STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GEORGE H. HODGES, JR., )
)
Petitioner, )
)
vs. ) DOAH CASE NO. 86-0365
) OGC FILE NO. 86-0078 JACKSONVILLE SHIPYARDS, INC. )
and STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Notice was provided, and a formal hearing was held as envisioned by Section 120.57(1), Florida Statutes. Charles C. Adams, Hearing Officer, State of Florida, Division of Administrative Hearings conducted the hearing. The dates of the hearing were July 30 and 31, 1986. The place of hearing was Jacksonville, Florida. A transcript was ordered, and upon agreement of the parties, proposed findings of fact and conclusions of law were submitted on September 25, 1986. The Department adopted the proposed findings of fact and conclusions of law submitted by Jacksonville Shipyards as its position. These proposals have been considered prior to the entry of the recommended order. To the extent that the proposals have not been incorporated into the fact finding set forth in the recommended order, they are distinguished in an appendix attached to this recommended order.
APPEARANCES
Foe Petitioner: Kenneth G. Oertel, Esquire
M. Christopher Bryant, Esquire OERTEL & HOFFMAN, P.A.
Post Office Box 6507 Tallahassee, Florida 32314-6507
For Respondent, Thomas M. Baumer, Esquire Jacksonville Deborah D. Barton, Esq.
Shipyards: GALLAGHER, BAUMER, MIKALS,
BRADFORD, CANNON & WALTERS, P.A.
2000 Independent Square
Jacksonville, Florida 32202
For Respondent, Bradford L. Thomas, Esquire Department of Assistant General Counsel Environmental 2600 Blair Stone Road Regulation: Tallahassee, Florida 32301
ISSUES
Respondent Jacksonville Shipyards, Inc. (JSI) filed a permit application with the State of Florida, Department of Environmental Regulation, (DER), for permission to conduct maintenance dredging in a basin associated with its shipyard operation. This permit application was made in accordance with Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code. In the face of DER's statement of intent to grant this permit, George H. Hodges, Jr., (Petitioner), has petitioned in protest. Therefore, the issues to be considered in this dispute concern the entitlement of JSI to the grant of an environmental permit for maintenance dredging of its shipyard basin.
FINDINGS OF FACT
DER is an agency of the State of Florida charged with the environmental protection of waters within Florida. Its authority includes regulatory powers announced in Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code. Certain activities involving state waters require permission from DER before they be lawfully undertaken. Among those activities are dredge projects such as contemplated by JSI in its pending request to be allowed to maintenance dredge as much as 66,000 cubic yards of material per year from its shipyard basin located in Jacksonville, Duval County, Florida. This is an undertaking which is envisioned by Chapter 403, Florida Statutes, related to the permit responsibility of DER. It is specifically addressed by Rule 17-4.28, Florida Administrative Code, in which is found the statement of permit requirements for dredge and fill activities.
JSI, the applicant, operates a facility known as Bellinger Shipyard, which is engaged in the repair and maintenance of commercial and naval vessels. This enterprise includes the drydocking of vessels upon which repairs are effected, through the use of several drydock chambers in shipyard basin. In the course of the maintenance, a technique known as "gritblasting" is employed. The purpose of this "gritblasting" is to clean the ships in anticipation of repainting. On occasion the "gritblasting" would remove all coats of paint down to the metal finish of the ship. The paints being removed contain antifouling and anticorrosive materials. Those materials have, among other properties, the ability to repel marine organisms, causing their mortality. The "gritblasting" process utilizes a material known as "black beauty." This is a waste product from firing power plant boilers and it contains iron, silica, aluminum, titanium, magnesium, lime, penta oxide (P2O5), sodium oxide, sulfur trioxide and potassium oxide. The "black beauty" is applied through the use of a pressurized system which forces the material onto the treated surface under pressure of 70 to 85 pounds per square inch. After the preparation is made, vessels under repair are repainted, and similar paint with antifouling and anticorrosive properties is reapplied. During the "gritblasting" process, dust is generated and a portion of that material finds its way into the water within the basin. Other particles being removed drop to the deck surface of the drydock.
When paint is reapplied to the surface of a vessel undergoing repair, it is given the opportunity to dry and the vessel is then refloated and removed from the drydock. To do this, the drydock itself is submerged. When the vessel has exited the drydock facility, the drydock resurfaces and is allowed to dry out. The material which has been removed from the surface of the repaired vessel is then shoveled into containers and transported to an offsite sanitary landfill for disposal. This material removed includes the "gritblasting" compound and paint which has been stripped from the surface of the vessel. When the drydock is submerged following vessel servicing, the inference can be drawn
that a certain amount of the materials on the drydock deck surface will be introduced into the water within the basic before the drydock is resurfaced.
The arrangement for refloating the vessel is the reverse of the technique employed in lifting the vessel out of the water for maintenance. When the vessel is brought in for service, it is guided into a submerged drydock. Water is then pumped out of the hollow drydock walls and deck to raise the vessel out of the water, allowing access to the vessel, which is completely above the water surface, as is the drydock work deck.
The basin in which the business activities of JSI take place is located on the western shore of the Intercoastal Waterway. The Waterway and basin are part of an estuarine system, as these water bodies are tidally influenced. The basin and the Intercoastal Waterway constitute Class III waters of Florida.
