Judges: WILLIAM E. WILLIAMS
Agency: Department of Environmental Protection
Latest Update: May 14, 1979
Summary: Petitioners said proposed bridge would harm water quality. Respondents showed contentions unfounded. Recommend issuing permit.
78-1875.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ARLINGTON EAST CIVIC )
ASSOCIATION, et al., )
)
Petitioner, )
)
vs. ) CASE NO. 78-1875
) JACKSONVILLE TRANSPORTATION ) AUTHORITY and DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on January 10, 11, and 12, 1979 in Jacksonville, Florida.
APPEARANCES
For Petitioners: David Gluckman, Esquire and
Casey J. Gluckman, Esquire 5305 Isabelle Drive
Tallahassee, Florida 32301
For Respondent, Robert M. Rhodes, Esquire Jacksonville 701 Lewis State Bank Building Transportation Post Office Box 1876 Authority: Tallahassee, Florida 32302
For Respondent, H. Ray Allen, Esquire
Department of Department of Environmental Regulation Environmental Twin Towers Office Building Regulation: 2600 Blair Stone Road
Tallahassee, Florida 32301
The Department of Environmental Regulation ("DER") has issued a Proposed Order of Issuance of a water quality permit and certification pursuant to Chapters 253 and 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, to Jacksonville Transportation Authority ("JTA") for the construction and operation of a bridge, commonly known as the Dame Point Bridge, over Mill Cove and the St. John's River near Jacksonville, Florida. Petitioners objected to the issuance of the requested permit and certification, and filed a petition with DER requesting a formal hearing pursuant to Section 120.57(1), Florida Statutes. Thereafter, in accordance with the provisions of Section 120.57(1)(b)(3), Florida Statutes, DER requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the hearing in this cause. Final hearing was scheduled by Notice dated December 5, 1978.
Petitioners contend that the proposed methods of construction and operation of the bridge fail to provide reasonable assurances that water quality standards and criteria will not be violated. Petitioners contend further that proposed dredging associated with the project will violate standards and can be avoided. Petitioners have also alleged that storm water runoff from the completed structure will violate applicable state water quality standards. It is also Petitioner's position that proposed methods for construction of the facility do not comply with the requirement that the highest and best practicable treatment available under existing technology be utilized, in that the present design for the structure will allow trash and deleterious substances to enter the water, thereby violating state water quality standards.
Respondents contend that Petitioner's allegations are not meritorious, that the project as designed will comply with state standards, and that the required permit and certification should issue.
At the final hearing, Petitioners called Ray D. Bowman as their witness.
Petitioners offered Petitioners Exhibit No. 1, which was received into evidence. Respondent, JTA, called Norman E. Ross, Jr., Jack H. Dent, Dan Becker and James
Gast as its witnesses. DER called Charles E. Barber, Jr., Ross McWilliams, Harvey C. Gray, Jr. and Ward M. Koutnik as its witnesses. Respondents offered Respondents' Exhibits Nos.1, through 14, inclusive, each of which was received into evidence.
In addition, all parties to this proceeding stipulated at the final hearing to Petitioners' standing to maintain this action under the provisions of Chapter 120, Florida Statutes. Further, at the conclusion of the hearing all parties waived the time requirements of Chapter 120, Florida Statutes, to the entry of this Recommended Order.
FINDINGS OF FACT
The proposed project is a six-lane, combination low and high level bridge crossing Mill Cove and the St. John's River in Duval County, Florida. The project entails construction of approximately 6,000 feet of low level trestle-type bridge structure and approach spans beginning on the south side of Mill Cove and extending across the Cove to the northern edge of Quarantine
Island, an artificial spoil island; 3,000 feet of high level bridge crossing the main channel of the St. John's River; and northern approach spans touching down on Dame Point on the northern shore of the St. John's River.
In order to construct the proposed project, JTA is required to obtain a water quality permit and certification from DER. JTA filed its application with DER, accompanied by supporting data, including several studies performed by professional consultants. After review of the application, DHR filed notice of its intent to issue the requested water quality permit and certification, and Petitioners filed a timely request for a hearing pursuant to Section 120.57(1) Florida Statutes, to oppose the issuance of the permit and certification.
