STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PERDIDO BAY ENVIRONMENTAL ) ASSOCIATION, INC., AND BETHUNE ) REALTY INC., AND )
ALFRED POWELL, )
)
Petitioners, )
vs. ) CASE NOS. 87-4921
) 87-4922
CHAMPION INTERNATIONAL ) 87-4925
CORPORATION, AND FLORIDA ) 87-4926
DEPARTMENT OF ENVIRONMENTAL ) 88-0229
REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly designated Hearing Officer on November 14-29 and December 5, 1988, in Pensacola and Tallahassee, Florida. The appearances were as follows:
APPEARANCES
For Petitioner: Randall D. Denker, Esquire
3425 Woodley Road
Tallahassee, FL 32312
Tommy Bear, Esquire Post Office Box 1238 Foley, AL 36536
Alfred C. Powell Route 8, Box 692-H Pensacola, FL 32506
For Respondents: Terry Cole and Segundo Fernandez, Champion Esquires
International Oertel, Hoffman, Fernandez and Corp.: Cole, P.A.
P. O. Box 6507 Tallahassee, FL 32314-6507
Douglas H. McLaughlin, Esquire and Steven Hall, Esquire Department of Environmental
Regulation
2600 Blairstone Road
Tallahassee, FL 32399-2400
STATEMENT OF THE ISSUES
The issues to be resolved in this proceeding concern whether variances related to water quality standards found in Chapter 17-3, Florida Administrative Code should be issued to Champion International Corporation (Champion), as more particularly described in the proposed findings of fact and conclusions of law herein. See Section 403.201(1)(a), Florida Statutes. In resolving those issues, it must be determined whether the phrase "there is no practicable means known or available for the adequate control of the pollution involved" means no "possible" means known or available, or no "reasonable" means known or available. Additionally, it must be determined whether a temporary operation permit (TOP) should be issued pursuant to Section 403.088(3), Florida Statutes and, as part of that consideration, whether all the criteria in that statutory section must be affirmatively demonstrated or whether some of them are alternative criteria. Also at issue is the question of whether a consent order should be entered incorporating the temporary operating permit and its conditions and the variances requested.
PRELIMINARY STATEMENT
On May 5 and 18, 1987, Champion International Corporation (Champion) applied for variances from the transparency, zinc, iron and specific conductance water quality Standards for Eleven Mile Creek in Escambia County. These variance requests are related to Champion's discharge of wastewater from its pulp and paper mill in Cantonment, Florida.
Champion also applied for an operating permit for its 28 million gallon per day (mgd) wastewater treatment facility. Champion currently operates a wastewater treatment system for its Cantonment mill consisting of settling basins, dewatering basins, dredging equipment, sludge drying ponds, and secondary treatment ponds, with final discharge into Eleven Mile Creek.
Champion's discharge is virtually the entire source of the creek although there is a minor contribution to the creek flow from a discharge from the City of Cantonment sewage treatment plant. The creek empties into Perdido Bay after flowing south for approximately ten miles and being joined by various other freshwater tributaries.
A construction permit was issued to Champion in 1986 for conversion of its existing mill from an unbleached paper operation to a bleached paper process.
That permit authorized a construction of new anti-pollution measures for the wastewater system. Following completion of this construction, Champion applied for the operating permit referenced above. DER issued a notice of intent to issue the variance for the four parameters requested, which were requested for five years, coextensive with the life of the proposed operating permit. Under the terms of the variance, Champion would be required to conduct a study evaluating factors controlling aquatic plant distribution and production in both Eleven Mile Creek and Perdido Bay with emphasis on the effect of the mill's effluent on light availability and transparency, as well as identifying all sources of iron and evaluating ways to reduce the iron concentration in the mill effluent.
The Department issued notice of intent to grant the operating permit provided certain conditions were met. Those conditions included the study of color removal technology, with annual reports to the Department, investigation of methods of reducing un-ionized ammonia in the effluent, evaluating possible corrective measures, and completing the studies required with regard to the proposed variance concerning iron and transparency. An extensive water quality
monitoring program was required as a condition on the proposed grant of the operating permit as well. Finally, a condition was included providing that the Department could modify the effluent limitations pertaining to the operating permit, should analysis indicate the discharge would not comply with the applicable water quality standards.
Petitions were received challenging the proposed grant of the variance and the operating permit by five different parties. Prior to Final Hearing, two of the parties, James and Jacqueline Lane, withdrew their petition.
On October 19, 1988, Champion requested modification of the application for the operating permit to one for a temporary operating permit (TOP), pursuant to Section 403.088(3), Florida Statutes. On October 24, 1988, DER issued the TOP, with an attached consent order (CO). In the now challenged TOP CO, the Department has stated that EPA studies and additional data indicate that water quality standards for dissolved oxygen (DO), un-ionized ammonia, and biological integrity are not being met, in addition to those standards for which variances are already being sought. The TOP CO contains specific operating permit conditions, and, in addition, establishes a compliance schedule to meet the standards not being met. Champion would thus be required to take certain immediate steps to increase the level of dissolved oxygen in the effluent and reduce nitrogen levels. Champion is also required to do a comprehensive study to determine how much it is polluting the creek and the bay and to determine effective means to correct the DO, biological integrity, un-ionized ammonia, transparency and color violations. Champion is required by the TOP CO, if approved, to complete all corrective actions and be in compliance with all applicable standards prior to the expiration of the TOP (five years), unless otherwise agreed.
The Petitioners PBEA and Bethune, as well as Alfred Powell, continued to challenge the new proposed agency action resulting from the conversion of the operating permit application to the temporary operating permit application and proposed consent order. They also challenged the proposed variance as reflected in their positions in the previous stipulations dated November 14, 1988.
The cause came on for a hearing as noticed, at which the parties presented numerous witness and exhibits, as more particularly described in the transcript of this proceeding. Subsequent to the hearing, the parties obtained a transcript of the proceedings and elected to file proposed findings of fact and conclusions of law. Thereafter, an extended briefing schedule was requested by agreement and granted. Proposed findings of fact and conclusions of law were thereafter timely filed, but the Petitioner's counsel, Ms. Denker, sought leave to withdraw as counsel for Petitioners. This withdrawal was granted, contingent on Petitioners' counsel demonstrating that the withdrawal was agreed to by the Petitioners. Petitioners' counsel submitted, in lieu of proposed findings of fact and conclusions of law, a letter constituting counsel's closing argument in which she reiterated Petitioners' positions concerning Champion's entitlement to the variances, TOP and consent order in question, and the conditions under which such entitlement should be constrained. Champion moved to strike that document. That motion was denied in an order in which the Hearing Officer directed counsel for PBEA to demonstrate that her client agreed with her withdrawl. After much delay occasioned by her client's refusal to give her a definitive answer, counsel for PBEA obtained a Florida Bar Ethics Opinion supportive of her withdrawal. She thereafter demonstrated good cause for her withdrawal to the Hearing Officer, who granted it.
FINDINGS OF FACT
The Petitioner, Perdido Bay Environmental Association, is an Alabama Corporation and is organized with a general purpose of promoting the ecological monitoring and protection of the Perdido Bay estuary system. Bethune Realty, a joint Petitioner, withdrew its petition shortly prior to hearing. The Petitioner Alfred C. Powell is a resident of Beulah in Escambia County, Florida. He fishes in Perdido Bay and the Perdido River area.
The Respondent Champion International Corporation is a New York Corporation authorized to do business in Florida and is the owner and operator of a paper mill at Cantonment, Florida. Champion has applied for a temporary operating permit to operate its industrial wastewater treatment system and for a variance from certain water quality standards regarding the effluent discharge from this system. Champion has agreed to enter into a consent order with the Department, incorporated into the proposed temporary operating permit (TOP) which will require studies of the receiving water involved, which will require Champion to monitor for certain pollution constituents and to upgrade its wastewater treatment system and effluent quality during and after completion of the monitoring and study.
