STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: Beker Phosphate Corporation, ) Application for Department of ) Environmental Regulation Permit to )

Construct an Industrial Waste Water ) CASE NO. 75-1336 Facility in Connection with a Proposed )

Phosphate Mining Operation Located in ) Manatee County, Florida )

)

RECOMMENDED ORDER

An administrative hearing was held in the above-captioned matter, after due notice to the parties, at Bradenton, Florida, on May 24, 25 & 26, 1976, before the undersigned Hearing Officer.

APPEARANCES

For Sarasota County: Richard E. Smith, Esquire For the Town of

Longboat Key: I. W. Whitesell, Jr., Esquire

For Beker Phosphate Roy C. Young, Esquire Corporation: John P. Harllee, Esquire

For the Department of Environmental

Regulation: David Gluckman, Esquire

For George Browning,

III, Esquire: George Browning, III, Esquire

ISSUE PRESENTED

Whether Beker Phosphate Corporation should be granted a hermit to construct an industrial waste water facility pursuant to chapter 403, Florida Statutes.

1. By application, dated April 8, 1975, Beker Phosphate Corporation (hereinafter Beker) , sought a permit to construct an industrial waste water facility in Manatee County, Florida, from

   the Department of Pollution Control (now and hereinafter DER) . The application was received on April 11 and, after advising Beker that the application was incomplete a meeting was held on May 9th between DER and Beker representatives with the result that Beker filed a new application dated June 11, that was received by the DER in July. Further meetings were held in the fall of 1975 and additional in formation was received as to the application. On December 16, 1975, DER secretary. Jay W. Landers, Jr., issued a Notice Of Intent To Grant A Permit With Conditions. The conditions were unspecified in the letter of intent (Exhibit 1.)

   
   

2. Subsequently, on December 23 and December 24, 1975, Sarasota County (hereinafter Sarasota) and the Town of Longboat Key (hereinafter Longboat Key), respectively, filed petitions with the DER alleging that their substantial interests would be adversely affected by approval of the permit application and setting forth in their petitions certain disputed questions of fact for determination. After a prehearing conference, Amended Petitions were filed by those parties to clarify and expand on such questions of fact and to resolve procedural matters. Additionally, during this period, George Browning, III, of Sarasota, Florida was granted status as an intervenor.

FINDINGS OF FACT

1. Beker proposes to construct a phosphate rock mine and beneficiation plant on a tract of approximately 11,000 acres in a predominately agricultural and ranching area of Manatee County about 10 miles from Myakka City, Florida. The mining will be performed by two dredges. One will mine overburden and return it to the mined-out area and the other will mine phosphate rock matrix which will be pumped to the beneficiation plant. The plant will consist essentially of two circuits. The first is a washer where the matrix pumped from the dredging operation is partially cleaned of clay and fine sand, and the coarser phosphate particles "pebbles" are separated as a product. The "fines" from the washing operation consist of small phosphate rock particles, sand, and clay. This mixture will be treated in the second section of the plant by "flotation" methods to recover the small phosphate rock particles as a product. During initial operation, the sand and clay will be stored in a temporary waste material storage area, but as the mining proceeds and the dredge pits open up, the sand and clay material will be pumped back to the dredge pits so that sand, and overburden will be mixed and redeposited to reclaim the land.

2. Approximately 8 million gallons of fresh water per day will be drawn from the Floridian aquifer to be used in the flotation circuits. From the plant the water flows in two types of streams--one containing sand suspended in water and one containing clay suspended in water. Both streams flow into a settling pond surrounded by an earthen dam where sand and clay solids settle to the bottom. The clarified water is then decanted through six spillway structures into a hydraulic recirculation ditch outside the dam and flows back to the plant for re-use. The ponds and canals that make up the hydraulic circuit are planned to have sufficient capacity to contain rainwater falling on the site and pond system during the wet season when there are heavy rainfalls (approximately from May to September).

