Judges: SHARYN L. SMITH
Agency: Department of Environmental Protection
Latest Update: Dec. 23, 1980
Summary: Respondent seeks twenty-four month variance from effluent rules for its plants. Economic harm to area if not granted. Grant variance with conditions.
80-0165.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TIM KEYSER, )
)
Petitioner, )
)
) CASE NO. 80-165
) HUDSON PULP & PAPER CORP., and ) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
The Division of Administrative Hearings by its duly designated Hearing Officer, Sharyn L. Smith, conducted a formal hearing in the above-styled cause on July 2 and 3, 1980, in Palatka, Florida.
APPEARANCES
For Petitioner: Tim Keyser, Esquire (Pro Se) Post Office Box 92
Interlachen, Florida 32048
For Respondent: David C. Garrett, III, Esquire Hudson Pulp & Daryll Love, Esquire
Paper Corpora- Powell, Goldstein, Frazer & Murphy tion 1100 Citizens and Southern National
Bank Building
35 Broad Street, Northwest Atlanta, Georgia 30335
For Respondent: Silvia Morell Alderman, Esquire Department of Assistant General Counsel Environmental Department of Environmental Regulation Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
For Intervenor: David L. Girardin
Post Office Box 392
East Palatka, Florida 32031
The Petitioner, Tim Keyser and Intervenor, David L. Girardin have objected to the Department of Environmental Regulation's (hereafter Department) Notice of Intent to issue a variance from certain water quality standards to Respondent, Hudson Pulp and Paper Company (hereafter Hudson or Respondent). Petitioner and Intervenor oppose the issuance of the variance on the grounds that it will permit degradation of the quality of receiving waters, adversely affect fish and wildlife, create conditions favorable to a high density of a few species, exceed the receiving waters assimilative capacity and impair the public recreational
uses of state waterbodies. Additionally, Petitioner and Intervenor assert that there are numerous waste treatment technologies which may or may not be capable of enabling the Respondent to achieve compliance with water quality standards applicable to its waste water discharge.
The Respondent and the Department dispute these contentions and assert that Hudson is entitled to the variance pursuant to Section 403.201(1)(a) and (c), Florida Statutes because its inability to meet certain water quality standards is due to the unavailability, now or in the foreseeable future, of any technology capable of achieving compliance with existing requirements. Hudson and the Department also assert this if the variance is not granted, the paper processing plant operated by Hudson could lose its operating permit, thus resulting in great economic harm to the area.
Proposed Recommended Orders have been submitted by the parties and have been considered by the Hearing Officer. Those proposed findings not included in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence, or were considered immaterial to the results reached.
FINDINGS OF FACT
On May 4, 1979, the Department received from Hudson an Application for Variance from Rules 1704.244(1)(f), 1704.244(1)(h)(1), 1704.244(1)(i)(1) and 1704.4244(4), Florida Administrative Code. The request was for a period of twenty four months and was prompted by Hudsons alleged inability to meet the standards set forth in the rules at a secondary waste water treatment facility which is operated in conjunction with a pulp and paper plant in Palatka, Florida. The wastewater is discharged from the plant into Rice Creek and from the creek into the St. Johns River.
Hudson stated in its request for a variance that no technology exists, now or in the foreseeable future, which would enable Hudson to meet the rule standards. Hudson further stated that it is presently utilizing the best available technology economically feasible at its Palatka plant.
After reviewing the Application for Variance, the Department requested additional information concerning Hudson's application which involved:
Hudson's inability to meet applicable water quality standards within the 800 meter mixing zone set forth in Rule 1704.244(1)(f), Florida Administrative Code.
Hudson's inability to meet water quality standards within 10 percent of the total length of Rice Creek as required by Rule 1704.244(1)(h)(1), Florida Administrative Code.
Hudson's inability to meet a dissolved oxygen level of not less than 4 mg/1 as required by Rule 17-4.244(1)(i)(1), Florida Administrative Code. and
Hudson's inability to meet a minimum dissolved oxygen level of
1.5 mg/1 at any time or place.
Due to its alleged inability to meet the applicable standards, Hudson proposed that the zone of mixing be extended into the St. Johns River and that average and minimum dissolved oxygen levels be inapplicable in the extended mixing zone.
Hudson clarified its request on July 11, 1979, to include in the mixing zone that portion of Rice Creek between Hudson's point of discharge and Rice Creek's confluence with the St. Johns River and 2000 feet beyond the confluence into the river. Additionally, Hudson clarified its request for average and minimum dissolved oxygen levels 0.0 mg/1, respectively, within the modified mixing zone.
On August 24, 1979, the Department issued a Notice of Intent to approve the variance subject to the following conditions:
That the variance be in effect for a period of not ore than 24
months.
