STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MELLITA A. LANE; JACQUELINE M. LANE; ZACHARY P. LANE; SARAH M. LANE; PETER A. LANE; FRIENDS OF PERDIDO BAY, INC.; AND JAMES LANE, Petitioners, | ) ) ) ) ) ) ) ) | |
vs. | ) Case ) | Nos. 05-1609 05-1610 |
DEPARTMENT OF ENVIRONMENTAL | ) | 05-1611 |
PROTECTION AND INTERNATIONAL | ) | 05-1612 |
PAPER COMPANY, | ) | 05-1613 |
Respondents. | ) ) | 05-1981 |
)
RECOMMENDED ORDER
The final hearing in this case was held on May 31, June 1, 2, and 26 through 30, and July 17, 27, and 28, 2006, in Pensacola, Florida, before Bram D. E. Canter, an Administrative Law Judge of the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioners Friends of Perdido Bay, Inc. and James Lane:
Howard K. Heims, Esquire Littman, Sherlock & Heims, P.A. Post Office Box 1197
Stuart, Florida 34995
and
Marcy I. LaHart, Esquire 711 Talladega Street
West Palm Beach, Florida 33405-1143
For Petitioners Mellita A. Lane, Jacqueline M. Lane, Zachary P. Lane, Peter A. Lane, and Sarah M. Lane:
Jacqueline M. Lane, pro se, and Qualified Representative
10738 Lillian Highway
Pensacola, Florida 32506
For Respondent International Paper Company (IP):
Terry Cole, Esquire
Patricia A. Renovitch, Esquire Oertel, Fernandez, Cole,
& Bryant, P.A. Post Office Box 1110
Tallahassee, Florida 32302-1110
For Respondent Florida Department of Environmental Protection (Department):
W. Douglas Beason, Esquire David K. Thulman, Esquire
The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUES
The issues in this case are whether IP is entitled to issuance of National Pollutant Discharge Elimination System (NPDES) Permit Number FL0002526-001/001-IW1S ("the proposed permit"), Consent Order No. 04-1202, Authorization for Experimental Use of Wetlands Order No. 04-1442, and Waiver Order No. 04-0730 (collectively, "the Department authorizations"), which would authorize IP to discharge treated industrial wastewater from its paper mill in Cantonment, Escambia County, Florida, into wetlands which flow to Elevenmile Creek and Perdido Bay.
PRELIMINARY STATEMENT
On April 12, 2005, the Department published notice of its intent to issue the proposed permit, Consent Order, exemption, and waiver. The Department authorizations would allow IP to change its industrial wastewater treatment system at the Cantonment paper mill, construct an effluent distribution system on approximately 1,500 acres of wetlands owned by IP that are located near the mill site, construct a 10-mile pipeline to transport its treated wastewater to the wetlands, and discharge the treated wastewater into the wetlands.
In April 2005, Mellita A. Lane, Jacqueline M. Lane, Zachary P. Lane, Peter A. Lane, and Sarah M. Lane ("Lane Petitioners") filed identical petitions challenging the Department authorizations on numerous grounds. The Department forwarded the petitions to DOAH for assignment of an Administrative Law Judge and to conduct an evidentiary hearing. The Lane Petitioners subsequently amended their petitions.
In May 2005, Friends of Perdido Bay, Inc. (FOPB), and James Lane filed a petition for hearing to challenge the Department authorizations. The FOBP petition was forwarded to DOAH by the Department, and the pending cases were
consolidated for the final hearing. The FOPB petition was subsequently amended.
In October 2005, while the cases were pending, IP applied for a revision to its NPDES permit renewal application. The cases were abated so that the Department could review and act on the permit revision. In January 2006, DEP issued a proposed revised NPDES permit and a corresponding First Amendment to Consent Order.
At the final hearing, the parties' Joint Exhibits 1 through 18 were admitted into evidence. IP presented the testimony of Kyle Moore, accepted as an expert in environmental engineering and management; Dr. Glenn Daigger, accepted as an expert in civil engineering, environmental engineering and wastewater treatment, with a specialty in biological wastewater treatment; Thomas Gallagher, accepted as an expert in environmental engineering with a specialty in water quality modeling; Dr. Robert Livingston, accepted as an expert in aquatic ecology and ecosystem ecology, with a specialty in pollution biology; and Dr. Wade Nutter, accepted as an expert in hydrology, soils, and forested wetlands. IP's Exhibits 1, 3, 17, 19, 21 through 33, 35 through 37, 39
through 41, 43 through 46, 49 through 52, 54, 55, 57, 58,
60 through 64, 65A, 65B, 66 through 75, 78 through 81, 82B
through 82D, 83A through 83C, 84 through 86, 87A , 87B, 88A through 88D, 89A, 89B, 90A through 90E, 93, 94, 95A, 95B,
100, 101, and 104A through 104J were admitted into evidence.
The Department presented the testimony of William Evans, who was accepted as an expert in environmental engineering. The Department's Exhibit 38 was admitted into evidence.