The Respondent, the Florida Department of Environmental Regulation (DER) is an agency of the State of Florida charged with the authority to issue permits to operate such installations which might reasonably be expected to be sources of pollution if, reasonable assurances of compliance with the water quality criteria contained in Chapter 17 of the Florida Administrative Code, as well as with pertinent provisions of Chapter 403 Florida Statutes, are met. The Department is also authorized to grant variances from the Department's rules and the provisions of Chapter 403 pursuant to Section 403.201, Florida Statutes, and to grant temporary operating permits in accordance with the standards in Section 403.088(3), Florida Statutes.
Operating and Permit History and Technical Processes
Champion Paper Mill is located in Cantonment, Florida in Escambia County and discharges its treated wastewater into Eleven Mile Creek. Prior to construction of the mill, Eleven Mill Creek was a natural water course fed by ground water and rainfall. It is fed by two tributaries, Eight Mile Creek and Ten Mile Creek which join it downstream from the present Champion Mill discharge point. The creek flows into the upper or northeastern portion of Perdido Bay. Perdido Bay is bordered by Escambia County on the easterly side and Baldwin County, Alabama on the west. The state line lies in the approximate middle of Perdido Bay as an extension of the state line which runs down the middle of the Perdido River which enters the Bay in the northwest corner. Both Perdido Bay and Eleven Mile Creek are designated as Class III waters of the state. They are thus defined by rule as water suitable for fishing and swimming. Perdido Bay is primarily a marine estuary system and Eleven Mile Creek is a freshwater creek.
Pollutants reach the creek and the bay from a number of sources. The city of Cantonment operates a municipal wastewater treatment plant and discharge system which discharges into Eleven Mile Creek upstream from Champion's discharge. The constituents of that discharge and any pollution loading it may cause are not of record in this case, however. Storm water from the city of Cantonment and from the Champion Mill site enters the creek as well. At least one municipal wastewater treatment system discharges indirectly into the western
side of the Perdido Bay system. Runoff from agricultural operations and roads in urban areas constitute non-point source discharges into the Perdido Bay system.
The paper mill was constructed and began operating in the 1940's. It was owned until recently by the St. Regis Paper Company, which in 1985 merged with Champion Paper Company to form the resulting Champion International Corporation. In effect, Champion purchased all the assets of St. Regis, including the Cantonment Mill. After that merger, Champion elected to convert the production process from unbleached brown paper, primarily used in paper shopping bags, to solely bleached paper products. The bleached paper now produced by Champion at this mill is used for stationery, writing paper and photocopy paper. Due to the simpler chemical nature of the brown paper production process, that process has less environmental impact than the bleached paper process which traditionally is characterized by intensive use of chlorine, which complicates and aggravates the deleterious environmental effects of such a mill's discharge and the prevention of such environmental degradation.
In 1986, after reviewing the application therefor, the DER issued a construction permit allowing Champion to convert its existing mill at Cantonment from the unbleached process to the bleached paper process. In converting to only bleached paper production, Champion had to increase the capacity of its bleaching equipment and alter it, in terms of the process for removing color agents or lignins found in wood pulp and liberated in the digestion and cooking process. Modification of the waste-water treatment system was necessary in order to treat and dispose of the wastewater from the bleach process, which contains different constituents and different constituent levels, and poses different water quality problems than the wastewater from the previous brown paper production method.
Certain conditions imposed upon the Department's grant of the construction permit for that alteration project required improvements to the wastewater treatment system. Those improvements included the addition of a large aeration basin, a spill collection system within the mill itself, and certain basic process changes, with related equipment, chiefly as a result of the addition of the oxygen delignification system. Additionally, certain storm water management improvements were required and built by Champion to divert storm water for separate treatment on site before disposal in the creek.
Oxygen delignification is an alternative in paper pulp bleaching to traditional bleaching methods which required more intensive use of chlorine. This new method eliminates chlorine as the primary oxidant in the bleaching process. Instead, oxygen and caustic soda serve as the primary agents to remove lignins in the wood pulp. The waste from the oxygen delignification process is diverted, through a "closed loop system", through a recovery boiler for reclamation of the sodium, which can be reused in the pulp bleaching process. This also reduces the concentration of contaminants in the wastewater flow that must be treated before deposition in Eleven Mile Creek.
The oxygen delignification treatment does not remove sufficient lignin from the pulp. Therefore, Champion uses the chlorine dioxide process to accomplish further removal of the lignin (color) agents from the pulp. Oxygen delignification is, however, the preferred technology for environmental purposes, as acknowledged by Dr. Dougherty, testifying for Petitioner PBEA. Expert witness Ray for PBEA also acknowledged that oxygen delignification is the best available technology for bleached pulp and paper production.
The spill collection system inaugurated as a result of the 1986 construction permit is also the best available technology. A related component of Champion's spill collection, recycling and recovery system involves the burning of "black liquor", which is the liquid waste resulting from the cooking of wood chips with process chemicals for lignin removal. Chemicals such as sodium are thus recovered and reclaimed for reuse in the mill's production process. Collection sumps throughout the mill and the bleach plant area collect inadvertent spills and leakages and return them to the "recovery loop". The spill collection sumps are equipped with contamination detection instruments to alert mill personnel to any unusual spill events. The recycling of chemicals, the spill controls, as well as the diversion and treatment of storm water separate from the process water treatment result in a reduction in the loading of pollutants in the wastewater treatment system itself. Thus there are significant "in mill" pollution reduction procedures in operation.
The color in the waste effluent of the mill is a primary pollutant and cause of water quality violation which Champion has yet to correct. Two color reduction technologies are in use at the Cantonment Mill. These are a "closed screening room" and the use of chlorine dioxide in the bleaching or lignin removal process. Although this process has not resulted in removal of color sufficient to comply with state water quality standards, the color removal technology at the Cantonment Mill is presently the "state of the art" in color reduction for the pulp and paper industry.
The wastewater treatment system plant involves reduction of the biochemical oxygen demand (BOD) of the wastewater by bacteria. This involves use of a primary settling basin in which suspended solids settle to the bottom of the basin. The solids form a sludge which is then pumped by hydrologic dredge into two solids dewatering basins. These are used in alternating fashion so that as one pond is filled, water is removed from the other pond and the sludge is then dried out and transported to a landfill. The water removed from the solids dewatering basins moves then to the first aeration basin. This contains floating aerator devices which add oxygen so as to facilitate BOD conversion of the wastewater. The wastewater then flows to the secondary basin, where further oxygenation is provided in the same manner. The wastewater then moves to two more sequential settling basins for further oxygenation and settling of the biological solids generated by the treatment process itself.
The discharge of the fourth settling basin is then released into Eleven Mile Creek, Class III water of the state.
The wastewater treatment system performs as intended. Both BOD and suspended solids are at levels which meet or exceed state standards in terms of the effluent quality at discharge. Champion achieved an average BOD load of 3,193 pounds per day or 17.6 miligrams per liter (mg/1) for its average daily effluent flow of 21.7 million gallons. This is measured in terms of the EPA "effluent guidelines", which DER has adopted as the "minimum technology base limits". These provide for a discharge of 15,400 pounds per day BOD for the Champion mill as an existing facility. If the mill were a proposed new pollution source, the applicable "new source performance standards" (nsps) would permit a loading of 8,680 pounds BOD per day.
Thus the conversion in Champion's mill process has resulted in a reduction of suspended solids and BOD, the actual reduction was on the order of
14 percent for BOD and 15 percent for total suspended solids (tss). This is a better performance than that required by the construction permit, and carried over as a requirement in the proposed temporary operating permit.
The 1982 permit by which the mill operated prior to the 1986 construction permit and mill conversion project, did not include limits on a ammonia in the discharge effluent. The Department requested Champion to test for ammonia as part of the construction permit monitoring process. Test results show a reduction in actual discharge of ammonia of 30 percent now, as compared to the discharge prior to the conversion of the plant.