   
   

3. Excess water will be decanted from the hydraulic recirculation ditch through a structure into a pipe and then discharged into Wingate Creek. The settling pond will occupy approximately 225 acres and its capacity will be about 8,458 acre- feet. The pond itself can be used to act as a reservoir and water can be built up in the pond during periods of high rainfall. It will not be necessary to release the water at any particular time. It can be released at will when the effluent contains a minimum of pollutant materials (Exhibit 1).

   
   

4. Matrix is an unconsolidated mixture of phosphate pebbles and boulders of partly phosphatized limestone, quartz and clay. The washing operation removes unwanted oversized material and fine clays. The purpose of the flotation plant is to recover fine phosphate rock that might otherwise be lost. In the flotation process, flotation reagents, including sulfuric acid, number 2 fuel oil, tall oil, sodium hydroxide, and amines are used for treatment. The wastes are then moved to the settling pond where over a period of time the "slimes", (sands and clays) will settle to the bottom forming an impervious layer which will seal the pond. The settling process removes more than 90 percent of the contaminants from the influent.

   
   

5. The coarser clay particles settle first and many of the fine particles settle in a process called "flocculation" by which electrical forces bring the particles together. However, some of the particles will not flocculate and remain suspended in the water. These extremely small particles constitute the total suspended solids that remain in the effluent when it is discharged from the settling area. They probably will not settle out entirely during their course from Wingate Creek into the Myaaka River and eventually to the Gulf of Mexico. However, even if it were assumed that such materials would settle somewhere between

   the point of discharge and Charlotte Harbor, over the entire 20 year proposed life of the mine they would form a deposit much less than 1/10th of an inch.

   
   

6. Although it is technically possible to treat water to the degree that it would result in distilled water, realistic concepts of treatment establish that an additional settling or "polishing" pond for the proposed facility might not improve the quality of the wastewater finally discharged in state waters to any appreciable degree. Alternative proposals for the reduction of pollutants by additional processing, such as the intentional growth of water hyacinths in settling areas or use of chemical coagulants would result in creating other waste materials and thus be counterproductive (Testimony of Bromwell; Exhibit 1).

   
   

7. The applicant's discharge of wastewater to Wingate Creek will average approximately 3.19 million gallons per day. However, since discharge will be effected primarily during periods of excessive rainfall, actual discharges can reach a maximum of about ten million gallons per day during this period. The effluent contained in such discharge will meet the test of at least 90 percent removal of organic and inorganic wastes specified by Rule 17-3.04(1), Florida Administrative Code, when measured by the influent into the settling pond and the effluent leaving that area. This treatment, however, will not produce an effluent equivalent to that produced by the "highest quality municipal waste treatment." The highest degree of treatment that has been reached by municipalities is "advanced waste treatment" as defined in Rule 17-3.04(2)(b), Florida Administrative Code. The water quality characteristics of the effluent will meet the standards of Rule 17-3.05 as to concentrations of those pollutants reasonably anticipated to be fond in the wastewater based on samples taken where the waters are discharged into Wingate Creek (Testimony of Gilgallon, Davis, Edwards, Heinzman, Bromwell, Bartow, Wellford, Exhibit 1).

   
   

8. In preparing the application, no consideration was given to the need of meeting treatment standards for highest quality municipal waste treatment or advanced waste treatment. Neither did the recommending official of the DER, Mr. Edwards, then Regional Administrator for the Southwest Region, consider this standard because he had been advised by the DER legal staff that Rule 17-3.04(2) did not apply to Wingate Creek since it was not a tributary to one of the bodies of water listed in subparagraph (c) of the rule 17-3.04(2). This determination was based upon Resolution No. 74-83, September 17, 1974, of the Florida Pollution Control Board that was issued after legal challenges had been made

   to an interpretation by the Department of Pollution Control legal staff that Rule 17-3.04(2) required advanced wastewater treatment for industrial waste discharges. The Board, in its resolution, determined that since evidence had not been taken concerning treatment standards for industrial waste discharges at the time of adoption of the effluent standards for sanitary waste contained in Rule 17-3.04(2), the advanced wastewater treatment standards in the aforesaid rule would not be enforced against industrial dischargers pending full hearings on a new Rule to clearly express the Board's intent in this regard (Testimony of Gilgallon, Edwards; Exhibit 1).

