And if you can't reach an agreement

14 between the two of them, Ms. Ponzoli, you can

15 set up another conference call if we have to do

16 that.

17 MS. PONZOLI: I -- I think there will.

18 Thank you, Mr. Menton.

19 MR. SAMS: Mr. Hearing Officer, this is

20 Gary Sams. I've been trying to follow loose

21 ends here, and there's one thing I don't

22 understand, and one thing I think has been left

23 unresolved.

24 The one I don't understand is the

25 provision concerning the sealing of

1 depositions. It was made in the overall

2 context that suggested that the depositions to

3 be sealed would be those of the Cooperative's

4 mercury experts who are being deposed this

5 week, but I wasn't sure I understood that. And

6 if we could get some clarification from the

7 U.S. perspective, that would be helpful.

8 The other thing is, I think it's still

9 been unresolved as to when Dr. Landing would

10 actually make the production of documents in

11 early April.

12 MS. PONZOLI: I think you're right,

13 Mr. Sams, and I appreciate that, because

14 I think we feel very strongly that that

15 production needs to be on the 6th when we would

16 bring Dr. Jones to Tallahassee. He was

17 supposed to be produced in Miami. But -- but

18 unless Dr. Jones tells me he cannot come to

19 Tallahassee, I'm willing to bring him to

20 Tallahassee on the 6th, and resolve this within

21 a very tight time frame.

22 As far as sealing the depositions, that is

23 not something that the United States wants, but

24 it's -- it would be necessary if we are to keep

25 the confidentiality that EPRI is requesting for

1 these documents pending the resolution of -- of

2 some mutual agreement or a Court order on the

3 agreement.

4 And it's -- it's a time problem because

5 four of your mercury experts are being produced

6 this week. I don't know how else to do it.

7 And -- and when we discussed this last week

8 when you were on the phone, Mr. Russoniello

9 said that he felt the tightest time frame we

10 could hope for in coming to a mutual agreement

11 might be a week, and that was tight in his

12 estimation.

13 MR. SAMS: I guess my question was: Are

14 those the witnesses whose depositions are

15 subject to sealing, and are there others?

16 Included in others, I would mention

17 Dr. Landing's own I suppose, and perhaps

18 others.

19 MR. RUSSONIELLO: Yeah, this is

20 Joe Russoniello again.

21 I mean, I -- I think that the spirit of

22 the sealing is that it's -- it's extended to

23 any portion of a deposition of anyone wherein

24 the materials that are the subject of the

25 strict confidentiality are used.

1 HEARING OFFICER: Right. I think that's

2 the appropriate way to look at it. If your

3 experts over the next couple days are not asked

4 about and don't refer to the documents, then I

5 don't think the confidentiality applies, we

6 don't have to worry about sealing them.

7 MR. SAMS: I would suggest, just for

8 clarity then, that some manner be agreed upon

9 between counsel of the U.S. and EPRI, and -- or

10 the confidentiality documents, because there's

11 an awful lot of paper and none of wish to

12 violate the agreement.

13 HEARING OFFICER: I -- I think that's

14 probably a good suggestion. Then, during the

15 course of the deposition, when any of those

16 documents are being referred to, you make a

17 specific reference to those so that the

18 court reporter can note it and -- and tag those

19 pages that specifically fall within the scope

20 of -- of the -- of the agreement that we're

21 talking about here.

22 MR. RUSSONIELLO: If Dr. -- this is

23 Joe Russoniello again.

24 If Dr. Landing has a restricted stamp or

25 confidentiality stamp or, you know, anything

1 that would mark those documents dramatically,

2 that would probably facilitate this designation

3 at deposition.

4 HEARING OFFICER: And he's already

5 produced a series of documents, so I would

6 assume that anything he produces from now

7 forward would fall within the scope of that.

8 So anybody receiving those documents would be

9 alerted to the fact that they fall within the

10 scope of -- of the agreement that we've talked

11 about today.

