STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, Hearing Officer with the Division of Administrative Hearings, conducted a formal hearing in the above- styled consolidated cases from January 7 through January 20, 1995, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioners, SIERRA CLUB, Florida Chapter, FOUR RIVERS AUDUBON SOCIETY, INC., FLORIDA CANOEING AND KAYAKING ASSOCIATION, INC., and FLORIDA WILDLIFE

FEDERATION, INC. (Petitioners):

David G. Guest Dean Aldrich Karen Campbell Attorneys At Law

Sierra Club Legal Defense Fund

111 South Martin Luther King, Jr. Boulevard Tallahassee, Florida 32302

For Respondent, DEPARTMENT OF ENVIRONMENTAL PROTECTION (Department):

Lori E. H. Killinger Jennifer L. Mason Attorneys At Law

Office of General Counsel

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

For Respondent/Intervenor, PACKAGING CORPORATION OF AMERICA (PCA): Robert L. Rhodes, Jr.

Susan L. Stephens

Attorneys At Law Holland & Knight

Post Office Drawer 810 Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues in this case are twofold:

Whether PCA has demonstrated entitlement to the proposed industrial wastewater construction and operation permit (proposed permit) that is the subject of this proceeding by providing reasonable assurance to the Department that the proposed construction activity and subsequent operation of the company's industrial wastewater treatment facility will comply with applicable provisions of Chapter 403, Florida Statutes, and implementing Department rules, and:

Whether granting to PCA a 27-month variance from the water quality standard for transparency in the Withlacoochee River, and the associated second amendment to Consent Order, pursuant to Section 403.201(1)(b), Florida Statutes, is an abuse of the Department's discretion.

PRELIMINARY STATEMENT

PCA seeks a permit to construct and operate a pipeline which, in lieu of Jumping Gully Creek, will convey treated wastewater from the company's pulp and paper mill to the existing discharge point in the Withlacoochee River in North Florida. PCA also seeks a variance from the water quality standard for transparency in the Withlacoochee River to allow adequate time to install treatment technology necessary to achieve compliance with that standard.

Petitioners filed two petitions, on July 11 and July 18, 1994, seeking a formal administrative hearing to challenge the Department's Intent to Issue the proposed permit and Intent to Issue an earlier proposed variance. PCA sought and was granted leave to intervene.

On August 10, 1994, Petitioners filed motions to amend the standing allegations contained in their two petitions. Those motions were also granted. The petitions were consolidated for hearing before the Division of Administrative Hearings.

On December 13, 1994, PCA filed a Notice of Filing an Amended Request for Variance, Suggestion of Mootness and Motion to Dismiss on the ground that the original proposed variance challenged in the consolidated cases had been superseded by the proposed variance which is the subject of the current proceedings. The motion was granted, and Case No. 94-4270 was dismissed.

On January 3, 1995, Petitioners filed two petitions for formal administrative hearing, challenging the proposed variance and the Department's decision to enter into a Second Amendment to Consent Order in connection with the proposed variance. Following referral of the two petitions to the Division of Administrative Hearings, PCA's motion to intervene in those proceedings was granted. Subsequently, Petitioners moved to amend the petition challenging the proposed permit (Case No. 94-4269) to allege standing pursuant to Section 403.412(5), Florida Statutes. The motion was granted. The three pending petitions were then consolidated for hearing.

At hearing, PCA presented the testimony of seven expert witnesses and introduced sixty-seven (67) exhibits in its case in chief and two exhibits on rebuttal. The Department presented one expert witness and introduced four (4) exhibits. Petitioners presented the testimony of one fact witness and four expert witnesses. In addition, Petitioners presented the deposition of an expert witness in lieu of appearance at final hearing. Petitioners introduced twenty-eight (28) other individual and composite exhibits into evidence.

The parties entered into a Prehearing Stipulation on January 12, 1995, which stipulation was received into evidence as Hearing Officer Exhibit 1. The Hearing Officer took administrative notice of various statutes, rules and other documents which were compiled and received into evidence as Hearing Officer Exhibit 2.

A transcript of the proceedings was filed with the Division of Administrative Hearings on February 3, 1995. The joint proposed recommended order submitted by PCA and the Department and the proposed recommended order of Petitioners were filed on February 13, 1995. Those proposed recommended orders are addressed in the appendix attached to this recommended order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

The Parties

1. As stipulated by the parties, Sierra Club, Florida Chapter; Four Rivers Audubon Society, Inc.; Florida Canoeing & Kayaking Association, Inc.; and the Florida Wildlife Federation, Inc., are each non-profit corporations registered or otherwise authorized to do business in Florida.

   
   

2. As stipulated by the parties, the Department of Environmental Protection is the state agency charged with the responsibility for enforcing, implementing, and interpreting the provisions of Chapter 403, Florida Statutes, and Rule Chapter 62, Florida Administrate Code.

   
   

3. As stipulated by the parties, Packaging Corporation of America is a Delaware corporation and is the applicant for the proposed permit and proposed variance.

   Background

   
   

   Mill Operation and Wastewater Treatment System

   
   

4. PCA and its predecessors 1/ have owned and operated an unbleached kraft pulp and paper mill located near Valdosta, Georgia ("Valdosta Mill" or "Mill") since the mid-1950's.

   
   

5. The Valdosta Mill employs approximately 450 people, and PCA's associated woodlands operation employs approximately fifty additional people. The operations at the Valdosta Mill contribute approximately $93 million per year to the local economy. Approximately 40 percent of those expenditures occur in North Florida.

   
   

6. PCA produces unbleached, brown linerboard at the Valdosta Mill. Large volumes of water are used in the transfer of raw material logs to the debarking and chipping machines, in the chemical processes by which the wood chips are converted to pulp, and in the production of the linerboard product.

   
   

7. PCA recycles process water in its operations. Ninety-five (95) percent of the daily process water volume used in the Mill is reused and recycled. Approximately five (5) percent, or 10 - 12 million gallons per day, however, must be removed from the process system. The requirement to discharge this volume of wastewater results from the fact that when contaminants in the process water reach a certain level, the water can no longer be effectively used in the process operations.

   
   

8. Parameters of special concern when regulating the pulp and paper industry are biochemical oxygen demand (BOD5), total suspended solids (TSS), and pH.

   
   

9. The Valdosta Mill wastewater receives initial primary treatment in a clarifier tank located at the Mill where solids are settled out. The wastewater then travels via gravity flow through a series of seven ponds which provide some natural biological treatment and mechanical aeration.

   
   

10. For the period of January 1992 through September 1994, PCA's daily monitoring results demonstrate that the wastewater discharged from Bear Garden Swamp (denominated by PCA as Pond 6) contains concentrations of BOD5 and TSS below the discharge limits established by the United States Environmental Protection Agency and the Department, except for exceedances of the maximum daily TSS limit on February 5, 1992 and January 16, 1993. Periodic monitoring also indicates that unacceptable fecal coliform and total coliform counts in the wastewater are normally reduced in Jumping Gully Creek prior to mixing with the Withlacoochee River.

    
    

11. The wastewater leaving the pond system flows through Jumping Gully Creek in Georgia and Florida to an outfall structure in a control dam at the confluence of Jumping Gully Creek and the Withlacoochee River. At various times during the year, the wastewater is the sole or predominant flow in Jumping Gully Creek. The wastewater is discharged to the Withlacoochee River through four diffuser ports located in a pipe placed in the bottom of the River.

    
    

12. Jumping Gully Creek is a privately-owned watercourse that flows approximately three miles from Carroll's Pond (denominated by PCA as Pond 7) to the outfall structure in the Withlacoochee River in north Florida. The 0.6 mile reach of Jumping Gully Creek from the Georgia/Florida state line to its

    confluence with the Withlacoochee River is now classified as a Class III water. The Withlacoochee River is a navigable water used by the public for recreation, including canoeing, and is also classified as a Class III water.

    
    

13. There are control valves located at various points in the treatment system that allow PCA to regulate the amount of discharge released to Jumping Gully Creek and the Withlacoochee River. The purpose of these controls is to permit PCA to protect the water quality of the Withlacoochee River during low flow periods as required by the Department.

    
    

    Regulatory History of Jumping Gully Creek

    
    

14. Jumping Gully Creek's regulatory designation as a Class III water of the State of Florida is a relatively recent event. Up until the mid-1980s, Jumping Gully Creek was not subjected to Department water quality regulations.

    
    

15. During review of a PCA permit in 1984, the Department determined that the portion of Jumping Gully Creek located in Florida was to be regulated as a water of the state. Although Jumping Gully Creek was designated by then applicable rules as "unclassified", PCA was required to comply with certain minimum and general water quality criteria in Jumping Gully.

    
    

16. In 1986, the Department issued Temporary Operation Permit IT-24102659 ("1986 Permit") to PCA requiring the Company to conduct various treatability studies and to install additional treatment and other controls in an attempt to achieve compliance with the then applicable standards in Jumping Gully Creek.

    
    

17. In 1991, following rulemaking by the State of Florida Environmental Regulation Commission and administrative litigation before the Division of Administrative Hearings (DOAH Case No. 90- 7357R), Jumping Gully Creek was designated a Class III water body, subject to all Class III water quality standards in addition to the minimum and general criteria.

    
    

18. When Jumping Gully Creek was designated a Class III water of the State, the wastewater from the Valdosta Mill still did not comply with the newly applicable water quality criteria.

    
    

19. In 1992, the Department issued Temporary Operation Permit No. IT24- 192462 ("1992 Permit") and Consent Order 91-2109 ("1992 Consent Order"). The 1992 Permit and 1992 Consent Order required PCA to conduct "water quality studies, engineering feasibility studies, and corrective actions to bring the discharge into compliance with applicable water quality standards in Jumping Gully Creek and the Withlacoochee River."

    
    

20. The 1992 Consent Order required PCA to carry out an engineering study to evaluate various methods of achieving compliance with Class III water quality standards in Jumping Gully Creek. The Consent Order listed various wastewater treatment options that were to be considered and also expressly directed PCA to consider the option of removing the wastewater from Jumping Gully Creek either through spray irrigation or through an alternate conveyance to the Withlacoochee River.

    
    

21. The 1992 Consent Order required PCA to conduct a Phase I screening evaluation of the several alternatives referred to above. The Consent Order also required a Phase II detailed feasibility study of the alternatives that survived the Phase I screening evaluation.

22. In response to the requirements of the 1992 Consent Order, PCA submitted Phase I and Phase II evaluations that were subject to review and comment by Department staff. The Department approved both phases.