That Hudson study alternative discharge and monitoring systems
with details and scope of the studies to be approved prior to the effective date of the variance.
That Hudson utilize its treatment facilities to the maximum extent to minimize BOD5 loading into Rice Creek and maximize dissolved oxygen levels. Within two months of the effective date of the variance, Hudson is to provide the Department a report outlining how the company will meet this requirement.
That Hudson continue to apply new technology as it becomes available and conduct ongoing studies in this area and submit the same to the Department upon completion and
That Hudson continue to study, stress and utilize water reuse conservation techniques to reduce the amount of water consumed per ton of product produced.
Subsequently, the Department received from Hudson a technical program for continued water quality studies at Rice Creek. Following further communications and discussions, Hudson and the Department agreed on a six month study to replace the two month requirement concerning dissolved oxygen levels in the effluent. Eventually, the Respondents agreed on a study to encompass conditions 5(b) and (c) set forth, supra.
Following receipt of a letter to the Department from the Florida Game and Fresh Water Fish Commission, Hudson agreed to incorporate into its study the issues raised by that agency.
At the formal hearing the Petitioner and Intervenor, an adjoining property owner, pressed their objections to the Department's intent to issue a variance to Hudson.
Hudson demonstrated that its wastewater treatment system at its Palatka facility utilizes the most effective and technologically advanced treatment system available. Hudson has made a major commitment towards upgrading its treatment facilities as new and practicable treatment technologies become available.
Hudson's Palatka plant has the highest quality of effluent of any paper mill operating in the state.
Hudson is unable to meet the present standards for discharge due primarily to the classification of Rice Creek as a Class III water body.
Although classified as a Class III water, Rice Creek, even in the absence of the Hudson discharge, would be unable to meet the standards of the Florida Administrative Code for such waters at all places and times.
There is no practicable technology currently available which would enable Hudson to meet Class III water standards.
Hudson's annual average for discharge of Biochemical Oxygen Demand ("BOD") and Total Suspended Solids ("TSS") exceeded the Best Available Technology ("BAT") standard proposed by the Federal Environmental Protection Agency by 47% and 22% respectively. Hudson's permit levels only require the standards to be exceeded by 20% and 19%, respectively.
Despite Hudson's good faith efforts to meet water quality standards, it is not presently possible to meet Class III criteria for discharge into the St. Johns River. Accordingly, a variance is required from the mixing zone and dissolved oxygen provisions of Chapter 17-4 Florida Administrative Code, if Hudson is to continue in operation.
In the intended mixing zone proposed by Hudson, dissolved oxygen levels of 0.0 mg/1 could be expected at certain times of the year and under certain conditions. The variance does not authorize Hudson to discharge at levels in excess of its present permits.
If the Palatka plant were to close, Putnam County and a surrounding area would experience severe economic harm due to the tremendous impact the plant has on the local economy.
The water quality of the St. Johns River is not significantly affected by the discharge into Rice Creek.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this proceeding.
Section 403.201, Florida Statutes provides:
403.201 Variances.--
Upon application the department in its discretion may grant a variance from the provisions of this act or the rules and regulations adopted pursuant hereto. Variances and renewals thereof may be granted for any one of the following reasons:
There is no practicable means known or available for the adequate control of the pollution involved.
Compliance with the particular require- ment or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time. A variance granted for this reason shall
prescribe a timetable for the taking of the measures required.
To relieve or prevent hardship of a
kind other than those provided for in paragraphs
and (b). Variances and renewals thereof granted under authority of this paragraph shall each be limited to a period of 24 months except that variances granted pursuant to part II may extend for the life of the permit or certification.
The department shall hold a hearing on each application for a variance.
The department may prescribe such time limits and other conditions to the granting of a variance as it shall deem appropriate. (e.s.)
Pursuant to Section 403.201(1)(A), the Department approved the variance subject to conditions.
The record in this case fully supports Hudson's and the Department's contention that there are "...no practicable means known or available for the adequate control of pollution involved" and that Hudson can not meet the criteria set forth in Rules 17-4.244(1)(f), 17-4.244(1)(h)(1), 17- 4.244(1)(i)(1), and 17-4.244(4), Florida Administrative Code.
There is therefore, an adequate basis for the granting of the variance with conditions as proposed by the Department.
It is therefore RECOMMENDED that:
Hudson be granted a variance request from Rules 1704.244(1)(f), 17- 4.244(1)(h)(1), 17-4.244(1)(i))1) and 17-4.244(4), Florida Administrative Code for a period of twenty four months and that Hudson be granted an extended mixing zone to include that portion of Rice Creek between Petitioner's point of discharge and Rice Creek's confluence with the St. Johns River and further extended for a distance (radius) of 2,000 feet into the St. Johns River with an average and minimum dissolved oxygen concentration within the extended mixing zone changed to 0.0 mg/1 respectively.