12 MR. RUSSONIELLO: Yeah, my -- my only

13 concern is only for purposes of future --

14 HEARING OFFICER: I agree with you.

15 MR. RUSSONIELLO: -- examination.

16 HEARING OFFICER: I agree with you. I

17 think that's a good idea, too. But for those

18 attorneys who are -- are going to be taking the

19 depositions, they should be well aware of what

20 documents --

21 MR. RUSSONIELLO: Right.

22 HEARING OFFICER: -- qualify as falling

23 within the scope of that agreement.

24 MR. SAMS: It's just as important to the

25 rest of us, Mr. Hearing Officer, that they be

1 clearly marked as possible on the face of the

2 documents themselves so that none of us --

3 HEARING OFFICER: Inadvertently --

4 MR. SAMS: -- inadvertently release them.

5 HEARING OFFICER: I think that's a good

6 idea.

7 Dr. Landing --

8 DR. LANDING: Yeah. This -- this is

9 Dr. Landing.

10 We can make an attempt to do that. I

11 would also add that the -- we use the acronym

12 FAMS to refer to the work that's in question

13 here that's under contract with EPRI. And I

14 would suggest that any time that phrase is

15 used, that should be the -- the red light to

16 worry about this sealing and confidentiality.

17 HEARING OFFICER: Okay. And the second

18 issue that -- that Mr. Sams had raised was with

19 respect to the -- to the other records.

20 And I think probably the best way to

21 handle that would be for Ms. Ponzoli to get in

22 touch with the university attorney over the

23 next day or two and see if they're going to be

24 able to reach some sort of agreement on those

25 issues. It may be that those documents could

1 be produced even if, Dr. Landing, you weren't

2 there. If an agreement can be reached between

3 the attorneys.

4 MS. PONZOLI: Mr. Menton, I'll be happy to

5 contact the university attorney. But someone

6 needs to let me know who and -- and what the

7 number is. I -- I just don't know who

8 Dr. Landing's referring to.

9 MR. RUSSONIELLO: Mr. Menton, this is

10 Joe Russoniello. Would you mind excusing me?

11 I have a date with a grand jury.

12 HEARING OFFICER: Okay.

13 MR. RUSSONIELLO: Thank you.

14 DR. LANDING: This is Dr. Landing.

15 I've spoken with several attorneys in the

16 FSU general counsel's office, and I'll have to

17 get back to them either today or first thing in

18 the morning to let them know the -- where we

19 are at this point.

20 MS. PONZOLI: Will you -- will you have

21 them contact me, Dr. Landing?

22 DR. LANDING: Yeah, I can do that. And

23 that should be able to -- we should be able to

24 hopefully do something first -- you know,

25 before noon tomorrow.

1 MS. PONZOLI: All right. My number is

2 305/536-5477.

3 DR. LANDING: Okay. I have that.

4 MS. PONZOLI: And I'll be either in my

5 office or in deposition the rest of this week,

6 but I can be reached through my office because

7 I'll be in Miami this week. But I -- we need

8 to -- we need to get this resolved

9 immediately. I don't want to encourage doing

10 it later in the week.

11 DR. LANDING: Yep. That's fine.

12 HEARING OFFICER: Okay.

13 MR. NETTLETON: Mr. Menton --

14 HEARING OFFICER: Several of the issues

15 that we need to resolve with respect to the

16 U.S. motion to compel?

17 MR. NETTLETON: Mr. Hearing Officer, this

18 is Paul Nettleton, I don't want to create more

19 complexity, and I had hoped to speak up before

20 EPRI's attorney got off the line, but he jumped

21 off pretty quick.

22 I -- I am happy to live with the situation

23 as -- as is apparently been agreed to with the

24 understanding the United States is -- is kind

25 of taking a lead in those particular

1 depositions in question.