   
   

9. Special conditions that the Southwest Region, Department of Environmental Regulation, recommends should be attached to any issuance of a construction permit, other than standard conditions and those relating to other types of permits, are as follow:

   
   

   1. Approval by DER prior to the construction of any above grade phosphatic clay storage facility other than the initial settling pond.

      
      

   2. Removal efficiencies for oil and grease shall be a minimum of 90 percent and shall not exceed 14 milligrams per liter measured in the discharge effluent.

      
      

   3. Discharge effluent to Wingate Creek shall meet the water quality standards of Chapter 17-3.05(2) at the point of discharge prior to mixing with the receiving stream.

      
      

   4. Further treatment of the discharge will be required in the event compliance with proviso (c) above cannot be achieved or significant degradation of the receiving stream occurs as determined by the DER.

      
      

   5. In addition to required routine monitoring, a detailed analysis of the untreated and treated wastewater to be conducted once on representative samples during (1) month of July and (2) month of February. Such analyses shall, as a minimum, include all the parameters listed in 17-3:05(2).

      
      

   6. Applicants shall conduct an investigation into total retention possibilities of the effluent including, but not limited to, the following areas:

      
      

      1. recharge wells

      2. retention and storage of excess water during the "wet" season with subsequent

         reuse during the "dry" season for process and/or irrigation purposes. A report

         of these investigations shall be submitted prior to submission of operation permit application

         
         

   7. The location of monitoring wells shall be down gradient from the settling pond. Detailed proposal, subject to the DER approval, regarding exact location and number of wells to adequately ascertain the impact of seepage to be submitted no later than 90 days prior to commencement of operation.

      
      

   8. Bond to be posted for damages that may result from a clay settling area dam failure.

      
      

10. Oral and written communications from the public were received at the hearing and included the following:

    
    

    1. Announcement by the County Attorney, Manatee County, that the county did not plan to appeal the DER Notice of Intent to Grant the permit (Statement of E.N. Fay, Jr.).

       
       

    2. The Division of Recreation and Parks, Department of Natural Resources, fears that the construction of the phosphate mine up-stream from the Myaaka diver State Park poses a serious potential threat to its aquatic habitat due to the possibility of a dam failure. It also fears that pollutants from the project will tend to settle as the river waters flow through the two lakes in the park. It therefore, opposes the construction until assurance can be given that proper safeguards have been taken to prevent such problems (Testimony of Alverez).

       
       

    3. The Longboat Key Garden Club believes that the project would involve too much water consumption and also that phosphate mining should be halted until further government studies are made to assure that the safety and health of the populace and the environment will not be endangered through polluted runoff and phosphate spills (Testimony of Monroe).

       
       

    4. The Save Our Bays Association in Manatee County has collected petitions from citizens in Manatee County requesting a referendum on a ballot this November for or against phosphate mining. The Association believes that such a vote should be taken before final decision is made on the subject. Its spokesman fears that if the quality and quantity of the drinking water is disrupted, it will interfere with continued tourist trade (Testimony of Howard Greer).

    5. The Palma Sola Parks Association opposes the Beker Application until there is greater assurance of environmentally safe mining (Testimony of Blankenship)

       
       

    6. A former physical and health education director is concerned about the fact that there has not been sufficient data collected on the effect of radioactive materials in runoff and waste. She believes there should be more research in these areas and asked that the public be protected from such hazards (Testimony of Mary Kay Greer).

