STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MANATEE COUNTY, FLORIDA, )
)
Petitioner, )
and )
) SARASOTA COUNTY, FLORIDA, and ) MANASOTA-88, INC., )
)
Intervenors, )
)
vs. ) CASE NO. 80-1486
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent, )
and )
)
ESTECH GENERAL CHEMICALS )
CORPORATION, )
)
Intervenor. )
) ESTECH GENERAL CHEMICALS )
CORPORATION, )
)
Petitioner, )
)
vs. ) CASE NO. 81-039
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent, )
and )
)
MANATEE COUNTY, FLORIDA; )
SARASOTA COUNTY, FLORIDA; )
and MANASOTA-88, INC., )
)
Intervenors. )
) MANATEE COUNTY, FLORIDA, )
)
Petitioner, )
and )
)
SARASOTA COUNTY, FLORIDA, )
and MANASOTA-88, INC., )
)
Intervenors, )
)
vs. | ) | CASE NO. 81-040 |
) | ||
STATE OF FLORIDA, DEPARTMENT | ) | |
OF ENVIRONMENTAL REGULATION, | and ) | |
ESTECH GENERAL CHEMICALS | ) | |
CORPORATION, | ) | |
) | ||
Respondents. | ) |
) ESTECH GENERAL CHEMICALS )
CORPORATION, )
)
Petitioner, )
)
vs. ) CASE NO. 81-335
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent, )
and )
)
SARASOTA COUNTY, FLORIDA; )
MANATEE COUNTY, FLORIDA; )
and MANASOTA-88, INC., )
)
Intervenors. )
) ESTECH GENERAL CHEMICALS )
CORPORATION, )
)
Petitioner, )
)
vs. ) CASE NO. 81-995
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent, )
and )
)
SARASOTA COUNTY, FLORIDA; )
MANATEE COUNTY, FLORIDA; )
and MANASOTA-88, INC., )
)
Intervenors. )
)
RECOMMENDED ORDER
Pursuant to notice, these cases were consolidated, and a joint hearing was held at Palmetto, Florida, on June 22 through July 9, 1981, before Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings.
APPEARANCES
For Estech Robert L. Rhodes, Jr., Esquire General Betsy L. Holden, Attorney at Law
Chemicals Holland & Knight, P.A. Corporation: Post Office Drawer BW
Lakeland, Florida 33802
Wade L. Hopping, Esquire Calvin J. Livingston, Esquire
Hopping, Boyd, Green & Sams, P.A. Post Office Box 6526
Tallahassee, Florida 32301
Walter D. Turner, Esquire General Counsel
Estech, Inc.
30 North LaSalle Street Chicago, Illinois 60602
For State of David M. Levin, Esquire Florida Alfred W. Clark, Esquire
Department of Department of Environmental Regulation Environmental Twin Towers Office Building Regulation: 2600 Blair Stone Road
Tallahassee, Florida 32301
For Manatee Richard M. Goldstein, Esquire County: Peeples, Earl, Moore & Blank, P.A.
One Biscayne Tower, Suite 3636 Two South Biscayne Boulevard Miami, Florida 33131
E. N. Fay, Jr., Esquire Mann & Fay, Chartered 1400 Fourth Avenue, West Bradenton, Florida 33505
For Sarasota Richard E. Nelson, Esquire County: Nelson, Hesse, Cyril, Webber,
Smith & Widman, P.A. Post Office Box 2524 Sarasota, Florida 33578
For Manasota-88, Thomas W. Reese, Esquire Inc.: 123 Eighth Street, North
St. Petersburg, Florida 33701
These proceedings stem from Estech General Chemicals Corporation's (hereinafter "Estech") application to the State of Florida, Department of Environmental Regulation (hereinafter "DER"), for permits to construct a phosphate mine and beneficiation plant to be located in the watershed of Lake Manatee in Manatee County, Florida.
On July 3, 1980, DER issued to Estech a letter of its intent to issue a permit for the construction of an initial clay settling area at its proposed Duette mine site. On August 8, 1980, Manatee County filed a Petition for Formal
Hearing or Proceedings with DER. This petition was transferred to the Division of Administrative Hearings (hereinafter "DOAH") and was assigned Case No. 80- 1486.
On July 3, 1980, DER issued to Estech a letter of its intent to issue a permit for the construction of discharge points 002 and 003 to allow discharge from the Duette facility into the East and North Forks of the Manatee River. On December 19, 1980, DER changed its position and issued a letter of its intent to deny the requested discharge permits. On January 2, 1981, Estech filed a petition challenging DER's action. This petition was transferred to DOAH and was assigned Case No. 81-039.
On December 10, 1980, DER issued to Estech a letter indicating its intent to issue a dredge and fill permit for the construction of its initial clay settling area at the proposed Duette mine site. On December 22, 1980, Manatee County filed a Petition for Formal Proceedings Under Section 120.57, Florida Statutes, with DER. This petition was transferred to DOAH and was assigned Case No. 81-040. In April, 1981, the application was supplemented to indicate that no dredging would be required, but that only filling with upland materials would take place.
On January 28, 1981, DER issued to Estech a letter of its intent to deny state certification of Estech's proposed National Pollutant Discharge Elimination System (NPDES) permit for discharge points 002 and 003. On February 11, 1981, Estech filed a Petition for Formal Hearing with DER. This petition was transferred to DOAH and was assigned Case No. 81-335. During the course of the final hearing, Estech voluntarily withdrew its allegation that it is entitled to state certification by DER's failure to timely deny state certification.
On February 18, 1981, Estech filed with DER an Alternative Petition and Request for Mixing Zones, Zones of Discharge, Permit Conditions, Site Specific Alternative Criteria or Variances. The purpose of this petition was to seek relief from water quality standards involved in Case Nos. 81-039, 81-040 and 81-
335. On March 30, 1981, DER issued to Estech a letter of its intent to deny its alternative petition. On April 6, 1981, Estech filed a Petition for Formal Hearing challenging DER's intended action with regard to its alternative petition. This petition was transferred to DOAH and assigned Case No. 81-995.
By Orders dated September 3, October 9, and November 10, 1980, Estech, Sarasota County and Manasota-88, Inc., were granted leave to intervene in Case No. 80-1486. By Order dated February 18, 1981, Manatee County was granted leave to intervene in Case No. 81-039. By Order dated February 26, 1981, DOAH Case Nos. 80-1486, 81-039, 81-040 and 81-335 were consolidated. Additionally, Sarasota County's petitions to intervene in Case Nos. 81-039, 81-040 and 81-335 were granted. By Order dated March 3, 1981, Manasota-88, Inc., was granted leave to intervene in Case No. 81-039.
By Order dated April 27, 1981, Estech's motion to consolidate Case No. 81- 995 with pending consolidated Case Nos. 80-1486, 81-039, 81-040 and 81-335 was granted. The Order also took note of the fact that Estech had voluntarily withdrawn its request for variances during the prehearing conference held on April 13, 1981. The Hearing Officer recognized the agreement of the parties to allow Manatee County, Sarasota County, DER, Estech and Manasota-88, Inc., to participate as parties in Case Nos. 80-1486, 81-039-, 81-040, 81-335 and 81-995. Additionally, Manatee County agreed to strike all references to the domestic
waste treatment plant contained in Count I of its amended petition in Case No. 80-1486 and to withdraw Count II of said amended petition.