2 But I have a concern that if this material

3 becomes relevant to this case, that it's going

4 to be necessary for my client and their

5 consultants to look at it, and which case we

6 may be looking at public record situation,

7 which confidentiality agreement or not, we

8 couldn't agree to violate the public records

9 statutes, and I don't know with all due respect

10 whether you -- you would have the authority to

11 enter an order sealing these from public

12 records. I think there was a reference earlier

13 on, that this was being funded not only by

14 private but also public funds.

15 So that raises some concerns in my mind.

16 I'm -- I'm willing to live with the agreement

17 as it currently exists with the understanding

18 that we may have to come back and visit this

19 issue again.

20 HEARING OFFICER: I'm not sure what you --

21 you're saying, simply by the fact that produced

22 to you it becomes a public record, or because

23 it's being funded with public dollars it

24 becomes a public record, and you'd have to

25 release it?

1 MR. NETTLETON: Well, I think either way

2 it could come into play. But what I'm

3 suggesting is it may be that -- I think the

4 only way to protect it from my client's

5 standpoint right now is to not turn over these

6 documents to my client.

7 And I think that arguably prejudices us --

8 prejudices us in the preparation of this case,

9 if these things are actually relevant to where

10 we're going. And it may be we need to play

11 this out a little bit further before I can tell

12 how that's going to play out.

13 As I said, the United States, pursuant to

14 our joint agreement and defense is -- is taking

15 the lead on these particular depositions, so I

16 would defer to them at this point.

17 And if we need to get the documents as the

18 time progresses, we'll need to address this

19 issue again.

20 HEARING OFFICER: All right. Well, we'll

21 take it up again if we need to. But as I

22 understand what you're saying then, you don't

23 want the documents produced to you at this time

24 for some fear that it may fall within the scope

25 of Chapter 119.

1 MR. NETTLETON: I believe that's correct.

2 HEARING OFFICER: Okay. I -- I haven't

3 looked at the case law in a long time. I

4 thought there was an exception with respect to

5 documents that are produced in -- in

6 litigation, subject to confidentiality

7 agreement. But I don't know the status of

8 that. And we may not even have to get into

9 it.

10 But just so the record is clear, the

11 documents won't be produced to the

12 Water Management District at this time, but

13 they'll be produced to the Federal Government.

14 I would assume the same issues apply to

15 DEP.

16 MR. SMALLRIDGE: That's correct.

17 Smallridge here.

18 HEARING OFFICER: I would -- and if that's

19 the problem, because as I understood what you

20 were saying, Ms. Ponzoli, you were going to

21 make the documents available to Dr. Jones and

22 to Dr. Atkison.

23 MS. PONZOLI: That's exactly right.

24 Because Dr. Atkison is -- is the expert helping

25 with the particular deposition later this week

1 of one of the mercury people. I don't know --

2 I don't know how to handle that. I really

3 don't. Because then the United States is

4 prejudiced, because we don't have people to

5 send various places and the Cooperative

6 produced all of its mercury experts this week.

7 And they're being produced simultaneously at

8 different locations.

9 And I have -- I have a mercury expert, and

10 he's going to be at one of them. So DEP is

11 sending its mercury expert to the other one. I

12 don't know what to do with that.

13 MR. SAMS: This is Gary Sams.

14 I've confronted this in a similar case

15 where -- and the way we worked it out in that

16 case was to enable the agent -- the

17 representatives of the agency that is subject

18 to Chapter 119 to examine the documents while

19 those documents remained in the possession of

20 another party that was not subject to

21 Chapter 119, but was similarly aligned with

22 that party.

23 In doing that, the agency subject to the

24 public records law got the benefit of seeing

25 the documents while never taking possession of

1 them for purposes of the Sunshine Law.

2 HEARING OFFICER: Ms. Ponzoli, can you

3 live with that?

4 MS. PONZOLI: I can live with it. I guess

5 if DEP feels that it's livable.

6 MR. SMALLRIDGE: We think that's

7 appropriate. Smallridge again.