The configuration of the basin is as found in JSI Exhibit 16, an aerial photograph of the site. Moving from east to west within the basin, it is approximately one thousand feet from the Intercoastal Waterway to the back of the basin in its western-most extremity. In the back area of the basin the north- south axis is 250 feet. The interface between the basin and the Intercoastal Waterway on the eastern reach north-south axis is approximately 625 feet. There are no obstructions to the confluence of the Intercoastal Waterway and the eastern side of the repair basin. The southern-most reach of the basin is approximately 350 feet in length running east to west. On the eastern side of the basin there is a pier area which is roughly 360 feet north-south by 60 feet east-west. As described before, the pier is not a solid structure extending to the bottom of the water. Thus, water can be exchanged between the basin and the Intercoastal Waterway beneath the pier.
JSI had acquired the Bellinger Shipyard in 1974. At that time environmental permits had been issued allowing for the maintenance dredging of the basin. These permits were valid through 1975. In 1975, JSI obtained a dredge and fill permit from the Florida Board of Trustees of the Internal Improvement Trust Fund, as well as a dredge and fill permit from the United States Corps of Engineers. These permits were for a ten-year period. They allowed maintenance dredging in the amount of 66,000 cubic yards per annum and for the disposal of the dredged material in an EPA-approved offshore site. In 1980 DER confirmed the dredge and fill permit that had been obtained from the Florida Board of Trustees. This permit by DER required JSI to conduct monitoring of turbidity during dredging, but did not require employment of turbidity screens. In 1979 the Army Corps had required JSI to conduct bioassay analysis in furtherance of the federal dredge and fill permit. In the face of the results obtained in that bioassay analysis, the Army Corps continued the dredge and fill permit to JSI dating from August 14, 1980. A subsequent extension of the federal permit was given through August 14, 1986. Contemporaneous with the present permit application before DER, JSI has requested further permission from the Army Corps related to the ability to excavate as much as 66,000 cubic yards of material on an annual basis.
JSI has not been cited by any regulatory agency related to water quality violations associated with its dredging activity.
The present DER permit application is for renewal of the 1980 Permit No. 16-21380 and is being processed under the DER File No. 161071139. This application for permit renewal was submitted on July 16, 1985. The application requests permission to maintenance dredge for a period of ten years. If granted, it is the intention of the applicant to use a closed clam shell bucket
to excavate the material in the basin. This choice is in furtherance of the suggestion of DER and is a departure from the applicant's initial intention to use an open bucket to excavate. JSI also intends to employ turbidity curtains during the dredge activities.
The applicant intends to transport the dredged material to the aforementioned EPA disposal site which is at sea. In doing so, a hopper barge is propelled by a towing vessel. Both the barge and towing vessel are inspected and certified by the United States Coast Guard. The crews involved in the transport of the material are qualified and licensed. In the past, transport of the material has been done under fair weather and smooth sea conditions, and it is intended that the transportation be done in that same setting if the permit is granted. The barge would not be loaded fully, thereby minimizing spillage. This was the arrangement in the past. The United States Coast Guard will be apprised of the departure time of the voyage in transport of the material, certain activities within that transport and upon return. The hopper barge has a bottom dump which is closed during transport and is opened at the bottom in disposing the dredge material.
After satisfying DER about its proposal, JSI was informed that DER intended to grant the dredge permit requested. When Petitioner, George H. Hodges, Jr., the owner of real property adjacent to the site of the project, learned of the stated intention to grant the maintenance dredging permit, he offered a timely petition in opposition to the proposed agency action. This property of Petitioner is in Jacksonville, Duval County, Florida. It is located north of the JSI property at issue. Petitioner's real property is connected to the Intercoastal Waterway. Petitioner has filed this action in opposition to the grant of the permit upon the expressed belief that the dredging activity will cause pollution at his property.
In particular, it is JSI's intention at various times in the calendar year to do maintenance dredging in the entire basin. In addition to using a closed clam shell bucket, a system of turbidity barriers or curtains will be employed in segmented dredge areas. Those several locations within the basin which are cordoned off with the turbidity curtains are as depicted in JSI's Exhibit 9 admitted into evidence. The design maintenance depths for the dredging project are set forth in JSI's Exhibit 4 admitted into evidence. They vary from -17 to -37.5 feet, with the greatest depth being contemplated under drydock number 1 in the northwestern corner of the basin. Near the Intercoastal Waterways the depth sought is -17 feet, transitioning to -21.5 feet moving toward the back of the basin at the western extreme and outside of the area dredged beneath drydock number 1. The depths sought under drydock numbers 2 and
3 are -26.5 feet and -20 feet respectively. These desired elevations correspond to conditions at mean low water.
The tidal range in the Intercoastal Waterway adjacent to the basin, which would promote an influence in the basin proper, is in the neighborhood of 4-foot intervals, with two tidal cycles a day. This would mean, as example, that at the high tide range, the shallowest design depths for dredging of -17 feet become -21 feet in the transition from mean low water to mean high water. Those 4-foot variations would pertain to the other design depths contemplated in the dredging as described in the preceding paragraph as well.
The turbidity barriers contemplated for use will extend from the surface through the water column to depths near the bottom. See JSI Exhibits 4 and 9.