The construction permit also mandated testing for calcium and magnesium, which affect the hardness of water. The degree of hardness of the mill's process water in turn can relate to the toxicity of certain materials such as zinc. Champion has reported on these parameters in compliance with the construction permit conditions. The discharge is sufficiently "hard" in terms of calcium content, so that the zinc component in the mill's discharge is non- toxic. This is because in a hard water environment zinc is bound up in a harmless state in water bottom sediments.
Before the plant was converted to a primarily bleached process plant, as a result of the 1986 construction permit, paper production at the plant was approximately 1400 tons per day. Most of this was unbleached or brown craft paper, but for many years there has been a bleached paper production of approximately 250 to 300 tons per day. Production of paper after the conversion remained at approximately 1400 tons per day, but this was all bleached paper. Actual pulp production decreased somewhat after the 1986 mill conversion.
After the conversion, chlorine usage in the paper production process was reduced from approximately 124 pounds per ton of bleached paper to 40 pounds per ton of bleached paper. This is due to the replacement of the chlorine-based bleaching system with the oxygen delignification-chlorine dioxide process which requires much smaller amounts of chlorine to accomplish the desired result.
It is also true, however, that essentially all 1400 tons of paper produced are bleached paper so a usage of 40 pounds per ton for 1400 tons of paper produced reveals that the plant is still using approximately 33,600 pounds of chlorine per day, while the mill operating in its former mode, even though using the higher rate of 124 pounds of chlorine per ton of paper produced, was using approximately 42,000 pounds of chlorine per day. Thus chlorine usage has reduced somewhat with the advent of the new oxygen delignification-chlorine dioxide process, but not nearly to the degree which would be expected if the total daily production of bleached kraft paper had remained the same as formerly.
Chlorine poses a substantial pollution hazard in paper mill effluent and in receiving waters. It is the key element in the creation of potentially highly toxic polychlorinated bipthenyls and dioxin (PCBs). The presence of these pollutants in paper mill effluent is generally known to the scientific community and is of significant concern to the EPA and the paper mill industry, which is conducting a nationwide study of numerous paper mills for the presence and the biological effects of these pollutants on receiving waters and aquatic and marine life. The evidence in this case, however, does not reflect the levels of such pollutants in Champion's effluent nor in the receiving waters of Eleven Nile Creek and Perdido Bay. The Department has directed, and Champion has agreed, to test for these materials in its effluent, and in the receiving waters involved, and to periodically report the results of those tests. These substances will also be the subject of a study to be performed by an independent biologist, Dr. Livingston, pursuant to the proposed temporary operating permit and consent order (TOP/CO) and as a condition on any grant of the requested variance.
On June 5, 1987, Champion applied for an operating permit for its 28 mgd. wastewater treatment facility for the modified bleached kraft pulp and paper facility completed pursuant to the 1986 construction permit. In May, 1987, Champion had petitioned the Department for a variance from four water quality criteria for its discharge to Eleven Nile Creek; iron, specific conductance, zinc and transparency. Champion requested an iron discharge limit of 3.5 parts per million (PPM); a specific conductance limit of 2500 micromhos per centimeter (NMHOS/CM); a zinc limit of 0.075 PPM; and a waiver of the Class III water quality standard for transparency. Champion sought the variance pursuant to Section 403.201(1)(a), Florida Statutes, contending that there is no "practicable" means known or available for adequate control of the pollution involved in the variance request.
After requesting and obtaining additional information from Champion in support of the variance request, the Department issued its intent to grant the variances. In September of 1987, the Department issued an intent to grant the operating permit request for a period of five years. Prior to that time, Champion had operated the mill pursuant to the operating permit issued to St. Regis on April 12, 1982 and pursuant to the construction permit authorizing the modification to the wastewater system mentioned above. Following publication of intended agency action, a number of parties timely filed petitions in opposition to the proposed grant of the operating permit and the variance.
Additional information was received by the Department from the EPA in August and September of 1988 which led the Department to change its position concerning whether Champion could reasonably assure that water quality standards, other than those addressed by the variance request, would not be violated. Champion was notified of this change and accordingly modified its application on October 19, 1988 to change the operating permit request to a request for a temporary operating permit.
In conjunction with the modification of its application to request a TOP, Champion also agreed to enter into a consent order with the Department. The consent order was intended to allow Champion to obtain its variance and the temporary operating permit, while also undertaking to address the Department's concerns over the dissolved oxygen and un-ionized ammonia content of its
effluent. The consent order also would require Champion to perform an extensive study of the Eleven Mile Creek-Perdido Bay, aquatic and estuarine systems involved and to determine appropriate wastewater treatment technologies to further reduce effluent color; to analyze biological integrity in the creek and the bay in order to determine what steps might be needed to prevent the biological integrity standard from being violated, as well as to provide dioxin studies applicable to the Cantonment Mill and its discharge. Public notice for the consent order and temporary operating permit application was duly promulgated and the same Petitioners have timely challenged the intent to issue the temporary operating permit and the entry of the consent order.
In its original intent to issue statement concerning the operating permit, the Department required certain conditions to be met. These conditions include an investigation of color removal technology, with annual reports to the Department, investigation of methods of reducing un-ionized ammonia in the effluent and, within one year, evaluating corrective measures, if necessary, as well as completing the studies required as to the proposed variances concerning iron and transparency. Additionally, an extensive water quality monitoring program was required. Finally, a condition was included that the Department
could modify effluent limitations should analyses indicate the discharge would not comply with applicable water quality standards.
On October 24, 1988, the Department noticed its intent to grant the TOP with the attached consent order which was incorporated therein. In the TOP/CO, the Department stated that EPA studies and additional data collected indicated that water quality standards for DO, un-ionized ammonia, and biological integrity were not being met, in addition to those standards for which the variance was sought. The TOP/CO contains the specific operating permit conditions and establishes a compliance schedule to meet those standards not being met, referenced above. Champion would thus be required to take immediate steps to increase DO in its effluent not later than 12 months from issuance, and to reduce nitrogen levels in the effluent within 120 days. Additionally, Champion would be required to perform a comprehensive study to determine the extent to which Champion is polluting the creek and the bay and to determine the effective means to correct dissolved oxygen, biological integrity, un- ionized ammonia, transparency and color violations. It would be required to complete corrective actions and be in compliance with all applicable standards prior to the five-year expiration of the TOP, "unless otherwise agreed." 1/
The Variance
Champion is seeking the variance from the water quality criteria for iron, zinc, specific conductance, and transparency, based upon the alleged absence of any "practicable" means known or available to meet standards for these parameters at the point of discharge to Eleven Mile Creek. Zinc is present in the ground water used as process water in the mill at concentrations of approximately 20-30 parts per billion and is also present in the piping of the mill. Additionally, there is some evidence to indicate that the wood pulp itself contains trace quantities of zinc naturally occurring in the soil from which the pine trees were taken. The zinc levels in the effluent will have no effect on the biological community of Eleven Mile Creek. This is because zinc is generally only of concern in a soft water environment, which causes it to be toxic. Champion's process water, as well as the water of Eleven Mile Creek is "hard water" which contains a high level of calcium carbonate. This characteristic facilitates zinc being bound up in bottom sediments. Zinc is not a cause for concern in Perdido Bay either, according to Dr. Livingston, but will be examined in his overall study of the creek and the bay. Zinc is not toxic at the levels of concentration of zinc and calcium carbonate found in the discharge water flowing into Eleven Mile Creek.