    
    

23. While the Phase I engineering study demonstrates that the alternate conveyance option could result in consistent compliance with all Class III water quality standards in Jumping Gully Creek, state agencies of Florida government became involved in the process of reclassifying Jumping Gully Creek to a Class III water in order to protect and improve the water quality in the Withlacoochee River. In this regard, PCA owns Jumping Gully Creek in its entirety. The creek and pond system are fenced and posted with "No Trespassing Signs." The small creek is not open to the public and does not support any recreational uses.

    
    

24. The parties have stipulated that removing wastewater from Jumping Gully Creek and disposing of it through land application or spray irrigation is not a reasonable alternative in this case.

    
    

25. PCA cannot significantly reduce or minimize the volume of wastewater that must be treated and discharged by increased internal recycle of process water or reuse of wastewater.

    
    

    Other Permitting Issues

    
    

26. In all of the Department permits previously issued authorizing the discharge of wastewater from the Valdosta Mill, the applicable point of final discharge for measuring compliance with the discharge limitations contained in the permits has been at the existing outfall structure to the Withlacoochee River.

    
    

27. The 1986 Permit and 1992 Permit contain both "technology-based effluent limitations" and "water-quality based effluent limits" applicable to the wastewater discharge generated at the Valdosta Mill. The technology-based limits established by federal and state regulation limit the amount of BOD5 and TSS that may be discharged based upon the Mill's production rate. The water- quality based limits in the permits were imposed by the Department to protect the quality of the Withlacoochee River during low flow by taking advantage of PCA's ability to manage its wastewater discharge. Low river flow is the time when the discharge has the greatest impact on the Withlacoochee River. The water-quality based limits include a ceiling on the amount of BOD5 that may be discharged under low Withlacoochee River flow conditions. The Department established a minimum DO level of 4.0 mg/l from June to October as a site specific alternative criterion in 1990.

    
    

28. The 1992 Permit contains higher technology-based limits for BOD5 than those contained in the 1986 Permit. Specifically, the 1992 permit authorized the discharge of 12,869 lbs per day of BOD5 on a daily maximum basis and 6,434 lbs per day on a monthly average basis while the 1986 permit authorized a level of 11,100 lbs per day daily maximum basis and 5,550 lbs per day on a monthly average basis. The increase in technology-based limits was based upon production increases at the Valdosta Mill.

    
    

29. The 1992 permit, however, imposed for the first time an annual average limitation on BOD5 discharges of 5,550 lbs per day and lowered the water-quality based limit applicable to the discharge. The 1986 water-quality based limit established a ceiling of 14 lbs of BOD5 per cubic foot of stream flow in the Withlacoochee River. The 1992 TOP lowered this water quality based limit to a maximum of 12 lbs of BOD5 per cubic foot of Withlacoochee stream flow.

30. The parties have stipulated that, if PCA had discharged the maximum amount of BOD5 authorized under the 1992 Permit, it would have discharged approximately 3.1 percent more BOD5 than would have been authorized under the 1986 Permit.

    
    

31. Because the issuance of the 1992 Permit involved an increase in allowable technology-based limits over those contained in the 1986 Permit, the Department required PCA to address antidegradation review requirements in the applicable Department rules, i.e., then designated Rules 17-4.242(1) and 17- 302.300(7), Florida Administrative Code. PCA responded to this requirement by submitting information on April 9, 1991, and on October 23, 1991, addressing the change in effluent limitations from the 1986 Temporary Operating Permit (TOP).

    
    

    Construction and Operation of Pipeline

    
    

32. Following the determination that the use of a pipeline alternate conveyance was the only technologically and economically feasible means of achieving Class III standards in Jumping Gully Creek, PCA filed, on January 14, 1994, an application for a permit to construct and operate the pipeline in accordance with the 1992 Consent Order.

    
    

33. For the first time, the proposed pipeline permit would establish mixing zones for PCA in the Withlacoochee River. Previous permits issued to PCA did not have this result, since those permits dealt with disposal of the effluent into Jumping Gully Creek. The proposed mixing zones in the Withlacoochee River encompass a distance of up to 1,171 feet downstream of the diffuser structure in the Withlacoochee for the following 11 pollutant parameters: dissolved oxygen; specific conductance; cadmium; copper; zinc; oil and grease; toxicity; pH; turbidity; unionized ammonia; and lead.

    
    

34. The pipeline will not provide treatment for pollutants in the wastewater it conveys. Dilution will not be available since the effluent enters the pipeline and goes directly to the river.

    
    

35. The extensive wastewater monitoring data from the outfall of Bear Garden Swamp (Pond 6) is representative of the nature and quantity of pollutants, except for dissolved oxygen, that will be discharged into the Withlacoochee River by the pipeline. A planned mechanical aeration system is expected to increase dissolved oxygen content in the wastewater prior to entering the pipeline. The proposed mechanical aeration will only assure a minimum concentration of DO in the wastewater of 1.5 mg/l and an average concentration of 3.5 mg/l.

    
    

36. The loss of the treatment effect presently realized by permitting the effluent to flow through Jumping Gully Creek will increase pollutants discharged into the river as follows: an average increase in fecal coliform counts of 102 per 100 ml; an average increase of fecal coliform in the dry season of 143 per

    100 ml; an average increase of 629 lb/day of biochemical oxygen demand (double the amount currently discharged); an average increase of 210 lb/day of total suspended solids; an average increase of 4 NTU turbidity; an average loss of dissolved oxygen of 1.4 mg/1; and an average increase in specific conductivity of 492 umhos/cm. While Jumping Gully's outflow of natural drainage will provide some dilution at the confluence in the river, the creek will have only a seasonal outflow.

37. With or without the pipeline, the effluent discharge is so darkly- colored that transparency standards in the Withlacoochee are not presently met and will not be met in the future, absent color treatment prior to discharge.

    
    

38. Fecal coliform is the most significant pollution parameter which will increase as a result of the pipeline.

    
    

39. Sewage from toilets serving the 450 plant employees is discharged into the mill effluent treatment system which consists of one primary clarifier and a series of ponds. This untreated human waste results in substantially elevated fecal coliform counts at Pond 6. The assertion by PCA's representative at final hearing that racoons and other warm blooded wildlife in the area of the pulp mill are responsible for the elevated fecal coliform levels is not credited.

    
    

40. Fecal coliforms are indicators of human disease vectors, such as cholera, hepatitis, various intestinal diseases, parasite and viruses. Mixing with high pH and elevated temperature found in pulp mill effluent does not disinfect fecal coliform. Also, disinfection is not effective through the treatment ponds. Disinfection of the wastewater can be achieved by chlorine, ozone, or UV radiation. Chlorine is not preferred in view of the adverse impacts associated with that chemical.

    
    

41. Petitioner maintains and the data establishes the concentration of fecal coliform in the proposed wastewater discharge in excess of the monthly average limitation contained in Rule 62-302.530(6), Florida Administrative Code. The available data from Pond 6 in quarterly monitoring reports for the 2 and 1/2 year period of December 1991 through July 1994, show the following fecal coliform counts (expressed in # per 100 ml) as follows:

    
    

    12/17/91	700
    3/5/92	500
    6/24/92	300
    7/21/92	220
    10/6/92	300
    1/19/93	130
    3/17/93	130
    5/26/93	170
    8/5/93	230
    10/6/93	500
    2/8/94	17
    4/5/94	240
    7/6/94	300

    
    

    When these counts are used to compute the geometric mean for fecal coliform pursuant to Rule 62-600.200(33), Florida Administrative Code, the resulting calculation exceeds the 200 per 100 ml limitation contained in Rule 62-530(6), Florida Administrative Code. Using all the samples, except for the 12/17/91 count, in calculations pursuant to the rule, PCA and the Department concede in posthearing submissions that the mean monthly fecal coliform count in Pond 6 is

    199.6 per 100 ml. The 12/17/91 count cannot be ignored and is considered a part of the calculation.

    
    

42. Although the rule requires extensive sampling for fecal coliform of at least ten samples in a thirty day period, PCA conducted no such sampling and the Department required no such sampling. Even so, the Class III water quality standards for fecal coliform require monthly average counts not exceeding 200 per 100 ml; not more than 10 percent of samples with an excess of 400 per 100

    ml; and no sample in excess of 800. 2/ The available data indicates violations of two of the three Class III water quality standards for fecal coliform at Pond 6.

    
    

43. Generally, fecal coliform is processed as the wastewater flows through the lower 3 mile portion of Jumping Gully Creek with a resultant sharp reduction in fecal coliform counts. Even with this treatment, a violation of the daily maximum fecal coliform limit was reported at the outfall in November of 1990.

    
    

44. The discharge from the proposed pipeline would result in Class III water quality violations for fecal coliform in the Withlacoochee River. The treatment effect of Jumping Gully Creek would be lost.

    
    

45. For other parameters that are predicted to exceed Class III water quality criteria in the proposed wastewater discharge, PCA has requested mixing zones as authorized by Rule 62-4.244, Florida Administrative Code. A request for a mixing zone for fecal coliform was rejected by the Department.

    
    

46. In response to Department requests for additional information, PCA filed supplemental submittals on March 22, April 21, and June 24, 1994. The Department then determined the application to be complete and proposed to issue the permit. Public notice of this proposal was timely published in a newspaper of general circulation in the vicinity of the Valdosta Mill.

    
    

47. Wastewater is proposed to be conveyed through an underground 48" high density polyethylene pipeline which will run parallel to Jumping Gully Creek for the approximately three mile distance to the Withlacoochee River. The pipeline will then be connected to the existing outfall and diffuser structure.

    
    

48. PCA will continue to operate the wastewater discharge system as a managed system as required under the 1992 Permit and the proposed permit. The proposed permit contains the same technology-based and water quality based effluent limitations as those contained in the currently effective 1992 Permit. The proposed permit also places further restrictions on BOD5 loading when the upstream DO concentration drops below 1.50 mg/l.

    
    

49. An opening will be created in the bottom of the existing control dam to allow an interchange of water between Jumping Gully Creek and the Withlacoochee River. Water flow in Jumping Gully Creek will not normally be impounded behind the dam, but will flow through the aperture in the dam to the Withlacoochee River. However, the opening is not large enough to allow the free flow of the Creek to the Withlacoochee with the result that there will still be a backwater effect with flow over the top of the dam during periods of high water in the Creek.

    
    

50. During the course of pipeline construction and installation activities, PCA will implement management practices to assure that these construction activities will not cause adverse impacts to the Withlacoochee River.