In accordance with Chapter 17-I and Sections 17-3.031, 17-3.061(3), and 17- 4.244(1)(c), Florida Administrative Code, public notice was published and opportunity for public hearing was given in regard to Estech's applications and its request for site specific alternative criteria and mixing zones.
On June 12, 1981, the parties to these consolidated proceedings filed a prehearing stipulation, which was subsequently amended on June 19, 1981.
The final hearing on the consolidated cases commenced on June 22, 1981, and was concluded on July 9, 1981. Ninety-one exhibits were introduced; and testimony was received from seventeen witnesses called by Estech, seven witnesses called by Manatee County and two witnesses called by Sarasota County. On July 1, 1981, eighteen public witnesses testified, and three exhibits were introduced.
On July 7, 1981, a stipulation entered into by DER and Estech was admitted into evidence over objection of the other parties. The stipulation was offered by DER as a settlement of issues between Estech and the Department's staff. The stipulation does not purport to bind the Hearing Officer or the Secretary of DER.
The parties have agreed to waive the requirement that the Hearing Officer file a recommended order within thirty days after receipt of the hearing transcript.
The issues in these consolidated cases are identified by the parties in the Prehearing Stipulation, as amended. The issues broadly divide into the following general categories:
Whether Estech has provided reasonable assurance that the construction of its initial clay settling area will comply with requirements of Chapter 17-9, Florida Administrative Code.
Whether Estech has provided reasonable assurance pursuant to Section 17- 4.28, Florida Administrative Code, the applicable provisions of Chapter 17-3, Florida Administrative Code, and Chapter 403, Florida Statutes, that its proposed filling activities will not result in violations of applicable water- quality criteria.
Whether, after the filling (if permitted) by Estech, the waters within the initial settling area are waters of the State subject to all applicable water-quality criteria.
Whether Estech has provided reasonable assurance pursuant to Section 17- 4.07, Florida Administrative Code, and the applicable provisions of Chapters 17-
3 and 17-6, Florida Administrative Code, that its proposed phosphate mining operation, including the construction of discharge points 002 and 003, will not result in violations of applicable state water-quality criteria or effluent limitations.
Whether Estech has demonstrated its entitlement to the establishment of any mixing zones and/or site specific alternative criteria.
All parties have submitted, inter alia, post-hearing proposed findings of fact in the form of a recommended order. To the extent that any of those proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
FINDINGS OF FACT
Estech proposes to construct and operate a phosphate mine (the Duette mine), beneficiation plant and rock-drying facility on approximately 10,000 acres owned by it in northeastern Manatee County, Florida. No chemical plant will be located at the site. The mine site is located in the watershed of Lake Manatee, which serves as a source of potable water for residents of Manatee and Sarasota Counties. The mine site is situated between the North Fork and the East Fork of the Manatee River, which converge approximately six miles downstream of the mine site. The site is approximately eighteen miles upstream from the Manatee County utilities' drinking-water intake structure.
Estech has applied for and received approval of its proposed development pursuant to the development of regional impact requirements of Chapter 380, Florida Statutes. Estech has also received the necessary air pollution source construction permits for its proposed rock-drying facility from DER and the United States Environmental Protection Agency and a consumptive use permit from the Southwest Florida Water Management District.
The master mining plan shows that, after the first few years of operation, reclamation of areas disturbed by mining will proceed concurrently with mining of new portions of the site. The proposed operation of the Duette mine differs in two significant respects from the mining practices followed at other phosphate mines. First, all water from areas disturbed by mining and not yet fully reclaimed will be contained within the plant water system and discharged, if at all, only through permitted discharge points. There will be no uncontrolled runoff from disturbed areas. Second, Estech will use a sand- clay mix in its reclamation program, rather than making separate deposits of sand tailings and dilute waste clays as has been the general practice at other mines.
In connection with its mining project, Estech proposes to build one 480-acre, above-grade, initial clay settling area (ISA). Estech applied to DER on May 1, 1980, for the requisite dam construction permit. Supplements to the application were furnished to the Department in April, 1981.
The ISA serves two purposes: It operates as an impoundment area for waste materials generated from the initial phases of the mining operation, before mine cuts are available for waste disposal, and it provides one of the storage areas for large volumes of water which are recirculated during the mining and beneficiation process.
The design for the earthen dam surrounding the ISA was prepared and evaluated by two Qualified engineering firms, Ardaman & Associates, Inc., and Bromwell Engineering. Estech's application to construct the dam, the dam design, the detailed earthwork specifications, and the construction drawings were certified by professional engineers registered in the State of Florida.
The initial clay settling area will be located in the east one-half of Section 6, and the west one-half of Section 5, in Township 34 South, Range 22
East, Manatee County, Florida. Ardaman & Associates, Inc., conducted a detailed investigation to evaluate the suitability of the proposed site. A total of eighty test borings were taken and analyzed to determine the characteristics of the soils present at the site and their suitability as construction materials.
On-site inspections were conducted by both Ardaman & Associates, Inc., and Bromwell Engineering.
To ensure that the area is not subject to sinkhole activity, a visual inspection was made; aerial photographs, U.S.G.S. maps, and reports of the Florida Geological Survey were examined; and local residents were interviewed. As an additional precaution, test borings were taken in several minor depressions located on Estech and adjacent property. Analyses of these borings verified that the depressions were not sinkholes. Based on the site investigation conducted by Ardaman & Associates, Inc., it is unlikely that a sinkhole would occur either in the general vicinity of the dam or at the specific location of the dam.
A soil-testing program was conducted which included thirty-seven standard penetration test borings and forty-three auger borings (i.e., eighty test borings) spaced around the perimeter of the dam, as well as in potential borrow areas. Over 639 soil samples were taken and returned to the laboratory where they were analyzed. Field tests included 606 penetration resistance tests, and six in situ permeability tests. Laboratory tests included 234 grain- size analyses, thirty-four permeability tests, ten triaxial shear tests and two compaction tests.
Estech's proposed ISA dam will provide a minimum freeboard of five feet below the inside crest. The outside crest of the top of the dam is six inches higher than the inside crest, which will force all crest drainage to the inside of the dam. Both inside and outside slopes are no steeper than two horizontal to one vertical. Although most phosphate dams have a crest width of twenty feet, Estech's dam will have a crest width of twenty-five feet. The additional width helps to protect against erosion and assists in the maintenance and the overall stability of the dam. Dam inspection and maintenance roads are provided. The dam design provides several positive seepage control features:
As a zoned dam, relatively impervious materials will be placed in the upstream section of the dam to retard seepage.
More pervious materials will be placed in the downstream sections so that any seepage can be conducted away and not build excessive hydraulic pressures within the dam.
A blanket drain will be installed within the dam itself in order to collect seepage that comes through the dam.
A downstream gravel drain will be installed in the return water ditch which will collect any seepage that goes through the foundation soils.
The downstream slope will be flattened to a four-to-one ratio so that even if seepage were to get past the drains, the slope would remain stable.
As a final check on the effectiveness of these safeguards, the dam will be filled with approximately fifteen feet of clear water prior to introducing any sand-clay mix. Piezometers will be placed at various locations around the dam to monitor the water level. Flow from the drain and in the ditch
will be monitored and the dam will be inspected. The data will be checked to determine if the seepage pattern is performing according to design assumptions.