The iron level in the effluent varies, with concentrations occasionally reaching highs of 2.5 to 2.8 ppms. It has not been demonstrated that the iron is introduced as a result of either the paper manufacturing or wastewater treatment process, as opposed to iron being merely naturally present in the soil and ground water at the mill and at the mill's water source. It is also possible, although not proven, that the iron may result, at least in part, from the piping used in the mill. The level of iron proposed for the variance requested has been shown to result in no impact on the biological community of Eleven Mile Creek or Perdido Bay. Just as is the case with zinc, there is no practicable means to control the iron content of the wastewater at the present time. Changing the piping in the mill would entail dismantling the mill for all practical purposes and it would not necessarily eliminate the iron concentration anyway. Iron has been described by expert testimony as having a causal relationship to algal blooms, but it has not been demonstrated that the concentrations of iron in the mill's effluent would be reasonable likely to result in this condition. Dr. Livingston will examine iron concentrations in
the Perdido Bay-Eleven Mile Creek systems as a part of his study. Although iron levels are high, they are not shown to be toxic to the biota in the creek or the bay. Indeed, the iron content in sediments in the bay is higher in the lower portion of the bay some miles from the Eleven Mile Creek confluence with the bay, suggesting that other sources may introduce even higher levels of iron into the system than does Champion. Condition three of the proposed variance, however, requires Champion to identify sources of iron in its effluent and to determine methods to further reduce its concentration within the time limit proposed by the variance and the TOP/CO.
Treatment of the wastewater for purposes of removal of the iron and zinc concentrations could be very costly, and, in conjunction with installation of possible treatment technology for the removal of the other pollution elements of concern, such as color, could cost in excess of $100 million. Even in that case, it has not been shown what treatment technology could reasonably be expected to accomplish this. As established by engineer Kinghorn, treatment for iron concentrations would not be "practicable" in an engineering sense. Thus, at the present time, there is no practicable means available to adequately control iron and zinc in Champion's effluent so as to meet the standards in Rule 17-3.121(15) and (29), Florida Administrative Code.
Specific conductance is a measure of the level of dissolved ions in the wastewater. This condition is generally present at a high level in pulp and paper industry effluent. Pulp mill wastewater is typically high in sodium and sulfate ions and, in some instances, high in chlorides. The levels of each of these ions in the wastewater is dependent in part on the process used for paper manufacture. It is, at present, an unavoidable result of the manufacturing process. Champion has proposed a variance level for specific conductance in Eleven Mile Creek of 2500 micromhos/cm. High conductivity is toxic to freshwater organisms as found in Eleven Mile Creek. However, there is no definitive evidence that the level of conductivity in the mill's effluent is actually toxic to those organisms at the present time. Moreover, Dr. Robert Livingston found that the levels of conductivity for which the variance is sought, and which Champion has represented will be present in its mill effluent, will not have an adverse physiological effect on freshwater organisms. Because of the serious risk to freshwater organisms in Eleven Mile Creek, if these specific conductance levels are exceeded, monitoring for them should be performed on a monthly basis by an independent testing agency or laboratory, or by the department and reported directly to DER, as a condition on the grant of the variance and the temporary operating permit/consent order. Immediate enforcement actions should be effected if they are exceeded because of the toxic effect of the sodium, sulfate and chloride ionization in this freshwater environment.
The evidence of record indicates that there is presently no proven, applied treatment technology for totally eliminating specific conductance in paper mill effluent. Treatment of the wastewater to reduce or eliminate specific conductance to the Department's rule standard would be extremely costly of an order of magnitude in excess of one hundred million dollars in possible capital costs for reverse osmosis treatment, for instance. Aside from the question of cost, the point is that there is no proven technology for adequately reducing or removing the violative specific conductance characteristic from the effluent at the present time.
It was agreed by all parties that the level of transparency and related intensity of color in Champion's wastewater could significantly affect the biology of Eleven Mile Creek. The removal of lignin from the pulp in the
mill process adds color material to the process water and has a direct, deleterious effect on the transparency of the water. The transparency standard is a measure of how deep into a water column light can penetrate before it is reduced by a given percentage below the ambient light present at the water surface. It is dependent, as well, on the natural background transparency level in the receiving water. The relationship between color and transparency is unique to any particular water body and type of effluent. There is currently insufficient information available on what that relationship is in Eleven Mile Creek with regard to the influence of Champion's mill effluent. In order to make decisions regarding the correct color reduction level in order to achieve the state transparency standard, a study must be performed to determine the effect of the color constituents in the effluent on the transparency of the stream. A threshold determination must be made through the operation of such a study to determine what natural background level of transparency prevails in the stream. This information, together with information concerning the effect of the color material on the biota of Eleven Mile Creek as a result of its reduction of transparency, and therefore the reduction of light penetration, will have to be obtained through Dr. Livingston's study, which is mandated to be performed by the conditions attached to the proposed variance and TOP/CO. Additional requirements will be imposed, and have been agreed to by Champion under the conditions in the proposed TOP/CO, to implement color and transparency treatment so as to improve light penetration and therefore the health of the biota of Eleven Mile Creek. Until further treatment for transparency and color reduction is installed, the transparency and color in the stream will remain the same as has prevailed for many years. While there will be no improvement, there will also be no additional degradation.
Mr. Christopher Day, an expert in environmental engineering, specializing in wastewater treatment systems for pulp and paper mills and in color treatment for such effluent, established that no proven means are yet known, from a technical, as well as a cost standpoint, for enhancing the reduction of color in the mill waste so as to improve the transparency level in receiving waters. The system presently operating at the Champion mill is considered to be "state of the art".
A number of potential color reduction technologies have been investigated by Champion with regard to its bleached kraft paper mill in Canton, North Carolina. That mill is similar, in its operational characteristics and effluent volume, to the Cantonment Mill in Escambia County. Champion has thus explored both "in-mill" and "end of pipe" approaches. The "in-mill" techniques are those used during a production process to reduce or re-cycle waste materials. The end-of-pipe approach involves attempts to treat the waste product itself after it leaves the mill and before discharge to public waters.
Champion investigated the use of an ultra-filtration technology system at the Canton, North Carolina plant. It thus developed and operated a 1,000 gallon per day ultra-filtration pilot plant which achieved 80 - 90 percent color removal. No disposal option for the separated color producing materials, as sediment or sludge, proved environmentally acceptable, however. It was thus determined that ultra-filtration was not operationally feasible. From an economic standpoint, it was determined to be extremely expensive. For instance, for the Cantonment Plant in Escambia County, an ultra-filtration system could cost as much as $200 million in capitol and construction costs and many millions of dollars per year in operational and maintenance costs. Ultra-filtration systems have not been implemented on a full-scale basis in the paper industry or in any industry which generates wastewater flows comparable in quality, and quantity to that of the Cantonment Plant. Differences in the constituents of
the wastewater generated by other industries inhibit comparison of the experience of other industries to that of the paper industry, with regard to the feasibility of ultra-filtration as a treatment and color removal method.
Reverse osmosis is a treatment option which has some promise. It is similar to the ultrafiltration technology in that it concentrates and separates pollutants from the wastewater. Reverse osmosis involves use of a membrane which allows water molecules to be passed through under high pressure, while contaminants are retained on the entry side of the membrane. The process is similar to ultra-filtration except that the material used in ultra-filtration is a porous filter medium which acts as a sieve. Virtually all contaminants may be removed by the reverse osmosis membrane system but it, like the ultra- filtration technology, has not yet been successfully used in the pulp and paper industry or in industries with similar waste discharges. Both ultra-filtration and reverse osmosis produce a sludge which is difficult to dispose of in an environmentally safe manner. Both methods have a great deal of promise if the sludge disposal can be rendered relatively harmless.
Other treatment methodologies studied by Champion for its Canton, North Carolina plant project include carbon adsorption, alum, lime and polyamine color removal. The latter three methodologies involve precipitation treatment methods; that is, the addition of different chemicals to the wastewater to combine with the color producing agents and cause them to settle out.
Alum systems tend to produce an unstable sludge which is difficult to dispose of because it is difficult to de-water. Landfilling creates a high risk of liquid leaching of environmentally unsuitable materials out of landfills, potentially into the groundwater. Lime precipitation also produces large volumes of wet sludge which is difficult to dispose of. Polyaaminepolymer addition to the effluent is still in the investigatory stage, but early efforts have proven unsuccessful in forming precipitate and thus successfully removing the color-producing agent.