Petitioners presented the testimony of Barry Sulkin, an environmental scientist; William Evans; William Chandler, a Department chemist; Donald Ray, a Department biologist; Laurence Donelan, a Department biologist; Glenn Butts, a Department marine biologist; Dr. Steven Schropp, an environmental scientist; Dr. Jacqueline Lane, a marine biologist; Dr. Kevin White, a civil engineer; Dr. Richard Weickowitz, a Department scientist who works with water quality models; and fact witnesses James Lane, Alexander Zelius, Pompelio Ucci, Ray Barkowski, Winford Howell, Bob DeGraff, and Matthew Dimitroff. Petitioners also offered the depositions of five persons, which were admitted into evidence: Cynthia Arnold, a civil engineer and IP consultant on landfill matters; Jeff Hilleke, an IP chemical engineer; Dr. Michael Steltenkamp, IP's Environmental Health and Safety Manager; Dr. Leslee
Williams, a Department oceanographer; and Joel Bolduc, a former IP environmental engineer. Petitioners' Exhibits 5, 5A through 5C1, 6 through 8, 27, 35, 43, 51 through 56, 59,
62, 67, 71, 79, 80A, 81 through 83, 91, 92A, 92B, 100, 101,
103A, and 103B were admitted into evidence.
Brown was allowed to present comments on the record as a private citizen and member of the public.
The undersigned took official recognition of applicable sections of the Florida Statutes (2005) and Florida Administrative Code, the "cluster rule" published in the Code of Federal Regulations, and three prior administrative orders involving the Cantonment mill.
On July 26, 2006, the Department filed without objection a revision to the Consent Order. On July 31, 2006, the Department filed Joint Trial Exhibit 18 that integrated the Consent Order dated April 12, 2005, the First Amendment to Consent Order dated January 11, 2006, and the Department’s Notice of Minor Revision to Consent Order filed on July 26, 2006.
The 21-volume Transcript of the hearing was filed with DOAH. At the request of Petitioners, the time for filing proposed findings of fact and conclusions of law was extended. The parties timely filed Proposed Recommended Orders (PROs). The parties were allowed to file
supplemental argument on the interpretation of Florida Administrative Code Rule 62-660.300(1). All parties filed supplemental argument. The PROs and supplemental argument have been carefully considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Introduction A. The Parties
The Department is the state agency authorized under Chapter 403, Florida Statutes (2006),2 to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency (EPA), the Department administers the NPDES permitting program in Florida.
IP owns and operates the integrated bleached kraft paper mill in Cantonment, Escambia County, Florida.
FOPB is a non-profit Alabama corporation3 established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the President of FOPB.
Mellita A. Lane, Zachary P. Lane, Peter A. Lane, and Sarah M. Lane are the adult children of Dr. Jacqueline
Lane and James Lane. Dr. Lane and James Lane live on property adjacent to Perdido Bay with their son Peter.
The Adjacent Waters
The mill's wastewater effluent is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. The creek flows southwest into the northeastern portion of Perdido Bay. Elevenmile Creek is a freshwater stream for most of its length but is sometimes tidally affected one to two miles from its mouth. Elevenmile Creek is designated as a Class III water.
Perdido Bay is approximately 28 square miles in area and is bordered by Escambia County on the east and Baldwin County, Alabama on the west. The dividing line between the states runs north and south in the approximate middle of Perdido Bay. U.S. Highway 90 crosses the Bay, going east and west, and forms the boundary between what is often referred to as the "Upper Bay" and "Lower Bay." The Bay is relatively shallow, especially in the Upper Bay, ranging in depth between five and ten feet. Perdido Bay is designated as a Class III water.
Sometime around 1900, a manmade navigation channel was cut through the narrow strip of land separating Perdido Bay from the Gulf of Mexico. The channel, called Perdido Pass, allowed the salt waters of the Gulf to move with the
tides up into Perdido Bay. Depending on tides and freshwater inflows, the tidal waters can move into the most northern portions of Perdido Bay and even further, into its tributaries and wetlands.
The Perdido River flows into the northwest portion of Perdido Bay. It is primarily a freshwater river but it is sometimes tidally influenced at and near its mouth. The Perdido River was designated an Outstanding Florida Water (OFW) in 1979.
At the north end of Perdido Bay, between Elevenmile Creek and the Perdido River, is a large tract of land owned by IP called the Rainwater Tract. The northern part of the tract is primarily freshwater wetlands. The southern part is a tidal marsh. Tee and Wicker Lakes are small (approximately 50 acres in total surface area) tidal ponds within the tidal marsh. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to Tee and Wicker Lakes from Perdido Bay.
The Mill 1. Production
Florida Pulp and Paper Company first began operating the Cantonment paper mill in 1941. St. Regis Paper Company (St. Regis) acquired the mill in 1946. In
1984, Champion International Corporation (Champion) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such as printing and writing grades of paper. In 2001, Champion merged with IP, and IP took over operation of the mill. The primary product of the mill continues to be printing and writing paper.