    
    

    Impacts on Jumping Gully Creek

    
    

51. The wastewater currently causes a significant adverse impact on water quality in Jumping Gully Creek as a result of periodic depressions in DO and increased specific conductivity. Once the pipeline is in operation, wastewater from the Valdosta Mill will no longer be conveyed through Jumping Gully Creek. The removal of the treated wastewater together with the construction of the

    opening in the dam will allow Jumping Gully Creek to achieve Class III water quality standards. There will be a net environmental benefit to the Creek.

    
    

    Impacts on the Withlacoochee River Minimum Water Quality Criteria

52. The proposed discharge would meet the minimum water quality criteria in Rule 62-302.500, Florida Administrative Code, absent the presence of fecal coliform 3/ as discussed above.

    
    

53. The parties have stipulated that the current wastewater discharge into the Withlacoochee River does not and the proposed discharge from the pipeline will not produce odor in violation of the minimum water quality criteria.

    
    

54. While the water of the Withlacoochee River in the vicinity of the proposed discharge is not a known source of human water consumption, the river does provide recreational boating opportunity. Inferentially, swimming (even involuntarily) and ingestion of the water by humans in the area cannot be ruled out.

    
    

55. The color of the proposed discharge together with the physical "boiling" at the diffuser ports during low flow conditions constitute a nuisance in violation of the minimum water quality criterion. While the available evidence fails to establish that the "boiling" at the discharge standing alone constitutes a nuisance, such is the case when coupled with the color of the discharge. The color problem, however, should be ameliorated when color treatment is implemented. The color treatment, and implementation of sewage treatment to remove fecal coliform from the discharged wastewater, should obviate any substantial interference caused by the Mill discharge with the general public's use or enjoyment of the river.

    
    

    Class III Standards

    
    

56. As set forth in the preceding findings, the information provided in the permit application and presented at hearing, demonstrates that except for the discharge of fecal coliform, the Withlacoochee River will be in compliance with the applicable Class III water quality standards for each of the following parameters at the maximum distance indicated from the point of discharge from the proposed pipeline, provided that the wastewater discharge volume is never more than 15 percent of the flow of the Withlacoochee River.

    
    

    Dissolved Oxygen	1171	ft. Oil & Grease	362	ft.
    Chronic Toxicity	1171	ft. Turbidity	360	ft.
    Zinc	1171	ft. Specific Conductance	198	ft.
    pH	1171	ft. Copper	113	ft.
    Lead	1171	ft. Cadmium	98	ft.
    Unionized Ammonia	369	ft.

    
    

    The proposed permit contains a limitation which restricts the wastewater discharge flow to this 15 percent limitation.

    
    

57. The mixing zone lengths set forth above were calculated based upon worst-case, low river flow conditions as required by Department rule. Under normal or high river flow conditions, compliance with Class III standards will be achieved at distances closer to the point of outfall.

58. The maximum 1,171 foot mixing zone length established in the proposed permit will not include any existing water supply intake structures and does not involve more than 10 percent of the total length of the Withlacoochee River.

    
    

59. The mixing zone established in the proposed permit will not include a significant nursery area for indigenous aquatic life. The area in question is a relatively deep pool area (ranging in depth from 4-1/2 to 10 feet, under low or relatively low flow conditions) that does not contain shoal or riffle areas or any rooted aquatic vegetation that would serve as a nursery area for juvenile species.

    
    

    Biological and Ecological Impacts

    
    

60. Absent difficulties imposed by the excessive fecal coliform discharge, the proposed discharge should otherwise have no significant adverse effect on aquatic ecology or biology in the Withlacoochee River.

    
    

61. There were no significant differences between the fish populations upstream and downstream from the discharge in 1989-1990. Per the opinion of George Burgess, an expert on fish ecology, the proposed discharge will have no significant adverse impact upon the downstream fish populations if the proposed discharge is similar in quality to that which was present in the 1989-1990 timeframe.

    
    

62. Mr. Stephen Carr testified that the proposed discharge would have an adverse impact on the Gulf sturgeon, a threatened species under the federal Endangered Species Act. Mr. Carr was accepted as an expert on the migratory habits of the Gulf sturgeon and testified that, in his experience, the Gulf sturgeon did not seem to remain in the vicinity of the confluence of the Withlacoochee River and the Suwannee River for the length of time that he would otherwise have expected. He opined that this behavior may be the result of adverse water quality conditions in the Withlacoochee River resulting from discharges of sulfate from the Valdosta Mill. While the witness has significant practical experience in tracking Gulf sturgeon, he has no educational or professional training or experience in water quality or water chemistry nor in biology or fish ecology. His opinion with regard to why the Gulf sturgeon absences itself from the confluence of the two rivers is not credited. There is no significant differences between sulfate concentrations in the Withlacoochee River near its confluence with the Suwannee River and sulfate concentrations in the Suwannee River above and below the confluence with the Withlacoochee. Furthermore, the data presented by PCA demonstrated that sulfate values in a spring that Mr. Carr testified attracted significant numbers of Gulf sturgeon are higher than sulfate concentrations at springs that the Gulf sturgeon appear to shun.

    
    

63. There is no significant rooted aquatic vegetation in the upstream or downstream vicinity of the discharge.

    
    

    Loss To The River Of Creek Treatment/Dilution

    
    

64. With the exception of fecal coliform addressed above, the loss of treatment and dilution that currently takes place in Jumping Gully Creek will be replaced to some extent by the dilution of rainfall water that will continue to enter Jumping Gully Creek and flow into the Withlacoochee River where it will mix with the discharge.

65. Natural aeration in Jumping Gully Creek can increase the DO content in the wastewater discharge at the point of discharge to the Withlacoochee River. Natural aeration will not occur in the proposed pipeline. As previously noted, the proposed permit requires the addition of mechanical aeration to provide a minimum DO concentration at all times of 1.5 mg/l in the wastewater at its discharge from the pipeline into the Withlacoochee River. The mechanical aeration system has been designed to provide an average DO content in the wastewater of 3.5 mg/l.

    
    

66. Discharge of mechanically aerated wastewater through the pipeline will result in compliance with the applicable water quality standard for dissolved oxygen at the maximum length of 1,171 feet from the point of discharge into the Withlacoochee.

    
    

67. Jumping Gully Creek provides treatment of certain constituents in the treated wastewater discharge. The parties have stipulated that, during the period from January 1992 through September 1994, there were average reductions of 629 lbs per day of BOD5, 210 lbs per day of TSS, and 4 NTU of turbidity in the wastewater after its flow through Jumping Gully Creek. In addition, the specific conductance of the wastewater was reduced by approximately 6.8 percent as it travelled through Jumping Gully Creek during periods of no dilution.

    
    

68. Testimony of Dr. Jim Sullivan, PCA's expert in water chemistry, establishes that the major effect of BOD5 discharges into a water body is a reduction in DO concentration. An additional 629 lbs per day of BOD5 from the Valdosta Mill through the pipeline will result in a maximum reduction of 0.2 parts per million dissolved oxygen. Such a minor change is not expected to have a significant environmental impact.

    
    

69. Also, as established by Sullivan's testimony, an additional 210 lbs per day of TSS discharged through the pipeline will increase TSS concentrations in the Withlacoochee River by a maximum of 0.3 parts per million. The natural background of TSS in the Withlacoochee River ranges from 6 to 20 parts per million and the minor increase associated with the loss of treatment otherwise obtained in Jumping Gully Creek has no environmental significance.

    
    

70. Bob White, an expert on water quality impact analysis and mixing zone determinations, testified that the treatment provided by Jumping Gully Creek would not eliminate or significantly reduce the need for mixing zones in the Withlacoochee River. In particular, White testified that the loss of turbidity treatment in the amount of 4 NTUs associated with the transfer of wastewater from Jumping Gully Creek to the pipeline caused PCA to request a mixing zone length for turbidity approximately 23 feet longer than it would need if the wastewater continued to be discharged through Jumping Gully Creek. Similarly, White testified that the loss of treatment of specific conductance associated with moving the discharge from Jumping Gully Creek to the pipeline meant that Jumping Gully Creek was requesting a mixing zone approximately 31 feet longer than would be required if the wastewater discharge stayed in Jumping Gully Creek.

    
    

    Transparency

    
    

71. The discharge of wastewater from the Valdosta Mill, whether through Jumping Gully Creek or the proposed pipeline, will continue to cause a violation of the Department's water quality standard for transparency in the Withlacoochee River during low river flow conditions. Under these conditions, the primary source of flow in the Withlacoochee River upstream of the Valdosta Mill

    discharge is spring water, which is naturally clear. When the colored wastewater from the Valdosta Mill enters the Withlacoochee during these time periods, the transparency in the river is reduced by more than ten (10) percent as compared to natural background in violation of Rule 62-302.530(68), Florida Administrative Code.

    
    

72. During the Phase I and Phase II study effort required by the 1992 Consent Order, PCA evaluated various technologies available to remove color from the Valdosta Mill wastewater in order to achieve compliance with the applicable Department standards. Although the Phase I engineering report concluded that it was not technologically or economically feasible to treat all of the Valdosta Mill wastewater on a year-round basis to assure compliance with standards in Jumping Gully Creek, the Phase II evaluation demonstrated that it was technologically feasible to implement color removal technology during low river flow conditions prior to discharge.

    
    

73. On October 24, 1994, PCA requested a variance from the water quality standard for transparency, pursuant to Section 403.201(1)(b), Florida Statutes, for a 27-month period to allow adequate time to take steps to implement color removal treatment of the wastewater.

    
    

74. On December 15, 1994, the Department issued its notices of intent to grant the proposed variance and to enter into a Second Amendment of Consent Order 91-2109, which reiterates the 27-month schedule set forth in the variance. Public notice of the proposed Agency action was published by PCA and the Department.

    
    

75. The implementation schedule contained in the proposed variance is designed to provide adequate time to allow PCA to conduct pilot tests and sludge handling studies, to design color removal and sludge handling systems based upon the result of these studies, to obtain necessary preconstruction permits, and to construct the color treatment system. The evidence presented at the hearing demonstrated that a 27-month time period to accomplish this effort is reasonable. At the end of the variance period, the wastewater will comply with the Department's water quality standard for transparency.

    
    

76. The issuance of the time limited variance from the water quality standard for transparency in the Withlacoochee River and Jumping Gully will have no additional significant adverse effect on the aquatic ecology of either of the Class III waters.

    
    

    CONCLUSIONS OF LAW

    
    

77. The parties involved in this proceeding have standing under Section 120.57(1), Florida Statutes.

    
    

    Jurisdiction

    
    

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

    
    

79. The PCA proposed permit involves the modification and operation of a stationary installation that is reasonably expected to be a source of water pollution, pursuant to Section 403.087(1), Florida Statutes. Therefore, the Department has jurisdiction to require PCA to obtain the necessary environmental permits before beginning construction of the proposed pipeline.