It is desirable, according to Dr. Gregory Powell, witness for JSI, a reliable expert in describing the effectiveness and use of turbidity curtains, to have those curtains extend to an area just above the bottom. Dr. Powell's education includes a Masters Degree in coastal and oceanographic engineering and a Ph.D. Degree in engineering mechanics, with emphasis on coastal and oceanographic engineering. In consideration of his remarks, under the influence of high tide there could be as much as a 4 foot gap between the curtain and the bottom.
Powell and other experts who offered testimony agreed that turbidity screens can have effectiveness in areas of low current velocity, assuming the proper installation, maintenance and extension to a location near the bottom of the water body. If mismanaged, turbidity screens are not effective in controlling turbidity. Moreover, they are less effective in areas where significant current velocities are experienced. This would include the circumstance in which a foot and a half or more per second of flow was being experienced, according to Dr. Powell, whose opinion is accepted on this point. He also indicated that the quiescent areas in the basin, toward the back of the basin or western dimension of the basin, would show a flow regime in a rate of one centimeter per second. This expression is credited. Although, as described by Dr. Powell, the currents in the Intercoastal Waterway are moving at a rate approximating nine feet per second on ebb time at the bridge located on the Intercoastal Waterway to the south of the project site, these current velocities are not expected in the area where the dredging is occurring. Dr. Powell is correct in this assessment. As he describes, and in acceptance of that testimony, eddies from the current from the Intercoastal Waterway at peak flood tide could come into the basin and temporarily show velocities of one foot per second; however, these velocities are within the acceptable range of performance of the turbidity barrier. Dr. Powell's conclusion that wind would have no significant effect on the current velocity, given the depth of this basin, is also accepted. The remaining flow regime in the basin is not found to be a detriment to the function of the turbidity barriers.
The use of turbidity curtains in this project is not found to be a "placebo" to placate DER as suggested by Erik J. Olson, engineering expert who testified in behalf of the Petitioner
The monitoring that is intended in the course of the dredging activities would call for examination of background turbidity levels at three sites in the Intercoastal Waterway prior to commencing of dredging and twice daily at each of these sites during dredging. Should a violation of state water quality standards for turbidity be detected, dredging will cease until the problem with turbidity can be rectified. To provide ongoing assurances of compliance with water quality standards, JSI will analyze the sediment in the basin for the parameters of cadmium, copper, aluminum, lead, mercury, oil and grease every two years.
Dr. Powell, expert in engineering and recognized as an expert in the matter of transport of the resuspended sediment associated with the dredging, as well as David Bickner, the project review specialist for DER, believe that the use of the closed clam shell bucket technique and employment of siltation screens or barriers, together with turbidity monitoring, will effectively protect against turbidity violations in the Intercoastal Waterway adjacent to the basin. This opinion is accepted. Bickner brings to his employment a Bachelor of Science degree in biology and a Master of Science degree in ecology.
Bickner identified the principal concern of DER related to this project as the possibility of release of resuspended sediments into the Intercoastal Waterway. With the advent of the techniques described in the previous paragraph, only minimal changes in background conditions related to turbidity are expected. Although there would be turbidity violations within the confines of the areas where the dredging occurs, the principal influence of that turbidity will be confined in those regions. This speaks to dredge areas I, 2 and 3. According to Bickner, whose opinion is accepted, the turbidity changes within the dredge areas in relationship to background conditions do not require a mixing zone permit, nor do they constitute a basis for denial of the permit.
As alluded to before, and as described by Dr. Powell, the basic nature of the basin in question is one of quiescent conditions with low current velocity. He points out that the layout of the basin is such that it is a sediment trap allowing the deposit of silt, in particular in the deeper sections of the basin near the western side. The greatest influence by resuspension of sediment in the dredging activities can be expected in the back portions of the basin and it is in this area that the silt barrier can be expected to be most efficient, based upon Powell's remarks.
Dr. Powell indicated that there is the expectation of increased efficiency in turbidity control when a closed clam shell bucket is used, as opposed to the open style of clam shell bucket. Those efficiencies range from
30 to 70 per cent. There is some risk of increased turbidity near the bottom of the water column in the use of a closed clam shell bucket, and for that reason the applicant should monitor the activities of the operator of the excavation machinery to guard against inordinate disturbance of the area being excavated. On balance, the closed clam shell bucket is a superior technique to the open style of clam shell bucket excavation when those alternatives are compared.
As Dr. Powell explained, the segmentation of the dredge area allows the resuspended sediment to be confined in more discrete circumstances and to be controlled. The location of the silt barriers behind the pier structure guard against the effects of eddying.
The silt barriers can be properly anchored and will not be unduly influenced by current velocity.
Dr. Powell believes that the use of silt barriers, taking into account a low velocity of current in the basin, and the proper deployment of the siltation screen could bring about a reduction of the resuspended solids by 80 to 90 per cent on the outside of the barrier. To calculate the influence or the environmental significance of that remaining 10 to 20 per cent of resuspended solids at the Intercoastal Waterway, Dr. Powell testified that the suspended load behind the silt curtain resulting from the dredging is expected to average from 100 milligrams per liter to a peak amount of 500 milligrams per liter. He believes that, depending on which methods of calculation is used, the dilution factor in the Intercoastal Waterway ranges from 330:1 to 600:1. In using an environmentally conservative assessment, that is 80 per cent effectiveness of the silt curtain with a 330:1 ratio, Powell calculated that the release of resuspended materials into the Intercoastal Waterway would be approximately .3 to 1.5 milligrams per liter. This translates to less than 1 NTU against background conditions. This result would not exceed the 29 NTU limit against background that is described as the standard for turbidity control. Dr. Powell's opinion of turbidity results based upon the dredge activity is accepted.