The mill is integrated, meaning that it brings in logs and wood chips, makes pulp, and produces paper. The wood is chemically treated in cookers called digesters to separate the cellulose from the lignin in the wood because only the cellulose is used to make paper. Then the "brown stock" from the digesters goes through the oxygen delignification process, is mixed with water, and is pumped to paper machines that make the paper products.
There are two paper machines located at the mill.
The larger paper machine, designated P5, produces approximately 1,000 tons per day of writing and printing paper. The smaller machine, P4, produces approximately 400 to 500 tons per day of "fluff pulp."
2. The Existing Wastewater Treatment Plant
The existing wastewater treatment plant (WWTP) at the mill is described in the revised NPDES permit as a "multi-pond primary and secondary treatment system,
consisting of a primary treatment system (primary settling basin, polymer addition, two solids/sludge dewatering basins, and a floating dredge), and secondary treatment system (four ponds in series; two aerated stabilization basins with approximately 2,200 horsepower (HP) of aeration capacity, a nutrient feed system, two non-aerated polishing ponds and a final riffle section to re-aerate the effluent)."
The WWTP is a system for reducing the biological oxygen demand (BOD) of the mill's wastewater by bacteria. IP’s wastewater is nutrient deficient when it enters the WWTP. Nutrients in the form of phosphorus and nitrogen must be added for the growth of bacteria.
The WWTP begins with a primary settling basin in which suspended solids settle to the bottom. The solids form a sludge that is pumped by hydraulic dredge into two dewatering basins. The dewatering basins are used alternately so that, as one pond is filled, water is removed from the other pond. After being dewatered, the sludge is removed and allowed to dry. Then, it is transported to a landfill located about five miles west of the mill on land owned by IP.
The water removed from the dewatering basins moves into to the first aeration basin. The aeration basin has
floating aerator devices that add oxygen to facilitate biological conversion of the wastewater. The wastewater then flows sequentially through three more basins where there is further oxygenation and settling of the biological solids. The discharge from the fourth settling basin flows through a riffle section where the effluent is aerated using a series of waterfalls. This is the last element of the treatment process from which the mill's effluent enters waters of the state.
Chemicals are added during the treatment process to control phosphorus and color. Chemicals are also added to suppress foam.
Sanitary wastewater from the mill, after pretreatment in an activated sludge treatment system, is "sewered" to the mill's WWTP and further treated in the same manner as the industrial wastewater. A separate detention pond collects and treats stormwater from onsite and offsite areas and discharges at the same point as the wastewater effluent from the WWTP. Stormwater that falls on the industrial area of the mill is processed through the WWTP.
The discharge point from the WWTP, and the point at which the effluent is monitored for compliance with state effluent limitations, is designated D-001, but is also
called the Parshall Flume. The effluent is discharged from the Parshall Flume through a pipe to an area of natural wetlands. After passing through the wetlands, the combined flow runs through a pipe that enters Elevenmile Creek from below the surface. This area is called the "boil" because the water can be observed to boil to the surface of Elevenmile Creek. From the boil, the mill effluent flows approximately 14 miles down (apparently misnamed) Elevenmile Creek to upper Perdido Bay.
Regulatory History of the Mill
Before 1995, the mill had to have both state and federal permits. The former Florida Department of Environmental Regulation (DER) issued St. Regis an industrial wastewater operating permit in 1982 pursuant to Chapter 403, Florida Statutes. The EPA issued St. Regis an NPDES permit in 1983 pursuant to the Clean Water Act. When it acquired the facility in 1984, Champion continued to operate the mill under these two permits.
In 1986, Champion obtained a construction permit from DER to install the oxygen delignification technology and other improvements to its WWTP in conjunction with the conversion of the production process from an unbleached to a modified bleached kraft production process.
In 1987, Champion applied to DER for an operating permit for its modified WWTP and also petitioned for a variance from the Class III water quality standards in Elevenmile Creek for iron, specific conductance, zinc, and transparency. DER's subsequent proposal to issue the operating permit and variance was formally challenged.4
In 1988, while the challenges to the DER permit and variance were still pending, Champion dropped its application for a regular operating permit and requested a temporary operating permit (TOP), instead.
In December 1989, DER and Champion entered into Consent Order No. 87-1398 ("the 1989 Consent Order"). The 1989 Consent Order included an allegation by DER that the mill's wastewater discharge was causing violation of state water quality standards in Elevenmile Creek for dissolved oxygen (DO), un-ionized ammonia, and biological integrity.
The 1989 Consent Order authorized the continued operation of the mill, but established a process for addressing the water quality problems in Elevenmile Creek and Perdido Bay and bringing the mill into compliance in the future. Champion was required to install equipment to increase the DO in its effluent within a year. Champion was also required to submit a plan of study and, 30 months after DER's approval of the plan of study, to submit a
study report on the impacts of the mill's effluent on DO in Elevenmile Creek and Perdido Bay and recommended measures for reducing or eliminating adverse impacts. The study report was also supposed to address the other water quality violations caused by Champion.