80. The Department has jurisdiction over Jumping Gully Creek and the Withlacoochee River as they occur in Florida, pursuant to Section 403.061(10), Florida Statutes. These water bodies are Class III waters.

    
    

    Burden of Proof

    
    

81. As the permit applicant, PCA must affirmatively provide the Department with reasonable assurances, "based on plans, test results, installation of pollution control equipment, or other information," that the proposed project which is the subject of this proceeding will not cause pollution in contravention of Department standards or rules. Rule 62-4.070(1), Florida Administrative Code.

    
    

82. PCA must demonstrate its entitlement to the necessary permits or variances by a preponderance of the evidence. Rule 62-103.130(1), Florida Administrative Code. Also, Florida Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

    
    

    Applicable Requirements

    
    

83. The proposed discharge must comply with the applicable water quality provisions in Chapters 62-4 and 62-302, Florida Administrative Code.

    
    

84. All surface waters of the state must at all times comply with the minimum water quality criteria contained in Rule 62-302.500, Florida Administrative Code.

    
    

85. Class III waters have a mandated designated use for recreation and propagation and maintenance of a healthy, well- balanced population of fish and wildlife. Rule 62-302.400(1), Florida Administrative Code.

    
    

86. It is the policy of the Department to protect the designated use of all waters of the state. Rule 62-302.100(3), Florida Administrative Code. The primary purpose of permit limits is to protect the designated use of the water.

    
    

87. In order to maintain designated uses, discharges to Class III water bodies must comply with specific water quality criteria contained in Rule 62- 302.530, Florida Administrative Code.

    
    

    ENTITLEMENT TO CONSTRUCTION PERMIT AND OPERATION PERMIT

    
    

88. PCA has not provided reasonable assurances that the effluent discharged from the proposed pipeline will meet water quality standards for fecal coliform and not be violative of fecal coliform standards applicable to the Withlacoochee River.

    
    

89. The proposed violation of fecal coliform standards contravenes the purpose of the Class III designation, keeping the water clean enough to allow public swimming and recreation. The discharge of sewage constituting human disease vectors is also detrimental to the public health, safety and welfare.

    
    

    Entitlement to Variance

    
    

90. PCA has provided reasonable assurances that the transparency standard can be met through color treatment technology, provided sufficient time is permitted to put such a process in place. Accordingly, PCA should be granted

    the proposed 27-month variance period within which to implement the technology necessary to bring the mill discharge into Jumping Gully Creek within required transparency standards for Class III waters.

    
    

91. Based on consideration of the facts found and the conclusions of law reached, it is

RECOMMENDED

That PCA be DENIED an industrial wastewater construction and operation permit for the proposed pipeline and GRANTED a 27-month variance from the water quality standard for transparency for the mill effluent which presently flows into Jumping Gully Creek and subsequently the Withlacoochee River, upon the condition that PCA shall have implemented the requisite color treatment technology by the conclusion of that time period.

DONE AND ENTERED this 14th day of March, 1995, at Tallahassee, Florida.

DON W. DAVIS, 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 this 14th day of March, 1995.

ENDNOTES

1/ Where the historical context requires, references to PCA throughout this Recommended Order include its predecessors in interest. Similarly, references to the Department also include its predecessor agencies.

2/ Rule 62-302.530(6), Florida Administrative Code.

3/ Rule 62-302.500(1)(f), Florida Administrative Code.

APPENDIX

In accordance with provisions of Section 120.59, Florida Statutes, the following constitute my specific rulings on proposed findings of fact submitted by the parties:

Proposed findings submitted by PCA and the Department 1.-9. Adopted, but not verbatim.

10. Rejected, subordinate

11.-18. Adopted, but not verbatim.

1. Rejected, unnecessary.

2. Rejected, subordinate. 21.-24. Adopted, not verbatim.

1. Rejected, subordinate.

2. Adopted.

3. Rejected, subordinate.

4. Rejected, unnecessary. 29.-33. Adopted, not verbatim.

34. Adopted. except for last sentence which is rejected as unnecessary.

35.-37. Adopted.

1. Adopted with exception of 2nd sentence.

2. Rejected, weight of the evidence.

3. Adopted, not verbatim.

4. Rejected, Subordinate.

5. Adopted, but not verbatim.

6. Adopted.

44.-45. Adopted in substance, not verbatim.

46.-53. Adopted with exception of fecal coliform findings presented by Petitioners which are adopted.

54.-55. Adopted.

56. Rejected, weight of the evidence indicates that PCA must make arrangements for treating human waste prior to disposal in the Mill water treatment system.

57.-63. Adopted in essence, but amended to reflect findings regarding fecal coliform.

64. Rejected, subordinate.

65.-68. Adopted in essence.

69. Rejected, cumulative.

70.-7I. Adopted, but not verbatim.

72. Rejected, subordinate, weight of the evidence. 73.-74. Adopted.

75.-78 Adopted in essence, but not verbatim. Adoption of any findings submitted by PCA and the Department are subject to control of findings reflecting concerns regarding fecal coliform.

79. Rejected, unnecessary.

Proposed findings submitted by Petitioners

1.-25. Adopted in essence, not verbatim.

26. Adopted by reference.

27.-29. Adopted.

30. Rejected, subordinate.

31.-32. Adopted by reference.

33. Rejected, cumulative.

34.-39. Adopted, but not verbatim.

40.-44. Adopted in essence, but subordinate to HO findings on this point.

45. Adopted in essence, but not verbatim. 46.-47. Rejected, unnecessary.

48.-6I. Subordinate to HO findings. 62.-63. Subordinate to HO findings. 64.-7I. Unnecessary.

72.-86. Rejected, cumulative.

87.-93. Adopted.

94.-97. Adopted, not verbatim. 98.-103. Adopted, not verbatim.

104.-125. Adopted, but not verbatim.

COPIES FURNISHED:

David G. Guest Dean Aldrich Karen Campbell Attorneys At Law

Sierra Club Legal Defense Fund

111 South Martin Luther King, Jr., Blvd. Tallahassee, Florida 32302

Lori E. H. Killinger Jennifer L. Mason Attorneys At Law

Office of General Counsel

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Robert L. Rhodes, Jr. Susan L. Stephens Attorneys At Law Holland & Knight

Post Office Drawer 810 Tallahassee, Florida 32301

Virginia B. Wetherell, Secretary Twin Towers Office Building

2600 Blair Stone Rd.

NOTICE OF RIGHT TO SUBMIT EXCEPTION

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

STATE, DEPARTMENT OF NOT FINAL UNTIL TIME EXPIRES TO ENVIRONMENTAL PROTECTION, FILE MOTION FOR REHEARING AND and PACKAGING CORPORATION DISPOSITION THEREOF IF FILED. OF AMERICA,

CASE NO. 95-2825

Petitioners, DOAH CASE NO. 94-4269

v.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF ADMINISTRATIVE HEARINGS,

et. al.,

Respondents.

/ Opinion filed November 29, 1995.

A Petition for Review - Original Jurisdiction.

Kenneth J. Plante, General Counsel, and J. Terrell Williams, Assistant General Counsel, Tallahassee, for Petitioner Department of Environmental Protection; Robert L. Rhodes, Jr. and Susan L. Stephens, of Holland & Knight, Tallahassee, for petitioner Packaging Corporation.

David G. Guest, Tallahassee for respondents Sierra Club, Four Rivers Audubon, Florida Canoeing and Kayaking Association, and Florida Wildlife Federation, Inc.

PER CURIAM.

The Florida Department of Environmental Protection (Department) petitions for review of a non-final order entered by a hearing officer of the Division of Administrative Hearings. The order is an Order Declining Remand. We grant the petition for review and remand with directions that the hearing officer make further findings as set forth in the Order of Remand.

Packaging Corporation of America (PCA) owns a paper and pulp mill in Lowndes County, Georgia. PCA uses large volumes of water and wastewater from the process is discharged. The wastewater (which includes sewage from toilets at the mill) receives primary treatment in a clarifier to and then moves through a series of ponds. The wastewater enters Jumping Gully Creek, which flows across the state line to the Withlacoochee River. In 1991, the 0.6 mile reach of the creek from the state line to the river was classified under Florida law

as a Class III water. The mill wastewater in the creek did not comply with the newly-applicable water quality standards.

PCA sought a permit to construct and operate a pipeline running parallel to the creek to convey wastewater from the mill to the existing discharge point in the river. The purpose of the pipeline was to allow the creek to achieve compliance with Class III water quality standards. PCA also sought a 27-month variance from the water quality standard for transparency in the river to allow time to install water color treatment technology. The Department issued a notice of intent to grant the permit and variance. Challengers of the permit petitioned for a formal hearing, which was conducted before a hearing officer from the Division of Administrative Hearings.

After the Department and PCA had filed a proposed recommended order, the challengers filed a Request for Official Recognition. The challengers asked the hearing officer to take official recognition of Rule 62-600.200(33), which defines "geometric mean," and of a calculation of the average fecal coliform count by computing the geometric mean of fecal coliform measurements contained in Exhibit 27B. The hearing officer issued an Order Granting Motion for Official Recognition, which stated "The motion of Petitioners to take official recognition of Rule 62-600.200(33) is granted."

The hearing officer issued a recommended order which recommended that the permit for the proposed pipeline be denied because the data establishes the concentration of fecal coliform in the proposed wastewater discharge is in excess of the monthly average limitation contained in Rule 62-302.530(6), Florida Administrative Code. The hearing officer noted that using data from quarterly monitoring reports, the geometric mean for fecal coliform pursuant to Rule 62-600.200(33), Florida Administrative Code, exceeds the 200 per 100 ml limitation contained in the Rule.

In an Order of Remand, the Department noted that the hearing officer's findings were either based on the challengers' Exhibit 27B or on evidence submitted post-hearing over the objection of PCA and the Department. We agree with the Department that Exhibit 27B appears to be hearsay, and that PCA and the Department have not waived the right to argue that hearsay is insufficient alone to support the finding of fact. Harris v. Game and Fresh Water Fish Comm'n, 495 So.2d 806 (Fla. 1st-DCA 1986). Because the issue did not arise during the hearing, the hearing officer did not take evidence or rule on whether the data in the exhibit would be admissible. If the hearing officer's findings regarding fecal coliform violations were based solely on Exhibit 27B, further findings appear necessary regarding whether the exhibit was hearsay and, if so, whether it would be admissible over objection in a civil action.

