STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH L. CUTTER, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0602

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent, )

and )

)

BUCKEYE FLORIDA, L.P., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Suzanne

F. Hood, Administrative Law Judge with the Division of Administrative Hearings, on August 14 and 16, 1996 and September 23, 1996 in Perry, Florida.

APPEARANCES

For Petitioner: Joseph L. Cutter, Pro Se

Route 1 Box 1130

Perry, Florida 32347

For Respondent: Jeffrey Brown, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Intervenor: Terry Cole, Esquire

Patricia A. Renovich, Esquire

Oertel, Hoffman, Fernandez and Cole, P.A. Post Office Box 6507

Tallahassee, Florida 32314-6507 STATEMENT OF THE ISSUES

The issues are: (1) whether Petitioner Joseph L. Cutter has a substantial interest in Respondent Department of Environmental Protection's adoption of the 1995 report entitled "Delineation of Ground and Surface Water Areas Potentially Impacted by an Industrial Discharge to the Fenholloway River of Taylor County, Florida"; (2) whether Respondent Department of Environmental Protection properly identified the area along the Fenholloway River where river water containing an industrial discharge may potentially impact ground and surface water; and (3) whether Buckeye Florida, L.P. has standing to participate as an Intervenor in this proceeding.

PRELIMINARY STATEMENT

On or about December 7, 1995, Petitioner Joseph L. Cutter (Mr. Cutter) filed a request for a formal hearing to challenge the alleged joint decision of Respondent Department of Environmental Protection (DEP) and the Department of Health and Rehabilitative Services (DHRS) to stop providing bottled water to certain residents of Taylor County effective January 1, 1996. On or about January 8, 1996, DEP issued an order dismissing the petition with leave for Mr. Cutter to amend by providing information required by Rule 62-103.155, Florida Administrative Code.

On or about January 22, 1996 Mr. Cutter filed an Amended Petition challenging DEP's 1995 study delineating the ground and surface water areas potentially impacted by an industrial discharge to the Fenholloway River in Taylor County, Florida. The Amended Petition also requested that DHRS continue to supply bottled water to certain residents. DEP referred the Amended Petition to the Division of Administrative Hearings for the assignment of an Administrative Law Judge on January 31, 1996.

On February 16, 1996 the undersigned entered an Order giving DHRS an opportunity to be joined as party. This order also required DEP to advise the undersigned of its position on DHRS's party status.

DHRS filed a Response Declining Party Status on February 26, 1996 stating that it has no funding for a bottled water program. DHRS asserted that it acts only at the direction of DEP with regard to the distribution of bottled water or coupons which are redeemable for bottled water.

DEP filed a Response to Order on February 26, 1996 which stated that if Mr. Cutter was successful in his challenge to DEP's hydrogeologic study, DHRS would be involved in the decision whether to provide Mr. Cutter with bottled water.

DEP took the position that DHRS should not be a party if the sole issue involved the validity of DEP's study.

On March 8, 1996 the undersigned issued a Notice of Hearing scheduling this matter for formal hearing on May 15, 1996.

On April 2, 1996 Intervenor Buckeye Florida, L.P. (Buckeye) filed a Petition for Leave to Intervene. Mr. Cutter filed a response in opposition to this petition on April 11, 1996. The undersigned granted Buckeye intervenor status, subject to proof of standing at hearing, on April 15, 1996.

On April 22, 1996 DEP filed a Motion for Continuance. The undersigned granted this motion and rescheduled the case for hearing on July 17, 1996. DEP requested a second continuance by motion dated June 10, 1996. The undersigned granted this motion and rescheduled the case for hearing on August 14 and 16, 1996.

On August 2, 1996 DEP and Buckeye filed a Motion in Limine and Request for Oral Argument. On August 7, 1996 the parties filed a Prehearing Stipulation.