A comprehensive study of the Perdido Bay system was undertaken by a team of 24 scientists lead by
Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed by a series of related scientific studies, which will be referred to collectively in this Recommended Order as "the Livingston studies."
The 1989 Consent Order had no expiration date, but it was tied to the TOP, which had an expiration date of December 1, 1994. Champion was to be in compliance with all applicable water quality standards by that date.
The TOP established the following specific effluent discharge limitations for the mill:
Monthly Average Maximum Biological Oxygen Demand (BOD)
(Mar-Oct) 4,500 lbs/day 6,885 lbs/day
(Nov-Feb) 5,100 lbs/day 6,885 lbs/day
Total Suspended Solids (TSS)
(Mar-Oct) 8,000 lbs/day 27,000 lbs/day
(Nov-Feb) 11,600 lbs/day 27,000 lbs/day
Iron 3.5 mg/l
Specific Conductance 2,500 micromhos/cm
Zinc .075 mg/l
The limits stated above for iron, specific conductance, and zinc were derived from the variance granted to Champion. Champion was also granted variances from the water quality standards for biological integrity, un-ionized ammonia, and DO.
The 1989 Consent Order, TOP, and variance were the subject of the Recommended Order and Final Order issued in Perdido Bay Environmental Association, Inc. v. Champion International Corporation, 89 ER FALR 153 (DER Nov. 14, 1989). Champion's deviation from the standards for iron, zinc, and specific conductance pursuant to the variance was determined to present no significant risk of adverse effect on the water quality and biota of Elevenmile Creek and Perdido Bay. The mill effluent's effect on transparency (reduced by color in the mill effluent) was considered a potentially significant problem. However, because it was found that there was no practicable means known or available to reduce the color, and there was insufficient
information at that time to determine how Champion's discharge of color was affecting the biota, Champion was allowed to continue its discharge of color into Elevenmile Creek pending the results of the Livingston studies.
In the administrative hearing, the petitioners argued that it was unreasonable to put off compliance for five years, but the hearing officer determined that five years was reasonable under the circumstances. One finding in the Recommended Order and a reason for recommending approval of the TOP and Consent Order was:
After the studies referred to in the consent order, the Department will not allow Champion additional time to study problems further. Significant improvements will be required within the five year period and at the end of that period, the plant will be in compliance with all water quality standards or will be denied an operating permit, with related enforcement action.
The requirement of the 1989 Consent Order that Champion be in compliance with all applicable standards by December 1994, was qualified with the words "unless otherwise agreed." In considering this wording, the hearing officer opined that any change in the compliance deadline "would require a new notice of proposed agency action and point of entry for parties who might wish to contest any modification in the operational requirements,
or changes in terms of compliance with water quality standards."
The mill was not in compliance with all water quality standards in December 1994. No enforcement action was taken by the Department and no modification of the 1989 Consent Order or TOP was formally proposed that would have provided a point of entry to any members of the public who might have objected. Instead, the Department agreed through correspondence with Champion to allow Champion to pursue additional water quality studies and to investigate alternatives to its discharge to Elevenmile Creek.
In 1994 and 1995, Champion applied to renew its state and federal wastewater permits, which were about to expire. The Department and EPA notified Champion that its existing permits were administratively extended during the review of the new permit applications. Today, the Cantonment mill is still operating under the 1989 TOP which, due to the administrative extension, did not terminate in December 1994, as stated on its face.
In November 1995, following EPA's delegation of NPDES permitting authority to the Department, the Department issued an order combining the state and federal operating permits into a single permit identified as Wastewater Permit Number FL0002526-002-IWF/MT.
In summary, the permit requirements currently applicable to the operation of the Cantonment paper mill are contained in the following documents:
January 3, 1983, EPA NPDES Permit
December 13, | 1989, | DER | Temporary Operating |
Permit (TOP) December 13, | 1989, | DER | Consent Order |
December 12, | 1989, | DER | Variance |
November 15, | 1995, | DEP | Order (combining the |
NPDES permit and the State-issued wastewater permit)
April 22, 1996, DEP Letter (clarifying November 15, 1995, Order regarding 1983 NPDES Permit)
During the period from 1992 to 2001, more water quality studies were conducted and Champion investigated alternatives to discharging into upper Elevenmile Creek, including land application of the effluent and relocation of the discharge to lower Elevenmile Creek or the Escambia River.
In 2001, IP and Champion merged and IP applied to the Department to have the mill permit and related authorizations transferred to IP. Dr. Lane formally challenged the proposed transfer, but she was determined to lack standing. One conclusion of law in the Recommended Order issued in the 2001 administrative case was that the mill was in compliance with the consent order, TOP, and
variance. That conclusion was not based on a finding that Champion was in compliance with all applicable water quality standards, but that the deadline for compliance (December 1, 1994) had been extended indefinitely by the pending permit renewal application.