Petitioners are various groups and individuals concerned about water quality in the St. John's River and the Jacksonville area. Petitioners' standing to seek relief in this proceeding was stipulated by all parties.
Construction of the project will result in: filling of approximately
.07 acres of wetlands to construct the south abutment on the shore of Mill Cove; dredging of approximately 185,000 cubic yards of material from Mill Cove to create a 4,400 foot long, 190 foot wide barge access channel, with a five foot
navigation control depth parallel to the low level portion of the project; temporary filling of approximately .3 acres of wetlands above mean high water on the south shore of Quarantine Island to provide construction access to the island, which area is to be restored upon completion of construction; construction of a diked upland spoil containment site approximately 31 acres in size above mean high water on Quarantine Island to retain all dredge spoil associated with the project; construction of a temporary dock at the northern end of Quarantine Island for access and staging purposes, which is to be removed on project completion; and filling of approximately 16,000 cubic feet of material waterward of mean high water for rip-rap protection around main piers in the St. John's River. Dredged materials will be removed by hydraulic dredges.
The St. John's River and its tributaries have been designated Class III waters by DER in the project area. The project involves dredging below mean high water and filling above mean high water, and is a dredge-and-fill project for purposes of Chapters 403 and 253, Florida Statutes, and Chapters 17-3 and
17-4, Florida Administrative Code, and is regulated by DER.
The project is an element in a proposed eastern bypass around the City of Jacksonville. It is expected that, as a result of the project, existing area industry will receive more efficient transportation service, commuter trip miles from southeastern Jacksonville to northern Jacksonville will be reduced, transportation routes to education facilities will be improved, and tourist traffic will be routed around downtown Jacksonville, reducing miles traveled to nearby beach resorts and thereby relieving downtown congestion. The benefits to costs ratio of the project appears positive and beneficial to Duval County and Jacksonville, in that for every dollar spent to construct the project, $2.80 could be returned to the community in the form of increased economic activity and more efficient transportation.
Testimony clearly established that the state waters in the project area are currently severely degraded and are not likely to meet Class III water quality standards. Violations of Class III standards for dissolved oxygen and some heavy metals, such as mercury, presently exist as background conditions in the St. John's River and Mill Cove. Further, a water quality analysis performed by DER in the project area indicates high background concentrations of heavy metals and PCB's in both the water column and sediments in the project area. When the pro posed project is analyzed within the context of these existing background water quality conditions, it appears highly unlikely that any impact from the project will further degrade existing conditions.
The project as currently designed includes plans for total containment of spoil material resulting from dredging activity on the upland portions of Quarantine Island. There will be no direct discharge of dredge $materials from this containment area into the receiving waters of the state.
JTA performed a water and sediment analysis of the project area, the purpose of which was to determine the existence and concentrations of specific pollutants that could adversely impact Class III waters if reintroduced into the aquatic system. JTA employed a consultant whose analytical program was designed in consultation with DER and complied with all standard testing procedures required by Rule 17-3.03, Florida Administrative Code. This analysis identified three primary-project activities where control of toxic and deleterious materials was critical: turbidity control; upland spoil containment; and direct discharge of spoil water to state waters.
Sediments in the Mill Cove area are extremely fine and may be resuspended in the water column in quantities that could violate state water quality standards if dredging is done improperly. It appears from the evidence that any turbidity problem can be avoided by employing silt curtains and hydraulic dredging during channel excavation. Silt curtains should adequately retain turbidity below levels which would violate state water quality standards, in view of the fact that the JTA study hypothesized a "worst-case" condition for projecting turbidity and pollutant concentration by assuming no upland spoil containment, silt curtains or reasonable mixing zone. Although use of silt curtains and hydraulic dredging cannot absolutely guarantee zero-discharge of suspended sediments from the dredging area, the proposed system of turbidity control is adequate to provide reasonable assurance of non-violation of state water quality standards.