This variance be subject to the following conditions:
Hudson complete the study plan as modified and described in Department's Exhibits 1D, 1E, 1G and 1P.
Hudson shall continue to apply new technology (such as best available technology or best conventional technology) as it is devised. Studies shall be ongoing to that end and shall be submitted to the Department when completed.
Hudson shall continue to study, stress, and utilize water reuse and conservation techniques so as to reduce the amount of water consumed per ton of product produced. Phase two of Petitioner's water reuse program, which calls for recycling the white water on Kraft paper machines and on one tissue machine shall be completed during the second quarter of 1981, assuming reasonable delivery dates for the necessary equipment.
Hudson shall comply with the Bod5 effluent standard of 7,000 pounds per day for the 24 hour maximum and 3,500 pounds per day for the 30-day average.
DONE and ORDERED this 7th day of November, 1980, in Tallahassee, Florida.
SHARYN L. SMITH
Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1980.
COPIES FURNISHED:
David C. Garrett, III, Esquire Daryll Love, Esquire
Powell, Goldstein, Frazer & Murphy 1100 Citizens and Southern National
Bank Building
35 Broad Street, N.W. Atlanta, Georgia 30335
Silvia Morell Alderman, Esquire Assistant General Counsel
State of Florida, Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Tim Keyser, Esquire Post Office Box 92
Interlachen, Florida 32048
David L. Girardin Post Office Box 392
East Palatka, Florida 32031
================================================================= AGENCY FINAL ORDER
=================================================================
BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
TIM KEYSER,
Petitioner,
v. CASE NO. 80-165
HUDSON PULP AND PAPER CORP.,
and STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/
FINAL ORDER
On November 7, 1980, the duly appointed Hearing Officer in the above styled matter completed and submitted to the Department and all parties a Recommended Order. A copy of that Order is attached hereto as Exhibit I. Pursuant to Section 1701.68, Florida Administrative Code, and Section 120.57(1)(b)8, Florida Statutes, the parties were allowed ten (10) days in which to submit written exceptions to the Recommended Order. Neither the Petitioner nor the Intervenor or Respondents submitted exceptions. The Recommended Order thereafter came before me as head of the Department for final agency action.
A review of the Hearing Officer's Recommended Order, indicates that a variance would be appropriate in this case. However, upon reviewing her recommendations and the record, it appears that although she has referenced a study plan, as modified, she inadvertently failed to identify Department Exhibit 1-I as part of the modified study plan which is condition "a" of the Recommended Order.
This modification was made by Hudson Pulp and Paper Corp. ("Hudson") at the request of the Department prior to the hearing and forms a part of the study plan, as modified. See; Proposed Recommended Order (Variance) filed by the Department and Proposed Finding of Fact Number 7 filed by Hudson.
Having considered the Recommended Order submitted herein and being otherwise fully advised, it is therefore,
ORDERED that the Hearing Officer's Recommended Order is hereby adopted in toto as the final action of this agency with the modification that Department Exhibit 1-I shall be included as part of the study plan referenced in condition "a" of the Recommended Order. Accordingly, the variance is granted for a period of 24 months with the conditions detailed in page 8 of the Recommended Order and Department Exhibit 1-I.
DONE AND ENTERED this 19th day of December, 1980, 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
FILING AND ACKNOWLEDGMENT
FILED, on this date, pursuant to s. 120.52(9), Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.
Linda Beford, Clerk 12/22/80
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing Final Order has been furnished by United States Mail to David C. Garrett, III, Esquire, and Daryll Love, Esquire, Powell, Goldstein, Frazer & Murphy, 110 Citizens and Southern National Bank Building, 35 Broad Street, N.W., Atlanta, Georgia 30335; Tim Keyser, Esquire, Post Office Box 92, Interlachen, Florida 32048; David L. Girardin, Post Office Box 392, East Palatka, Florida 32031; and to Sharyn L. Smith, Hearing Officer, Division of Administrative Hearings, Room 101, Collins Building, Tallahassee, Florida 32301, this 22nd day of December, 1980.
SILVIA MORELL ALDERMAN
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: 80-000165
Orders for Case No: 80-000165
| Issue Date |
Document |
Summary |
|
Dec. 19, 1980 |
Agency Final Order
|
|
|
Nov. 07, 1980 |
Recommended Order
|
Respondent seeks twenty-four month variance from effluent rules for its plants. Economic harm to area if not granted. Grant variance with conditions.
|