In 2001, Dr. Lane twice petitioned the Department for a declaratory statement regarding the Department's interpretation of certain provisions of the 1989 Consent Order. The first petition was denied by the Department because Dr. Lane failed to adequately state her interests and because she was a party in a pending case in which the Consent Order was at issue. Dr. Lane second petition was denied for similar reasons.
Over 14 years after the deadline established in the 1989 TOP for the mill to be in compliance with all applicable standards in Elevenmile Creek, IP is still not meeting all applicable standards. However, the combination of (1) Consent Order terms that contemplated unspecified future permit requirements based on yet-to-be-conducted studies, (2) the wording in the TOP that tied the deadline for compliance to the expiration of the TOP, and (3) the administrative extension of the TOP, kept the issue of Champion's and IP's compliance in a regulatory limbo. It increased the Department's discretion to determine whether
IP was in compliance with the laws enacted to protect the State's natural resources, and reduced the opportunity of interested persons to formally disagree with that determination.
The Proposed Authorizations A. In General
In September 2002, while Champion's 1994 permit renewal application was still pending at DEP, IP submitted a revised permit renewal application to upgrade the WWTP and relocate its discharge. The WWTP upgrades consist of converting to a modified activated sludge treatment process, increasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (mgd). IP proposes to convey the treated effluent by pipeline 10.7 miles to a 1,464-acre wetland tract owned by IP5, where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and upper Perdido Bay.
IP revised its permit application again in October 2005, to obtain authorization to reconfigure the mill to produce unbleached brown paper for various grades of boxes. If the mill is reconfigured, only softwood (pine) would be used in the new process.
On April 12, 2005, the Department issued a Notice of Intent to Issue the proposed NPDES permit, together with Consent Order No. 04-1202, Authorization for Experimental Use of Wetlands Order No. 04-4442, and Waiver Order
No. 04-0730.
An exemption from water quality criteria in conjunction with the experimental use of wetlands for wastewater treatment is provided for in Florida Administrative Code Rule 62-660.300(1). The proposed exemption order would exempt IP from Class III water quality criteria for pH, DO, transparency, turbidity, and specific conductance.
The proposed waiver order is associated with the experimental use of wetlands exemption and relieves IP of the necessity to comply with two exemption criteria related to restricting public access to the area covered by the exemption. The Department and IP contend that restricting public access to Tee and Wicker Lakes is unnecessary.
The proposed Consent Order is an enforcement document that is necessary if the mill is to be allowed to operate despite the fact that its wastewater discharge is causing violations of water quality standards. A principal purpose of the proposed Consent Order is to impose a time schedule for the completion of corrective actions and
compliance with all state standards. The proposed Consent Order would supersede the 1989 Consent Order.
The Proposed NPDES Permit 1. WWTP Upgrades
IP's primary objective in upgrading the WWTP was to reduce the nitrogen and phosphorus in the mill's effluent discharge. The upgrades are designed to reduce un-ionized ammonia, total soluble nitrogen, and phosphorus. They are also expected to achieve a modest reduction of BOD and TSS.
Upgraded pond 1 is expected to convert soluble BOD to suspended solids and to accomplish other biological conversions seven or eight times faster than the current pond 1.
The modification of pond 3 to an activated sludge system is expected to more rapidly remove and recycle the solids back into pond 1. Pond 3 will have a much larger bacterial population to treat the effluent. There would also be additional pH control at the end of pond 3.
IP would continue to use its Rock Crossing Landfill for disposal of wastewater sludge removed from the WWTP. Authorization for the landfill is part of the proposed NPDES permit. Groundwater monitoring beneath the landfill is required.
The WWTP upgrades would include increased storm surge capacity by converting two existing aeration and settling basins (ponds 2 and 4) to storm surge basins. The surge basins would allow the mill to manage upsets and to withstand a 25-year, 24-hour storm event of 11 inches of rain. Rainfall that falls into the production areas would flow to the WWTP, and be impounded in ponds 2 and 4. After the storm event this impounded water would flow back through the WWTP where it would be treated before flowing through the compliance point and into the pipeline to the wetland tract.
The Department required IP to monitor for over
129 pollutants in its stormwater runoff from the mill’s manufacturing facility, roads, parking lots, and offsite nonpoint sources. No pollutants were found in the stormwater at levels of concern.
The average volume of mill discharge would be
mgd. IP plans to obtain up to 5 mgd of treated municipal wastewater from a new treatment facility planned by the Emerald Coast Utility Authority (ECUA), which would be used in the paper production process and would reduce the need for groundwater withdrawals by IP for this purpose. The treated wastewater would enter the WWTP along with other process wastewater, be treated in the same
manner in the WWTP, and become part of the effluent conveyed through the pipeline to the wetland tract.