After hearing oral argument, the undersigned entered an order dated August 8, 1996 excluding certain of Mr. Cutter's proposed exhibits and the proposed testimony of some of Mr. Cutter's witnesses as not relevant to the instant proceeding. The undersigned reserved ruling on objections to other exhibits proposed by Mr. Cutter. An amendment to the Prehearing Stipulation was filed on August 12, 1996.

During the hearing on August 14 and 16, 1996 Mr. Cutter testified on his own behalf and presented the testimony of Dr. Geoffrey Watts, Dr. Richard Wieckowicz, Roy Sadler, Richard Harvey, John Passehl, Ronnie Edwards, Richard Sheffield, Edwin Hendry, Dr. Richard Hunter and Dr. Paul Lee. Mr. Cutter offered twelve exhibits then withdrew two of them. Nine of Mr. Cutter's exhibits were admitted into evidence: DEP-1, P-24, P-36C, P-45, P-16, P-46, P- 9, P-39, and P-40. The undersigned reserved ruling on the admissibility of Mr. Cutter's Exhibit P-4, a draft report entitled "Ground Water Investigation Report Number 91-05, Proctor and Gamble Cellulose, Perry, Taylor County." DEP and Buckeye requested time in which to file a memorandum of law on the admissibility of Exhibit P-4.

During the hearing on August 14 and 16, 1996 DEP presented the testimony of Richard Harvey, Rick Copeland, and Mary E.S. Williams. DEP offered eight exhibits, one of which it withdrew. Seven of DEP's exhibits were accepted into evidence: DEP-4, DEP-7, DEP-15, DEP-16, DEP-17, DEP-14, and DEP-13. During the

cross examination of Richard Harvey, Buckeye offered one exhibit which was accepted into evidence: Buckeye-19.

Because two days of hearing was insufficient to complete the hearing, the undersigned issued an order dated August 19, 1996 scheduling the hearing to reconvene on September 23, 1996. This order also directed DEP to file a memorandum of law on the admissibility of Exhibit P-4 on or before September 9, 1996.

On September 5, 1996 DEP filed a Motion for Extension of Time to File Memorandum of Law. The undersigned granted this motion on September 6, 1996.

On September 6, 1996, Mr. Cutter filed a memorandum supporting the admissibility of Exhibit P-4. On September 11, 1996 DEP and Buckeye filed memoranda of law in opposition to the admission of Exhibit P-4. By order dated September 18, 1996 the undersigned ruled that Exhibit P-4 was not admissible for lack of relevance.

The formal hearing reconvened on September 23, 1996. DEP presented the testimony of William Coppenger, John Passehl and Dr. Paul Lee. DEP did not present additional exhibits. Buckeye presented the testimony of Vincent P. Amy and offered fourteen exhibits all of which were admitted into evidence: Buckeye 21, 20, 1B, 11, 2, 3, 4, 5, 6, 8, 7, 9, 10A, and 10B.

By order dated October 24, 1996, the undersigned advised all parties that:

1. the complete transcript had been filed with the Division of Administrative Hearings on October 22, 1996; (2), the parties had until October 30, 1996 to file objections to the transcription of the videotaped portion of the proceedings; and (3) proposed recommended orders were to be filed on or before November 14, 1996.

   
   

   On October 30, 1996 Buckeye filed a Notice of Filing Objections to Transcript. DEP concurred with Buckeye's objections. Mr. Cutter did not file a response in opposition to the substance of this notice. Accordingly, Volume I of the September 23, 1996 transcript is amended to reflect the corrections set forth in Buckeye's notice dated October 30, 1996.

   
   

   On November 12, 1996 Mr. Cutter filed a Motion for Extension of Time for Filing a Proposed Recommended Order. The undersigned's office contacted DEP and Buckeye by telephone to determine whether either of them objected to Mr.

   Cutter's motion. After oral representations that they did not object, the undersigned entered an order allowing Petitioner to file his proposed recommended order on or before November 21, 1996.