8 MR. NETTLETON: This is Paul Nettleton.

9 I -- I would tend to agree with that. I

10 mean, my -- my perception is we may have

11 someone attend the depositions and so forth,

12 but not take possession of any of the documents

13 that may be subject to this.

14 HEARING OFFICER: Okay. Let's try to do

15 it that way then. And that way we can avoid

16 the -- the 119 problem, if possible. And if we

17 have to revisit them, then we'll take it up

18 when everybody's had an opportunity to look at

19 the law.

20 MR. SAMS: It's not really my position --

21 this is Gary Sams again -- to argue this --

22 this point. But, Suzan, have you and

23 Mr. Russoniello discussed Foyder and its

24 implications.

25 MS. PONZOLI: No. But since no one's

1 raised it, why don't you not.

2 MR. SAMS: I'm not even in touch with

3 Mr. Russoniello. But I don't know what he

4 would say if he was still on the line.

5 MS. PONZOLI: I don't either. Why don't

6 we just go forward the way we are.

7 Are you going to send me a Foyder request,

8 Gary?

9 MR. SAMS: I -- I think Mr. Perko already

10 said we presumed we would see the documents

11 subject to the same confidentiality agreement.

12 MR. NETTLETON: I think the only people

13 interested in getting the documents are on the

14 line. So I don't think it's going to be a

15 problem.

16 HEARING OFFICER: Okay. Let's go ahead

17 and -- I mean, I'm sure that -- that was

18 Mr. Russoniello's responsibility to think about

19 those issues, and he must be comfortable with

20 them if he agreed with the arrangement with

21 Ms. Ponzoli.

22 The other issue that I have received a

23 motion on was the Cooperative's motion to

24 compel regarding the deposition of Mr. McGee,

25 which is not scheduled but which they'd like to

1 schedule.

2 MR. BURGESS: Mr. Hearing Officer, this is

3 Rick Burgess, I can ring off here if we can

4 handle the issue on John Davis --

5 HEARING OFFICER: Okay. You back? Okay.

6 Go ahead and tell us what the deal is.

7 MR. BURGESS: All I know -- I think

8 Bill Hyde is the only one that knows the

9 information, and unfortunately I think he is on

10 his way back to Tallahassee.

11 John Davis confirms that although

12 originally his deposition resumption was

13 scheduled for tomorrow morning, he said he

14 learned from Bill Hyde late last week, Thursday

15 or Friday was his recollection, that it

16 wouldn't be going forward, and that he had

17 reached some agreement with Lee Killinger.

18 And my office in Miami confirms the same,

19 but they don't know what those arrangements

20 were.

21 John Davis is not aware of when his

22 deposition would start, but he knows that it's

23 not tomorrow.

24 HEARING OFFICER: Mr. FitzGerald.

25 MR. NETTLETON: Mr. Hearing Officer, he's

1 gone back to the deposition in the meantime.

2 And he -- again, he would not have any

3 information, because he has been unable to

4 contact Mr. Killinger or Mr. Hyde either.

5 So --

6 HEARING OFFICER: Okay. Well, I guess --

7 for his purposes, he needs to be alerted that

8 the deposition isn't going forward. So he

9 doesn't fly to Tallahassee --

10 MR. BURGESS: I'll make sure he's aware of

11 that Mr. Hearing Officer. I've asked the

12 Tallahassee office to contact Bill Hyde and

13 leave word at his home if he should go there

14 instead of the office, to call down to the

15 U.S. Attorney's Office for Tom FitzGerald.

16 HEARING OFFICER: Okay. And then

17 Mr. FitzGerald and Mr. Hyde can talk about it,

18 and if they've got a problem, then we'll take

19 it back up.

20 MR. BURGESS: Okay. Thank you. This is

21 Rick Burgess, I'm going to sign off.

22 HEARING OFFICER: Okay.

23 All right. This -- the deposition of --

24 of Mr. McGee. All -- all these mercury issues

25 are obviously getting very troublesome, and

1 I'm -- I'm not really sure where all the

2 parties stand on -- on the mercury issues.