       
       

    7. The Manasota-88 project for environmental qualities of 1968 and 1988 believes that issuance of the permit should be withheld until health implications can be determined concerning potential hazards to the Myakka and Manatee Rivers' watersheds (Exhibit 7).

       
       

    8. A former member of the Manatee County Planning Commission that approved the Beker application prior to action by the County Commission of Manatee County is in favor of the proposed project because Beker's plan to impound water will augment the water facilities of the county (Testimony of Reasoner).

       
       

    9. The City of Bradenton believes that since it is being required to meet advanced water treatment standards of discharge for sanitary sewage, Beker Phosphate Corporation should be required to meet similar standards (Testimony of Mayor A.K. Leach).

       
       

    10. A member of the Myakka City Civic Association who is an adjacent land owner to Beker Phosphate Corporation feels that the project is necessary in order to produce jobs for individuals in that area of the county (Testimony of Mizell).

        
        

    11. The U.S. Fish and Wildlife Service is concerned that proposed construction of two dams by the applicant will destroy approximately (4) acres of mangrove areas, three acres of pasture land and about 185 acres of bottom land or hardwood habitat. It recommends an alternative method of backup levies constructed around the primary settling bases on the applicant's land to contain any spills and prevent destruction of the streams and associated wetlands (Testimony of Johnston)

        
        

    12. The Conservation Council of Manatee County believes that Beker's unique mining and reclamation plan will help the farming industry and also create necessary water reserviors and

        recreation areas, and therefore endorses its proposal to mine in Manatee County (Testimony of Kent, Exhibit 14).

        
        

    13. Petitions were submitted at the hearing from approximately 3,000 individuals living in Manatee and Sarasota Counties opposing the issuance of the permit because they believe that phosphate mining is dangerous to the quality and supply of the water and endangers the health of the people (Composite Exhibit 9, Testimony of Humphrey).

        
        

        CONCLUSIONS OF LAW

        
        

11. This case deals essentially with the discharge of industrial waste into state waters. The subject is controlled by Chapter 403, Florida Statutes, and implementing rules and regulations of the DER as set forth in Chapters 17-3 and 17-4, Florida Administrative Code. Chapter 17-3 relates to pollution of waters and 17-4 concerns the permitting process and standards to be applied in granting or denying permits of the nature sought by the applicant here.

    
    

12. The legislative policy in this regard, as stated in Section 403.021, Florida Statutes, is that in order to conserve the waters of the state and protect, maintain and improve their quality for various purposes, no waste is to be discharged into such waters without first being given the degree of treatment necessary to protect their beficial uses. Section 403.085 places discretion in the DER to determine the type of treatment it considers necessary as to discharge of industrial waste. It has done so by promulgation of Rule 17-3.04(1) and 17-3.05(1) that provide for removal of organic and inorganic waste by treatment, and has established water quality standards consisting of maximum concentrations of certain pollutants after reasonable opportunity for mixture of waste with receiving waters has been afforded. These provisions necessarily must be based on informed estimates of expected concentrations after the facility has been constructed because actual figures cannot be obtained until after it is in operation. Although evidence was received concerning the possible impact of the proposed facility upon groundwater in the area and possible seepage of pollutants into the underground aquifers and Wingate Creek, such considerations are amply addressed by other agencies in their permitting processes. This is true also as to the dams planned for construction, as well as the impact of the project on air quality and water quantity, and on animal, aquatic, and plant life.

13. The operative statutory provision under which the construction permit is sought is Section 403.087, Florida Statutes, which requires a permit for any stationary installation that reasonably will be expected to be a source of water pollution, and which provides for issuance of the permit only when the DER determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with its standards or rules. This statute is implemented by Rule 17-4.07 which sets the standard for issuance of permits pertinently as follow:

    
    

    "(1) A permit may be issued to the applicant

    Upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results and other information, that the construction...will not discharge, emit, or

    cause pollution in contravention of Department standards, rules or regulations..