2. Effluent Limitations
The effluent limitations required by the proposed permit include technology-based effluent limits (TBELs) that apply to the entire pulp and paper industry. TBELs are predominantly production-based and are designed to limit the amount of pollutants that may be discharged per ton of product produced. The Cantonment mill has not had a problem in meeting TBELs.
The TBELs that IP must meet are in the "Cluster Rule" promulgated by the EPA and adopted by the Department. The mill already meets the TBELS applicable to its current bleaching operation. In fact, EPA determined that the mill was performing in the top 5 percent of similar mills in the nation. The mill would have to meet the TBELs for a brown kraft operation if that conversion is made by IP.
The proposed permit also imposes water quality- based effluent limits (WQBELs) that are specific to the Cantonment mill and the waters affected by its effluent discharge. The WQBELs for the mill are necessary for certain constituents of the mill's effluent because the TBELs, alone, would not be sufficient to prevent water quality criteria in the receiving waters from being
violated. For example, the TBEL for BOD for similar pulp and paper mills is 15,943 pounds per day (ppd) on a monthly average, but the WQBEL for BOD for the Cantonment mill would be 4,500 ppd in summer and 5,100 ppd in winter.
Dr. Livingston developed an extensive biological and chemical history of Perdido Bay and then evaluated the nutrient loadings from Elevenmile Creek over a 12-year period to correlate mill loadings with the biological health of the Bay. Because Dr. Livingston determined that the nutrient loadings from the mill that occurred in 1988 and 1989 did not adversely impact the food web of Perdido Bay, he recommended effluent limits for ammonia nitrogen, orthophosphate, and total phosphorous that were correlated with mill loadings of these nutrients in those years. The Department used Dr. Livingston’s data, and did its own analyses, to establish WQBELs for orthophosphate for drought conditions and for nitrate-nitrite. WQBELs were ultimately developed for total ammonia, orthophosphate, nitrate-nitrite, total phosphorus, BOD, color, and soluble inorganic nitrogen.
The WQBELs in the proposed permit were developed to assure compliance with water quality standards under conditions of pollutant loadings at the daily limit (based on a monthly average) during low flow in the receiving
waters. The proposed permit also establishes daily maximum limits (the most that can be discharged on any single day). For BOD, the daily maximum limit is 9,000 ppd. William Evans, the Department employee with primary responsibility for the technical review of the proposed Department authorizations, said that setting the daily maximum limit at twice the monthly average was a standard practice of the Department. The maximum daily limits are not derived from the Livingston studies.
Dr. Glen Daigger, a civil and environmental engineer, designed a model for the WWTP and determined the modifications necessary to enable the WWTP's discharge to meet all TBELs and WQBELs. Petitioners did not dispute that the proposed WWTP is capable of achieving the TBELs and WQBELs. Their main complaint is that the WQBELs are not adequate to protect the receiving waters.
3. Discharge to the Wetland Tract
IP proposes to relocate its discharge to the wetland tract as a means to end decades of failure by the mill to meet water quality standards in Elevenmile Creek. Discharging to the wetland tract, which flows to the marine waters of lower Elevenmile Creek and Perdido Bay, avoids many of the problems associated with trying to meet the
more stringent water quality standards applicable in a freshwater stream.
An effluent distribution system is proposed for the wetland tract to spread the effluent out over the full width of the wetlands so that their full assimilative capacity is utilized. This would be accomplished by a system of berms running perpendicular to the flow of water through the wetlands, and gates and other structures in and along the berms to gather and redistribute the flow as it moves in a southerly direction toward Perdido Bay and lower Elevenmile Creek. The design incorporates four existing tram roads that were constructed on the wetland tract to serve the past and present silviculture activities there. The tram roads, with modifications, would serve as the berms in the wetland distribution system.
As the effluent is discharged from the pipeline, a point designated D-003, it would be re-aerated6 and distributed across Berm 1 through a series of adjustable, gated openings. Mixing with naturally occurring waters, the effluent would move by gravity to the next lower berm. The water will re-collect behind each of the vegetated berms and be distributed again through each berm. The distance between the berms varies from a quarter to a half mile.
Approximately 70 percent of the effluent discharged at D-003 would flow by gravity a distance of approximately 2.3 miles to Perdido Bay. The remaining 30 percent of the effluent would flow a shorter distance to lower Elevenmile Creek.
A computer simulation performed by Dr. Wade Nutter, an expert in hydrology, soils, and forested wetlands, indicated that the effluent discharged at D-003 will move through the wetland tract at a velocity of approximately a quarter-of-a-foot per second and the depth of flow across the wetland tract will be about one-half inch. It would take four or five days for the effluent to reach lower Elevenmile Creek and Perdido Bay. As the treated effluent flows through the wetland tract, there will be some removal of nutrients by plants and soil. Nitrogen and phosphorous are expected to be reduced approximately ten percent. BOD in the effluent is expected to be reduced approximately 90 percent.
Construction activities associated with the effluent pipeline and berm modifications in the wetland tract were permitted by the Department in 2003 through issuance of a Wetland Resource Permit to IP. The United States Army Corps of Engineers has also permitted this
work. No person filed a petition to challenge those permits.