Carbon adsorption operates by filtering the effluent through a bed of carbon and then incinerating the carbon to burn off the coloring agents. The incineration process, however, releases environmentally harmful particulates, hydrocarbons, sulfur dioxide and nitrous oxides. This process is very capital- intensive as well. Additional possible treatment methods explored in direct and cross-examination of the various expert witnesses include the use of wetland systems as filtration methods, as well as spray irrigation of the effluent on upland areas. Wetland systems themselves tend to be highly colored systems and the feasibility of using them to uptake and remove the color constituents of the mill effluent has not been demonstrated. Likewise, spray irrigation is a possible alternative, but it has not been established that the wastewater will not percolate through the soil of such a spray disposal area and contaminate ground water and possibly other surface waters. Such a system's success will depend upon the type of soil prevalent under the spray irrigation site, as well as the type and characteristics of vegetation which function as the initial treatment medium on a spray irrigation site. Additionally, the conductivity levels of the effluent, particularly involving chlorides, may render spray irrigation infeasible due to the destruction of the vegetative cover by such an effluent.
Other de-colorization technologies have been considered such as irradiation. These require further study and are not presently used by any pulp and paper facilities known, as that relates to whether such technologies are demonstrably practicable. Color destruction technology such as chemical
oxidation or the use of biological agents to convert the color- causing materials by changing their light absorbing characteristics are not currently developed. Champion is investigating the potential for using chemical oxidation for color removal.
It has thus been established that there are no practicable means yet known or available, for adequate control of the color problem, as it relates to complying with the transparency Class III water criterion for the Champion facility. Neither the various means mentioned above nor any others which might have a possibility of adequately treating the color problem have been successfully tested or demonstrated to be feasible from a technical and engineering standpoint at any pulp and paper facility known, or which has effluent characteristics similar to the Champion facility. With regard to each of them, either sufficient knowledge has not been gathered to determine whether they can successfully remove the contaminants involved or with regard to some of the technologies referenced above, even though all constituents can be removed from the effluent, the remaining residium creates an environmental hazard in a different context, which has not yet been successfully addressed. Thus, aside from the question of the very high capital costs, the various potential systems have not been shown to be feasible for the Champion facility from a scientific or engineering standpoint.
In any event, however, the studies required to be performed by the proposed TOP/CO, and as a condition on a grant of the variance, must be done to determine the extent of the transparency and the color problem with regard to Champion's effluent, as it may affect the biological quality or dissolved oxygen levels in Eleven Mile Creek and the bay. Thereafter, Champion will be required to take the appropriate measures necessary to remedy these problems whatever those measures prove to be. It has been established of record in this case that Champion possesses the financial capability to install and operate the various treatment methods referenced above and described in the testimony of the various expert witnesses, if those methodologies are ultimately proven feasible and successful at addressing the color removal problem.
Temporary Operating Permit Conditions
After entry of the intent to issue the operating permit, additional information and data provided by the EPA to DER became available in August and September of 1988. Based on that information, the Department took the position that Champion could not provide reasonable assurances that water quality standards for dissolved oxygen, biological integrity and un-ionized ammonia will not be violated. Champion conceded that it cannot provide reasonable assurances that all water quality standards can be met and therefore elected to convert its operating permit application to one for a temporary operating permit. Champion is thus seeking a TOP under Section 403.088(3), Florida Statutes. The related consent order would be incorporated by reference in the temporary operating permit. The consent order was entered into and made a part of the TOP application to clarify and better guarantee enforcement of its conditions. In addition to providing a compliance schedule to meet DER standards, the consent order clarifies how DER will enforce the TOP, including how enforcement will be accomplished.
Champion's proposed discharge does not qualify for an operating permit. Petitioner's witnesses Hall and Ray established that dissolved oxygen, transparency, un-ionzed ammonia and several other parameters are not meeting standards in Eleven Mile Creek as a result of the discharge. The Department's evidence corroborates that fact and Champion has conceded it.
Champion has submitted plans and reasonable schedules for constructing, installing and placing into operation an approved pollution abatement facility which plans are contained within the TOP/CO. The improvements to the waste treatment system as a result of the 1986 construction permit evidence Champion's good faith pollution abatement efforts. Its color minimization technology presently installed at the facility represents the current limit of technology in that regard. No other feasible or acceptable method currently is available for the treatment of color in this wastewater. In addition to committing Champion to a rigid schedule of research toward a site- specific, color reduction technology and implementing that technology which appears feasible, the consent order also binds Champion to investigate and implement technologies to address dissolved oxygen, biological integrity and un- ionized ammonia. Champion also agreed during the course of the hearing to conduct monitoring for dioxin.
The consent order also requires a comprehensive study to be performed of the entire Perdido Bay system, including Eleven Mile Creek, by Dr. Robert J. Livingston of Florida State University, at Champion's expense. The study will be independently conducted by Livingston, without restrictions as to scope, cost, or use of study results. The Livingston study will examine all aspects of the system including sediments, biota, physical characteristics, nutrient loading, with monthly sampling.
The Livingston study, and studies to be conducted pursuant to the consent order, are essential for Champion to address water quality problems in the creek and the bay to which its discharge may contribute or cause. From an engineering standpoint, a correct treatment goal and an understanding of alternative consequences for particular technologies are all required before selecting the appropriate technology to install.
The need to understand the present conditions in the Perdido Bay system and their causes before engineering approaches are selected holds true for all parameters and environmental concerns at issue. In addition to research into the presence, prevalence and need for reduction of certain pollutants, further research and development in wastewater treatment technology is needed to determine the site specific operability, treatment effectiveness and cost effectiveness of various alternatives.
There was much testimony regarding the reasonableness of the time schedule for the TOP/CO plans. Dr. Livingston found the schedule appropriate and indeed necessary, because his study, to be scientifically valid, must be for two years duration. Although the Petitioner's witness, Dr. Hall, an environmental engineer, opined that the schedule should be accomplished sooner than five years, as did biologists Butts and Donelan, they acknowledged that studies on effluent treatment technology are needed before the treatment methodology can be determined and installed. For one thing, natural background in the receiving waters for the various water quality parameters involved, especially transparency, must be ascertained definitively before such treatment decisions can be made. Thus the weight of the evidence establishes that the schedule for compliance and the TOP/CO is reasonable. Parenthetically, one must observe that it is a singular circumstance for Respondents, after years of mill operation, and after the 1986 permit proceeding, and related investigations, to purportedly not have more knowledge of the chemical constituencies of the discharge and the receiving water, and some inkling of the effect of it on the Creek and Bay system. Such was the evidence, however, and, it not being refuted, the compliance schedule must reluctantly be found reasonable.
Champion's discharge is a waste for which there is no presently known or feasible and acceptable method of treatment or disposal which has been scientifically recognized. Champion is making a bonafide effort through research and other means to discover and implement such a method however. Due to the various disadvantages of the above-discussed treatment alternatives thus far considered, there has been shown no currently feasible or practicable option for disposing of the effluent on-site, or on uplands, without resorting to discharge into receiving waters.
Anderson Kinghorn, the environmental engineer testifying for Champion, established that he would need the results from the Livingston study before he could properly engineer an appropriate treatment system. The treatment options are very expensive, possibly in excess of 100 million dollars. Choosing the wrong treatment could result in not treating all of the problems at all or expensively treating parameters which actually prove to not be a problem. Therefore, immediately installing a treatment system of the type testified to before further definitive studies are accomplished would not be feasible or acceptable, and, due to the potential extreme cost could result in the financial demise of the Cantonment plant.
Drs. Livingston and Subramani, a DER industrial waste engineer, established that the study was needed to predict the treatment that will be needed to accomplish compliance with various quality water parameters. The study proposed in the TOP/CO will result in recommendations as to what pollution loading will have to be eliminated to eliminate adverse effects on the creek and bay system. Such a recommendation could not be given at the present time. In short, Champion needs time to pollute Eleven Mile Creek while the necessary research and construction of treatment equipment, as required in the TOP/CO, is accomplished. Therefore, there is no present, reasonable, alternative means of disposing of the discharge, other than discharging to Eleven Mile Creek.