   
   

   DEP and Buckeye filed their proposed recommended orders on November 14, 1996. Mr. Cutter filed his proposed recommended order on November 21. 1996.

   
   

   FINDINGS OF FACTS

   
   

   1. Mr. Cutter has resided in Taylor County, Florida since 1974. His home is approximately 8,000 feet southwest of the Fenholloway River on the north side of Courtney Grade Road.

      
      

   2. DEP is responsible for administrating the Water Quality Assurance Trust Fund. DEP's responsibilities include the undertaking of water supply restoration projects in appropriate circumstances.

      
      

   3. In administering this trust fund, DEP determines whether specific ground water supplies are contaminated. This determination generally requires DEP to evaluate whether a given water supply meets primary drinking water quality standards. A primary drinking water standard is a regulatory criterion adopted by the state pursuant to delegated federal authority. Such a standard refers to a certain maximum level for a given contaminant which, if exceeded, represents a health risk.

      
      

   4. If DEP finds that a primary drinking water standard is violated, it performs a cost analysis to determine the appropriate means of restoring or replacing a water supply source.

      
      

   5. In the late 1980's, DHRS received complaints from Taylor County residents that water from their private wells looked, smelled, and tasted bad. DHRS asked DEP to investigate those complaints.

      
      

   6. DEP's initial investigation of ground water quality did not reveal a public health threat. Nevertheless, DEP decided to proceed on the assumption that industrial effluent in the Fenholloway River could represent a public health threat.

      
      

   7. DEP first considered the potential of conducting chemical analysis of ground water to detect the presence of chemical markers that would indicate the presence of water from the Fenholloway River. In order to do this, DEP would have to isolate a chemical compound from the industrial effluent in the Fenholloway River that would serve as a "marker" for contaminated effluent.

      
      

   8. DEP attempted to determine the influence of the Fenholloway River using a test measuring non-purgeable total organic halides, or NPTOX, as a chemical marker.

      
      

   9. DEP's projections relying upon NPTOX as an indicator for river water proved to be unreliable. DEP correctly rejected the use of NPTOX as a chemical marker because it occurs naturally and does not provide a clear indication as to whether river water influences ground water. Moreover, DEP identified laboratory quality assurance problems for tests using this chemical.

      
      

   10. DEP's scientists do not know of any practical chemical marker that can identify mill effluent in river water. Research is emerging which may identify

       a chemical test which will reveal the presence of effluents from kraft paper mills. However, the academic community has not yet validated their use.

       
       

   11. After the shortcomings of chemical analysis became evident, DEP decided to conduct a ground water study to reach conservative findings regarding the extent to which water from the Fenholloway River could potentially impact ground water supplies in a worst case scenario.

       
       

   12. DHRS agreed to certify that it would be in the interest of public health to connect homes to a public water system if DEP could identify a corridor where river water influenced ground water.

       
       

   13. As a result of the ground water study, DEP prepared and adopted the 1995 report titled "Delineation of Ground and Surface Water Areas Potentially Impacted by an Industrial Discharge to the Fenholloway River of Taylor County, Florida" (1995 Report).

       
       

   14. The 1995 Report identified a conservative potentially impacted corridor within which water from the Fenholloway River might interact with ground water in the adjoining aquifers as well as the potential impact of river flood waters on ground water.

       
       

   15. Buckeye is a softwood kraft pulp specialty mill that has been in operation in Taylor County since 1954. It discharges treated effluent into the Fenholloway River in accordance with permits from DEP.

       
       

   16. The mill discharges effluent upstream of U.S. 19 Bridge. This discharge creates a mounding effect, i.e. an artificial high level within the river.

       
       

   17. Because the river downstream of the discharge point is maintained at an artificially high level during drought conditions, a "mound" of water forms where the water level in the aquifer connects to the river. During a dry season, this discharge will be maintained, but the aquifer on both sides of the river will continue to drop due to a lack of recharge from rainfall.