    
    

    "(3) The Department shall issue permits to construct. . . an installation which may reasonably be expected to be a source of pollution only

    when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by the Department.

    
    

    "(5) The Department may issue any permit upon Specified conditions reasonably necessary for the prevention of pollution."

    
    

14. By the DER's issuance of its Notice of Intent to Grant the Permit With Conditions, it is apparent that Beker met the above-cited statutory and regulatory criteria as far as that agency was concerned. In other words, Beker satisfied the DER with reasonable assurances that the proposed facility would be provided with pollution control facilities that will abate or prevent pollution to the degree required as set forth in Rule 17- 3.04(1) as to treatment of effluent and Rule 17-3.05(1) as to water quality standards concerning concentrations of pollutants that would exist after a reasonable opportunity for mixture of wastes with receiving waters. The evidence supports DER's judgment as to the latter provision concerning water quality standards. Beker's estimate of concentrations that would probably be present in receiving waters after the facility is in operation

    was based upon experience gained from similar operations by several other phosphate plants in the general area. Although DER did not look behind the figures supplied by Beker in this regard, there was no evidence presented that would show them to be misleading or inaccurate. It is noteworthy that the rule concerning maximum concentrations of particular substances is not susceptible of precise application until the facility has been constructed and is in operation. At that time, ample safeguards are set forth in requirements for issuance of an operating permit ensure that the particular requirements of the rule will be met.

    
    

15. Essentially, the ultimate determination in this case turns on the interpretation and application of Rule 17-3.04(1) as to the question of industrial waste treatment. Again, it is clear that accurate application of the Rule must await actual operation of the wastewater facility. The Rule states as follows:

    
    

    "17-3.04 General water quality and waste treatment.

    (1) Sewage, Industrial Wastes or Other Wastes -

    Any industrial wastes or other wastes shall be effectively treated by the latest modern technological advances as approved by the regulatory agency.

    All discharges from municipal and privately owned domestic waste plants will comply with the Water Quality Standards of the State of Florida with

    90 percent treatment or better as expeditiously as possible, but not later than January 1, 1973, except that those plants discharging sanitary sewage through ocean outfalls or disposal wells must provide for at least 90 percent treatment or better as deemed necessary by the Department not later than

    January 3, 1974.

    The degree of treatment for industrial waste has further defined as follows: That which provides

    an effluent equivalant to that produced by the highest quality municipal waste treatment, but in no case shall the efficiency be less than 90 percent organic removal. In some cases, due to waste characteristics it will be necessary that the

    efficiency exceed 90 percent. In the case of inorganic wastes, waste treatment shall have similar efficiencies. The 90 percent organic and inorganic removal factor shall be applied against the total untreated waste produced by a given plant. All discharges from industrial waste treatment plants

    shall attain such treatment efficiency as expeditiously as possible, but not later than January 1, 1973."

16. The evidence establishes that the settling pond, in which not less than 90 percent of the waste from the plant operation will be settled out, constitutes "treatment works" as contemplated in Section 403.031(6). That provision defines "treatment works" as any plant or other works used for the purpose of holding wastes. It is immaterial that the settling pond also performs a beneficial service in recycling water and preserving sand and clay materials for future reclamation purposes. Since the pond is considered to be a treatment facility, application of the 90 percent requirement properly is made with respect to the effluent from the settling pond.

    
    

17. Of more critical concern is that portion of Rule 17- 3.04(1) which states: "The degree of treatment for industrial wastes has been further defined as follows: That which provides an effluent equivalent to that produced by the highest quality municipal waste treatment, but in no case shall the efficiency be less than 90 percent organic removal." (Emphasis supplied)

    
    