Denial of the TOP/CO would work an extreme hardship on Champion. Denial would require Champion to immediately come into compliance, which has not been shown to be yet possible, or shut down the plant. It cannot operate under Florida law without an operation permit. It is obviously not scientifically appropriate, nor proper environmental regulation, to require a discharger to install a given technology before it is known that the technology will adequately address the pollution of concern in an environmentally and technologically practicable manner; and which will meet legally mandated pollution reduction goals.
The Public Interest
The granting of the TOP/CO will be in the public interest. Dr. Livingston established the TOP/CO provisions will benefit the public because the study will address problems and provide a management plan for the entire Eleven Mile Creek and Perdido Bay systems. There will likely be long-term environmental benefits to permit issuance. The comprehensive study of the Perdido Bay system will examine all sources of influence on the that system, not just Champion's and not just Eleven Mile Creek. The results of the study would be then available to the public, local and state regulators and developers, to assist in managing future growth and pollution control decisions. Denial of the permit on the other hand, would work a significant hardship on the local economy. Champion is a major employer in Escambia County, providing approximately 1,200 jobs, with a payroll of approximately $50 million per year. Champion pays over $3-1/2 million in local property taxes annually. The present
value of dollars lost to the local economy from closing the plant would be approximately one half billion dollars. If secondarily employed workers who are directly affected by the mill, such as loggers, truck drivers and forest workers are considered, the effect on the economy would be magnified. If the impact on county service industries, retailers and others is considered, the deficit to the economy would be on the order of 1-1/2 to 1-2/3 billion dollars. The public testimony both for and against the TOP/CO reflected the public concern for avoiding the shutdown of the plant, while desiring the preservation and "cleaning-up" of the environment of the Perdido Bay system. Resolution of these matters is addressed in the TOP/CO with a mandated compliance schedule, thus it is in the public interest.
The discharge from the Champion plant will not be unreasonably destructive to the quality of Eleven Mile Creek and Perdido Bay as receiving waters. The discharge has improved to some extent since the recent construction authorized by the 1986 construction permit. BOD and TSS have been decreased. With the construction of the oxygen de-lignification system, the chlorine discharge has been reduced. This may be helpful in reducing any dioxin or chlorinated organics which may be caused by the plant operation. The storm water treatment and spill control system have been improved to a "state-of-the- art" degree and should prevent sporadic impacts from the facility caused by accidental spillage. The wastewater treatment system is performing as designed and there will be further internal improvements to the present discharge treatment system during the temporary operation period. Thus there will be oxygen augmentation of the discharge mandated within 12 months of the final order in this case. Immediate steps are also required in the TOP/CO to correct un- ionized ammonia levels in the effluent.
The monitoring program mandated by the TOP/CO proposed, is appropriate, assuming that the TOP/CO is amended to incorporate the additional conditions agreed to by John DiForio, the Vice President for Environment for Champion, who testified in this proceeding. Those additional parameters include monitoring for dioxin, chlorinated hydrocarbons, cadmium, sulfates, lead, phenolic compounds, calcium and magnesium. This additional monitoring and the related reporting requirements address many of the monitoring concerns of the Petitioners and their expert witnesses.
The Petitioners have additionally contended that certain parameters not addressed in the variance or the TOP/CO compliance schedule will be in violation of DER standards because of the discharge. These parameters are PH, phenols, certain nuisance problems, dioxin and related polychlorinated organics. Mr. David Arceneaux, a chemist and Champion's Environmental Plant Manager established that monitoring for the past several years has revealed no violations of PH standards in the discharge nor have any phenols been detected. Nuisances due to excessive foam are prohibited in the TOP/CO proposed and nuisances due to algal blooms or sedimentation will be addressed by the Livingston study. If they emanate from the Champion operation they will be eliminated before a final operating permit will be issued and within the five year compliance schedule. Additionally, Champion will be required to monitor for the other parameters mentioned in the paragraph next above, as agreed to by Dr. DiForio on behalf of Champion, which monitoring conditions will be incorporated in the TOP/CO conditions by amendments (See specific condition No.
26 of the TOP). Additionally, pursuant to specific condition No. 19 of the TOP, the Department can modify the effluent limits required within the five year compliance period if monitoring reveals that a problem as to any of the
pollution parameters has developed. Therefore, these parameters have been appropriately addressed in the compliance schedules and conditions mandated in the TOP/CO.
Consent Order
The consent order incorporates the TOP and variance in addressing the areas of concern involved in this proceeding. By incorporating the TOP and the variance, the scope of the consent order is expanded and compliance with the terms of the TOP and variance is further guaranteed as part of the Department's enforcement action embodied in the consent order. Thus, the TOP, variance and consent order have been shown to be likely effective in satisfying the Department's statutory and regulatory obligations and in providing a reasonable means of addressing the concerns of the Department's scientists, regulators and the Petitioners.
Champion has made considerable changes and improvements in its processes and treatment system, as delineated above, and has demonstrated cooperativeness and commitment to improve its treatment systems and to report any future technological advance to the Department. Given that the present treatment technologies are the best available and given the technological difficulties and environmental uncertainties surrounding methods to further improve the discharge, final compliance with standards within five years, as required by the TOP/CO, is a reasonable time constraint. The consent order, variance and TOP provide a reasonable means of gathering and analyzing data and of allowing engineering time to arrange treatment of the effluent in order to address water quality standards.
The outline of work to be performed and conditions to be met in the TOP/CO is a reasonable approach to solving the water quality degradation that Champion is causing or contributing to.
After the studies referred to in the consent order, the Department will not allow Champion additional time to study problems further. Significant improvements will be required within the five year period and at the end of that period, the plant will be in compliance with all water quality standards or will be denied an operating permit, with related enforcement action.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1987).
The Department has proposed issuance of a variance for four water quality parameters found in Chapter 17-3, Florida Administrative Code, namely, iron, (Section 17-3.121(15); zinc, (Section 17-3.121(29); specific conductance (Section 17- 3.061(2)(0) and transparency (Section 17.3.21(28). The standard for issuing the variance which is sought by Champion is found at Section 403.201(1)(a), Florida Statutes, which grants the Department the discretion to grant a variance if it finds that there are no practicable means known or available for adequate control of the pollution involved. That section provides pertinently as follows:
403.201 Variances.-
Upon application, the Department in it 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 adequate control of pollution involved.
Compliance with the particular requirement or requirements from which a variance is
sought will necessitate the taking of measures which, because of the extent or cause, 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
(a) and (b). The 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.
There is a two-part test determining whether to grant a variance under Section 403.201. First, one of the criteria quoted above must be satisfied.
The criteria at issue in this case concerns whether any "practicable" means are known or available for adequate control of the pollution involved. Secondly, even if one of the criteria are met, DER may grant or deny the variance at its discretion. That discretion must be based on matters which DER is authorized by statute or rule to consider, however. Its discretion must be reasonable and based upon competent substantial evidence.
Variance - the meaning of "practicability".
The phrase "no practicable means known or available" in the above- quoted section could have two possible interpretations. It could be interpreted that there are no possible means known or available to adequately control the pollution at issue or it could be interpreted to mean that there are no reasonable means known or available. The Petitioners contend that, based upon different dictionary definitions distinguishing "practicable" from "practical", that the former interpretation is applicable. The evidence of record and the overall reading of the statute at issue, as well as decisional law, reveals that the latter interpretation is more appropriate. The statutes must be construed as a whole. State v. Rodriguez, 365 So.2d 157 (Fla 1978). A complete review of Section 403.201(1) reveals that paragraph (a), the "no practicable means" option, is really referring to a hardship situation. This is so because paragraph (c) states that it may be used to relieve or prevent hardship"... of a kind other than those provided for in paragraphs (a) and (b)." (e.s.)