There is exchange of water between the basin and the Intercoastal Waterway and to accommodate this influence, the turbidity curtains would be placed in such a fashion that they would not compete with the ebb and flow of the tide. Dr. Powell's assessment of the circumstance in describing the effectiveness of turbidity barriers takes into account the tidal conditions and the inappropriateness of trying to have the silt curtains prohibit the flow conditions during these tidal changes.
In order to promote maximum effectiveness of the turbidity barriers during the entire course of excavation of materials, the length of, the silt screen must be adjusted as desired elevations are approached.
Erik J. Olson is an expert in civil engineering with an emphasis on hydraulics and the holder of a Masters Degree in coastal and oceanographic engineering. As alluded to before, he questions the validity of the use of siltation barriers as an effective protection against the implications of turbidity. He properly points out that the curtains will not extend to the region of the interface of the basin and the water column at all times. He describes the exchange of water between the basin and the Intercoastal Waterway, to include the unrestricted sediment transport beneath the turbidity curtain.
He believes that wind can cause changes in current velocity as great as .2 foot per second, activities within the basin an additional .3 foot per second, and eddying .3 foot per second. All of these taken together do not exceed the range of effective response of the turbidity barriers. On balance, Olson's criticism of the benefit of turbidity curtains is unconvincing.
Arlynn Quinton White, Jr., who holds a Bachelor of Science Degree, a Master of Science Degree in biology and a Ph.D. in matters related to marine biology, offered his testimony in support of Petitioner. He believes that as much as 2 to 3 per cent of the resuspended sediment related to the dredging activities would reach the Intercoastal Waterway under the best of conditions. It is difficult to translate that testimony into a measurement of changes in turbidity levels against ambient conditions in the Intercoastal Waterway. In any event, as already indicated, the changes in turbidity levels are not expected to exceed 29 NTU against background.
It is evident that the turbidity curtains are necessary and their proper use must be assured to protect against problems associated with turbidity and the implications of the constituents of the resuspended particulate matter related to possible toxicity. Therefore, the close monitoring suggested in the statement of intent to grant the dredge permit is viable. Another matter associated with the implications of turbidity pertains to the fact that when the dredge material has been resuspended, as much as two days could pass before the basin returns to background conditions, given the high content of silt with its attached metals. This becomes significant given the uncertainty of the location of the dredge equipment during the course of excavation, i.e., inside the barrier or outside the barrier. Final choice about the placement of the dredge equipment will have to be made at the time of the excavation. Should the dredge equipment be inside of the cordoned area while excavation is occurring, it would be necessary to allow turbidity conditions to achieve background levels before opening up the barrier for the exit of the hopper barge which contains the excavated material. Otherwise, the estimates as to the influence of the dredging activities in the Intercoastal Waterway are unduly optimistic. Likewise, if the excavation platform is placed outside of the work site, that is to say, on the outside of the siltation curtain, extreme caution must be used to avoid spillage of the excavated material when being loaded onto the hopper barge. The occasions in which the excavation is being made from this side of
the barrier should be minimized. These safeguards are important because any changes in sediment loading within the Intercoastal Waterway promote an influence in the area immediately adjacent to the basin and other sites within the Intercoastal Waterway as well.
The subject of the use of a hydraulic dredge as an alternative to excavation by use of a closed clam shell bucket was examined in remarks by the witnesses appearing at hearing. Olson believes that there are hydraulic dredges which can achieve the design depth contemplated by the project and which equipment could fit inside the basin area. This is contrary to the opinion of witnesses for the applicant and DER who do not believe that the hydraulic dredging equipment which would be necessary to achieve the design depths would fit into the basin area. On balance, the record does not establish that such equipment with the appropriate capability and size does exist. More importantly, the proposed method of excavation is environmentally acceptable when examined in the context of the permit sought in this case. Finally, it was not essential for the applicant to make a detailed investigation of availability of hydraulic dredging equipment and it is not determined that failure to make this investigation warrants the denial of the requested permit. Although an hydraulic dredge is more desirable from the standpoint that it causes less turbidity through resuspension of sediments, it is not the only plausible method of excavation in this instance.
Raymond D. Schulze testified in behalf of JSI. He holds a Bachelor of Science Degree and a Master of Science Degree in environmental engineering sciences. In particular, he established the fact that the amount of resuspended solids that would be introduced into the Intercoastal Waterway associated with the dredging activity would not result in the smothering of organisms or to clogging of gills of fish.
In addition to the possible problems with turbidity, there is the additional issue of violation of water quality standards in the several parameters associated with concentrations of metals in the water column within the basin and in the sediments or related parameters such as dissolved oxygen and biological integrity. Having considered the testimony, the facts do not point to water quality violations for any parameters occurring in the Intercoastal Waterway as a result of the dredging. To arrive at this factual impression, the testimony of Dr. Pollman and Schulze is relied upon.