A seepage analysis (using flow nets) and stability analyses were conducted using a worst case scenario which assumed the pond was filled with clear water to its maximum pool elevation. In fact, the maximum clear water depth in the pond will be only fifteen feet, rather than the more severe condition of twenty-five feet used for purposes of analysis. In addition, the least desirable engineering properties for the foundation and embankment soils were selected for these analyses. The flow nets were used to determine the location of the phreatic surface, flow lines, and lines of equal head within the foundation and fill being designed.
The Estech dam design exceeds all the minimum safety factors required by Section 17-9.03(1)(e), Florida Administrative Code.
The proposed dam site will be prepared by stripping all vegetation, organic detritus and any other undesirable materials from under the foundation, the drain and toe ditch. Loose surficial sands will be compacted prior to placement of fill materials, and prepared surfaces will be scarified and wetted or dried as required to obtain proper compaction. Filling operations will be completed prior to the initiation of any construction activities associated with the ISA.
The general earthwork specifications prepared by Ardaman & Associates, Inc., require materials that will be satisfactory for use in the dam and exclude the use of extraneous matter which could affect the compactibility, density, permeability, or shear strength of the finished dam.
Water level within the dam will be controlled by the use of three spillway structures which will be more than adequate to maintain a five-foot freeboard and to accommodate twelve inches of rainfall on the watershed during any twenty-four-hour period.
Estech's proposed dam will be constructed in accordance with the general earthwork specifications and design prepared by Ardaman & Associates, Inc. All conduits through the dam will have two or more seepage collars spaced in accordance with good engineering practices pertinent to the material used for the fill. Two collars will be installed within the core of the dam.
Estech has committed to provide four additional safeguards in excess of those required by Chapter 17-9, Florida Administrative Code. The additional safeguards include:
Conducting an independent review of all aspects of the Ardaman & Associates, Inc., design and construction plans. Such an independent review was conducted by Dr. Leslie Bromwell and Bromwell Engineering.
Proof testing the dam with clear water prior to impounding any waste materials by placing fifteen feet of water into the dam before commencing actual operations. In addition, piezometers will be installed around the dam to monitor the performance of the darn with regard to seepage through the foundation and through the dam itself. The proof test and monitoring will provide an indication of how the dam will perform under full design load.
Carrying out a comprehensive instrumentation, surveillance and inspection plan, which will include the instrumentation installed during the
clear water test and any additional instrumentation indicated as a result of that test. The dam will be inspected by a representative of the design engineer once a month during the first year of operation. In addition, qualified, trained personnel of Estech will conduct inspections of the dam three times a day.
Estech will use sand-clay mix inside the initial settling area rather than dilute clays alone. This will provide additional protection for the Lake Manatee reservoir in that if a dam failure were to occur, the sand-clay mix would only flow a few miles from the point of the breach in the dam and would not reach the Lake Manatee reservoir.
Although the most likely cause of dam failure would be piping, protection against piping through the dam is provided by the selection of materials and their method of placement. Adequate compaction of the correct materials into various zones in the dam will ensure that piping does not occur. In addition, the internal drain and the downstream drain will collect seepage that might otherwise cause erosion, which in turn could result in a piping failure. The use of sand-clay mix will further reduce any possibility of a piping failure through the foundation soils. The sand-clay mix forms an impervious layer along the floor and sides of the ISA dam, and whatever small amount of water might pass through the ISA dam will be collected by the drainage system.
The design of Estech's dam will meet or exceed applicable requirements of Chapter 17-9, Florida Administrative Code; and provided that it is properly maintained, it should remain structurally sound in excess of one hundred years.
The area proposed for the location of the beneficiation plant and ----
currently contains several small ponds, streams and ditches connected to the East Fork of the Manatee River. DER asserts "dredge and fill" permitting jurisdiction under Chapter 403, Florida Statutes, over certain of these ponds, ditches and streams. DER also asserts jurisdiction over the portion of an unnamed tributary that will be impacted by construction of the southern part of the ISA.
The property included within the ISA and plant site was purchased by Estech from the Turner family in the mid-1960's. The Turner family had purchased the property in 1939 from timbering interests. Prior to the Turner purchase, the land contained some isolated depressions that collected water during the rainy season. There were no channelized watercourses. In order to enhance the use of the land as pasture, the Turners dug numerous agricultural drainage ditches in the 1940's. These ditches connected the various isolated depressions located on the property with the river. This ditch system allowed for the more rapid transport of standing water out of the pasture area so that the grass would not "sour" in the hot summer months.
The ponds and the connecting drainage ditches are not currently susceptible to navigation for commerce by boats or other forms of customary water travel because they are too shallow and the flows are too intermittent. It is clear that the area in question was not susceptible to navigation before the ditches were artificially created in the 1940's. There is no physical
indication in the ISA area of the existence of any channel capable of navigation that might have been in existence as of 1845.
In 1975 and 1976 the ponds and drainage ditch system began to receive runoff and irrigation drainage from a row-crop operation operated to the north
of the ISA area. This flow is dominated by irrigation water from a ten-inch well. Approximately seventy percent of the flow through the ponds and drainage ditches is made up of this agricultural water. Row-crop farming operations are scheduled to terminate at the latest in May of 1982. The land will then be planted in permanent pasture, and virtually the entire source of the agricultural runoff to the system will no longer exist.
Only a very small portion of the northernmost pond area (Pond No. 3 on Figure 2 of Estech Ex. 3D) has been mapped as a flood-prone area by the U.S. Geological Survey. This indicates that the area is of a relatively high elevation not subject to continuous water flow.
The total area of DER-claimed "dredge and fill" permitting jurisdiction involves approximately 13.8 acres. Some portion of this area contains water at times of the year and contains lands on which the dominant species are one of, or a combination of, those species listed in Section 17- 4.02(17), Florida Administrative Code, as indicators of the "landward extent of waters of the state." The ponds and connecting ditches ultimately connect to the unnamed tributary, which in turn connects to the East Fork of the Manatee River.
Estech proposes to fill the areas located within DER's jurisdiction with overburden materials (sand, random fill and silty sand) taken from upland areas located on site. The fill materials will raise the low-lying areas to an elevation at or above that of the current landward extent of DER's jurisdiction. This filling will be completed before any other construction activities associated with the ISA or plant site are commenced.
A water-quality sampling program demonstrated that, when present, the waters contained in the ponds and connecting ditches are derived largely from irrigation return water which is of lower quality than the waters in the East and North Forks of the Manatee River. The wetlands areas in question simply are not of a size or quality sufficient to provide any significant water quality benefit. The drainage area served by the ponds and connector ditches is small. The quantity of water from this area contributed to the East Fork of the Manatee River is insignificant. Filling of the ponds and connecting ditches will not cause or contribute to a long- or short-term violation of water-quality standards in waters of the State outside of the ISA area, nor would it reduce the quality of waters of the State outside the ISA area below the Class IA classification of the river as long as adequate turbidity control measures are employed during construction activities. Estech has committed to the use of such turbidity control measures.
Estech applied to DER for permits to construct two discharge points through which excess water within its system could be discharged into the East Fork (discharge point 002) and North Fork (discharge point 003) of the Manatee River. In its original applications, Estech proposed almost continual discharge of excess water from its system. Subsequent to that time, the proposal was modified in a number of ways to reduce or eliminate the frequency and volume of discharges, as follows:
The usage of river water from the East Fork of the Manatee River was eliminated, thus eliminating the need for an intake structure.