18. As stated in the foregoing Findings of Fact, the DER staff ignored the question of whether the effluent from Beker's proposed settling pond would be equal to that produced by the highest quality municipal waste treatment. Although no definition of such treatment is set forth in the Rule, evidence adduced at the hearing showed that "advanced waste treatment" as set forth in Rule 17-3.04' (2) which deals with treatment of sanitary waste, constitutes the highest quality municipal waste treatment. The standards for advanced waste treatment are based on maximum concentrations of biochemical oxygen, suspended solids, total phosphorus, and total nitrogen. Beker concedes that its proposed treatment will not produce an effluent, meeting those requirements, Various reasons were offered in the testimony of the principal DER representative regarding the failure to address the question of highest quality municipal waste treatment in evaluating Beker's application. Basically, however, the decision was predicated upon Resolution 74-83 of the Pollution Control Board in which it was determined that the advanced waste treatment standards of Rule 17-3.04(2) would not be applied to industrial waste. This Resolution, however, made no mention of Rule 17- 3.04(1), and subparagraph (2) of the Rule applies only to sanitary waste. The Resolution stated that the determination was based on the fact that at the time of adoption of subparagraph (2), evidence was not taken nor did the Board consider treatment standards for industrial wastes. The Resolution stated in part as follows:

    "NOW THEREFORE, BE IT RESOLVED by the Florida

    Pollution Control Board that the advance waste treatment standards for sanitary waste discharges set forth in, Rule 17-3.04(2)

    Florida Administrative Code, shall not be enforced against plaintiffs or other industrial dischargers until final and complete

    notice is given and hearing held to ratify, amend, or adopt a rule establishing treatment Standards for industrial waste discharges. "

    
    

19. The above language shows that the Board intended to reconsider its applicable rules concerning industrial discharge. However, there is no evidence that it did so. Thus, the issue must be determined by the language of the existing Rule itself.

    
    

20. Rule 17-3.04(1) mandates that industrial wastes "shall be effectively treated by the latest modern technological advances as approved by the regulatory agency." Although this language places some discretion in the DER to determine what are the "latest modern technological advances", such discretion is limited by other provisions of the rule which define the degree of treatment for industrial wastes as that which provides an effluent equivalent to that produced by the highest quality municipal waste treatment, but not less than 90 percent organic and inorganic removal. The ultimate sentence of the subparagraph (1) states as follows:

    
    

    "All discharges from industrial waste treatment plants shall attain such treatment efficiency as expeditiously as possible, but not later than January 1, 1973."

    
    

    The above, in the context of the evidence presented in this case, clearly requires Beker's facility to produce an effluent equivalent to that produced by advanced waste treatment. Beker contends that advanced waste treatment standards only can be applied in so-called "Wilson-Grizzle" waters, as set forth in subsection(c) of Rule 17-3.04(2). However, there are no geographical limitations set forth in Rule 17-3.04(1).

    Additionally, Beker questions the validity of that portion of Rule 17-3.04(1) concerning the application of "highest quality municipal waste treatment." However, the instant proceeding does not encompass a challenge to a rule and therefore such arguments are unavailing.

21. In view of the foregoing, it is concluded that the requested construction permit should be denied under Rule 17- 4.06(3), which provides that the DER shall issue a permit to construct an Installation which may reasonably be expected to be a source of pollution only when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by the Department. Beker' s proposed pollution facilities will not comply with the Departmental standards of rule 17- 3.04(1).

    
    

22. It is considered unnecessary to consider the contemplated conditions to be attached to the granting of the permit in light of the above conclusion.

RECOMMENDED

That the application by Beker Phosphate Corporation for a permit to construct an industrial waste water facility in connection with a proposed phosphate mining operation located in Manatee County, be denied.