Water quality sampling done by JSI in locations within the basin and in the Intercoastal Waterway, that by Dr. Pollman and Schulze, supports their impression of the acceptability of the dredge activities. This water quality data was admitted as JSI's Exhibit 18. Additionally, the field conditions existing at the time of testing, to include water temperature, weather conditions, tidal cycle, ph and dissolved oxygen were also made known. This water quality data and other information examined by these witnesses points to the fact that no increases in concentrations of metals are occurring within the Intercoastal Waterway as a result of the business activities of the applicant, nor are they to be expected while dredging operations are under way.
Dr. Pollman correctly identifies the fact that there will not be significant degradation of water quality, above DER's minimum standards, related to the Intercoastal Waterway based upon the dredging activities within the basin, dealing with the water quality parameters of mercury, zinc, cadmium, chromium, lead, aluminum, iron and copper, substances which are within the basin. Dr. Pollman also examined sediment data collected by DER, and that data tended to confirm his assessment of the influences of the dredging activity
related to these parameters. Dr. Pollman does not believe that metal concentrations contained in the sediment of the basin are leaching into the water column in quantities sufficient to cause violation of water quality standards. His opinion is accepted. Pollman had collected water quality samples in the two locations where the greatest siltation rate was expected and as a consequence the greatest concentration of metals would be expected. The water quality samples were taken at several depths to reach an opinion as to the matter of leaching of metals into the water column and the possibility of those metals dissolving in the water column. If leaching had been occurring, a concentration of metals expressed as a gradient would be expected. The greatest concentration in this instance would be near the sediment interface with the water column. No such gradation was detected and the idea of leaching was ruled out.
Bickner's testimony established that testing for the exact amount of iron present at the dredge site was not required, given the nature of the iron source being introduced into the water within the basin. Bickner did not find that type of iron to be toxic. As stated before, Pollman agrees that no violation of state water quality standards as a result of the presence of iron associated with the maintenance dredging should be expected.
There is some data which shows water quality violation for mercury in the basin and the Intercoastal Waterway. Subsequent water samples collected by Schulze in the westerly portion of the basis did not show detectable levels of mercury. Moreover, data taken by Pollman and Schulze and compared with the DER sediment data shows that the concentration levels of mercury are greater in the Intercoastal Waterway than in the basin, thereby suggesting that there is no concentration gradient for mercury which would lead to the belief that the basin contributes to the amount of mercury found in the Intercoastal Waterway, nor is the mercury believed to be leaching into the water column in the basin. The explanation of the differences in measurements of the amount of mercury in the basin, depending upon the point in time at which analysis was made, may be attributable to a natural phenomenon, given numerous sources of mercury within the environment. Whatever the explanation of these changes, Dr. Pollman does not believe that the release of mercury associated with the resuspended sediments that may find their way into the Intercoastal Waterway would show a violation of the state water quality standard for mercury in that water body and his opinion is credited.
Data collected by Pollman and Schulze did not show water quality violations for aluminum and the DER test data described before indicated aluminum levels lower in the basin than in the Intercoastal Waterway. Some data collected by Technical Services, Inc., an environmental consulting firm in Jacksonville, Florida, which was reviewed by Pollman, Schulze, and Bickner showed a substantial violation of the water quality standard related to aluminum in sediment sampling that was done. The origin of that amount of aluminum found on that occasion was not clear. It is possible, as described by Bickner, Pollman and Schulze, that the level detected In the Technical Service report could have occurred based upon natural phenomena such as storm water runoff from uplands. Bickner also questioned the findings of Technical Service and felt like the determination might be influenced by some intervening circumstance which would promote the need for re-analyzing that parameter. Whatever the explanation of the findings in the Technical Service report, it does not point to any water quality violation of the standard related to aluminum based upon the dredging activities, given the limited amount of total suspended solids that would be introduced into the Intercoastal Waterway.
Schulze, in his assessment of the implications of metal concentrations in the sediment transported to the Intercoastal Waterway, did not find them to cause concern about toxicity to marine life in the Intercoastal Waterway. This point of view is accepted. In trying to understand the implications of metal concentrations, Schulze believed that the biologically available fractions of those metals in the sediment is not very high, and when the dilution of the sediments which occurs in these circumstances is examined, no toxicity is expected. Moreover, as Dr. Pollman described related to the parameter aluminum, it is not a toxic material at the ph levels found in the basin, and the resuspension during dredging will not cause it to gain toxicity. This opinion of Dr. Pollman is supported by Bickner and Schulze.
The opinion of Dr. White that the amount of aluminum, copper and zinc within the sediment found in the basin would eventuate in the violation of water quality standards for those parameters when introduced into the Intercoastal Waterway is rejected.
The information available to Pollman, Schulze and Bickner which describes their opinion about water quality standards was sufficient to reach an opinion, the position of Petitioner's witness Sanford Young, holder of a Bachelor of Science Degree in civil engineering and a Master of Science Degree in zoology notwithstanding.
As Bickner indicated in his testimony, it is essential that an applicant give reasonable assurances of compliance with all parameters listed in Chapter 17-3, Florida Administrative Code, dealing with water quality. However, this does not mean that testing must be done for each parameter set forth in that chapter. Reasonable assurance has been given that water quality parameters as identified in that chapter will not be violated.