       
       

   18. The river generally runs from east to west through Taylor County. It starts in the San Pedro Bay at 100 feet above sea level and ends at the Gulf of Mexico at sea level.

       
       

   19. Ground water (subsurface water) moves from higher to lower elevations of the water table. Elevations (contours) of equal ground water levels can be mapped just as elevations of land surfaces are mapped. Ground water contour lines (sometimes called equipotential lines) depict points of equal ground water elevation.

       
       

   20. Direction of ground water flow is always at right angles to the contour lines. Ground water is a dynamic system impacted by rainfall, which adds water to the system, and discharge points, which take water from the system. Water is constantly entering (recharging) or leaving (discharging) the aquifer, which causes the ground water levels to be continually changing.

       
       

   21. The Floridian aquifer system underlies all of Florida, including the study area of the 1995 Report. The aquifer at issue here is unconfined from San Pedro Bay to the coast. Potentiometric (aquifer water level) elevations of the Floridian aquifer in the study area of 1995 Report show that ground water moves

       southwesterly. The dominant direction of the ground water flow in this area is parallel to the river.

       
       

   22. Under normal conditions, with normal rainfall, the river is a focal point for ground water discharge. In this situation, rain recharges the shallow aquifer so that the water level elevations in the aquifer are higher than the water level elevations of the river. Consequently, ground water moves into the river, making it a "gaining stream."

       
       

   23. In periods of drought when the rainfall is deficient, the recharge is deficient and the water level in the aquifer can decline to points that are lower than the elevation of the water level in the river. In that instance, water can leave the river. If water migrates from the river into the ground water, the river is called a "losing stream." When water leaves the river and migrates outward, it will be influenced by the dominant regional flow that is parallel to the river and downstream.

       
       

   24. River water can migrate outward a limited distance before it becomes influenced by the regional flow and migrates back to the river. Migration back to the river occurs when water level elevations in the aquifer are higher than they are in the river and the river becomes a "gaining stream."

       
       

   25. The purpose of the 1995 Report was to define a potential corridor of river influence, using the worst case scenarios in all hydrogeologic conditions. It relied primarily on potentiometric (aquifer water level) studies, as opposed to a chemical analysis of ground water quality. DEP's report relied on differences in water elevations in the river and ground waters. The 1995 Report also relied upon United States Geological Survey (U.S.G.S.)/ U.S. Department of Housing and Urban Development flood prone area maps to delineate the extent of river water flooding on surrounding land surfaces.

       
       

   26. The area of the study was from east of the mill to County Road 356 in the west, including U.S. 98 to the north and Courtney Grade Road to the south. DEP has not discriminated against certain residents of Taylor County by not extending the geographic boundaries of the study area.

       
       

   27. The study did not end at Golf Course Road. In order to prepare the MODFLOW model which ultimately led to the MODPATH model, DEP installed additional monitor wells to the west of Golf Course Road. These additional wells provided DEP with ample water level data to perform the models.

       
       

   28. The monitor wells were more concentrated near the discharge point of Buckeye's mill. However, there were greater fluctuations in water levels in that area.

       
       

   29. DEP's decision to limit the study to the area depicted in the report was based on technical and policy considerations. Water levels in the areas to the west of the study do not fluctuate very much. Additionally, the influence of the tide from the Gulf of Mexico decreases the impact of river water on ground water south and southwest of the study area. The population in these areas was relatively low. Because the population of Taylor County is dispersed, it is not cost-effective or feasible for DEP to consider the extension of water lines beyond the boundaries of the study area.

       
       

   30. Mr. Cutter lacks standing to claim that the study did not extend far enough to the west. The western portion of the river beyond the limit of the

       study could not adversely impact ground water supplying the well on Mr. Cutter's property.

       
       

   31. DEP collected sufficient data and made an appropriate analysis of the total area depicted in the 1995 Report. The 1995 Report did not use water quality data as a primary or sole indicator of effluent extent. However, it did consider some supplemental chemical concentrations to evaluate water quality. These concentrations were always at or below normal background levels and therefore were consistent with the conclusions in the report.