We also agree with the Department that on remand, the hearing officer should clarify whether his order granted or denied that portion of the challengers' request for official recognition setting forth the calculation and, if granted, specify grounds for rejecting the Department's and PCA's opposition to taking official recognition. 1/ If the findings were based on the post- hearing submission of the challengers, the hearing officer has not made necessary findings regarding admissibility of the additional evidence.

Because the hearing officer did not rule on admissibility of the calculation submitted post-hearing and additional evidence is necessary to rule on whether Exhibit 27B is hearsay which may not be the sole support for a finding, the Department correctly remanded the matter to the hearing officer.

On remand, the hearing officer may take additional evidence if deemed necessary to make the requested findings of fact and rulings. 2/

ZEHMER, C.J., BARFIELD and KAHN, JJ., CONCUR.

ENDNOTES

1/ We also agree with the Department that in view of the remand on the grounds above, a reconsideration by the hearing officer of his conclusions and recommendation related to PCA's purported entitlement to an unrequested variance of the transparency standard for the waters of Jumping Gully Creek seems appropriate.

2/ We reject PCA's suggestion of mootness.

M A N D A T E

From

DISTRICT COURT OF APPEAL OF FLORIDA

FIRST DISTRICT

To the Honorable, Ann Cole, Clerk Division of Administrative Hearings WHEREAS, in that certain cause filed in this Court

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL PROTECTION

vs. Case No. 95-2825

Your Case No. 94-4269

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF ADMINISTRATIVE HEARINGS, SIERRA CLUB, FLORIDA CHAPTER, FOUR RIVERS AUDUBON SOCIETY, INC., FLORIDA CANOEING AND KAYAKING ASSOCIATION, INC., FLORIDA WILDLIFE FEDERATION, INC.,

AND PACKAGING CORPORATION OF AMERICA

The attached opinion was rendered on November 29, 1995,

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable E. Earle Zehmer

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 15th day of December, 1995.

Jon S. Wheeler

Clerk, District Court of Appeal of Florida, First District

=================================================================

AMENDED RECOMMENDED ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SIERRA CLUB, Florida Chapter ) FOUR RIVERS, AUDUBON SOCIETY, ) INC., FLORIDA CANOEING AND ) KAYAKING ASSOCIATION, INC., ) and FLORIDA WILDLIFE )

FEDERATION, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 94-4269

) 95-0030

STATE OF FLORIDA, DEPARTMENT ) 95-0031

OF ENVIRONMENTAL PROTECTION, )

)

Respondent, )

and )

)

PACKAGING CORPORATION OF )

AMERICA, )

)

Intervenor. )

)

AMENDED RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, Hearing Officer with the Division of Administrative Hearings, conducted a formal hearing in the above- styled consolidated cases from January 7 through January 20, 1995, in Tallahassee, Florida. On March 13, 1996, an additional hearing on remand was held pursuant to mandate issued December 15, 1995, in Case Number 95-2825 of the District Court of Appeal of Florida, First District, and opinion of the Court issued November 29, 1995. The following appearances were entered:

APPEARANCES

For Petitioners, SIERRA CLUB, Florida Chapter, FOUR RIVERS AUDUBON SOCIETY, INC., FLORIDA CANOEING AND KAYAKING ASSOCIATION, INC., and FLORIDA WILDLIFE

FEDERATION, INC. (Petitioners):

David G. Guest Dean Aldrich Karen Campbell Richard Blaylock Attorneys At Law

Sierra Club Legal Defense Fund

111 South Martin Luther King, Jr. Boulevard Tallahassee, Florida 32302

For Respondent, DEPARTMENT OF ENVIRONMENTAL PROTECTION (Department): Lori E. H. Killinger

Jennifer L. Fitzwater

Attorneys At Law

Office of General Counsel

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

For Respondent/Intervenor, TENNECO PACKAGING INC. (formerly knows as Packaging Corporation of America or PCA)1:

Robert L. Rhodes, Jr. Susan L. Stephens Attorneys at Law Holland and Knight Post Office Drawer 810

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues in this case are twofold:

Whether Tenneco Packaging has demonstrated entitlement to the proposed industrial wastewater construction and operation permit (proposed permit) that is the subject of this proceeding by providing reasonable assurance to the Department that the proposed construction activity and subsequent operation of the company's industrial wastewater treatment facility will comply with applicable provisions of Chapter 403, Florida Statutes, and implementing Department rules, and:

Whether granting to Tenneco Packaging a 27-month variance from the water quality standard for transparency in the Withlacoochee River, and the associated second amendment to Consent Order, pursuant to Section 403.201(1)(b), Florida Statutes, is an abuse of the Department's discretion.

PRELIMINARY STATEMENT

Tenneco Packaging seeks a permit to construct and operate a pipeline which, in lieu of Jumping Gully Creek, will convey treated wastewater from the

company's pulp and paper mill to the existing discharge point in the Withlacoochee River in North Florida. Tenneco Packaging also seeks a variance from the water quality standard for transparency in the Withlacoochee River to allow adequate time to install treatment technology necessary to achieve compliance with that standard.

Petitioners filed two petitions, on July 11 and July 18, 1994, seeking a formal administrative hearing to challenge the Department's Intent to Issue the proposed permit and Intent to Issue an earlier proposed variance. Tenneco Packaging sought and was granted leave to intervene.

On August 10, 1994, Petitioners filed motions to amend the standing allegations contained in their two petitions. Those motions were also granted. The petitions were consolidated for hearing before the Division of Administrative Hearings.

On December 13, 1994, Tenneco Packaging filed a Notice of Filing an Amended Request for Variance, Suggestion of Mootness and Motion to Dismiss on the ground that the original proposed variance challenged in the consolidated cases had been superseded by the proposed variance which is the subject of the current proceedings. The motion was granted, and Case Number 94-4270 was dismissed.

On January 3, 1995, Petitioners filed two petitions for formal administrative hearing, challenging the proposed variance and the Department's decision to enter into a Second Amendment to Consent Order in connection with the proposed variance. Following referral of the two petitions to the Division of Administrative Hearings, Tenneco Packaging's motion to intervene in those proceedings was granted. Subsequently, Petitioners moved to amend the petition challenging the proposed permit (Case Number 94-4269) to allege standing pursuant to Section 403.412(5), Florida Statutes. The motion was granted. The three pending petitions were then consolidated for hearing.

At the January 7 through 20, 1995 hearing, Tenneco Packaging presented the testimony of seven expert witnesses and introduced sixty-seven (67) exhibits in its case-in-chief and two (2) exhibits on rebuttal. The Department presented one (1) expert witness and introduced four (4) exhibits. Petitioners presented the testimony of one (1) fact witness and four (4) expert witnesses. In addition, Petitioners presented the deposition of an expert witness in lieu of appearance at final hearing. Petitioners introduced twenty-eight (28) other individual and composite exhibits into evidence. Further, the parties' Prehearing Stipulation, was received into evidence as Hearing Officer Exhibit 1. The Hearing Officer took administrative notice of various statutes, rules and other documents which were compiled and received into evidence as Hearing Officer Exhibit 2.

A transcript of the January 7 through 20, 1995, proceedings was filed with the Division of Administrative Hearings on February 3, 1995. On March 14, 1995, the initial recommended order was issued in this proceeding.

On April 28, 1995, the Secretary of the Department issued an Order of Remand requesting the Hearing Officer to clarify certain matters in the record raised by the findings and conclusions in the initial recommended order pertinent to the issue of compliance with the water quality standard for fecal coliform in the Withlacoochee River. On July 13, 1995, the Hearing Officer entered an Order Declining Remand, and the Department subsequently filed a Petition for Review of Non-Final Administrative Action with the First District Court of Appeal (Case Number 95-2825). On November 29, 1995, the Court granted

the petition and ordered the Hearing Officer to accept remand. Mandate in the case issued on December 15, 1995.

Various questions raised by the Secretary in her Order of Remand and subsequently by the Court required reopening of the fecal coliform issue for further de novo proceedings. The Department and Tenneco Packaging entered into a stipulation regarding the fecal coliform issue on February 21, 1996, which stipulation was also filed on that date. A hearing to take additional evidence on the fecal coliform issue was held on March 13, 1996.

At the March 13, 1996 hearing, Tenneco Packaging presented the testimony of one (1) expert witness and introduced six (6) exhibits into evidence, inclusive of the February 21, 1996 fecal coliform issue stipulation between the Department and Tenneco Packaging which was admitted into evidence without objection by Petitioner. Neither the Department nor Petitioners presented any witnesses or evidence at the March 13th remand hearing.

A transcript of the March 13, 1996 proceedings on remand was filed with the Division of Administrative Hearings on March 18, 1996. The proposed amended recommended orders submitted by the parties are addressed in the appendix attached to this amended recommended order. This amended recommended order supersedes the initial recommended order issued on March 14, 1995.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

The Parties

1. As stipulated by the parties, Sierra Club, Florida Chapter; Four Rivers Audubon Society, Inc.; Florida Canoeing and Kayaking Association, Inc.; and the Florida Wildlife Federation, Inc., are each non-profit corporations registered or otherwise authorized to do business in Florida.

   
   

2. As stipulated by the parties, the Department of Environmental Protection is the state agency charged with the responsibility for enforcing, implementing, and interpreting the provisions of Chapter 403, Florida Statutes, and Rule Chapter 62, Florida Administrative Code.

   
   

3. As stipulated by the parties, Tenneco Packaging Inc. is a Delaware corporation and is the applicant for the proposed permit and proposed variance.

   
   

   Background

   
   

   Mill Operation and Wastewater Treatment System

   
   

4. Tenneco Packaging and its predecessors2 have owned and operated an unbleached kraft pulp and paper mill located near Valdosta, Georgia ("Valdosta Mill" or "Mill") since the mid-1950's.

   
   

5. The Valdosta Mill employs approximately 450 people, and Tenneco Packaging's associated woodlands operation employs approximately fifty additional people. The operations at the Valdosta Mill contribute approximately

   $93 million per year to the local economy. Approximately 40 percent of those expenditures occur in North Florida.

6. Tenneco Packaging produces unbleached, brown linerboard at the Valdosta Mill. Large volumes of water are used in the transfer of raw material logs to the debarking and chipping machines, in the chemical processes by which the wood chips are converted to pulp, and in the production of the linerboard product.

   
   

7. Tenneco Packaging recycles process water in its operations. Ninety- five (95) percent of the daily process water volume used in the Mill is reused and recycled. Approximately five (5) percent, or 10 - 12 million gallons per day, however, must be removed from the process system. The requirement to discharge this volume of wastewater results from the fact that when contaminants in the process water reach a certain level, the water can no longer be effectively used in the process operations.