3 As I recall, originally the Coop had

4 objected to -- to any interjection of the

5 mercury issue proceeding. And now it appears

6 that one portion of their case is going to be

7 STAs may in some way exacerbate the mercury

8 problem.

9 At least that's what it seems to be from

10 the documents, things that -- that I've been

11 receiving.

12 I'm not clear from what I have been

13 receiving what the position of the proponents

14 of the Plan are. Nor am I clear as to what

15 EPA's involvement in this issue, and the

16 SWIM Planning process, is generally.

17 So there are some -- some real difficult

18 issues that we have to confront here. I think

19 that the petitioners are entitled to find out

20 what EPA's position is, and also what the

21 response of the proponents of the Plan will be

22 to -- to the case that the petitioners will be

23 putting on regarding the mercury issue.

24 If that response includes the

25 participation of EPA, then that certainly

1 changes the nature and the scope of the inquiry

2 that can be conducted.

3 But the -- the point that I had some

4 problem with was the -- what appeared to be an

5 effort on the part of the petitioners to

6 enforce or to use the Federal witnesses and

7 either unpaid experts in connection with

8 this -- this issue. And I don't think that

9 that's appropriate at all.

10 So I -- those are just some of the issues

11 that came to me in thinking through this.

12 And -- and again, I'm not familiar enough with

13 what's transpired in the depositions, nor at

14 this point do I have a clear enough

15 understanding of what the position of the

16 various parties is going to be on the mercury

17 issue. So maybe I need to get enlightened on

18 those to some degree --

19 Mr. Sams, it's your motion.

20 MR. SAMS: Mr. Hearing Officer, the

21 Cooperative, as recited in our motion to

22 compel, has taken the depositions at this point

23 of two EPA personnel. One is Dr. Stoper, who

24 heads up, in effect, the EPA's mercury studies

25 in south Florida --

1 HEARING OFFICER: Uh-hum.

2 MR. SAMS: -- another is Mr. Schipe, who

3 has had involvement with both the nutrient

4 issue and the mercury issue.

5 HEARING OFFICER: I reviewed the

6 transcript that -- the excerpts that you filed

7 with me, so I'm familiar with at least those

8 portions of those depositions as to what they

9 said.

10 But in reading those excerpts, I was still

11 somewhat confused as to whether or not EPA has

12 taken a -- a formal position, or may take a

13 position in the future, regarding the impact of

14 the establishment of the STAs on the -- on the

15 mercury levels.

16 And I don't know whether that's clearer

17 anywhere else in the depositions or -- or from

18 some other documents.

19 MR. SAMS: I would characterize the

20 discovery that has been done so far in this

21 manner -- and, of course, it's subject to

22 somebody else's different characterization --

23 but that is that there is potential for a

24 problem.

25 But it has not been decided at the level

1 of the people whom we've had the opportunity to

2 depose how serious or whether, in fact, there

3 is a problem with the STAs exacerbating the

4 mercury problem.

5 In effect, those people have deferred to

6 Mr. McGee, who happens to sit, I would say,

7 next above them with responsibility over both

8 water quality in the Everglades, and regulatory

9 policy on the mercury questions.

10 I would point out to you that in parallel

11 with this case, EPA has been processing an

12 application for an NPDES permit, a draft

13 version dated February 15th, 1994, was also

14 appended to our motion.

15 It's -- it clearly shows that EPA has some

16 concerns with this interrelationship, but I've

17 been unable to learn from either of the

18 witnesses whose depositions we've taken so far

19 what that concern is, or what the degree of the

20 concern.

21 I do not intend to make Mr. McGee an all

22 purpose expert for the Cooperative. But he is

23 the one additional witness, besides those two,

24 whom we feel it's necessary to depose.