An in-process water treatment plant will be built to eliminate the need for using up to 4,100 gallons of deep-well water per minute in the
flotation process, except during periods of low rainfall, thereby decreasing the amount of potential excess water in the system.
The storage capacity of the below-grade reservoir will be increased by constructing a dike around it.
A comprehensive water balance study for the Duette mine was performed to determine the amount of storage necessary to contain all of the excess water predicted to be accumulated over the life of the mining operation and to develop a plan for controlling any predicted discharges so as to minimize their impact on the receiving water bodies.
Whether or not there will be a discharge from the system depends on the amount of storage available and the amount of excess rainfall which must be stored. For the system to be in balance, the amount of water coming into the system must equal the amount leaving the system. If more water enters the system than leaves, then the amount of water stored increases. If the needed storage exceeds the maximum storage available, an overflow or discharge will occur. Conversely, if the water leaving the system exceeds the water entering the system, then the water stored in the system will be depleted. If the water in storage is depleted below the level needed for operation of the mining and beneficiation process, then "make-up" water must be added to the system by pumping from permitted deep wells. Because the amount of water entering and leaving the system varies from time to time, the amount of storage needed must be calculated on the basis of cumulative inflows and outflows over the life of the system.
The sources of water entering the Duette mine system, in order of importance, are rainfall, water in the ore being mined (matrix), net seepage into the mine cuts, and water from shallow wells. An additional source would be any make-up water pumped from deep wells. Water is consumed or leaves the system through evaporation, disposal as part of sand-clay mix and sand tailings, shipment off site as part of the wet phosphate product or evaporation in the rock dryer as wet product is dried for shipment, and seepage losses.
In addition to being the largest contributor of water to the system, rainfall is also the most variable. Twenty-four years of rainfall data are available from National Oceanic and Atmospheric Administration (NOAA) records for 1956 to 1979 for the Fort Green rainfall station, which coincidentally is located at Keentown almost in the center of the Duette mine site. Average annual rainfall at the Fort Green station is 54 inches per year, but has ranged from a low of 38 inches in 1974 to a high of 84 inches in 1960. Monthly rainfall has similarly varied from a low of zero inches in April, 1967, to a high of 19.11 inches in July, 1960.
If the average annual rainfall of fifty-four inches per year occurred evenly on a daily basis over the life of the mine, the water consumed by the system would exceed the approximately 9,000 gallons per minute contributed to the water system by rainfall at the Duette site. Thus, the system would never discharge. However, because rainfall varies significantly from year to year while water consumption remains more constant, storage is required to hold the water from long-term, above-average rainfall until it can be used in the system.
To evaluate the impact of variations in rainfall, a series of computer analyses were performed which matched the twenty-four-year rainfall record from Fort Green with the water consumption during the mine life to produce a "worst case" analysis in which years having the highest rainfall were matched with the
mining years having the lowest water consumption. These analyses show that under the "worst case" rainfall, 16,620 acre feet of storage would be adequate to prevent any discharge during the mine life.
Under this "worst case" scenario, if only 10,000 acre feet of storage were available and discharges were not controlled in any way, there are predicted to be approximately thirty days of discharge from the system out of a mine life of over 8,700 days (twenty-four years). Without any control, the discharges from the system would not necessarily coincide with periods of peak receiving stream flow.
Rainfall records covering a longer period of time are available from the NOAA rainfall station at Bartow, located several miles from the site. While there have been twenty-four-year periods during which the average rainfall recorded at Bartow exceeded the twenty-four-year average rainfall recorded at Fort Green, the Fort Green station has experienced a four-year accumulation of rainfall which is very similar to the highest four-year accumulation at Bartow. Since potential overflows of the Duette system are more dependent on the accumulation of several years of heavy rainfall than on a single year's rainfall event or long-term averages, the use of the Fort Green data in producing the "worst case" rainfall scenario was appropriate. However, as a double check, an analysis was done combining the highest twenty-year rainfall record from Bartow (1921 to 1940) with the highest four-year record from the Fort Green station. This "worst-worst case" analysis produced a twenty-four-year simulated accumulation of 1,411 inches of rainfall, i.e., an average of 58.8 inches a year for the twenty-four-year period. When this larger rainfall simulation was compared with projected water usage of the mine, it showed slightly less storage would be required to prevent any discharge during the mine life (16,491 acre feet) than the storage required under the arfalysis using only the historical Fort Green data (16,620 acre feet). This apparent anomaly of higher rainfall requiring less storage occurs because the timing of the simulated rainfall based on the NOAA records reduced the need for deep-well, make-up water coming into the system prior to the critical years of the rainfall cycle.
Two aspects of the water-balance calculation were the subject of conflicting expert testimony: the effect of possible slower consolidation of sand-clay mix in the initial clay settling area on the available storage capacity of the system, and the amount of mine cut seepage which can be expected. Based on experience with consolidation of dilute clays, which start with a smaller percentage of solids and can be expected to consolidate more slowly than the flocculated sand-clay mix to be used by Estech, the consolidation rate used in the Estech water-balance calculations is reasonable. Moreover, it is clear that the rate of consolidation of sand-clay mix does not directly impact the volume of available storage. No water enters the system as a result of consolidation. As the sand-clay mix consolidates, water which had been trapped within the sand-clay mix is freed and rises to the surface. However, the total volume occupied by the combination of the sand-clay mix and its associated water does not change; therefore, the amount of available water storage area does not chance. Further, the estimate of mine cut seepage into the system used in calculating the water balance is also reasonable.
The total water storage available on site varies from year to year throughout the life of the mine. Excluding the two active mining areas, the Duette mine system has a minimum storage capacity after the fifth year of mining of approximately 10,000 acre feet, consisting of 3,500 acre feet in the below- grade reservoir, 4,000 acre feet in the sand-clay reclamation areas, and 2,500 acre feet in the initial clay settling area. If the two active mining areas
(excluding active dragline cuts) are used for additional water storage, then after the fifth year of mining, the available storage fluctuates between a low of approximately 16,682 acre feet and a high of approximately 27,149 acre feet. Not included in the above calculations are an additional 1,000 acre feet of storage located in the active dragline cuts which is available for use on an emergency basis.
Estech did not initially propose to use active mining areas for water storage. Instead, it proposed to use only the 10,000 acre feet of storage available in other areas. However, there is one chance in twenty-five that 10,000 acre feet will not be sufficient to store the predicted accumulations of water and that overflows would occur if only 10,000 acre feet of storage were used. To prevent uncontrolled overflows, Estech originally proposed to make controlled discharges at a rate of no more than fifteen percent of stream flow whenever necessary to avoid the risk of an overflow. Therefore, the recirculation system and discharge points were designed to control discharges so that they will not exceed fifteen percent of stream flow at the time and point of discharge. This is accomplished by measuring the flow in the receiving streams and metering the amount of discharge to stay at or below fifteen percent of the stream flow. To control discharges in this manner requires that discharges commence before the storage system is completely filled, so that surge capacity remains available to prevent an overflow while controlled discharges are being made. An analysis of the historical Fort Green station daily rainfall data and historical daily stream flow data for the Manatee River demonstrates that if discharges are made at a rate of fifteen percent of stream flow whenever storage in the system exceeds 8,500 acre feet, the accumulated water would never exceed 10,000 acre feet; and, therefore, there would be no uncontrolled discharges. However, even more storage is now available.