Due to the existing toxic background conditions in Mill Cove, DER imposed a permit condition requiring spoil from dredging activities to be completely contained in an upland landfill-type site, with no overflow that could allow effluent to return to waters of the state. The upland dike system proposed in the project application is designed to retain all spoil material and water without direct discharge into state waters. Testimony established that the proposed dike system is designed to hold far more spoil material than the proposed project will generate. Although the dike system is to be constructed from dredged material previously deposited on Quarantine Island, it appears from the testimony that these materials were dredged from the main channel of the St. John's River and are cleaner and sandier in character than sediments in the Mill Cove area. The dike system, in conjunction with natural percolation and evaporation, is adequately designed to retain dredge spoil on the upland portion of Quarantine Island, and can reasonably be expected not to release toxic and deleterious substances into receiving waters of the state.
It is also significant that a condition of the requested permit requires project water quality monitoring to afford continuing assurance that the project will not violate standards contained in Chapter 17-3, Florida Administrative Code. These standards and the conditions required to achieve them have been included in DER's letter of intent to issue the permit for this project.
It is specifically concluded from the evidence that project dredging will not release toxic and deleterious substances into Class III waters in violation of state water quality standards, and that project dredging in Mill Cove incorporates reasonable safeguards for spoil disposal and turbidity control so as to assure non-violation of state water quality standards.
JTA plans to use a direct discharge method to dispose of storm water from the bridge. Storm water will fall through 4-inch screened holes called "scuppers" placed at regular intervals along the bridge surface directly into either Mill Cove or the St. John's River. JTA was required to provide in its application reasonable assurance that storm water runoff from the Project would not exceed applicable state standards for turbidity, BOD, dissolved solids, zinc, polychlorinated biphenols, lead1 iron, oils or grease, mercury, cadmium and coliform. To this end, JTA submitted a study entitled Effect of Rainfall Runoff from Proposed Dame Point Bridge on Water Quality of St. John's River. This study analyzed the chemical composition of storm water runoff from an existing bridge, comparable in both size and design, to the proposed project, which crosses the St. John's River south of the City of Jacksonville. This study adequately established that storm water runoff into the St. John's River across the length of the proposed bridge will not degrade the water quality of
the St. John's River below current water quality standards. All but three of the parameters tested in the study were within standards contained in Chapter 17-3, Florida Administrative Code. The remaining three pollutants were either not automobile-related, or would not violate applicable water quality standards after a reasonable opportunity" for mixing with receiving waters. One of these
pollutants, mercury, is not automobile-related, and the concentration of mercury discovered in bridge runoff test samples was essentially the same as that measured in rainfall samples. The sampling for mercury was performed using the ultrasensitive "atomic absorption" method, which is capable of measuring tenths of a part per billion of mercury. Another method, the "Dithizone" method, is a technique recognized as effective by DER, and would have, if utilized, yielded a result within the "none detectable" standard contained in Rule 17-3.05(2) , Florida Administrative Code.
As to the remaining two pollutants, coliform and lead, testimony established that a dilution rate of 400 to 1, after mixing with receiving waters, would not result in violation of applicable Class III water standards. Testimony also clearly established that water circulation in the project area would result in the requisite dilution ratio of approximately 400 to 1.
The storm water runoff study was performed on a bridge similar in all important characteristics to the proposed project, and therefore validates the scientific methodology utilized to determine the expected impact of runoff from the proposed project on water quality in the St. John's River.
The applicant has provided in its permit application the best practicable treatment available to protect state waters in the design of both the low and high level portions of the proposed bridge. Extensive research and analysis of design alternatives for both the low and high level portions of the bridge were undertaken by JTA and its consultants prior to selecting the proposed design for the bridge. JTA prepared and submitted to DER, as part of the application process, a document entitled Summary of Construction Techniques in Mill Cove, Dame Point Expressway. This document analyzed and summarized the available construction and design alternatives for the low level trestle portions of the project. The analysis included consideration of overhead construction, construction from a temporary wooden structure parallel to the project, and construction from barges using a shallow channel parallel to the project. The design chosen will cost more than one million dollars less than the next alternative, and will cut construction time by two years over the next alternative design. Given the demonstrated need for the proposed project, the already degraded water quality in the project area, the safeguards for water quality contained-in the project design, and the savings to be realized in both cost and time of construction, the design presently contained in the application is the best practicable.
Both Petitioners and JTA have submitted proposed findings of fact. Petitioners' Proposed Findings of Fact numbered 1 through 4 have been substantially adopted herein. JTA's Proposed Findings of Fact numbered 1 through 7 have also been substantially adopted. To the extent that proposed findings of fact submitted by either Petitioners or JTA are not adopted in the Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to ,this action. Section 120.57, Florida Statutes.