25 I -- in the interest of completeness, I

1 should also point out that we do have access to

2 another EPA person at a laboratory located in

3 Florida, but I expect that to be a deposition

4 on a limited subject. And it's already been

5 scheduled.

6 I don't think that what we're requesting

7 is beyond reason. It simply is necessary to

8 complete our understanding of how the people at

9 EPA with responsibility for this area regard

10 the problem.

11 HEARING OFFICER: Okay. Ms. Ponzoli.

12 MS. PONZOLI: All right. Mr. Menton,

13 I think it is as Mr. Sams has stated, they have

14 done three non-witnesses for the

15 United States. They've done Dr. Stoper,

16 they're going to do Dr. Vince Parkay, they've

17 done Mr. Schipe on the mercury problem. Not

18 one of these people is listed as a witness for

19 the United States.

20 I do believe that I think we've come to

21 the point that this -- this should end, and

22 I think it should end now. We have 40 more

23 depos to do over the next two weeks.

24 I think that Mr. Sams may be aware, he may

25 not be aware, that Del Hicks is listed as a

1 witness for the United States. He was deposed

2 in the past. There are 30 pages of extensive

3 questioning of Mr. Hicks on the interface

4 between the phosphorus and the mercury.

5 The -- the mercury problem within the

6 Everglades has been developed under the

7 management of Mr. Hicks, Dr. Stoper.

8 Mr. Schipe worked for Mr. Hicks.

9 My understanding is is that he might have

10 water quality and phosphorus management

11 responsibilities. It is Mr. Hicks who has the

12 mercury.

13 Mr. Hicks was the witness -- not the

14 witness -- the person EPA sent to the

15 Scientific Advisory Group for the Everglades.

16 And I guess so that you would be satisfied

17 that, in fact, he was questioned on these

18 issues, Mr. Hyde asked him: Are you concerned

19 that the storm water treatment areas under this

20 hypothesis might themselves become sources of

21 further methylation of mercury.

22 And he states, I think it's worthy of

23 concern. And he says, however, that he thinks

24 that the STAs will sequester the methyl

25 mercury, and that it wouldn't go downstream.

1 He goes on for 30 pages discussing this

2 interface that Mr. Sams believes he needs.

3 I don't believe that it --

4 (WHEREUPON, THE PHONE WAS DISCONNECTED.)

5 MS. PONZOLI: -- that created this as --

6 as a --

7 COURT REPORTER: Excuse me.

8 MS. PONZOLI: -- discussion.

9 COURT REPORTER: Excuse me?

10 HEARING OFFICER: Yes.

11 COURT REPORTER: This is Laurie, the

12 court reporter.

13 HEARING OFFICER: Uh-hum.

14 COURT REPORTER: I was cut off until just

15 this minute from when Ms. Ponzoli was quoting

16 from the 30-page deposition. I don't know

17 how --

18 MS. PONZOLI: Saying the same thing.

19 HEARING OFFICER: Yeah. I think we are.

20 We're kind of beating a dead horse here.

21 And --

22 MS. PONZOLI: Mr. Menton, what I'm looking

23 for, I wanted Mr. Sams to say what he wanted

24 the deposition for.

25 Sometimes when I hear what he says he

1 wants the deposition for, I say, you got

2 Mr. Hicks, you've got your deposition.

3 Then when I hear him say what he really

4 wants to do is in my view discovery into a

5 Federal Administrative proceeding, that has

6 nothing to do with this SWIM process, you will

7 never hear it here, it will be for another

8 proceeding, and that is really inappropriate

9 and premature at this point. He could not do

10 the deposition but for this SWIM challenge.

11 Under any other circumstances, he would not get

12 that deposition now.

13 And so that is -- that is really what I

14 consider improper and a misuse of the discovery

15 here. And I think the United States has been

16 really -- I went through all the science

17 subgroup depositions, I've done a large number

18 of mercury depositions, and I -- I think that

19 we really tried to be open and free here, and

20 it never seems to stop.