       
       

   32. DEP used three techniques to determine the furthest lateral distance that river water could potentially migrate into ground water in the adjoining aquifers. Two techniques (cross-section model and steady-state ground water model) were used to determine the extent of migration during the worst case dry season scenario. The third technique (flood season map) was used to determine the extent of influence on ground water during the worst case river flooding scenario.

       
       

   33. The cross-section technique used to model the worst case dry season scenario relied upon historical data from the driest period on record (using data from Suwannee River Water Management District, U.S.G.S. and Buckeye monitoring wells), which was April 2, 1989. Using this data, DEP prepared a potentiometric map.

       
       

   34. A computer program interprets data from a contour map and, given horizontal and vertical axes at given points, produces cross-sections. The cross-sections are made at various angles of the river to determine "stagnation" points," i.e. points where the ground water gradient between the aquifer and the river is zero.

       
       

   35. DEP staff connected the stagnation points revealed by the cross- section method and transposed them onto a potentiometric map for May 25, 1994 (a dry period where sufficient data was available). This process allowed DEP to define the total area where the river would impact the aquifer during the dry season.

       
       

   36. The results of the cross-section technique showed that the migration of river water into ground water occurs during dry seasons almost entirely on the north side of the river. It confirmed the analyses of the MODFLOW and MODPATH models discussed below.

       
       

   37. DEP used a steady-state simulation flow mode as one of the three study techniques in the 1995 Report; it was based on the worst case dry season scenario of April 25, 1989. This model allowed computer tracking of simulated particles (representing river water) in a portion of the 17-mile (north-south) by 20-mile (east-west) grid used in the model. The computer model shows how simulated particles during the worst case dry season conditions: (1) enter the aquifer when the river is higher than the ground water; (2) move away from the river when the river elevation is higher than water level elevations in the adjacent aquifer; (3) reach a "stagnation point" where the elevation of river water that has entered the aquifer is equal to that of the unaffected portion of the aquifer; and (4) subsequently flow parallel with the river and eventually back to the river.

       
       

   38. The objective of the steady-state ground water flow model (MODFLOW) is to incorporate the best available data so that calibration of model parameters can be accomplished by using measured ground water heads for a specific "snap

       shot" in time. Once an acceptable calibration of the model is obtained by minimizing the residuals of modeled versus measured heads, then the water budget is decreased by a recharge package so that the model heads closely reflect an observed "worst case" dry season head distribution. After an acceptable dry season head match is obtained, a particle tracking program (MODPATH) is used to delineate effluent migration from the river-to-aquifer and from the aquifer-to- river.

       
       

   39. U.S.G.S. developed MODFLOW which is a reliable numerical ground water model. DEP used MODFLOW to simulate water levels and to depict hydraulic conditions in the subject area.

       
       

   40. In the instant case, DEP first examined available data such as water levels, rainfall, and hydraulic conductivity, to develop a conceptual model. The conceptual model determines the size of the model and presents a hypothesis regarding how the area of interest will operate.

       
       

   41. The development of the conceptual model includes the determination of boundary conditions. Boundary conditions are mathematical instructions which the modeler uses to simplify the model. They reflect the conditions at the geographical limits of the model.

       
       

   42. DEP used "no-flow" boundary conditions for the north, east and south boundaries. These conditions represent areas where water outside the boundaries flows away from the model.

       
       

   43. DEP used a "constant head" boundary condition for the western boundary of the model, i.e. a determination that the ground water level does not fluctuate substantially in that area.

       
       

   44. In developing the conceptual model, DEP also considered relative recharge throughout the area, relative hydraulic conductivity, and drainage conditions.

       
       

   45. "Calibration" refers to a process where a modeler adjusts factors within the model to minimize the difference between measured water levels and simulated water levels. DEP initially calibrated the MODFLOW model to simulate hydrologic conditions on May 11, 1994. Next, DEP calibrated the MODFLOW model to simulate hydrologic conditions on April 25, 1989 which represents a worst case scenario for a dry season in the study area.