Petitioners have standing as parties whose "substantial interests" will be affected by proposed agency action in this proceeding. Florida Department of Offender Rehabilitation v. Jerry 353 So.2d 1230 (Fla. 1st DCA 1978); United States v. A.C.R.A.P., 412 U.S. 669, 93 S. Ct. 2405, 37 L.Ed. 2d 254 (1973) .
JTA has provided to DER reasonable assurance that the proposed project will not be detrimental to the best interests of the state, and that it is necessary to the state's social and economic development as required by Section 403.021(2), Florida Statutes, and Rule 17-3.01, Florida Administrative Code.
JTA has provided to DER reasonable assurance that the proposed project will not violate state water quality standards in accordance with Sections 403.021(2) 403.088, and 403.097, Florida Statutes, and Rules 17-3.01, 17-3.02, 17-3.05(2), 17-3.09, 17-4.07 and 17-4.28, Florida Administrative Code.
JTA has provided DER with biological, ecological and hydrographic surveys of the project area, in accordance with Section 253.123, Florida Statutes, which demonstrate that the proposed dredge and fill activities associated with the project will not interfere with the conservation of natural resources to an extent contrary to the public interest.
In accordance with Rule 17-3.01, Florida Administrative Code, JTA has provided DER with reasonable assurance that the project will incorporate the highest and best practicable treatment available under existing technology.
RECOMMENDED ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED:
That a Final Order be entered by the State of Florida, Department of Environmental Regulation, determining that the requested water quality permit and certification be issued, subject to the conditions contained in the Notice of Intent to Issue Permit, and denying the relief requested by Petitioners.
RECOMMENDED this 27th day of March, 1979, in Tallahassee, Florida.
WILLIAM E. WILLIAMS
Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
David Gluckman, Esquire and
Casey J. Gluckman, Esquire 5305 Isabelle Drive
Tallahassee, Florida 32301
Robert M. Rhodes, Esquire
701 Lewis State Bank Building Tallahassee, Florida 32302
Ray Allen, Esquire
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
ARLINGTON EAST CIVIC ASSOCIATION, et al.,
Petitioners,
vs. Case No. 78-1875
JACKSONVILLE TRANSPORTATION AUTHORITY and DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/
FINAL ORDER
BY THE DEPARTMENT:
On March 27, 1979, the duly appointed Hearing Officer in the above-styled matter submitted to the Department and all parties a Recommended Order consisting of Findings of Fact, Conclusions of Law and a Recommended Order. A copy of said Order is attached hereto as Exhibit "A".
Pursuant to Section 17-1.68, Florida Administrative Code, and Section 120.57(1)(b)8, Florida Statutes, all parties were allowed ten (10) days in which to submit exceptions to the Hearing Officer's Order. No exceptions have been timely filed by Respondents, but Petitioner did timely file exceptions.
Respondent, Jacksonville Transportation Authority, did file a Motion to Expedite
Entry of Final Orders in this cause. The Recommended Order, Exceptions and Motion to Expedite Entry of Final Orders thereafter came before me, as head of the Department, for final agency action in this matter.
Having carefully considered the Recommended Order, Exceptions, and Motion to Expedite Entry of Final Orders submitted herein, having heard Oral Arguments and being otherwise fully advised, it is, therefore,
ORDERED,
That the Respondent, Jacksonville Transportation Authority's Motion to Expedite Entry of Final Orders is hereby denied.
That the Hearing Officer's Findings of Fact is hereby adopted in toto.
That the Hearing Officer's Conclusions of Law paragraphs 1, 2, 4, 5 and
6 are hereby adopted in toto.