Done and Entered this 2nd day of July, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Roy C. Young, Esquire Smith, Young & Blue Post Office Box 1833

Tallahassee, Florida 32302

John P. Harllee, III, Esquire Harrison, Harllee &Porges Manatee National Bank Building Bradenton, Florida 33505

Richard E. Nelson

& Richard E. Smith, Esquires Nelson, Hesse, Cyrill & Weber 2070 Ringling Boulevard

Sarasota, Florida 33577

I.W. Whitesell, Jr., Esquire Wood, Whitesell & Karp

2187 Siesta Drive

Sarasota, Florida 33579

David Gluckman, Esquire

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida

George Browning, III, Esquire 2067 Main Street

Sarasota, Florida

================================================================= AGENCY FINAL ORDER

=================================================================

BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

In Re: BEKER PHOSPHATE CORPORATION

Application for Department of Environmental Regulation Permit to

Construct an Industrial Wastewater DOAH Case No. 75-1336 Facility in Connection with a

Proposed Phosphate Mining Operation Located in Manatee County, Florida.

/

FINAL ORDER

BY THE DEPARTMENT:

On July 2, 1976, the duly appointed Hearing Officer in the above styled matter completed and submitted to the Department and all parties a Recommended Order consisting of his findings of fact, conclusions of law, and a recommendation, a copy of which is attached hereto as Exhibit "A". Pursuant to Department Rule 17- 1.26(2), Florida Administrative Code, and Section 120.57(1)(a)8, Florida Statutes, the parties to this administrative proceeding were allowed fifteen (15) days in which to submit written exceptions to the Recommended Order.

On July 12, 1976, the Applicant, Beker Phosphate Corporation, submitted "Exceptions to the Recommended Order Dated July 2, 1976", and on July 15, 1976, submitted "Beker Phosphate's Objections to Proposed Permit Provisos" (Exhibit 15).

On July 19, 1976, the Department submitted its "Response to Hearing Officer's Recommended Order", with Brief, which took exception to Conclusions of Law No. 7 and No. 9 of the Recommended Order.

On August 13, 1976, the Applicant submitted a pleading, entitled "Stipulation" a copy of which is attached hereto as Exhibit "B".

No exceptions were filed by the other parties, Sarasota County, Town of Longboat Key and George Browning, III.

Section 17-1.26(2), Florida Administrative Code, allows parties to request the opportunity to make oral argument in support of their responses, or exceptions to the Recommended Order. No party has submitted such a request.

Section 120.57(1)(9), Florida Statutes, allows an agency to reject or modify conclusions of law and administrative rules contained in a Recommended Order.

After having carefully considered the complete transcribed record, the exhibits, and pleadings submitted by all parties in this proceeding, and the Recommended Order, the Secretary, as head of the State of Florida Department of Environmental Regulation, rejects and modifies Conclusions of Law Nos. 6, 7, 8, and 9 as contained in the Recommended Order, as follows:

1. Application of Section 17-3.04(1), Florida Administrative Code, to Permit Application of Beker Phosphate Corporation

   
   

   At the request of the Hearing Officer, the Department submitted a memorandum of June 15, 1976, relative to the application of Department Rule 17-3.04(1), Florida Administrative Code, to the permit application which is the subject of this proceeding. A copy of the memorandum is attached hereto as Exhibit "C".

   
   

   On July 19, 1976, the Department submitted its Brief relative to this question. A copy of the Brief is attached hereto as Exhibit "D".

   
   

   The Department's interpretation and conclusions of law relative to the application and meaning of Department Rule 17-3.04(1), as contained in Exhibit "C" and Exhibit "D" attached hereto, are hereby expressly adopted, and incorporated herein by reference, for the reasons therein set forth.

   
   

   Accordingly, to the extent that the Conclusions of Law Nos. 6, 7, and 8 conflict with or are inconsistent with the views and conclusions of law set forth in Exhibits "C" and "D", each is expressly rejected and so modified.

   
   

2. Appropriate Permit Conditions

   
   

   In Conclusion of Law No. 9, the Hearing Officer stated it was unnecessary to consider conditions to be attached to the permit in light of his Conclusion of Law No. 8.