       
       

   46. U.S.G.S. also developed MODPATH. It is a computer model which uses MODFLOW head (water level) data to simulate the direction of ground water flow. The software simulates where a particle of water would flow based on head data provided by the MODFLOW model.

       
       

   47. In this case, the MODPATH model yielded a conservative projection of areas where ground water could be impacted by water from the Fenholloway River in a worst case dry season scenario.

       
       

   48. DEP used a flood season map to delineate the worst case flood season scenario. Historical data indicates that the worst surface river flood on record was Hurricane Dora on September 10 - 13, 1964. DEP used a U.S.G.S. flood prone area map to show the extent of river flooding during Hurricane Dora. DEP conservatively assumed that river flood waters could affect the ground water in the area flooded by the river during this storm.

   49. The flood prone map shows areas of inundation flooding from the river and areas of drainage flooding experienced during Hurricane Dora in 1964. The term inundation flooding refers to water that has been in the river which is transported to a certain distance as it floods out of the river banks. The term drainage flooding refers to rainfall which accumulates in a depressed area. Drainage flooding is influenced by the intensity and duration of rainfall and the slope of the depressed area.

       
       

   50. Since 1955 the U.S.G.S has compiled river water level data in the subject area. Hurricane Dora represents a conservative worst case scenario for a wet season or flood because the water levels resulting from that storm were higher than the levels at any other time in recorded history.

       
       

   51. Areas outside of the delineated corridor may be flooded from time to time. However, they represent isolated wetlands which are not connected to the Fenholloway River. Therefore, there is no need to include them in the corridor of potentially impacted areas.

       
       

   52. The corridor in DEP's 1995 Report includes: (a) the entire river flood plain inundated by Hurricane Dora during the worst case flood scenario;

       (b) the potential extent of river influence during the worst case dry season scenario; and (c) all areas where simulated particles in the steady-state simulation flow computer model computer model migrated from river to ground water, including areas of very low potential.

       
       

   53. DEP based the computer modeling in the 1995 Report on reliable data from historical records and from the network of monitoring wells in the study area. DEP had sufficient data from the monitoring wells to develop valid ground water elevation maps in the study area for the computer modeling.

       
       

   54. U.S.G.S. topographic maps are reliable as to elevation numbers. They are commonly relied upon by geologist to determine the direction of surface water flow.

       
       

   55. U.S.G.S. flood prone area maps depict areas that are impacted by river inundation and are commonly relied upon by geologists. DEP geologists reasonably relied upon the U.S.G.S. flood prone area map of the river.

       
       

   56. U.S.G.S. river elevation recording station data (from bridges at U.S. 27, U.S. 19 and Route 356 near Hampton Springs) are commonly relied upon by geologist.

       
       

   57. DEP used proper methods to determine how river water moves during flood conditions. DEP properly excluded from consideration areas that were flooded during Hurricane Dora by local rainfall as opposed to river water.

       
       

   58. The corridor identified by the 1995 Report correctly reflects a conservative depiction of an area where the river water could influence the ground water in the worst case dry season scenarios, both actual and simulated; it also conservatively depicts the area where the river water could influence surface and ground waters in the worst case flood scenario.

       
       

   59. The 1995 Report appropriately concluded that there was no potential for areas beyond the defined corridor to be impacted by the industrial waste discharged into the river.

   60. Mr. Cutter's property is located within the study area of the 1995 Report but outside the corridor delineated in the report. His property is about one mile from the edge of the 1964 worst case scenario river flood plain. It is situated close to monitoring well number PM02.

       
       

   61. State agencies have tested Mr. Cutter's well water on several occasions. They have never found any violations of drinking water standards or any exceedances of health advisory levels.

       
       

   62. Based on the steady-state simulated computer model, river water will not impact Mr. Cutter's property during a dry season worst case scenario.