21 And I -- I think that is the essence of my

22 objection. It's improper discovery, if it's

23 for the Federal Administrative proceeding, and

24 it's just another -- another deposition.

25 HEARING OFFICER: Well, I don't want to

1 get into the Federal Administrative proceeding,

2 as I indicated the other day. I -- I don't

3 think that that's within the scope of the

4 SWIM Plan, that's a separate issue that -- that

5 has to be resolved by somebody else.

6 And I don't fully appreciate at this point

7 how the position of EPA is -- is necessarily

8 all that important to determining whether the

9 SWIM Plan meets the requirements of the

10 statute, and -- and is a reasonable approach

11 to -- to resolving what the statute directs the

12 Water Management District to try to resolve.

13 And that's where -- you know, Mr. Sams,

14 I'm having a little bit of problem in seeing

15 why we're going through all the EPA people,

16 and -- and I understand that there's been some

17 discussions in EPA. But I'm not sure the

18 context in which that -- that has occurred.

19 MR. SAMS: Well, neither am I. First of

20 all, Mr. Hearing Officer, that's one reason we

21 need to inquire.

22 But, secondly, EPA is the agency of the

23 Federal Government that has responsibility for

24 water quality in regard to numerous broad

25 subjects, including both nutrients and heavy

1 metals.

2 And we have been trying to find someone

3 who would be able to relate the specific

4 concerns as to each in the context of the

5 SWIM Plan, and it seems that we have finally

6 identified that individual and wish to take a

7 short deposition of him. And now the

8 resistance -- we're only seeking one

9 deposition --

10 HEARING OFFICER: Well, I mean, there are

11 so many depositions going on in this case as it

12 is. And I think the problem is that at this

13 point in time, to add another one, while it's

14 only one, it does put a grind on everybody's

15 resources and ability to -- to meet their

16 obligations prior to the hearing.

17 MS. PONZOLI: Mr. Menton, may I supply

18 Mr. Sams with a copy of Mr. Hicks' deposition

19 and let him read it and see if it meets his

20 concerns, and then -- then go from there?

21 HEARING OFFICER: That was one thing I was

22 going to suggest is that Mr. -- is why don't

23 you take a look at Mr. Hicks and see whether

24 that answers any of the questions that you need

25 to have answered.

1 If it doesn't and you -- and you can't

2 reach an agreement between the two of you, get

3 me back on the phone and -- and we'll work

4 something out.

5 But it seems to me that you need to take a

6 look at -- at what Mr. Hicks said, because it

7 may answer all the questions that you want to

8 have answered.

9 MR. SAMS: Is the -- is the representation

10 with which it's being offered that Mr. Hicks

11 speaks for EPA in establishing its position on

12 the interrelationship between nutrient

13 enrichment and mercury contamination in the

14 Everglades?

15 HEARING OFFICER: Ms. Ponzoli?

16 MS. PONZOLI: To the extent I understand

17 your statement, Mr. Sams, yes.

18 HEARING OFFICER: And he -- he also is

19 designated by the Federal Government to be a

20 witness to testify in these issues at the

21 hearing.

22 MR. SAMS: Well, if -- if he is the -- the

23 person who speaks for the agency on the

24 interface of those two issues, I certainly

25 would look at the deposition in that light and

1 determine whether it, in fact, addresses the

2 subject.

3 HEARING OFFICER: All right. Let's do

4 that. Take a look at that deposition, and see

5 what questions remain unanswered in view of

6 that deposition, and whether or not you

7 actually need to go forward with Mr. McGee or

8 not.

9 MR. SAMS: All right. Gary Perko?

10 MS. STEELS: Gary, he had to go back to

11 the U.S. Attorney's Office.

12 MR. SAMS: Okay. We'll have to see if we

13 have it.

14 Gail, if we have that deposition,

15 Federal Express it overnight to me, if