   
   

   The Department presented testimony at the hearing relative to reasonable and appropriate conditions to be made

   part of the permit, if issued. (Transcript, pages 447-455). The recommended conditions, as requested by the Hearing Officer, were subsequently filed, in written form, as Exhibit 15, a copy of which is attached hereto

   as Exhibit "E".

   
   

   No party to this proceeding, although given the opportunity, submitted objections to any of the conditions contained In Exhibit "E", except the Applicant. By subsequent Stipulation (Exhibit B), the Applicant has withdrawn its objections to the proposed conditions, and agreed to

   comply fully therewith, should they be made part of any permit issued in this case.

   
   

   In light of the above rejection and modification of Conclusions of Law No. 6, 7, and 8, the proposed permit conditions are material and must bed considered.

   Accordingly, Conclusion of Law No. 9 is hereby rejected, consistent with the views expressed above.

   
   

   Additionally, based on the above, it is hereby determined that the permit conditions contained in Exhibit "E" are reasonable, and necessary to effect the intent and purpose of Chapter 403, Florida Statutes.

   
   

   By formal Stipulation (Exhibit "B") filed in this proceeding, the Applicant, Beker Phosphate Corporation, has stipulated and agreed that, should the Department Issue its final order in this matter on or before August 13, 1976, the Applicant will meet and conform to the requirements contained in paragraph 2 of the Stipulation.

   
   

   The Department enters this Final Order and its final agency action on August 13, 1976, in full reliance upon the Applicant's covenants and commitments contained in paragraph 2 of the Stipulation.

   
   

   In recognition of the above rejections and modifications of Conclusions of Law contained in the Recommended Order, and in

   reliance upon the stipulation (Exhibit "B"), filed herein by the Applicant, It is, therefore,

   
   

   ORDERED by the State of Florida Department of Environmental Regulation as follows:

   
   

   1. The Conclusions of Law as above set forth in this Order are hereby adopted and approved.

      
      

   2. The Conclusions of Law contained in the Recommended Order (Exhibit "A"), to the extent that each is consistent with and not contrary to the Conclusions of Law set forth in this Order, are hereby adopted and approved.

      
      

   3. To the extent any Conclusion of Law in the Recommended Order is contrary to the findings and Conclusions of Law adopted in paragraph 1, each is expressly rejected.

      
      

   4. The Findings of Fact contained in the Recommended Order are hereby approved and adopted, in toto.

5 The Stipulation (Exhibit "B") , submitted by the Applicant and filed herein, is binding upon the Applicant and fully relied upon by the Department in the issuance of this Order.

6. The recommendations contained in the Recommended Order are expressly rejected. The Application by Beker Phosphate Corporation for a permit under Chapter 403, Florida Statutes, to construct an industrial wastewater facility in connection with a proposed phosphate mining operation located in Manatee County, be and the same is hereby granted. The permit shall contain the provisos and be conditioned upon compliance with the conditions contained in Exhibit "E", and the Applicant's Stipulation (Exhibit "B"), and shall be issued forthwith upon the expiration of the time during which parties to this proceeding may file Notice to Appeal this Order and, if so filed, until the appeal is determined.

DONE AND ENTERED this 13th day of August, 1976, in Tallahassee, Florida.

JOSEPH LANDERS, JR.

Secretary

State of Florida Department of Environmental Regulation

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

Copies furnished to:

Roy C. Young, Esquire Smith, Young & Blue Post Office Box 1833

Tallahassee, Florida 32302

John P. Harllee, III, Esquire Manatee National Bank Building Bradenton, Florida 33505

Richard E. Nelson, Esquire Richard E. Smith

Attorneys at Law

2070 Ringling Boulevard

Sarasota, Florida 33577

I. W. Whitesell, Jr., Esquire Wood, Witesell & Karp

2187 Siesta Drive

Sarasota, Florida 33579

Reynold L. Caleen, Jr.

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

George Browning, III, Esquire 2067 Main Street

Sarasota, Florida

Docket for Case No: 75-001336

Orders for Case No: 75-001336