A wetland monitoring program is required by the proposed permit. The stated purpose of the monitoring program is to assure that there are no significant adverse impacts to the wetland tract, including Tee and Wicker Lakes, and is referred to as the No Significant Adverse Impact (NSAI) analysis. A year of "baseline data" on the wetlands and Tee and Wicker Lakes was collected and submitted to the Department for use in developing the NSAI analysis, but was not made a part of the record in this case. After the discharge to the wetland tract commences, the proposed permit requires IP to submit wetland monitoring reports annually to the Department.
A monitoring program was also developed by Dr. Livingston and other IP consultants to monitor the
impacts of the proposed discharge on Elevenmile Creek and Perdido Bay. It was made a part of the proposed permit.
The Exemption for Experimental Use of Wetlands
Florida Administrative Code Rule 62-660.300(1) provides an exemption from water quality criteria for the experimental use of wetlands. The proposed Authorization for Experimental Use of Wetlands Order would exempt IP from
Class III water quality criteria for pH, DO, transparency, turbidity, and specific conductance.
The proposed exemption order sets forth "interim limits" for pH, DO, color, turbidity, and specific conductance. The proposed exemption order also states that IP may petition for alternative water quality criteria pursuant to Florida Administrative Code Rule 62- 66D.300(1)(b)(c) and (d).
The exemption is for 5 years beginning with the commencement of discharge into the wetland tract at D-003. The exemption it can be renewed by IP by application to the Department.
The Waiver
To qualify for the experimental use of wetlands exemption, Florida Administrative Code Rules 62- 660.300(1)(a)3 and 4 require, respectively, that the public be restricted from the exempted wetland area and that the waters not be used for recreation. IP proposes to prevent public access to the area of the wetland tract where the effluent distribution system is located. This is the freshwater area of the wetland tract and includes the four berms.
However, IP does not want, nor believe it is necessary, to prevent public access and recreation on Tee
and Wicker Lakes within the tidal marsh below berm 4.
These lakes are accessible by boat from Perdido Bay and are used now by the public for boating and fishing.
The Proposed Consent Order
The proposed Consent Order establishes a schedule for the construction activities associated with the proposed WWTP upgrades and the effluent pipeline and for incremental relocation of the mill's discharge form Elevenmile Creek to the wetland tract. IP is given 24 months to complete construction activities and begin operation of the new facilities. At least 25 percent of the mill's effluent must be diverted to the wetland tract. At least 25 percent of the effluent is to be diverted to the wetland tract when the new facilities begin operations. The volume of effluent diverted to the wetlands is to increase another 25 percent every three months thereafter so that three years after issuance of the permit 100 percent of the effluent is being discharged into the wetland tract and there is no longer a discharge at D-001 into Elevenmile Creek.7
The proposed Consent Order establishes interim effluent limitations that would apply immediately upon the effective date of the Consent Order and continue during the 24-month construction period when the mill will continue to
discharge into Elevenmile Creek. Other interim effluent limits would apply during the 12-month period following construction when the upgraded WWTP would be operating and the effluent would be incrementally diverted from Elevenmile Creek to the wetland tract. A third set of interim effluent limits would apply at D-003 when 100 percent of the discharge is into the wetland tract. They include the interim limits for specific conductance, pH, DO, color, and turbidity established through the experimental use of wetland exemption.
The proposed Consent Order requires IP to submit a report within six months with the results of the 2004 transparency study. The Department must be satisfied that the study shows the transparency standard will not be violated before the wetlands can be used for the discharge. This report has already been submitted to the Department, but the Department has not yet completed its review of the report. Nevertheless, it was admitted into the record as IP Exhibit 79.
The proposed Consent Order provides that, in the event IP's does not receive treated sanitary wastewater from the planned ECUA facility, IP will notify the Department and submit an alternate compliance plan to the Department for the Department's approval. The submittal
and approval of an alternate compliance plan would extend the time for compliance with water quality standards by another six months. The Department amended the proposed Consent Order at the conclusion of the hearing to provide for notice to the public and an opportunity for persons to object to the Department's action on any alternate compliance plan.
The Consent Order requires a "Plan of Action" to determine "whether there remains a critical period for ortho-phosphate loading to lower Elevenmile Creek and Perdido Bay."
The proposed Consent Order requires IP to submit within 97 months (which would allow for five years of discharge to the wetland tract) a final report on whether there has been significant adverse impacts in the wetlands and Tee and Wicker Lakes resulting from the discharge of effluent pursuant to the interim limits for pH, DO, specific conductance, turbidity, and color. If the NSAI analysis shows no significant adverse impact has occurred, the proposed Consent Order contemplates that IP or the Department would establish alternative water quality criteria that would apply permanently in the wetland tract.
IP is required by the Consent Order to submit quarterly progress reports of its progress toward
compliance with the required corrective actions and deadlines.