Bickner indicates the biological integrity standard is not one of concern in that given the nature of business operations within the basin, there is no expectation of a stable benthic community which might be disturbed by dredging. From the remarks of Schulze, there is no prospect of danger to benthic communities within the Intercoastal Waterway. These impressions by Bickner and Schulze are accepted.
Under the facts of the case, the failure of the DER permit appraisers to discover benthic organisms in the sample grabbed at the site is not unexpected. There is also some question about whether that sample is representative of the circumstance at the site, given the limited sampling.
On the topic of normalization of the DER data which was described in the course of the hearing and is identified by Dr. Pollman, the value of that information is seen as establishing the relative quantities of certain metals within the basin as compared with other sites throughout the Intercoastal Waterway. Twenty-one different locations were involved in this analysis. Concentration ratios using aluminum to normalize the data are as reflected in JSI's Exhibit 17 admitted into evidence. The significance of this information as it grossly describes whether the basin routinely contributes to increases in the amounts of these metals within the Intercoastal Waterway. Overall, basin activities are not shown to have promoted such an outcome. This normalization comparison does not address the issue of site specific water quality violations; however, no such violations are expected associated with the dredging activities within the basin as it relates to violations in the adjacent Intercoastal Waterway.
Schulze had made sampling related to dissolved oxygen within the basin and the Intercoastal Waterway. As Schulze describes, the levels of dissolved oxygen seem to be at their lowest point just prior to the dawn hours. Sampling which he did was done at 5:00 a.m. in order to obtain the lowest dissolved oxygen readings. Three sites were sampled within the basin and an additional site was sampled in the Intercoastal Waterway. Readings were taken at varying depths at each site to gain an impression of the overall water column. The mean reading for the circumstance was in excess of the required range for state water quality, that is 4.0 per million. Having considered the evidence, no problems with dissolved oxygen are expected in that deficit contribution is in the range of .1 milligram per liter, per Pollman.
In addition, Dr. Powell, through modeling, examined the implications of long-term dredging activities on the topic of dissolved oxygen. He employed field data gathered by Schulze in this assessment. This modeling established that decreases in dissolved oxygen levels would range from .1 to .15 milligrams per liter. Given the average of 4.5 parts per million oxygen in the basin at present, the incremental decreases in dissolved oxygen levels related to the dredging would not pose a problems with state water quality standards for dissolved oxygen other than short-term effects in the immediate vicinity of the dredge area, which is an acceptable deviation.
As the Petitioner urges in its fact proposal, a 1983 report of Technical Services, Inc., JSI Exhibit 4, and a 1985 report of that firm, JSI Exhibit 7, were made available as part of the application. Officials within Technical Services, Inc. did not appear at the hearing and offer testimony related to the specific findings found in those reports. This information was used by the experts who did testify on behalf of the applicant, in particular Dr. Pollman, as data to question, his assumptions made about the implications of the project in terms of water quality concerns. Pollman also utilized DER data taken from a source known as Storette, and this pertains to the 21 sampling stations involved in the preparation of JSI Exhibit 17, the graphing document related to concentrations of various metals. Again, this was in furtherance of the basic underlying opinion which Pollman had about the project. The Storette data as such was not offered into evidence. Witnesses for the Petitioner, namely Olson and White, were aware of the two reports of Technical Services, Inc. and the use of the DER Storette data and offered their criticism of the project taking into account this information.
Petitioner points out that there is no indication as to how far below the sediment/water interface the Technical Services, Inc., and DER sediment samples related to reports of the consultant and the Storette information of DER were extracted. Therefore, it only reflected one portion of the sediment at a depth of extraction. A more complete understanding of the sediment characteristics would have been shown through a core sample, especially in the area to be dredged, but that understanding was not essential.
The suggestion by the Petitioner that it was inappropriate to normalize data for purposes of describing the relative concentrations of the metals parameters is not accepted. The preparation of JSI's Exhibit 17 does not point to abnormally high amounts of aluminum, such that the use of aluminum as a known commodity in carrying out the normalization would be contraindicated.
As identified by the petitioner in its proposal, sediment sizes within the strata found in the basin depicts higher percentage of silt and clay-size sediments in the back end of the basin with lesser amounts of the silt- and clay-size sediments in the southern reach of the basin and at the intersection
of the basin with the Intercoastal Waterway. The smaller the particles, such as silt and clay, will remain suspended for a longer period of time and have a tendency to promote bonding with heavy metal. Nonetheless, this information does not change the impression that the turbidity barriers will be effective.
The 1983 Technical Services, Inc., information related to the settling of resuspended sediment and similar information imparted in the 1985 report by that organization tend to confirm that approximately two days should be necessary to allow the area of excavation to return to background conditions related to turbidity. This is in corroboration of remarks by Dr. Powell. These time projections are not found to be inadequate when taking into account other factors such as tidal changes, boat traffic, other activities within the basin, wind and weather events.
As White described, the antifouling properties of the paint involved in the business activity of the applicant can be expected to adversely impact any larval forms of marine organisms when introduced into the basin. Nonetheless, this toxicity is not expected to pose a danger to marine organisms in the Intercoastal Waterway given the percentage of resuspended sediment that will escape capture by the sediment barriers and the dilution factor before introduction of those resuspended sediments into the Intercoastal Waterway.