Based on the availability of 16,682 to 27,149 acre feet of storage during the critical years of the mining operations and the demonstration that 16,620 acre feet of storage would be sufficient to prevent any discharge from the system under the predicted worst case rainfall scenario (which has less than one chance in 1,000 of occurring), there is a reasonable certainty that no process water will be discharged from the system over the life of the mine provided that Estech is required to use the two active mining areas (excluding active dragline cuts) for additional storage if needed.
Estech has agreed to take all measures necessary to prevent surface water discharges from the Duette mine, including the construction and utilization of the maximum available storage area. Included within the maximum available water storage area are the initial waste disposal area (ISA); the 210- acre surge/storage reservoir; the sand-clay reclamation areas; the ditch system; the plant water ponds (i.e., storage within the recirculation system); the two active mining areas; and, on an emergency basis only, the active dragline cuts wherein the draglines are physically operating.
Estech has further agreed to construct an earthen embankment pursuant to Chapter 17-9, Florida Administrative Code, standards around the 210-acre reservoir so that it can contain an additional 3,500 acre feet of storage. Further, Estech has agreed to not construct the stream intake structure previously planned to be located at the site of the 210-acre reservoir on the East Fork of the Manatee River.
Based on the availability of 16,682 to 27,149 acre feet of storage during critical years of mining operations, Estech's stipulations regarding its management of on-site water, and the demonstration that 16,620 acre feet of
storage is sufficient to prevent any discharge from the system, Estech has provided reasonable assurance that no process water will ever be discharged from the Duette mine during its lifetime and that operation of the Duette mine, which is a potential source of pollution, will not ever result in pollution.
Three of these consolidated cases involve the water quality of any potential discharges of the process water from the Duette mine site. Specifically, these three cases involve permits for discharge points 002 and 003; the state certification for the NPDES permit; and Estech's request for mixing zones, zones of discharge, permit conditions, and site specific alternative criteria. The water-quality impact of discharges depends on a combination of the quality of the discharge, the quantity of the discharge, and the quality of the receiving water body. There is a great deal of evidence in the record as to the expected quality of the process water which could potentially be discharged from the mine's water storage system. The methods used by Estech's consultants to predict the quality of the process water included: (1) a laboratory-scale simulation of the Duette beneficiation process using Duette water and matrix, (2) a simulation of the Duette process which subjected sand and clay slurries from the Watson mine to the sand-clay mixing process proposed for Duette, and (3) an analysis of data from a small-scale simulation of the Duette process performed by Estech at the Watson mine.
Because a laboratory-scale simulation may not be indicative of the expected results of full-scale operation, a laboratory simulation of the Watson mining process was compared to actual data from the Watson mine to use as a guide in scaling up the results of the laboratory simulation of the Duette process.
Estech's substantial "water-quality" evidence is inconclusive. Many of the opinions of its experts are based upon or incorporate the results of the tests described in the preceding paragraph. Those tests fail to demonstrate scientific accuracy.
The laboratory-scale simulation of the Duette process involved two components: (1) water from the Duette site which was accidentally contaminated with isopropyl alcohol used to disinfect the barrels in which the water was transported, and (2) Duette matrix samples obtained from a warehouse where they had been stored approximately a year earlier.
The "full-scale" Watson test used Watson matrix, not Duette matrix. All experts agree that phosphate matrix varies from location to location. Estech's experts testified that the "Watson process" constituents and the "Duette process" constituents are not comparable.
The laboratory-scale Watson process utilized water obtained from the Watson mine over only one four-day period. The water used was a single, composite sample. Further, during the laboratory testing, the water was contaminated by high suspended solids due to "scalping" the water too closely.
The unreliability of Estech's water-quality studies is further verified by the number of reports and "supplemental" reports issued over a short period of time, between the initial schedulings of these cases for final hearing and the final hearing. Some of the "supplemental" information changed the data contained in the prior reports, whether sponsored as more accurate data or typographical errors.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes (1981).
Section 403.087, Florida Statutes (1981), sets forth projects for which DER has been granted permitting authority and provides, in pertinent part, that:
No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department. . .
Clearly, the applications for permits for filling in the initial settling area (Case No. 81-040) and constructing the ISA dam (Case No. 80-1486) involve "a stationary installation which will reasonably be expected to be a source of. .
.water pollution." Those applications, accordingly, are subject to the provisions of Section 17-4.07, Florida Administrative Code, which establishes the standards for the issuance or denial of permits and provides for the imposition of permit conditions. That Section provides, in pertinent part, as follows:
(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, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards, rules or regulations. After receipt of all required information the Department must either issue or deny the permit within sixty (60) days.
(3) The Department shall issue permits to construct, operate, maintain, expand, or modify 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 except as provided in Chapter 403.088, F.S.
(5) The Department may issue any permit upon specified conditions reasonably necessary for the prevention of pollution.
Under Section 17-4.07, Estech has the ultimate burden of providing "reasonable assurance" that the earthen dam surrounding its initial clay settling area (ISA) will comply with the requirements of Chapter 17-9, Florida Administrative Code.
The evidence clearly shows that Estech's proposed dam meets all of the applicable criteria set forth in Chapter 17-9, Florida Administrative Code, including the design criteria in Sections 17-9.01 and 17-9.03, Florida Administrative Code. Likewise, by its evidence that no discharge from the dam will occur and that the sand-clay mix will act as a sealant on the floor and inside walls of the dam, Estech has proven by competent, substantial evidence that its construction of the ISA will not cause or contribute to a violation of the groundwater criteria in Chapter 17-3, Florida Administrative Code. No competent, substantial evidence was submitted by any opposing party to the contrary; therefore, Estech has provided the "reasonable assurance" necessary to entitle it to issuance of the dam construction permit which is the subject of Case No. 80-1486.
DER has jurisdiction under Chapter 403, Florida Statutes, over the proposed filling of the ponds, connecting ditches and streams and the unnamed tributary of the East Fork of the Manatee River as outlined on Attachment E to Estech Exhibit 3A. See also, Section 17-4.28, Florida Administrative Code. The ponds and connecting ditches and the unnamed tributary located in the ISA area are not navigable waters of the State; and the requirements of Chapter 253, Florida Statutes, are, therefore, not applicable to the proposed filling activity.
To be entitled to a Chapter 403 fill permit, the applicant must provide reasonable assurance to the Department that the short-term and long-term effects of the activity will not result in violations of the water-quality criteria, standards, requirements or provisions of Chapters 17-3 and 17-4, Florida Administrative Code. Since Estech has agreed to utilize turbidity control measures, and since the area to be filled does not provide any significant water-quality benefit, Estech has provided such reasonable assurance and is, therefore, entitled to the fill permit sought in Case No. 81-040.
After construction, the ISA is a treatment work and, as such, does not constitute waters of the State. See Sections 403.031(3) and 403.031(6), Florida Statutes (1981).
The applications for permits for discharge points 002 and 003 (Case No. 81-039); the state certification of Estech's proposed National Pollutant Discharge Elimination System (NPDES) permit for discharge points 002 and 003 (Case No. 81-335); and Estech's request for mixing zones, zones of discharge, permit conditions, and site specific alternative criteria (Case No. 81-995) comprise the "water-quality" cases. Because of the invalid testing procedures in Estech's water-quality studies, which tests were relied upon by Estech's experts, Estech has failed to provide reasonable assurance that its previously proposed discharge would have met water-quality standards.