   
   

8. Parameters of special concern when regulating the pulp and paper industry are biochemical oxygen demand (BOD5), total suspended solids (TSS), and pH.

   
   

9. The Valdosta Mill wastewater receives initial primary treatment in a clarifier tank located at the Mill where solids are settled out. The wastewater then travels via gravity flow through a series of seven ponds which provide some natural biological treatment and mechanical aeration.

   
   

10. For the period of January 1992 through September 1994, Tenneco Packaging's daily monitoring results demonstrate that the wastewater discharged from Bear Garden Swamp (denominated by Tenneco Packaging as Pond 6) contains concentrations of BOD5 and TSS below the discharge limits established by the United States Environmental Protection Agency and the Department, except for exceedances of the maximum daily TSS limit on February 5, 1992 and January 16, 1993. Periodic monitoring also indicates that unacceptable fecal coliform and total coliform counts in the wastewater are normally reduced in Jumping Gully Creek prior to mixing with the Withlacoochee River.

    
    

11. The wastewater leaving the pond system flows through Jumping Gully Creek in Georgia and Florida to an outfall structure in a control dam at the confluence of Jumping Gully Creek and the Withlacoochee River. At various times during the year, the wastewater is the sole or predominant flow in Jumping Gully Creek. The wastewater is discharged to the Withlacoochee River through four diffuser ports located in a pipe placed in the bottom of the River.

    
    

12. Jumping Gully Creek is a privately-owned watercourse that flows approximately three miles from Carroll's Pond (denominated by Tenneco Packaging as Pond 7) to the outfall structure in the Withlacoochee River in North Florida. The 0.6 mile reach of Jumping Gully Creek from the Georgia/Florida state line to its confluence with the Withlacoochee River is now classified as a Class III water. The Withlacoochee River is a navigable water used by the public for recreation, including canoeing, and is also classified as a Class III water.

    
    

13. There are control valves located at various points in the treatment system that allow Tenneco Packaging to regulate the amount of discharge released to Jumping Gully Creek and the Withlacoochee River. The purpose of these controls is to permit Tenneco Packaging to protect the water quality of the Withlacoochee River during low flow periods as required by the Department.

    
    

    Regulatory History of Jumping Gully Creek

14. Jumping Gully Creek's regulatory designation as a Class III water of the State of Florida is a relatively recent event. Up until the mid-1980s, Jumping Gully Creek was not subjected to Department water quality regulations.

    
    

15. During review of a Tenneco Packaging permit in 1984, the Department determined that the portion of Jumping Gully Creek located in Florida was to be regulated as a water of the state. Although Jumping Gully Creek was designated by then applicable rules as "unclassified", Tenneco Packaging was required to comply with certain minimum and general water quality criteria in Jumping Gully.

    
    

16. In 1986, the Department issued Temporary Operation Permit IT-24102659 ("1986 Permit") to Tenneco Packaging requiring the Company to conduct various treatability studies and to install additional treatment and other controls in an attempt to achieve compliance with the then applicable standards in Jumping Gully Creek.

    
    

17. In 1991, following rulemaking by the State of Florida Environmental Regulation Commission and administrative litigation before the Division of Administrative Hearings (DOAH Case Number 90-7357R), Jumping Gully Creek was designated a Class III water body, subject to all Class III water quality standards in addition to the minimum and general criteria.

    
    

18. When Jumping Gully Creek was designated a Class III water of the State, the wastewater from the Valdosta Mill still did not comply with the newly applicable water quality criteria.

    
    

19. In 1992, the Department issued Temporary Operation Permit Number IT24- 192462 ("1992 Permit") and Consent Order 91-2109 ("1992 Consent Order"). The 1992 Permit and 1992 Consent Order required Tenneco Packaging to conduct "water quality studies, engineering feasibility studies, and corrective actions to bring the discharge into compliance with applicable water quality standards in Jumping Gully Creek and the Withlacoochee River."

    
    

20. The 1992 Consent Order required Tenneco Packaging to carry out an engineering study to evaluate various methods of achieving compliance with Class III water quality standards in Jumping Gully Creek. The Consent Order listed various wastewater treatment options that were to be considered and also expressly directed Tenneco Packaging to consider the option of removing the wastewater from Jumping Gully Creek either through spray irrigation or through an alternate conveyance to the Withlacoochee River.

    
    

21. The 1992 Consent Order required Tenneco Packaging to conduct a Phase I screening evaluation of the several alternatives referred to above. The Consent Order also required a Phase II detailed feasibility study of the alternatives that survived the Phase I screening evaluation.

    
    

22. In response to the requirements of the 1992 Consent Order, Tenneco Packaging submitted Phase I and Phase II evaluations that were subject to review and comment by Department staff. The Department approved both phases.

    
    

23. While the Phase I engineering study demonstrates that the alternate conveyance option could result in consistent compliance with all Class III water quality standards in Jumping Gully Creek, state agencies of Florida government became involved in the process of reclassifying Jumping Gully Creek to a Class III water in order to protect and improve the water quality in the Withlacoochee River. In this regard, Tenneco Packaging owns Jumping Gully Creek in its

    entirety. The creek and pond system are fenced and posted with "No Trespassing Signs." The small creek is not open to the public and does not support any recreational uses.

    
    

24. The parties have stipulated that removing wastewater from Jumping Gully Creek and disposing of it through land application or spray irrigation is not a reasonable alternative in this case.

    
    

25. Tenneco Packaging cannot significantly reduce or minimize the volume of wastewater that must be treated and discharged by increased internal recycle of process water or reuse of wastewater.

    
    

    Other Permitting Issues

    
    

26. In all of the Department permits previously issued authorizing the discharge of wastewater from the Valdosta Mill, the applicable point of final discharge for measuring compliance with the discharge limitations contained in the permits has been at the existing outfall structure to the Withlacoochee River.

    
    

27. The 1986 Permit and 1992 Permit contain both "technology-based effluent limitations" and "water-quality based effluent limits" applicable to the wastewater discharge generated at the Valdosta Mill. The technology-based limits established by federal and state regulation limit the amount of BOD5 and TSS that may be discharged based upon the Mill's production rate. The water- quality based limits in the permits were imposed by the Department to protect the quality of the Withlacoochee River during low flow by taking advantage of Tenneco Packaging's ability to manage its wastewater discharge. Low river flow is the time when the discharge has the greatest impact on the Withlacoochee River. The water-quality based limits include a ceiling on the amount of BOD5 that may be discharged under low Withlacoochee River flow conditions. The Department established a minimum DO level of 4.0 mg/l from June to October as a site specific alternative criterion in 1990.

    
    

28. The 1992 Permit contains higher technology-based limits for BOD5 than those contained in the 1986 Permit. Specifically, the 1992 Permit authorized the discharge of 12,869 lbs per day of BOD5 on a daily maximum basis and 6,434 lbs per day on a monthly average basis while the 1986 Permit authorized a level of 11,100 lbs per day daily maximum basis and 5,550 lbs per day on a monthly average basis. The increase in technology-based limits was based upon production increases at the Valdosta Mill.

    
    

29. The 1992 Permit, however, imposed for the first time an annual average limitation on BOD5 discharges of 5,550 lbs per day and lowered the water-quality based limit applicable to the discharge. The 1986 water-quality based limit established a ceiling of 14 lbs of BOD5 per cubic foot of stream flow in the Withlacoochee River. The 1992 TOP lowered this water quality based limit to a maximum of 12 lbs of BOD5 per cubic foot of Withlacoochee stream flow.

    
    

30. The parties have stipulated that, if Tenneco Packaging had discharged the maximum amount of BOD5 authorized under the 1992 Permit, it would have discharged approximately 3.1 percent more BOD5 than would have been authorized under the 1986 Permit.

    
    

31. Because the issuance of the 1992 Permit involved an increase in allowable technology-based limits over those contained in the 1986 Permit, the Department required Tenneco Packaging to address antidegradation review

    requirements in the applicable Department rules, i.e., then designated Rules 17- 4.242(1) and 17-302.300(7), Florida Administrative Code. Tenneco Packaging responded to this requirement by submitting information on April 9, 1991, and on October 23, 1991, addressing the change in effluent limitations from the 1986 Temporary Operating Permit (TOP).

    
    

    Construction and Operation of Pipeline

    
    

32. Following the determination that the use of a pipeline alternate conveyance was the only technologically and economically feasible means of achieving Class III standards in Jumping Gully Creek, Tenneco Packaging filed, on January 14, 1994, an application for a permit to construct and operate the pipeline in accordance with the 1992 Consent Order.

    
    

33. For the first time, the proposed pipeline permit would establish mixing zones for Tenneco Packaging in the Withlacoochee River. Previous permits issued to Tenneco Packaging did not have this result, since those permits dealt with disposal of the effluent into Jumping Gully Creek. The proposed mixing zones in the Withlacoochee River encompass a distance of up to 1,171 feet downstream of the diffuser structure in the Withlacoochee for the following 11 pollutant parameters: dissolved oxygen; specific conductance; cadmium; copper; zinc; oil and grease; toxicity; pH; turbidity; unionized ammonia; and lead.

    
    

34. The pipeline will not provide treatment for pollutants in the wastewater it conveys. Dilution will not be available since the effluent enters the pipeline and goes directly to the river.

    
    

35. The extensive wastewater monitoring data from the outfall of Bear Garden Swamp (Pond 6) is representative of the nature and quantity of pollutants, except for dissolved oxygen, that will be discharged into the Withlacoochee River by the pipeline. A planned mechanical aeration system is expected to increase dissolved oxygen content in the wastewater prior to entering the pipeline. The proposed mechanical aeration will only assure a minimum concentration of DO in the wastewater of 1.5 mg/l and an average concentration of 3.5 mg/l.

    
    

36. The loss of the treatment effect presently realized by permitting the effluent to flow through Jumping Gully Creek will increase pollutants discharged into the river as follows: an average increase of 629 lb/day of biochemical oxygen demand (double the amount currently discharged); an average increase of

    210 lb/day of total suspended solids; an average increase of 4 NTU turbidity; an average loss of dissolved oxygen of 1.4 mg/l; and an average increase in specific conductivity of 492 umhos/cm. While Jumping Gully's outflow of natural drainage will provide some dilution at the confluence in the river, the creek will have only a seasonal outflow.

    
    

37. With or without the pipeline, the effluent discharge is so darkly- colored that transparency standards in the Withlacoochee are not presently met and will not be met in the future, absent color treatment prior to discharge.