       
       

   63. During dry seasons, it is not possible for river water to migrate 8000 feet to Mr. Cutter's land because ground water in the shallow aquifer on the south side of the river is moving from higher to lower elevations toward the river. Consequently, there is no potential for Mr. Cutter's land to be affected by river water during a dry season.

       
       

   64. River water did not effect Mr. Cutter's property during the 1964 worst case flood scenario, as revealed by the recorded extent of river flooding and the elevation of his land. During Hurricane Dora, the flood elevation of the river was 25 feet above sea level at the nearest point to Mr. Cutter's land which is at least 27-28 feet above sea level. The differences in these elevations makes it impossible for river water to Mr. Cutter's land during the worst case flood scenario.

       
       

   65. During the 1984 storm, Mr. Cutter's land was about 7-8 feet higher than the recorded maximum river flood waters. The greater weight of the evidence indicates that any flooding on Mr. Cutter's land at that time was the result of drainage or rainfall flooding and not the result of inundation from the Fenholloway River.

       
       

   66. In the 1994 storm, Mr. Cutter drove from Waldo Springs near the river to his home through less than 18 inches of water. The water was deep enough to reach the floorboard of his vehicle. Mr. Cutter acknowledges that if the topographic maps relied upon by DEP are correct, he would have driven through five feet of water in order for flood water from the river to have reached his land. He stated that the water at his house or in the area between his house and the river was not five feet deep.

       
       

   67. There are isolated sloughs in the area of Mr. Cutter's land. However, there are no sloughs that continuously extend from the river to Mr. Cutter's property. Therefore, flood water from the river cannot reach Mr. Cutter's land by running through sloughs.

       
       

   68. Natural conditions, including the decay of organic matter, can cause surface and ground water discoloration. If a well is located near a slough or wetlands, percolation from the slough or wetlands can result in brown well water. There is no persuasive evidence that the discoloration of Mr. Cutter's well water is the result of contaminated river water.

       
       

   69. The high ground water elevations between Waldo Springs and Mr. Cutter's property act as a barrier to any ground water movement to the southwest in the direction of Mr. Cutter's property.

       
       

   70. One resident witness testified that his well was contaminated by ethyl dibromide (EDB), a pesticide with no link to river water or kraft pulp mill

       effluent. EDB is a nematicide commonly used in crops such as citrus and soybeans. It is also used in turf management for golf courses and landscaping projects.

       
       

   71. Buckeye's mill in Foley, Florida produces fluff wood pulp that is used in products like diapers. It also produces special dissolving wood pulps that are used by the filter industry (including air and oil filters) and the filament industry (including rayon clothing and specialty rayon products used in tire cords).

       
       

   72. In the kraft pulp mill process, the mill withdraws about 47-50 million gallons per day (MGD) of ground water from the wellfield and discharges about 50 MGD of treated effluent from an aeration pond into the river.

       
       

   73. The mill has a sewer system that captures the effluent from the manufacturing process. It also has about 150 acres of aerated treatment lagoons.

       
       

   74. During the time that DEP was studying the issue that resulted in the 1995 Report, Buckeye spent about $2 million providing free bottled water to Taylor County residents and paying the City of Perry to run water lines to homes of people who complained about their well water.

       
       

   75. Buckeye has a monitoring network of wells around the mill. It maintains liners under its lagoons.

       
       

   76. Buckeye's interest in this proceeding is: (a) to ensure that it can continue to discharge under its permits from DEP; and (b) to support the 1995 Report of DEP even though Buckeye takes the position that the corridor in that report should be narrower.

       
       

   77. Buckeye has provided a sufficient basis to support its status as intervenor.

       
       

       CONCLUSIONS OF LAW

       
       

   78. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to Section 120.57(1), Florida Statutes.