Petitioner questions the acceptability of evidence of the findings set forth by E G & G Bionomics, a firm which performed an examination to determine existing diversity of benthic macroinvertebrates. Those results are reported in Petitioner's Exhibit 13, a 1980 report. They were not accepted as evidence of the specific findings within that report in that they were not the subject of discussion by persons who authored that report. The use was limited to corroboration of the opinion by Dr. Pollman and Schulze as to water quality considerations and they were not Crucial to their opinions. Moreover, it was not necessary for the applicant to perform a more recent bioassay in order to give reasonable assurance to DER concerning water quality matters or to establish the implications of the influence of contaminants within the sediment found in the basin related to benthic macroinvertebrates. The biological integrity of the basin area was at risk prior to the proposal for maintenance dredging. The relevant inquiry is the influence of the dredging activities on the biological integrity in the Intercoastal Waterway and those activities do not place organisms within the Intercoastal Waterway in peril.
Any synergistic aspects of metals which act as toxins, for example, the increase in the aggregate value of the toxicity of zinc and cadmium, compared to their individual implications as toxins, will not present problems with water quality in the Intercoastal Waterway.
Petitioner takes issue with the proposed disposition of the dredge material at an ocean site. While an appropriate upland disposal site would be preferred, it is not mandated. The approved EPA disposal site within federal jurisdiction is acceptable.
Petitioner in its fact proposals found at paragraphs 36-39 (incorporated by this reference) points out violations of water quality standards for cadmium, mercury, and aluminum, and other possible violations of the standard for mercury. This information does not cause a change of opinion about the acceptability of the project in terms of reasonable assurances.
There is no indication that oils and greases will present a problem related to water quality standards.
The project is not contrary to public interest in that: (a) the project will not adversely affect the public health, safety, welfare or the property of others; (b) the project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitat; (c) the project will not adversely affect navigation or the flow of water or cause harmful erosion of shoaling; (d) the project will not adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; (e) the project will be of a temporary nature; (f) the project will not adversely affect significant historical and archaeological resources under the provisions of s. 267.061; (g) the project is in no other way contrary to the public interest.
The purpose of this fact finding does not include the issue of whether there are ongoing violations of state water quality standards associated with the business activity of the applicant, that not being the subject of the hearing. In any event, the testimony of Dr. Pollman established that the operations of JSI are not causing water quality problems associated with the parameters of cadmium, copper, aluminum, mercury, lead, chromium, tin, zinc or iron related to the Intercoastal Waterway. The influences of the business activities associated with those parameters within the basin are not understood when the evidence presented is examined but are not found to be essential to the resolution of this dispute.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action as called for in Section 120.57(1), Florida Statutes.
Petitioner has established the necessary standing to challenge the statement of intent to grant the subject environmental permit.
Petitioner takes issue with the evidential admission of JSI Exhibits 4, 7 and 13 related to reports of consultants who did not appear at hearing. The record will reflect that these exhibits were not admitted for the truth or veracity of the information presented in the reports. Their utilization was in corroboration of opinions expressed by experts and are not subject to exclusion
as hearsay and were not utilized in a way which is inconsistent with the holding in King Motor Company v. Pollock, 409, So.2d 150 (Fla. 1st DCA 1982).
Furthermore, this use of the subject documents is found to be consistent with Sections 90.704 and .705, Florida Statutes. Those exhibits at issue need not be admissible as establishing the facts found therein to be utilized by the experts. Given the independent knowledge of experts who offered testimony, the use of these exhibits in the discussion cannot be seen as a self- serving attempt to gain admission of the facts set forth in the exhibits under the guise of the offer of opinions about the basic questions raised by this project. The experts had an independent understanding of the implications of the project and the exhibits in question were utilized to corroborate those assumptions. The focus of the exercise was not designed to establish the facts of the exhibits unrelated to the independent knowledge held by the experts. This perception is not believed at odds with: Braddock v. School Board of Nassau County, 455 So.2d
394 (Fla. 1st DCA 1984); Cromarty v. Ford Motor Company, 308 So.2d 159 (Fla. 1st DCA 1975); or Arkin Construction Company v. Simpson, 99 So.2d 557 (Fla. 1957).
JSI's proposed maintenance dredging involves excavation in the waters of the state of Florida. For that reason DER has jurisdiction to require JSI to obtain necessary environmental permits called for in Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code.
Specific legal references which pertain are Sections 403.031(12), 403.911(2), 403.912 and 403.913, Florida Statutes; Chapter 17-3, Florida Administrative Code; Rules 17-4.28 and 17- 12.930, Florida Administrative Code.
The water bodies in question, that is the basin and the adjacent Intercoastal Waterway, are Class III water bodies within the meaning of Rules 17-3.081 and 17-3.161, Florida Administrative Code, which waters are predominantly marine in nature.
The burden of proof in this case is announced in Rule 17-1.03.130, Florida Administrative Code, and makes it incumbent upon JSI to establish its entitlement. In doing so, it must provide DER with reasonable assurance that water quality standards will not be violated and that the project is not contrary to the public interest. See Section 403.918(1) and (2), Florida Statutes, and Rule 17-12.070(1) and (2), Florida Administrative Code.