In this case, there are options theoretically available to control the pollution involved. These options are very expensive and unproven, however. They would require bench and pilot testing and pilot plants to operate for evaluation purposes before they could become operational. Witnesses Kinghorn and Day, environmental engineers specializing in pulp and paper mill operations and waste treatment, established that these options are not "practicable" because in their opinion as engineers that term means that which is (1)
demonstrable and (2) is characterized by an appropriate relationship between cost and benefits. The evidence shows that there is no demonstrable means of alleviating the pollution involved, as delineated in the above findings of fact. Thus, without even reaching the question of cost to benefit ratio, there is evidence to support the conclusion that no practicable means known or available means no reasonable means.
Finally, a review of how the term "practicable" has been interpreted in state and federal environmental law confirms this interpretation and that decisions within the purview of Section 403.201(1)(a), as to what is practicable, should be based on pollution control which can reasonably be expected to be implemented, rather than any pollution control possible. The Department's rule for variance requests (including a "paragraph (a) request"), regarding issues as to "no practicable means", requires DER to consider the social, economic and environmental impacts on the applicant and others. Rule 17-103.100(1)(f) and (g), Florida Administrative Code. The term "best
practicable control technology" is a term of art used in the Federal Clean Water Act. Its meaning is described in 33 USCS 1314 (a)(1) and (b) as follows:
factors relating to the assessment of
best practicable control technology currently available to comply with subsection (b)(1) of Section 301 of this Act [33 USCS Section 1311(b)(1)] shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, and shall also take into account the age of equipment, and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact (including energy requirements) and such other factors as the administrator deems important.
Thus the term "best practicable control technology" (BPT), as used in the federal environmental protection statute involves consideration of what pollution control can be reasonably implemented. Various courts have construed the term "practicable" as not synonymous with "possible". In re: Kenilworth Building Corp., C.C.A. Ill., 105 Fed.2d 673, 676; Pittsburgh St. L. RY. CO. v. Indianapolis C & S Traction Company, 81 N.E. 487, 488, 169 Ind. 634 ("A thing practicable must necessarily be possible, but a thing may be possible that is not practicable.") "Practicable" does not mean "if within human means". Reed D.
v. Smith, 42 C. 245, 251. Rather, "practicable" means capable of being done or accomplished "with available means or resources, and includes the element of reasonableness. . ." Benjamin v. Metropolitan St. R Co., 155 F.W. 91, 96, 245 No. 598. Whether a thing is "practicable" depends on "the actualities, the very facts and circumstances of the case. . ." Gifford v. New Amesterdam Gas Co., 248 N.W. 235, 236, 216 Iowa 23; Unverzaqt v. Prestera, 13 A.2d 46, 48, 339 PA. 141; Pittsburgh St. L. Ry. Co., Supra.
Thus, in the context of Section 403.201(1)(a), a method of treatment is "practicable" when surrounding facts and circumstances show that it is reasonably capable of being performed with available resources. This interpretation is consistent with the meaning of the term, in the context of
wastewater treatment technology, which has been developed in Federal statutes and regulations and adopted by DER in Chapter 17-6, Florida Administrative Code.
It is a standard of statutory interpretation that statutes should be construed to give meaning to every word and phrase employed. Terrinoni v. Westward Ho!, 418 So.2d 1143, 1146 (Fla. 1st DCA 1982); Vocelle v. Knight Brothers Papers Company, 188 So.2d 664, 667 (Fla. 1st DCA 1960). By authorizing the issuance of variances where there is no practicable means known or available for adequate control of the pollution involved, the Legislature did not intend that the existence of any control means prevent the issuance of a variance. If it had, it could have achieved that end by not including the word "practicable". Instead, the Legislature included that modifier so as to prevent the draconian result that any and every available pollution control means would be required, regardless of technological feasibility, cost, incremental benefits or other considerations. Perhaps more importantly, the courts have construed the term "practicable" in the context of the Federal Clean Water Act codified at 33
U.S.C. 1311, et. seq., a portion of which is quoted above. Section 1314(b) of that Act requires the administrator of the EPA to identify "the degree of effluent reduction obtainable through the application of the best practicable technology (BPT) currently available . . ." In determining BPT, the administrator was directed to consider such factors as the total cost of application of the technology, in relation to the benefits to be achieved by that application. 33 USC 1314(b)(1)(B)
The courts have construed this language as requiring the EPA to insure that the cost of the treatment and technology not be "wholly out of proportion" to the benefits gained. BASF Wyandolte Corp. v. Costle, 598 F.2d 1329, 1341 (8th Cir. 1976). In carrying out the Act, the EPA normally determines BPT limits on the basis of the average performance of the best existing plans in each sub-category of pollution sources. American Paper Institute v. Train, 177 APP. D.C. 181, 543 F.2d 328, Cert. Dism. 429 US 967; American Petroleum Institute v. Environmental Protection Agency, 540 F.2d 1023 (10th Cir. 1976); Hooker Chemical and Plastics Corporation v. Train, 537 F.2d 639 (2nd Cir. 1975). The experience of the EPA in identifying the best "practicable" control technology is instructive in this proceeding.
Not only is the EPA's determination of practicability useful by analogy, but also because the DER has adopted those Federal regulations by rule. DER has adopted by rule, as requirements for industrial wastewater treatment, the EPA guidelines and standards for various categories of sources, including the pulp, paper and paperboard industry. Rule 17- 6.300(1)(e)26, Florida Administrative Code. The standards for the industry, set out at 40 CFR 430, require achievement of best practicable control technology currently available. DER rules expressly note that the factors considered in determining BPT include "total costs of application of technology in relation to the effluent reduction benefits to be achieved from such application." Rule 17-6.300(1)(a), Florida Administrative Code.
Champion has demonstrated that there are no practicable alternatives known or available for treatment as to the four parameters which are the subject of the proposed variance. As demonstrated in the above findings of fact, iron, zinc and specific conductance, under the circumstances prevailing with Champion's discharge and in Eleven Mile Creek, are not likely the result in harm to the aquatic and marine life in Eleven Mile Creek and Perdido Bay, as established by Dr. Livingston's testimony. Accordingly, the variances for these three parameters are warranted and should be granted, because additional controls are not practicable at the present time.
The variance should also be granted for transparency. There is no practicable control available today which will allow the transparency standard to be met. The TOP and consent order discussed herein require treatment of the color constituents in the effluent to be developed in order to meet the transparency standard, but that level and type of treatment is not available today. There are a number of promising technologies, but all require further study, development and demonstrated efficacy. Until the required studies and other developmental steps are carried out, it is not possible to know the amount of reduction of color discharge which will result in meeting the ambient transparency standard in the rules. In view of the large expenditure required to install some of these technologies, the environmental disposal problems they themselves create, there is no practicable control available today and the variance from the transparency standards should also be granted.
Temporary Operating Permit
The issuance of a temporary operating permit is governed by Section 403.088(3)(c)1-7, Florida Statutes. The seven criteria in that section for granting of a temporary operating permit will be addressed in the same order they are listed in the statute.
All parties have agreed that the proposed discharge cannot qualify for a full operation permit.
The applicant has constructed a waste treatment system which is in essence a "state of the art" system, with the highest level of treatment of any papermill operating in Florida. It has submitted plans for further upgrade to the system, which upgrades will be immediate in some respects, as for instance, the installation of the oxygen saturation system. It has submitted a schedule for necessary studies and engineering in order to comply with other parameters of the water quality standards which are not yet met. There is currently no feasible and acceptable method of treatment or disposal known for the treatment of the color materials in the discharge, as found above. The proposed consent order, the TOP and the variances have conditions which require research and other means of investigation, development and implementation of a method to adequately treat this type of pollutant, however.
Champion requires authorization to continue to discharge from its facility into Eleven Mile Creek while the necessary studies, engineering and corrective steps are being taken and completed.
There is no present reasonable alternative means of disposing of the waste other than by discharge to waters of the state. Even if an alternative form of disposal was available, it could not be constructed and completed without the need for a temporary operating permit and a variance during the interim development and construction period. The consent order requires investigation of such alternative forms of disposal and implementation of those shown to be technologically feasible.