    
    

38. Sewage from toilets serving the 450 plant employees is currently discharged into the mill effluent treatment system which consists of one primary clarifier and a series of ponds. This untreated human waste currently results in substantially elevated fecal coliform counts at Pond 6. The assertion by PCA's representative at the January 7 through 20, 1995, hearing that racoons and other warm blooded wildlife in the area of the pulp mill are responsible for the elevated fecal coliform levels is not credited.

39. Fecal coliforms are indicators of human disease vectors, such as cholera, hepatitis, various intestinal diseases, parasite and viruses. Mixing with high pH and elevated temperature found in pulp mill effluent does not disinfect fecal coliform. Also, disinfection is not effective through the treatment ponds. Disinfection of the wastewater can be achieved by chlorine, ozone, or UV radiation. Chlorine is not preferred in view of the adverse impacts associated with that chemical.

    
    

40. The Department and Tenneco Packaging have entered into a binding stipulation whereby Tenneco Packaging has agreed to remove all domestic waste from the industrial wastewater stream prior to introduction of the wastewater into the primary clarifier and to route the domestic waste to the local publicly owned sewage treatment plant.

    
    

41. Tenneco Packaging has submitted design drawings and plans to the Department for construction of a system to segregate all domestic waste from industrial wastewater at the Valdosta Mill and route it to the South Lowndes County, Georgia, Sewage Treatment System. Tenneco Packaging offered unrebutted testimony and the Department agreed that a system constructed in accordance with the design drawings and plans would be effective in removing all domestic waste from the industrial wastewater at the Valdosta Mill and routing it to the county sewage treatment system.

    
    

42. Lowndes County, Georgia, has agreed to accept the Mill's domestic waste.

    
    

43. Tenneco Packaging has agreed to accept a condition to the permit which is the subject of this proceeding which requires the Mill to segregate and remove all domestic waste at the Mill from the industrial wastewater prior to discharge of the wastewater through the pipeline into the Withlacoochee River. Specifically, Tenneco Packaging has agreed to accept and the Department supports issuance of the proposed permit with the following additional specific condition: "The permittee shall remove all domestic wastewater from the effluent within four (4) months from issuance of this permit or by October 1, 1996, whichever occurs later."

    
    

44. No fecal coliform attributable to human waste will be discharged into the Withlacoochee River through the proposed pipeline because Tenneco Packaging will remove all domestic waste from the Mill wastewater.

    
    

45. Evidence at the January 7 through 20, 1995, hearing showed that the fecal coliform counts in the Mill wastewater are attributable to the Mill's domestic waste; therefore, removal of the Mill's domestic waste from the wastewater provides reasonable assurances that the proposed discharge through the pipeline will not violate the Department's water quality standards for fecal coliform. [See Initial Recommended Order, Finding of Fact Number 39].

    
    

46. For parameters that are predicted to exceed Class III water quality criteria in the proposed wastewater discharge, Tenneco Packaging has requested mixing zones as authorized by Rule 62-4.244, Florida Administrative Code. [See Initial Recommended Order, Finding of Fact Numbers 56-59]

    
    

47. In response to Department requests for additional information, Tenneco Packaging filed supplemental submittals on March 22, April 21, and June 24, 1994. The Department then determined the application to be complete and

    proposed to issue the permit. Public notice of this proposal was timely published in a newspaper of general circulation in the vicinity of the Valdosta Mill.

    
    

48. Wastewater is proposed to be conveyed through an underground 48" high density polyethylene pipeline which will run parallel to Jumping Gully Creek for the approximately three mile distance to the Withlacoochee River. The pipeline will then be connected to the existing outfall and diffuser structure.

    
    

49. Tenneco Packaging will continue to operate the wastewater discharge system as a managed system as required under the 1992 Permit and the proposed permit. The proposed permit contains the same technology-based and water quality based effluent limitations as those contained in the currently effective 1992 Permit. The proposed permit also places further restrictions on BOD5 loading when the upstream DO concentration drops below 1.50 mg/l.

    
    

50. An opening will be created in the bottom of the existing control dam to allow an interchange of water between Jumping Gully Creek and the Withlacoochee River. Water flow in Jumping Gully Creek will not normally be impounded behind the dam, but will flow through the aperture in the dam to the Withlacoochee River. However, the opening is not large enough to allow the free flow of the Creek to the Withlacoochee with the result that there will still be a backwater effect with flow over the top of the dam during periods of high water in the Creek.

    
    

51. During the course of pipeline construction and installation activities, Tenneco Packaging will implement management practices to assure that these construction activities will not cause adverse impacts to the Withlacoochee River.

    
    

    Impacts on Jumping Gully Creek

    
    

52. The wastewater currently causes a significant adverse impact on water quality in Jumping Gully Creek as a result of periodic depressions in DO and increased specific conductivity. Once the pipeline is in operation, wastewater from the Valdosta Mill will no longer be conveyed through Jumping Gully Creek. The removal of the treated wastewater together with the construction of the opening in the dam will allow Jumping Gully Creek to achieve Class III water quality standards. There will be a net environmental benefit to the Creek.

    
    

    Impacts on the Withlacoochee River Minimum Water Quality Criteria

    
    

53. The proposed discharge will meet the minimum water quality criteria in Rule 62-302.500, Florida Administrative Code, once the sewage diversion of domestic waste is implemented.

    
    

54. The parties have stipulated that the current wastewater discharge into the Withlacoochee River does not and the proposed discharge from the pipeline will not produce odor in violation of the minimum water quality criteria.

    
    

55. While the water of the Withlacoochee River in the vicinity of the proposed discharge is not a known source of human water consumption, the river does provide recreational boating opportunity. Inferentially, swimming (even involuntarily) and ingestion of the water by humans in the area cannot be ruled out.

56. The color of the proposed discharge together with the physical "boiling" at the diffuser ports during low flow conditions constitute a nuisance in violation of the minimum water quality criterion. While the available evidence fails to establish that the "boiling" at the discharge standing alone constitutes a nuisance, such is the case when coupled with the color of the discharge. The color problem, however, should be ameliorated when color treatment is implemented. The color treatment and removal of the domestic waste from the discharged wastewater should obviate any substantial interference caused by the Mill discharge with the general public's use or enjoyment of the river.

    
    

    Class III Standards

    
    

57. With the exception of the water quality standard for transparency, as discussed below, and the water quality standards set forth in Finding of Fact Number 58, the discharge through the pipeline will comply with all applicable water quality standards at the outfall, provided the domestic waste is removed from the wastewater prior to discharge. [See Initial Recommended Order, Findings of Fact Numbers 45, 56; Joint Proposed Recommended Order, Proposed Findings of Fact Numbers 48-55 and associated record citations].

    
    

58. As set forth in the preceding findings, the information provided in the permit application and presented at hearing demonstrates that the Withlacoochee River will be in compliance with the applicable Class III water quality standards for each of the following parameters at the maximum distance indicated from the point of discharge from the proposed pipeline, provided that the wastewater discharge volume is never more than 15 percent of the flow of the Withlacoochee River.

    
    

    Dissolved Oxygen 1171 ft. Oil & Grease 362 ft. Chronic Toxicity 1171 ft. Turbidity 360 ft. Zinc 1171 ft. Specific Conductance 198 ft.

    pH 1171 ft. Copper 113 ft.

    Lead 1171 ft. Cadmium 98 ft. Unionized Ammonia 369 ft.

    
    

    The proposed permit contains a limitation which restricts the wastewater discharge flow to this 15 percent limitation.

    
    

59. The mixing zone lengths set forth above were calculated based upon worst-case, low river flow conditions as required by Department rule. Under normal or high river flow conditions, compliance with Class III standards will be achieved at distances closer to the point of outfall.

    
    

60. The maximum 1,171 foot mixing zone length established in the proposed permit will not include any existing water supply intake structures and does not involve more than 10 percent of the total length of the Withlacoochee River.

    
    

61. The mixing zone established in the proposed permit will not include a significant nursery area for indigenous aquatic life. The area in question is a relatively deep pool area (ranging in depth from 4-1/2 to 10 feet, under low or relatively low flow conditions) that does not contain shoal or riffle areas or any rooted aquatic vegetation that would serve as a nursery area for juvenile species.

    Biological and Ecological Impacts

    
    

62. The proposed discharge should have no significant adverse effect on aquatic ecology or biology in the Withlacoochee River.

    
    

63. There were no significant differences between the fish populations upstream and downstream from the discharge in 1989-1990. Per the opinion of George Burgess, an expert on fish ecology, the proposed discharge will have no significant adverse impact upon the downstream fish populations if the proposed discharge is similar in quality to that which was present in the 1989-1990 timeframe.

    
    

64. Mr. Stephen Carr testified that the proposed discharge would have an adverse impact on the Gulf sturgeon, a threatened species under the federal Endangered Species Act. Mr. Carr was accepted as an expert on the migratory habits of the Gulf sturgeon and testified that, in his experience, the Gulf sturgeon did not seem to remain in the vicinity of the confluence of the Withlacoochee River and the Suwannee River for the length of time that he would otherwise have expected. He opined that this behavior may be the result of adverse water quality conditions in the Withlacoochee River resulting from discharges of sulfate from the Valdosta Mill. While the witness has significant practical experience in tracking Gulf sturgeon, he has no educational or professional training or experience in water quality or water chemistry nor in biology or fish ecology. His opinion with regard to why the Gulf sturgeon absences itself from the confluence of the two rivers is not credited. There is no significant differences between sulfate concentrations in the Withlacoochee River near its confluence with the Suwannee River and sulfate concentrations in the Suwannee River above and below the confluence with the Withlacoochee. Furthermore, the data presented by Tenneco Packaging demonstrated that sulfate values in a spring that Mr. Carr testified attracted significant numbers of Gulf sturgeon are higher than sulfate concentrations at springs that the Gulf sturgeon appear to shun.

    
    

65. There is no significant rooted aquatic vegetation in the upstream or downstream vicinity of the discharge.

    
    

    Loss To The River Of Creek Treatment/Dilution

    
    

66. The loss of treatment and dilution that currently takes place in Jumping Gully Creek will be replaced to some extent by the dilution of rainfall water that will continue to enter Jumping Gully Creek and flow into the Withlacoochee River where it will mix with the discharge.

    
    

67. Natural aeration in Jumping Gully Creek can increase the DO content in the wastewater discharge at the point of discharge to the Withlacoochee River. Natural aeration will not occur in the proposed pipeline. As previously noted, the proposed permit requires the addition of mechanical aeration to provide a minimum DO concentration at all times of 1.5 mg/l in the wastewater at its discharge from the pipeline into the Withlacoochee River. The mechanical aeration system has been designed to provide an average DO content in the wastewater of 3.5 mg/l.