As set forth in Section 403.918(2)a, Florida Statutes, in addressing the matter of public interest DER considers and balances these criteria:
* * *
Whether the project will adversely affect the public health, safety, welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species,
or their habitat;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion of shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061;
The current condition and relative value of functions being performed by areas
affected by the proposed activity.
In this regard, the applicant has given the necessary reasonable assurance that this project is not contrary to public interest and has made that proof by preponderance of evidence.
The principal water quality standards for this project are as set forth in Rules 17-3.051; 17-3.061 and 17-3.121, Florida Administrative Code.
The Respondent has given the needed reasonable assurance that water quality violations will not occur.
The suggestion by Petitioner that further testing and evaluation is necessary to establish reasonable assurances is not accepted. Sufficient information was developed at final hearing to establish reasonable assurance directed to the relevant requirements for permitting.
Concerns expressed by the Petitioner related to data showing water quality violations for aluminum, mercury, zinc and cadmium are not sufficient to reject the permit application. The parameters will not be violated at the place of introduction of the sediment load into the Intercoastal Waterway, nor will other parameters pertaining to water quality standards be violated. This includes biological integrity and dissolved oxygen.
Extensive bioassay testing was not necessary to gain an understanding of the implications of this project as it related to biological integrity.
The project will not violate turbidity standards related to water quality. The magnitude of change which results in the introduction of resuspended sediments into the Intercoastal Waterway will not exceed 29 NTU above background and can be expected to be much less than that amount.
Given the preexisting activities within the basin and the environmental implications of those activities, it is appropriate to consider the issue of reasonable assurance limited to an examination of the influence of the project on the adjacent Intercoastal Waterway.
Having considered the facts, and the conclusions of law, it is, RECOMMENDED:
That DER issue a final order which grants the requested maintenance dredging permit in keeping with the safeguards described in the fact finding of this recommended order.
DONE AND ORDERED this 16th day of October 1986 at Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 16th day of October 1986.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0365
Having examined the proposed facts submitted by the parties, those proposals have been found as fact with the exception of the following which are distinguished:
Petitioner's facts
Paragraph 1: Subordinate to fact finding.
Paragraph 2: The first sentence in this paragraph is rejected because the fact is not found within the indicated exhibits, nor can that fact be fairly inferred.
Paragraphs 9, 10, 11, 14, and 15: Except for the last sentence in that latter paragraph are subordinate to facts found.
Paragraph 15: The last sentence: Contrary to facts found. Paragraph 18: The last sentence: Subordinate to fact finding. Paragraphs 21, 22, 23, 24, 25 and 26: Subordinate to fact finding. Paragraph 27: Contrary to facts found.
Paragraphs 28, 29, 30 and 31: Subordinate to fact finding. Paragraph 32: Not necessary to dispute resolution.
Paragraphs 33 and 34: Subordinate to fact finding. Paragraph 35: Contrary to facts found.
Paragraphs 40, 41 and 42: Subordinate to fact finding. Paragraphs 44, 45: Not necessary to dispute resolution.
Paragraph 47: The first two sentences are information that is not sufficiently credible to allow application to the issues of the present case.
Paragraphs 48, 49, 50 and 51: Not necessary to dispute resolution. Paragraph 52: Reject as fact.
Paragraph 54: Contrary to facts found.
Paragraph 55: Not necessary to dispute resolution.
JSI and DER facts
Paragraph 2: Pertaining to sentence 8 and the last phrase within sentence 11; Not necessary to dispute resolution.
Paragraph 3: As to the first sentence, fourth sentence and seventh sentence; Not necessary to fact resolution.
Paragraphs 4, 5 and 6 to the colon in paragraph 6: Not necessary to dispute resolution. The remaining portions of paragraph 6 are subordinate to fact finding.
Paragraph 10: as to the last two sentences; Not necessary to dispute resolution.
Paragraph 13: As to the next to the last sentence; Not necessary to dispute resolution.
Paragraph 14: As to the fourth sentence and the last sentence; Not necessary to dispute resolution.
Paragraphs 16, 17, 18 and 20: Subordinate to fact finding.
Paragraph 21: Sentence 3 is subordinate to fact finding sentence 4 is not necessary to dispute resolution; sentences 5 and 6 are subordinate to fact finding.
Paragraph 22: Next to the last sentence; Not necessary to dispute resolution.
Paragraphs 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 38 and 41:
Subordinate to fact finding, except the comments in the last sentence of paragraph 41 related to the operations of JSI causing or contributing elevated concentrations of parameters within the basin which is not found as fact.
Paragraphs 42, 43 and 44: Subordinate to fact finding.
COPIES FURNISHED:
Kenneth G. Oertel, Esquire Chris Bryant, Esquire OERTEL AND HOFFMAN, P.A.
Post Office Box 6507 Tallahassee, Florida 32314-6507
Thomas M. Baumer, Esquire Deborah Barton, Esq.
GALLAGHER, BAUMER, MIKALS, BRADFORD, CANNON AND WALTER, P.A.
252-5 Independent Square
Jacksonville, Florida 32202
Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Victoria Tschinkel, Secretary Department of Environmental
Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Oct. 16, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 09, 1986 | Agency Final Order | |
| Oct. 16, 1986 | Recommended Order | Recommended issuance of dredge and fill permit to do maintenance dredging at a shipyard. |