Under Estech's expanded "maximum available storage area," Estech has provided reasonable assurance that available storage will always exceed the accumulated water to be stored and, therefore, no water will be discharged from the system. Since Estech has now agreed to a "no discharge" water storage system, discharge points 002 and 003 can no longer "reasonably be expected to be a source of air or water pollution. . .", Section 403.087(1), Florida Statutes (1981), and DER has lost jurisdiction since the proposed discharge points are no longer a permittable activity. Similarly, the state certification for the NPDES permit and the relief mechanisms from water-quality standards are no longer determinations within DER's permitting jurisdiction. In other words, whether to approve or deny the permits sought by Estech in its water-quality cases, in
accordance with the standards set forth in Chapters 17-3 and 17-4, Florida Administrative Code, is no longer at issue.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,
RECOMMENDED THAT a final order be entered:
In Case No. 80-1486 approving Estech's application for a permit to construct the initial settling area, subject to the applicable conditions set forth in the initial Notice of Intent to Issue Permit and including as an additional condition that no discharge be made through Estech's proposed discharge points 002 and 003;
In Case No. 81-040 approving Estech's application for a fill permit for the initial settling area and plant site area, subject to the applicable conditions set forth in the initial Notice of Intent to Issue Permit;
In Case No. 81-039 dismissing Estech's application for permits for discharge points 002 and 003 for the reason that they are note subject to permitting jurisdiction;
In Case No. 81-335 dismissing Estech's request for state certification of Estech's proposed National Pollutant Discharge Elimination System (NPDES) permit for discharge points 002 and 003 on the ground of mootness; and
In Case No. 81-995 dismissing Estech's request for mixing zones, zones of discharge, permit conditions, and site specific alternative criteria on the ground of mootness.
RECOMMENDED this 15th day of March, 1982, in Tallahassee, Florida.
LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1982.
COPIES FURNISHED:
E. N. Fay, Jr., Esquire Mann and Fay, Chartered Post Office Box 959 Bradenton, Florida 33506
William L. Earl, Esquire William F. Tarr, Esquire
Peeples, Earl, Moore & Blank, P.A. One Biscayne Tower, Suite 3636 Two South Biscayne Boulevard Miami, Florida 33131
Richard M. Goldstein, Esquire One Biscayne Tower, Suite 1980 Two South Biscayne Boulevard Miami, Florida 33131
Robert C. Apgar, Esquire
Peeples, Earl, Moore & Blank, P.A.
300 East Park Avenue Tallahassee, Florida 32301
Richard L. Smith, Esquire Richard E. Nelson, Esquire Nelson, Hesse, Cyril, Weber,
Smith & Widman
2070 Ringling Boulevard Post Office Box 2524 Sarasota, Florida 33577
Thomas W. Reese, Esquire
123 Eighth Street North
St. Petersburg, Florida 33701
David M. Levin, Esquire Alfred W. Clark, Esquire Department of Environmental
Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Lawrence E. Sellers, Jr., Esquire Robert L. Rhodes, Jr., Esquire Holland & Knight
Post Office Drawer BW Lakeland, Florida 33802
Wade L. Hopping, Esquire Hopping, Boyd, Green & Sams
Suite 420, Lewis State Bank Bldg. Post Office Box 6526
Tallahassee, Florida 32301
Calvin J. Livingston, Esquire Holland & Knight
Post Office Drawer 810 Tallahassee, Florida 32302
Ms. Victoria Tschinkel, Secretary Department of Environmental
Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
MANATEE COUNTY, FLORIDA,
Petitioner,
and
SARASOTA COUNTY, FLORIDA, AND MANASOTA-88, INC.,
Intervenors, CASE NO. 80-1486
vs.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent,
and
ESTECH GENERAL CHEMICALS CORPORATION,
Intervenors.
/ ESTECH GENERAL CHEMICALS CORPORATION,
Petitioner,
vs. CASE NO. 81-039
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent,
and
MANATEE COUNTY, FLORIDA; SARASOTA COUNTY, FLORIDA; and MANASOTA-88, INC.,
Intervenors.
/ MANATEE COUNTY, FLORIDA,
Petitioner,
and
SARASOTA COUNTY, FLORIDA, and MANASOTA-88, INC.,
Intervenors,
vs. CASE NO. 81-040
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
and
ESTECH GENERAL CHEMICALS CORPORATION,
Respondents.
/ ESTECH GENERAL CHEMICALS CORPORATION,
Petitioner,
vs. CASE NO. 81-335
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent,
and
SARASOTA COUNTY, FLORIDA; MANATEE COUNTY, FLORIDA; and MANASOTA-88, INC.,
Intervenors.
/ ESTECH GENERAL CHEMICALS CORPORATION,
Petitioner,
vs. CASE NO. 81-995
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent,
and
SARASOTA COUNTY, FLORIDA; MANATEE COUNTY, FLORIDA; and MANASOTA-88, INC.,
Intervenors.
/
FINAL ORDER
On March 15, 1982, the Division of Administrative Hearings hearing officer in the above-styled case submitted her Recommended Order to the Department of Environmental Regulation (Department"). A copy of the recommended Order is attached as Exhibit A. On March 29, 1982, and April 13, 1982, I entered procedural orders setting times for filing of exceptions, responses to exceptions and proposed final orders. All parties to the proceeding filed exceptions and responses, and Estech General Chemicals Corporation ("Estech"), Manatee County, and Manasota-88, Inc. ("Manasota-88") filed proposed final orders. As stipulated by the parties, my final order in this cause was to be entered on or before May 28, 1982. Oral arguments were held before me on May 11, 1982.
BACKGROUND
The case before me today is complicated in that it involves numerous permit applications, substantive issues, and parties. Estech has applied for four separate permits for its proposed Duette Mine and beneficiation plant to be located in Manatee County - a dam construction permit to build an initial clay settling area (Florida Administrative Code Rule 17-9), a dredge and fill permit (Florida Administrative Code Rule 17-4.28), a discharge permit (Florida Administrative Code Rules 17-3 and 17-4), and state certification for a National Pollutant Discharge Elimination System (NPDES) permit. Estech also requested various relief mechanisms including site specific alternative criteria and mixing zones. The Department proposed to issue the dam construction and dredge and fill permits and deny the discharge permit and NPDES certification.
Petitions for hearings on the various letters of intent were consolidated below.
Prior to the final hearing in this case Estech had requested a permit to discharge a portion of its mine process water to waters of the state. During the hearing, however, the company and Department staff reached an agreement by which there would be no discharge to surface waters. A stipulation to this effect was entered into evidence at the hearing.
After a hearing on the merits, the hearing officer recommended that the Department issue the dam construction and dredge and fill permits; however, she found that because Estech proposed to eliminate its surface water discharge and was capable of containing all water on site, the Department no longer had jurisdiction to require a discharge permit or NPDES certification.
RULINGS ON EXCEPTIONS
Most of the exceptions filed by the parties fall into one of six general categories. For purposes of convenience, my rulings on those exceptions will be organized in the same manner.
In ruling on these exceptions, I specifically note the standards of review contained in Chapter 120. Section 120.57(1)(b)9., Florida Statutes, provides
that an agency head may not reject the hearing officer's findings of fact unless she determines, after a review of the complete record, that such findings were not based upon competent substantial evidence. This is a stringent test indeed, and the courts have rarely upheld an agency's reversal of findings of fact.
McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Venetian Shores Home & Property Owners v. Ruzakawski, 336 So.2d 399 (Fla. 3d DCA 1976).
Exceptions to Hearing Officer's Findings of Fact Regarding Water Quality Data - In its Exception No. 2, Estech asks that I reject the hearing officer's Findings of Fact Nos. 45 and 46 relating to various water quality data submitted by the company. The hearing officer found that the data were inconclusive and failed to demonstrate scientific accuracy. Estech argues both that the data are no longer relevant since the company does not propose to discharge to surface waters and that the hearing officer misinterpreted the testimony and evidence.
While there may be some contradictory evidence with respect to the water quality data, I find that there is competent substantial evidence in the record to support Findings of Fact Nos. 45 and 46. Therefore, Estech's Exception No. 2 is rejected.
Exceptions to Hearing Officer's Findings of Fact Regarding Water Balance - Manasota-88's exceptions relating to the water balance evidence challenge the sufficiency of the data presented icy Estech on several grounds. Again, I find that there is sufficient evidence in the record to support the hearing officer's Findings of Fact Nos. 28 through 36 with respect to the reliability of the water balance calculations.
Exceptions to Hearing Officer's Conclusion that Estech's Dam Would Comply With Chapter 17-9, F.A.C. - Without citing a specific finding of fact or conclusion of law, Manasota-88 argues that the construction permit for the dam associated with the initial clay settling area (ISA) should be denied since Estech did not provide evidence regarding its plans for inspection and maintenance of the dam after construction. Florida Administrative Code Rule 17-
9 establishes design and construction requirements applicable to the construction of any new dam. The hearing officer has specifically found that Estech's proposed dam will be constructed in accordance with the criteria of 17-
9 and the record supports such a finding. Once a new dam has been built, the inspection and maintenance requirements contained in 17-9 and in appropriate permit conditions would apply and failure to comply with those requirements would be a violation of Chapter 403, Florida Statutes. It is not necessary, however, to present detailed evidence with respect to such inspection and maintenance plans to obtain a construction permit. I specifically find that the evidence presented at the hearing by Estech regarding postconstruction procedures was sufficient. Therefore, Manasota-88's Exception IB. is rejected.
Exceptions Relating to Jurisdiction to Require Certain Permits - All parties take exception in one form or another to the hearing officer's Conclusion of Law No. 9 that the Department lost "jurisdiction" to require permits and NPDES certification for discharge points 002 and 003, and to issue or deny various relief mechanisms related to any proposed discharge, such as site specific alternative criteria or mixing zones. (See Estech's Exception No. 5; Department's Exception No. 1; Manasota-88's Exception Nos. 11, 12, and 13; Manatee County's Exception No. 9.) This Conclusion of Law could be sustained only if the Department's jurisdiction were limited to those sources which actually discharged to waters of the state. Section 403.087(1), Florida
Statutes, however, requires that a Department permit be obtained prior to
,construction or operation of any stationary installation "which will reasonably be expected to be a source of air or water pollution." Likewise, Section 403.061(14), Florida Statutes, gives the Department the authority to establish a permitting system for sources which "may" result in pollution. Obviously, the intent of these sections is to give the Department jurisdiction over potential sources of pollution. The record clearly demonstrates that the proposed Estech mine could potentially result in a discharge of pollutants to waters of the state. Only by proper design of the project can such discharges be controlled or eliminated. To assure that the source is properly designed, the project must be subjected to Department permitting review.
Thus, I must reject the hearing officer's conclusions of law to the extent that it holds that State discharge permits and NPDES certification are unnecessary. However, I cannot agree with Manasota-88's arguments that Estech must still obtain site specific criteria if all waters are contained on site instead of discharging to surface waters of the state. Under those circumstances, Estech would not be an "affected" person under Florida Administrative Code Rule 17-3.031 so as to be entitled to alternative criteria. Likewise, if Estech does not propose to discharge any waters from the site, it would not be entitled to or need a mixing zone under Florida Administrative Code Rule 17-4.244.
Exceptions Relating to Admission of the Stipulation Between the Department staff and Estech and Amendment of the Application - In their exceptions, Manasota-88 and Manatee and Sarasota Counties generally raise objections to the stipulation that fall into one of two broad categories. First, a number of the exceptions---object to admission of the Stipulation into evidence and allege that certain of the hearing officer's Findings of Fact are based solely on the stipulation and not on other testimony and evidence in the
record (see Manasota-88's Exception No. IIIA.; Sarasota County's Exceptions Nos. 4, 5, 6, 7, and 8; Manatee County's Exceptions Nos. 1, 4, 5, 6, 10, and 11(a)).
All parties agree that the Stipulation may not be accepted into evidence to prove the truth of its contents. It may, however, be used to establish that an agreement exists which would require the company to take certain actions (Hearing Officer's Findings of Fact Nos. 41, 42). The question that must be answered, then, is whether independent evidence exists in the record to support the hearing officer's findings of fact.
A complete review of the record shows that competent substantial evidence does exist. Estech's witness, Dr. Garlanger, testified on both direct and cross examination to the amount of storage capacity that would be necessary to achieve a no discharge scenario and its availability during the mining activities.
Based on this evidence, the hearing officer found that sufficient storage capacity was available to prevent all discharges to surface water. These findings must stand.
Manasota-88 and Manatee and Sarasota Counties also argue, however, that admission of evidence relating to the no discharge scenario violates their right to due process of law in that it constitutes a substantial amendment to the discharge permit application during mid-proceeding. (Manasota-88's Exception No. IIIB.; Manatee County's Exception No. 1(e) and (f); Sarasota County's Exception Nos. 1, 6.)
It is clear under Florida law that an application for a permit can be amended after its submission to the agency and even during an administrative
proceeding on the application. See Hopwood v. Department of Environmental Regulation, 402 So.2d 1296 (Fla. 1st DCA 1981); Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). However, "major or substantial amendments to or modifications of a permit application in mid-proceeding may well constitute a due process problem of notice to the agency. Hopwood v. Department of Environmental Regulation, supra at 1299. In the present case, while the Department does not object to the amendment, the other parties to the proceeding argue that Estech's switch from a discharge to a no discharge scenario during the final hearing on the permit applications has prevented them from preparing adequately for the hearing and thus deprived them of due process.
After reviewing the record, I must conclude that the process has not been so unfair that it has deprived the parties of any constitutional right.
The first consideration is whether the amendment to the application has really been "major or substantial." In fact, the change proposed by Estech is only one of degree. In any application for a phosphate mine of this type, the amount of the proposed discharge (and thus the water balance) would be an issue. Estech has not introduced a new issue, it has simply proposed to completely eliminate its discharge by increasing its water storage area. This issue was raised by the Department prior to the hearing and addressed by Estech at that time. (See Estech Exhibit 42A). Thus Estech's no discharge proposal was subject to both discovery and cross-examination. Nothing in the record suggests that the objectors should have been surprised by Estech's amendment or unprepared to address it. But, if such had been the case, the parties could have requested a continuance of the hearing to allow them to prepare their cases. The record, however, reflects that when questioned by the hearing officer, all parties indicated their readiness to present their cases after the stipulation had been executed between Estech and the Department.
In light of the facts of this case, I find that there has been no deprivation of due process.