       
       

   79. DEP's objective in conducting the study which produced the 1995 Report was to implement legislative intent with respect to pollution of surface and ground waters pursuant to Sections 376.30 through 376.319, Florida Statutes. Specifically, Section 376.30(3)(c)1, Florida Statutes, requires DEP to:

       
       

       1. Provide for expeditious restoration or replacement of potable water systems or potable private wells of affected persons where health hazards exist due to contamination from pollutants (which may include provision of bottled water on a temporary basis, after

          which a more stable and convenient source of potable water shall be provided) and hazardous substances . . . .

          
          

   80. Pursuant to Sections 376.307(1) and 376.307(2), Florida Statutes, DEP administers the Water Quality Assurance Trust Fund to carry out the provisions

       of Sections 376.30 through 376.319, Florida Statutes, "for the expeditious restoration or replacement of potable water supplies as provided in s.

       376.30(3)(c)1." Section 376.307(2), Florida Statutes. In the performance of its duties, DEP is required to investigate, assess, cleanup, restore, maintain, and monitor any site contaminated with, among other substances, hazardous wastes, pollutants, or any "substance which poses a serious danger to the public health, safety, or welfare." Section 376.307(2)(c)3., Florida Statutes.

       
       

   81. In order to demonstrate standing, Mr. Cutter bears the burden of establishing: (a) that he will suffer an injury in fact which is of sufficient immediacy to entitle him to a hearing; and (b) that the substantial injury is of a type and nature that the statute under which the agency has acted is designed to protect. Agrico Chemical Co. v. Dept. of Environmental Regulation, 406 So. 2d 478 (Fla. 2nd DCA 1981).

       
       

   82. The record contains no evidence indicating that Mr. Cutter's well water has ever violated primary drinking water standards. Additionally, there is no evidence that the geographical limitations of the study resulting in the 1995 Report affected Mr. Cutter's substantial interests. To the contrary, competent evidence established that his land is well beyond the corridor within which the waters of the Fenholloway River can impact ground and surface water in any worst case scenario.

       
       

   83. On the other hand, DEP took a very conservative approach to its study. DEP based its conclusions in the 1995 Report on reliable data and conservative assumptions. The evidence supporting these conclusions included historical data, a computer model, and opinions of experts in the field of geology, hydrogeology and chemistry. There is no persuasive evidence to refute the accuracy of the corridor delineated in the 1995 Report. This corridor represents a conservative depiction of all areas of ground and surface water in Taylor County that the Fenholloway River could potentially impact.

       
       

   84. Mr. Cutter has not established that DEP's adoption of the 1995 Report will affect any of his substantial interests. In other words, Mr. Cutter presented no persuasive evidence that he has or will suffer any injury in fact from DEP's adoption of the 1995 Report. Consequently, Mr. Cutter's Amended Petition must be dismissed.

       
       

   85. Rule 60Q-2.010, Florida Administrative Code, entitles Buckeye to intervenor status upon demonstrating that it's substantial interests will be affected by the proceeding. Competent evidence reveals that DEP has permitted Buckeye's discharge of treated effluent into the river. Buckeye paid for part of the cost of the bottled water program that DEP discontinued as a result of the 1995 Report and for some of the cost of connecting Taylor County residents to the public potable water system. Thus, Buckeye has a substantial interest in the 1995 Report which is at issue here. It has established its standing to participate as an intervenor in this proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a Final Order dismissing the Amended Petition.

DONE AND ENTERED this 5th day of December, 1996, in Tallahassee, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1996.

COPIES FURNISHED:

Jeffrey Brown, Esquire Department of Environmental

Protection

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Joseph L. Cutter Route 1 Box 1130

Perry, FL 32347

Terry Cole, Esquire

Patricia A. Renovitch, Esquire Oertel, Hoffman, et al.

Post Office Box 6507 Tallahassee, FL 32314-6507

Virginia B. Wetherell, Secretary Department of Environmental

Protection Doulgas Building

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Perry Odom, Esquire Department of Environmental

Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-000602

Orders for Case No: 96-000602