    
    

68. Discharge of mechanically aerated wastewater through the pipeline will result in compliance with the applicable water quality standard for dissolved oxygen at the maximum length of 1,171 feet from the point of discharge into the Withlacoochee.

69. Jumping Gully Creek provides treatment of certain constituents in the treated wastewater discharge. The parties have stipulated that, during the period from January 1992 through September 1994, there were average reductions of 629 lbs per day of BOD5, 210 lbs per day of TSS, and 4 NTU of turbidity in the wastewater after its flow through Jumping Gully Creek. In addition, the specific conductance of the wastewater was reduced by approximately 6.8 percent as it travelled through Jumping Gully Creek during periods of no dilution.

    
    

70. Testimony of Dr. Jim Sullivan, Tenneco Packaging's expert in water chemistry, establishes that the major effect of BOD5 discharges into a water body is a reduction in DO concentration. An additional 629 lbs per day of BOD5 from the Valdosta Mill through the pipeline will result in a maximum reduction of 0.2 parts per million dissolved oxygen. Such a minor change is not expected to have a significant environmental impact.

    
    

71. Also, as established by Sullivan's testimony, an additional 210 lbs per day of TSS discharged through the pipeline will increase TSS concentrations in the Withlacoochee River by a maximum of 0.3 parts per million. The natural background of TSS in the Withlacoochee River ranges from 6 to 20 parts per million and the minor increase associated with the loss of treatment otherwise obtained in Jumping Gully Creek has no environmental significance.

    
    

72. Bob White, an expert on water quality impact analysis and mixing zone determinations, testified that the treatment provided by Jumping Gully Creek would not eliminate or significantly reduce the need for mixing zones in the Withlacoochee River. In particular, White testified that the loss of turbidity treatment in the amount of 4 NTUs associated with the transfer of wastewater from Jumping Gully Creek to the pipeline caused Tenneco Packaging to request a mixing zone length for turbidity approximately 23 feet longer than it would need if the wastewater continued to be discharged through Jumping Gully Creek. Similarly, White testified that the loss of treatment of specific conductance associated with moving the discharge from Jumping Gully Creek to the pipeline meant that Jumping Gully Creek was requesting a mixing zone approximately 31 feet longer than would be required if the wastewater discharge stayed in Jumping Gully Creek.

    
    

    Transparency

    
    

73. The discharge of wastewater from the Valdosta Mill, whether through Jumping Gully Creek or the proposed pipeline, will continue to cause a violation of the Department's water quality standard for transparency in the Withlacoochee River during low river flow conditions. Under these conditions, the primary source of flow in the Withlacoochee River upstream of the Valdosta Mill discharge is spring water, which is naturally clear. When the colored wastewater from the Valdosta Mill enters the Withlacoochee during these time periods, the transparency in the river is reduced by more than ten (10) percent as compared to natural background in violation of Rule 62-302.530(68), Florida Administrative Code.

    
    

74. During the Phase I and Phase II study effort required by the 1992 Consent Order, Tenneco Packaging evaluated various technologies available to remove color from the Valdosta Mill wastewater in order to achieve compliance with the applicable Department standards. Although the Phase I engineering report concluded that it was not technologically or economically feasible to treat all of the Valdosta Mill wastewater on a year-round basis to assure compliance with standards in Jumping Gully Creek, the Phase II evaluation

    demonstrated that it was technologically feasible to implement color removal technology during low river flow conditions prior to discharge.

    
    

75. On October 24, 1994, Tenneco Packaging requested a variance from the water quality standard for transparency in the Withlacoochee River, pursuant to Section 403.201(1)(b), Florida Statutes, for a 27-month period to allow adequate time to take steps to implement color removal treatment of the wastewater.

    
    

76. On December 15, 1994, the Department issued its notices of intent to grant the proposed variance and to enter into a Second Amendment of Consent Order 91-2109, which reiterates the 27-month schedule set forth in the variance. Public notice of the proposed Agency action was published by Tenneco Packaging and the Department.

    
    

77. The implementation schedule contained in the proposed variance is designed to provide adequate time to allow Tenneco Packaging to conduct pilot tests and sludge handling studies, to design color removal and sludge handling systems based upon the result of these studies, to obtain necessary preconstruction permits, and to construct the color treatment system. The evidence presented at the hearing demonstrated that a 27-month time period to accomplish this effort is reasonable. At the end of the variance period, the wastewater will comply with the Department's water quality standard for transparency in the Withlacoochee River.

    
    

78. The issuance of the time limited variance from the water quality standard for transparency in the Withlacoochee River will have no additional significant adverse effect on the aquatic ecology of the river.

    
    

    CONCLUSIONS OF LAW

    
    

79. The parties involved in this proceeding have standing under Section 120.57(1), Florida Statutes.

    
    

    Jurisdiction

    
    

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

    
    

81. The Tenneco Packaging proposed permit involves the modification and operation of a stationary installation that is reasonably expected to be a source of water pollution, pursuant to Section 403.087(1), Florida Statutes. Therefore, the Department has jurisdiction to require Tenneco Packaging to obtain the necessary environmental permits before beginning construction of the proposed pipeline.

    
    

82. The Department has jurisdiction over Jumping Gully Creek and the Withlacoochee River as they occur in Florida, pursuant to Section 403.061(10), Florida Statutes. These water bodies are Class III waters.

    
    

    Burden of Proof

    
    

83. As the permit applicant, Tenneco Packaging must affirmatively provide the Department with reasonable assurances, "based on plans, test results, installation of pollution control equipment, or other information," that the proposed project which is the subject of this proceeding will not cause

    pollution in contravention of Department standards or rules. Rule 62-4.070(1), Florida Administrative Code.

    
    

84. Tenneco Packaging must demonstrate its entitlement to the necessary permits or variances by a preponderance of the evidence. Rule 62-103.130(1), Florida Administrative Code. Also, Florida Department of Transportation v. J.

    W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

    
    

    Applicable Requirements

    
    

85. The proposed discharge must comply with the applicable water quality provisions in Chapters 62-4 and 62-302, Florida Administrative Code.

    
    

86. All surface waters of the state must at all times comply with the minimum water quality criteria contained in Rule 62-302.500, Florida Administrative Code.

    
    

87. Class III waters have a mandated designated use for recreation and propagation and maintenance of a healthy, well- balanced population of fish and wildlife. Rule 62-302.400(1), Florida Administrative Code.

    
    

88. It is the policy of the Department to protect the designated use of all waters of the state. Rule 62-302.100(3), Florida Administrative Code. The primary purpose of permit limits is to protect the designated use of the water.

    
    

89. In order to maintain designated uses, discharges to Class III water bodies must comply with specific water quality criteria contained in Rule 62- 302.530, Florida Administrative Code.

    
    

    Entitlement to Construction Permit and Operation Permit

    
    

90. Tenneco Packaging has provided reasonable assurances that the pipeline will meet all water quality standards applicable to the Withlacoochee River after reasonable opportunity for mixing, with the exception of the transparency standard, provided that the Mill's domestic waste is removed from the wastewater prior to discharge to the Withlacoochee River. Accordingly, Tenneco Packaging should be granted the proposed permit, subject to an additional condition requiring removal of all domestic waste from the discharge.

    
    

    Entitlement to Variance

    
    

91. Tenneco Packaging has provided reasonable assurances that the transparency standard in the Withlacoochee River can be met through color treatment technology, provided sufficient time is permitted to put such a process in place. Accordingly, Tenneco Packaging should be granted the proposed 27-month variance period within which to implement the technology necessary to bring the mill discharge into the Withlacoochee River within required transparency standards for Class III waters.

    
    

    Mootness of Remand Issues

    
    

92. In light of the irrevocable commitment by Tenneco Packaging to modify its operations to remove the domestic waste entirely from the Mill wastewater, any other issues and questions raised by the Secretary's Order of Remand and the Court's opinion in Case Number 95-2825 regarding fecal coliform are hereby rendered moot.

RECOMMENDATION

Based on consideration of the facts found and the conclusions of law reached, it is

RECOMMENDED that Tenneco Packaging be GRANTED an industrial wastewater construction and operation permit for the proposed pipeline upon the conditions contained in the proposed permit and upon the additional condition that Tenneco Packaging shall segregate and remove all domestic waste from the Mill wastewater within four (4) months of issuance of the permit or by October 1, 1996, whichever is later, and GRANTED a 27-month variance from the water quality standard for transparency in the Withlacoochee River, upon the condition that Tenneco Packaging shall have implemented the requisite color treatment technology by the conclusion of that time period.

DONE AND ENTERED this 9th day of April, 1996, at Tallahassee, Florida.

DON W. DAVIS, 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 this 9th day of April, 1996.

ENDNOTES

1/ This is a name change only. There has been no change in ownership or control of the Valdosta Mill which is the subject of this proceeding. [Remand Transcript at p. 9]. The phrase "Tenneco Packaging" includes PCA and all predecessors.

2/ Where the historical context requires, references to Tenneco Packaging throughout this Amended Recommended Order include its predecessors in interest. Similarly, references to the Department also include its predecessor agencies.

APPENDIX

RESPONDENT'S AND INTERVENOR'S PROPOSED AMENDED FINDINGS

Respondent and Intervenor filed a joint proposed amended recommended order.

That document consisted of the original recommended order issued in this case with strike through indications for recommended findings deleted as a result of remand proceedings and underlined proposed findings with record citations for proposed amended recommended findings. Accordingly, proposed findings 1-78 of the Department's and Tenneco's joint proposed amended recommended order were reviewed and are adopted with exception of the proposed deletions of the word "unacceptable" from finding number 10.

PROPOSED AMENDED FINDINGS SUBMITTED BY PETITIONERS

Petitioners submitted an amended proposed recommended final order consisting of 46 paragraphs of proposed findings of fact. Since none of the proposed amended findings contained record citation to either the original proceedings or remand proceedings had in this case, specific rulings with regard to those proposed findings is not possible. However, the proposed findings were reviewed and are addressed to the extent possible by the foregoing findings of fact and conclusions of law.

COPIES FURNISHED:

David G. Guest Dean Aldrich Karen Campbell Attorneys At Law

Sierra Club Legal Defense Fund

111 South Martin Luther King, Jr., Blvd. Tallahassee, Florida 32302

Jennifer L. Fitzwater Attorney at Law

Office of General Counsel Department of Environmental

Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Robert L. Rhodes, Jr. Susan L. Stephens Attorneys At Law Holland & Knight

Post Office Drawer 810 Tallahassee, Florida 32301

Virginia B. Wetherell Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kenneth Plante General Counsel

Department of Environmental Protection

3900 Commonwealth Boulelvard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTION

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-004269

Orders for Case No: 94-004269