Exceptions Relating to Compliance With the, Department's Groundwater Requirements - This category of exceptions raises the most difficult issue presented to the Department in this case. It is difficult for many reasons. While it is clear from the record that there will be discharges to the ground water from some parts of the site, the hearing officer made no findings of fact regarding the impact of such discharges or their compliance with state standards. Likewise, the parties failed to deal with this issue in any effective way at the hearing. Perhaps this is not surprising, however, in light of the Department's past practices in regulating groundwater discharges from phosphate mining activities. To put this issue in perspective, it is important to understand those agency practices and the positions the various parties have taken in this case. For that purpose, I take official recognition of the final orders of the Department issuing permits for phosphate mining activities.
In 1979, the Department adopted a rule which established water quality criteria for the two classifications of receiving groundwaters and provided for establishment of a zone of discharge within which the specific criteria would not apply. (Florida Administrative Code Rules 17-3.071, 17-3.101. 17-3.151,
17-4.245.) In general, the Department has not required an applicant to obtain a separate groundwater permit, especially if the source were subject to other permitting requirements; but there have been exceptions to that practice. See Capeletti Bros., Inc. v. Department of Environmental Regulation, DOAH Case No.
79-1602R (entered July 7, 1980). Most sources which discharge to groundwater
are now subject to a permit review. Since 1979, the Department has continued to expand its efforts in the area of groundwater regulation. Regulations were adopted in late 1981 governing underground injection wells and more recently the Department has held public workshops in anticipation of amending its existing groundwater rule. The Department's concern for achieving effective control of groundwater pollution is also evident in its current set of proceedings to adopt detailed hazardous waste regulations under Chapter 403, Florida Statutes.
Despite these trends, however, when issuing permits for phosphate mining operations, the Department has not included conditions requiring compliance with the groundwater criteria; several more recent permits have contained conditions requiring groundwater monitoring. In the instant case, the Department did not consider groundwater requirements.
Section 120.68(12), Florida Statutes, provides that, on appeal of final agency action, the appellate court shall remand a case to the agency when it finds that the agency's action was inconsistent with "a prior agency practice, if deviation therefrom is not explained by the agency." In a similar vein, Florida Administrative Code Rule 17-1.63 requires that approval or denial of permit applications be consistent with prior Department decisions unless explained in writing.
On this basis, Estech argues that the Department has recognized a de facto exemption from groundwater permitting requirements by not having applied its existing rule to such activities in the past. On the other hand, Manatee County and Manasota-88 argue that the hearing officer erred in not including findings of fact and conclusions of law relating to groundwater contamination in her recommended order and that the Department must deny Estech a permit on the basis of failure to provide reasonable assurances that it would comply with the groundwater rule.
The hearing officer in this case concluded only that the construction of the ISA would not cause or contribute to a violation of groundwater standards, since the sand-clay mix collected in the ISA would be impermeable and act as a sealant. The record, however, is clear that there will be substantial seepage of mine process water into the groundwater from the other mining activities, including the recirculation ditches. Moreover, the hearing officer specifically found that the water quality data submitted by Estech was suspect. Thus the record in this case contains no reliable data with respect to the quality of the water being discharged into the surficial aquifer. Obviously this discharge is of great concern to the citizens of Manatee County since the proposed mine site is within the watershed of Lake Manatee, a primary source of drinking water.
In light of the Department's past practices, it would be unfair to Estech, and contrary to the Department's rules and chapter 120, to deny it the permits it has sought on the grounds that has failed to provide reasonable assurances that discharges to the aquifer will meet water quality criteria. On the other hand, fairness to the people of Manatee County requires that the potential impacts of these discharges be adequately evaluated in accordance with the Department's groundwater rule, before mining activities begin.
Thus, for the reasons stated above, I conclude that the Department's past practices have been inadequate and give notice that the Department will, in the future, consider groundwater impacts in permitting of phosphate mining activities.
I fully recognize that this evolution in policy direction places an additional burden on Estech in that it is being required to meet standards that have not in the past been applied to similar operations. In that regard, I would expect the Department staff to process any application submitted by Estech with judicious promptness whether that be a separate groundwater permit application or in conjunction with any other permit that might be required under the Department's rules.
Miscellaneous Exceptions - The parties have filed a number of other exceptions to the Recommended Order which do not fall into any of the categories discussed above. To the extent that those exceptions are inconsistent with this Final Order I reject them.
ORDER
Accordingly, having considered the Recommended Order, the record and pleadings in this case, it is hereby
ORDERED that:
The hearing officer's findings of fact are adopted in toto with the following correction. Finding of Fact No. 38 should reflect that a total storage capacity of between 16,682 and 27,149 acre feet will be available after the fourth year of mining, instead of the fifth year.
The hearing officer's Conclusions of Law, as modified by this order,
are
Within thirty (30) days after entry of this order the Department shall
issue the following permits and certifications, with appropriate conditions:
A dam construction permit pursuant to Fla. Admin. Code Rule 17-9;
A dredge and fill permit pursuant to Fla. Admin. Code Rule 17-4.28;
A discharge permit pursuant to Fla. Admin. Code Rules 17-3 and 17-4, specifying that there will be no discharge to surface waters of the state; and
the state certification for the required NPDES permit.
Estech shall, prior to beginning operations, apply for and receive a permit for discharges to groundwater pursuant to Fla. Admin. Code Rules 17-3 and 17-4.
DONE AND ENTERED this 28th day of May, 1982.
VICTORIA J. TSCHINKEL
Secretary
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
Twin Towers Office Building 2600 Blair Stone Road, Tallahassee, Florida 32301
Telephone: (904) 488-4805
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that true and correct copies of the foregoing Final Order have been furnished by United States Mail to the following this 28th day of May, 1982.
E. N. Fay, Jr., Esquire Mann and Fay, Chartered Post Office Box 959 Bradenton, Florida 33506
William L. Earl, Esquire William F. Tarr, Esquire
Peeples, Earl, Moore & Blank, P.A. One Biscayne Tower, Suite 3636
Two South Biscayne Boulevard Miami, Florida 33131
Richard M. Goldstein, Esquire One Biscayne Tower, Suite 1980 Two South Biscayne Boulevard Miami, Florida 33131
Robert C. Apgar, Esquire
Peeples, Earl, Moore & Blank, P.A.
300 East Park Avenue Tallahassee, Florida 32301
Richard L. Smith, ,Esquire Richard E. Nelson, Esquire Nelson, Hesse, Cyril, Weber,
Smith & Widman
2070 Ringling Boulevard
Sarasota, Florida 33577
Thomas W. Reese, Esquire
123 Eighth Street North
St. Petersburg, Florida 33701
Lawrence E. Sellers, Jr., Esquire Robert L. Rhodes, Jr., Esquire Holland & Knight
Post Office Drawer BW Lakeland, Florida 33802
Wade Hopping, Esquire Hopping, Boyd, Green & Sams
Suite 420, Lewis State Bank Bldg. Tallahassee, Florida 32301
Calvin J. Livingston, Esquire Holland & Knight
Post Office Drawer 810 Tallahassee, Florida 32302
MARY F. CLARK
General Counsel
State of Florida, Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Telephone: (904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Jun. 03, 1982 | Final Order filed. |
| Mar. 15, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 28, 1982 | Agency Final Order | |
| Mar. 15, 1982 | Recommended Order | Approval of various permits attendant to construction and operation of phosphate mine and beneficiation plant in watershed of Lake Manatee. |