The denial of the proposed TOP would impose an extreme hardship upon the applicant, the workers at the plant and the community. Pursuant to Section 403.087, Florida Statutes no stationary installation such as a papermill and wastewater treatment system may be operated without a current, valid permit. If the mill is unable to qualify for either type of permit, then, at law, it must cease operation. This would obviously work an extreme hardship upon Champion, as well as its employees and the economy of the Escambia County area. If the
mill were not allowed to operate during the interim period, while adequate treatment methods and facilities are being studied, developed and implemented, there would be the additional hardship of the difficulty of studying the mill's effect upon the stream and the bay because of its lack of operation and effluent production. That would inhibit the installation and operation of pilot and demonstration projects required by the Department.
In light of the unrefuted evidence of record, as reflected in the above findings of fact, it has been established that the granting of the TOP will be in the public interest.
Pursuant to Section 403.088(3)(c)7, the discharge during the time the TOP/CO is in effect will not be unreasonably destructive to Eleven Mile Creek or Perdido Bay, as determined in the above findings of fact. The receiving stream, Eleven Mile Creek, was shown by the evidence to be at a point of equilibrium. Thus, continued operation of the wastewater treatment system at the present treatment levels for the various contaminants would not further degrade and be unreasonably destructive to the quality of the receiving waters, when it is considered that a definite plan of action, embodied in the consent order and the temporary operating permit, has committed Champion and the DER to a mandatory program of alleviating the present contamination to the point of compliance with all Class III water quality criteria. In view of the fact that the temporary operating permit, coupled with the consent order it incorporates, provides for the continued improvement of the discharge and the receiving waters, the deleterious effect imposed by the discharge at the present time must be concluded to be not unreasonably destructive.
The requirement of Section 403.088(3)(d) must also be met in order to issue the TOP. The above findings of fact reflect that all requirements in this section have been met, provided that all conditions prescribed in the findings of fact are included as a part of the TOP/CO. Section 403.088(3)(d)3. requires appropriate monitoring of the discharge. This requirement has been met, provided that the additional monitoring agreed to by Champion at the hearing is included as a condition on the TOP/CO. Additionally, Section 403.088(3)(d)5., requires the TOP to contain requirements and restrictions to protect the quality of the receiving waters and promote the public interest. This requirement has also been met, providing the additional monitoring described in the above findings of fact is enforced and accomplished. Accordingly, Champion has met its burden of demonstrating compliance with the statutory requirements for issuance of the temporary operating permit.
Consent Order
The consent order at issue in this proceeding would require Champion to take short term actions to improve the quality of its discharge, as well as conduct comprehensive water quality and environmental studies to assess the impact of the discharge on the creek and the bay. It also requires that identified problems attributable to Champion be corrected. Champion would be required to carry out engineering evaluations to determine practicable means of improving the quality of the discharge, so as to be in a position to employ the results of the Livingston study to devise a means of complying with all water quality standards.
Section 403.151, Florida Statutes allows the Department to establish a reasonable time for compliance. That section, when read with the requirements for compliance schedules under Section 403.088(3), Florida Statutes, demonstrates that the Legislature intended that the Department enforce its
standards through a process of establishing enforceable increments of progress. The intent was not to force a company to shut down, but rather to allow time for compliance. Petitioners have not urged shutting down of the facility and the only real issue remaining involves the amount of time required to comply. The consent order as proposed by the Department, with the time constraints mandated therein, is a reasonable exercise of the Department's discretion under Section 403.151, Florida Statutes, if it is adopted. The consent order serves as an appropriate vehicle to combine both the provisions of the temporary operating permits and the proposed variance together in a comprehensive means of addressing the environmental problems discussed herein and to provide a means of enforcing the alleviation of those problems.
In summary, Champion has made large investments in improving its waste treatment system. The imposition of Class III standards on Eleven Mile Creek in 1982 imposed stricter water quality standards for the mill's operation.
Champion has committed to improve the discharge as soon as possible, including bringing dissolved oxygen up to the saturation level at the discharge point.
That should be a firm condition of the TOP issued by the Department. In addition, TOP and consent order be issued as noticed with the following more stringent conditions in the TOP and consent order.
Add to the consent order a list of technologies to be evaluated which will be submitted to the Department for approval within 60 days of final order.
Perform as many evaluations as possible, including necessary bench and pilot testing, during the time studies are being carried out by Dr. Livingston.
Provide semi-annual reports to DER of technologies being evaluated.
Upon receipt of the Livingston Final Report by the Department, select the most appropriate technologies for development and application to the specific problems, if any, identified by Livingston's report.
Provide a report of the final technologies to be evaluated and tested to the Department for its approval within six months of receipt of the final Livingston report.
Continue with the compliance schedule (paragraph 14) of the consent order.
All reports should be served on the Department as specified in the consent order or within 14 days of their receipt by Champion.
Monitor for the following:
Dioxin: sample the effluent immediately upon finalization of the consent order and then quarterly.
Cadmium and chlorinated hydrocarbons: sample quarterly.
Sulfate, lead, calcium and magnesium: sample quarterly.
Phenolic compounds: sample immediately upon finalization of the consent order and then quarterly.
Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore
RECOMMENDED that the Department enter a Final Order granting the request for a temporary operating permit and variance and that it enter into the consent order as final agency action, provided that all the conditions contained therein, and in the temporary operating permit, the additional conditions agreed to by Champion, and those set forth herein, be adopted and immediately enforced upon entry of the Final Order.
DONE and ENTERED this 28th day of September, 1989, at Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings 28th day of September, 1989.
APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-4921
Petitioner Alfred Powell's Proposed Findings of Fact:
The Petitioner Alfred Powell did not submit actual Proposed Findings of Fact, but rather, a series of recommendations concerning the Petitioner's views of what action should be taken concerning various disputed issues involved in this proceeding. Certain of those suggestions are embodied and subsumed in the Hearing Officer's Findings of Fact or Conclusions of Law. The Petitioner's seventeen "Recommendations," however, do not constitute Proposed Findings of Fact," and, to the extent that the ideas conveyed are not incorporated in the Hearing Officer's findings, they are rejected as subordinate to those findings, as unnecessary or as contrary to the preponderant weight of the evidence.
Respondent Champion International Corporation's Proposed Findings of Fact: Proposed Findings of Fact numbers one through eighty-seven are accepted, except as modified by the Hearing Officer's findings of fact. Respondent Department of Environmental Regulation's Proposed Findings of Fact: Proposed Findings of Fact numbers one through eighty-nine are accepted, except as modified by the Hearing Officer's findings of fact.
COPIES FURNISHED:
Randall D. Denker, Esquire 3425 Woodley Road
Tallahassee, FL 32312
Tommy Bear, Esquire Post Office Box 1238 Foley, AL 36536
Alfred C. Powell Rt. 8 Box, 692-H
Pensacola, FL 32506
Terry Cole, Esquire
Segundo J. Fernandez, Esquire Oertel, Hoffman, Fernandez
& Cole, P.A.
Post Office Box 6507 Tallahassee, FL 32314-6507
Douglas NacLaughlin, Esquire Steven Hall, Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, FL 32399-2400
Dale H. Twachtmann, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, FL 32399-2400
| Issue Date | Proceedings |
|---|---|
| Oct. 18, 1999 | Letter to J. Lane from Judge Ruff sent out. (RE: response to letter of 10/7/99) |
| Oct. 12, 1999 | Letter to PMR from J. Lane Re: Recommended Order filed. |
| Sep. 28, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 28, 1989 | Recommended Order | Very complex scientific issues in environmental permitting and variance application ease temporary operators permit variance and consent order recommended to be approved with required studies |
PINKHAM E. PACETTI vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 87-004921 (1987)
LANIGER ENTERPRISES OF AMERICA, INC. vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 87-004921 (1987)
GENERAL DEVELOPMENT CORPORATION vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 87-004921 (1987)
J. P. WARD vs. OKALOOSA COUNTY AND DEPARTMENT OF ENVIRONMENTAL REGULATION, 87-004921 (1987)