That the Hearing Officer's Conclusion of Law, paragraph 3 is hereby adopted as to that portion which finds that Respondent, Jacksonville Transportation Authority, has provided the Department with reasonable assurance that the proposed project will not be detrimental to the best interest of the state. The Hearing Officer's Conclusions of Law in paragraph 3, that it is necessary to the state's social and economic development in accordance with Section 403.621(6), Florida Statutes, and Section 17-3.01, Florida Administrative Code, is specifically rejected. In implementing chapter 403, Florida Statutes, the Department is empowered to establish a permit system by rule to carry out the purposes of the Florida Air and Water Pollution Control Act as stated in Section 403.021, Florida Statutes. See also Sections 403.061(16) and 403.087, Florida Statutes. The Department has carried out this legislative mandate by adopting Chapter 17-4, Florida Administrative Code, dealing with permits and Chapter 17-3, Florida Administrative Code, dealing with water pollution. In adopting those regulations, the Department has specifically considered the intent of Chapter 403, Florida Statutes, including the public policy
"(6) The Legislature finds and declares that control, regulation, and abatement of the activities which are causing or may cause pollution of the air or water resources in the state and which are or may be detrimental to human, animal, aquatic, or plant life, or to property, or unreasonably interfere with the comfortable enjoyment of life or property be in- creased to insure conservation of natural resources, to insure a continued safe environment, to insure purity of air and water, to insure domestic water supplies, to insure protection and preservation of
the public health, safety, welfare, and economic well- being, to insure and provide for recreational and wildlife needs as the population increases and the economy expands, and to insure a continuing growth
of the economy and industrial development." Section 403.021(6), Florida Statutes.
However, neither the statute nor the applicable regulations require that the promotion of economic and social development be a consideration in the Departments decision to grant or deny a permit. The general provisions of
Section 17-4.07, Florida Administrative Code, establish Standards four issuing or denying all Department permits. Paragraph 4 of that regulation requires the Department to deny any application for a permit where the Department determines that the source of pollution will not be in accord with applicable laws, rules, or regulations, including rules and regulations of approved local programs.
Section 17-4.07(4), Florida Administrative Code. Clearly, the Department could not issue a permit for a facility which it determined would violate a water quality standard found in Chapter 17-3, Florida Administrative Code, even though a cost-benefit analysis showed the project to be worthwhile.
Economic and social impacts of a proposed rule must be considered during the rulemaking process. Section 120.54(2), Florida Statutes expressly requires that an economic impact analysis be prepared for every proposed rule, assessing the long term and short term consequences of the proposal. However, once a rule has been adopted the Department must assess a permit application solely on the basis of the requirements set forth in the applicable regulations. Any other basis would be unfair to permit applicants and would destroy any uniformity in permit issuance and denial.
Section 403.021, Florida Statutes, and Section 17-3.01, Florida Administrative Code, merely state the general purposes and policies to be followed by the Department. They do not establish standards which must be considered in processing a permit application.
That the Petitioner's Exceptions to Hearing Officer's Recommended Order are hereby rejected in toto. Petitioner has failed to comply with the requirements of Section 17-1.68(1), Florida Administrative Code, that exceptions must state, with particularity, the basis for asserting that the Hearing Officer's Recommended Order was in error. See Stuckeys of Eastman, Georgia v Department of Transportation, 340 So 2d 119, 120 (Fla. 1st DCA 1976).
Accordingly the Hearing Officer's Recommended Order, as modified by this Final Order, is hereby, adopted as the final agency action of the Department. The Department's Bureau of Standard Permitting shall issue a dredge and fill permit and water quality certification to the applicant within fifteen (15) days of this Final Order.
DONE AND ENTERED, this 7th day of May, 1979, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
JACOB D. VARN
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Telephone: (904) 488-4807
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by United States Mail to David Gluckman, Esquire, and Casey
J. Gluckman, Esquire 5305 Isabelle Drive, Tallahassee, Florida 32301 and Robert
M. Rhodes, Esquire, 701 Lewis State Bank Building, Tallahassee, Florida 32302 and William E. Williams, Hearing Officer, Division of Administrative Hearings, Room 530, Carlton Building, Tallahassee, Florida 32304, this 8th day of May, 1979.
H. RAY ALLEN
Assistant General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Telephone: (904) 488-9730
Docket for Case No: 78-001875
Orders for Case No: 78-001875
| Issue Date |
Document |
Summary |
|
May 07, 1979 |
Agency Final Order
|
|
|
Mar. 27, 1979 |
Recommended Order
|
Petitioners said proposed bridge would harm water quality. Respondents showed contentions unfounded. Recommend issuing permit.
|