The Consent Order imposes a "stipulated penalty" of $500 per day for noncompliance with its terms. It also contains a statement that a violation of its terms may subject IP to civil penalties up to $10,000 per day.
The Principal Factual Disputes A. The Evidence in General
Much of the water quality and biological data presented by Petitioners were limited in terms of the numbers of samples taken, the extent of the area sampled, and the time period covered by the sampling. Much of the expert testimony presented by Petitioners was based on limited data, few field investigations, and the review of some, but not all relevant permit documents.8
On the other hand, the Livingston studies represent perhaps the most complete scientific evaluation ever made of a coastal ecosystem. Even Dr. Lane called the Livingston studies "huge" and "amazing." Therefore, with regard to the factual issues raised by Petitioners that involved scientific subjects investigated in the Livingston studies, Petitioners' data and the expert opinions based on those data were generally of much less weight than the data and conclusions of the Livingston studies. However, the
Livingston studies did not address all of the factual issues in dispute.
Some of the evidence presented by Petitioners regarding historical water quality conditions in Perdido Bay and Elevenmile Creek was lay testimony. The lay testimony was competent and sufficient to prove the existence of environmental conditions that are detectable to the human senses, such as an offensive smell, a dark color, or a sticky texture.
Historical Changes in Perdido Bay
Petitioners claim that, before the Cantonment mill began operations in the 1940s, Perdido Bay was a rich and diverse ecosystem and a beautiful place for swimming, fishing, boating, and other recreational activities. Petitioners blame the mill effluent for all the adverse changes they say have occurred in Perdido Bay.
Petitioners claim that the water in Perdido Bay was much clearer before the mill was built. James Lane, who has lived on the Bay for 65 years, said he began to notice in the late 1940s that the water was becoming dark and filled with wood fibers.
Mr. Lane recalls that there used to be an abundance of fish in the Perdido Bay, including croakers, pinfish, flounder, redfish, minnows, and catfish. Now
Mr. Lane sees few of these fish in the Bay and he believes the remaining fish are unfit to eat because they look diseased to him.
Mr. Lane said there were extensive areas of sea grasses in the Bay which supported large numbers of shrimp, crabs, and mussels, but these grasses are now gone.
The Lane family used to enjoy swimming in Perdido Bay but stopped swimming years ago because the water felt sticky and often had a brown foam or scum on the surface. Mr. Lane and others members of FOPB claim to have gotten infections from swimming in the Bay.
Mr. Lane and other witnesses described the odor of Elevenmile Creek near the mill as unpleasant and, at times, offensive. They consider the Creek to be too polluted for swimming.
Donald Ray, who has been a Department biologist for 30 years, said he has received many complaints from citizens about the conditions in Perdido Bay. He said the foam that occurs in Perdido Bay is not natural foam, but one that persists and leaves a stain on boats.
On the other hand, it is Dr. Livingston's opinion that the ecological problems of Perdido Bay are due primarily to the opening of Perdido Pass around 1900. The opening of the pass allowed Gulf waters to enter Perdido
Bay and caused salinity stratification in the Bay, with marine waters on the bottom and fresh water from the Perdido River, Elevenmile Creek, and other tributaries on the top. The stratification occurs regularly in the lower Bay, but only during low flow conditions in most of the upper Bay, Perdido River, and Elevenmile Creek. It restricts DO exchange between the upper and lower water layers and results in low DO levels in the lower layer.
Low DO, or "hypoxia," is the primary cause of reduced biological diversity and productivity in Perdido Bay.
Dr. Livingston's initial study of the Perdido Bay system (1988-91) included an investigation of historical conditions, using documents and maps, anecdotal statements of area residents, as well as historic water quality and sediment data. Dr. Livingston found general agreement from most sources that:
[P]rior to the 1940s, the various rivers and the bay in the Perdido Basin were quite different from what they are today. Eyewitness accounts from 1924 indicate a bay that was clear and "bluish" in color; the bottom could be seen at depths of five feet. According to resident' accounts, seagrasses grew from Garth Point to Witchwood; the grassbeds provided cover for many shrimp that were taken at the time.
Flounder were taken with gigs and crabs were taken with hand nets. According to these accounts, the water from the various rivers and creeks in the area
was relatively clear, and white sand/gravel bottoms were dominant forms of habitat in the freshwater and estuarine systems. The water was tea- colored but clear. Redfish, trout, blue crabs, shrimp, and mullet were abundant.
* * *
[T]hrough the early 1900s, the Elevenmile Creek was said to be crystal clear with soft white sand and good fishing.
* * *
According to various reports, in the early 1950s, the waters of Elevenmile Creek turned black, with concentrations of foam observed floating on the surface. By 1986, more than 28 million gallons of largely untreated effluent was flowing into the Elevenmile Creek- Perdido Bay system each day.
Experiments by the Florida Game and Fresh Water Fish Commission had shown that the creek waters were lethal. The Florida Board of Health reported that Elevenmile Creek was "grossly polluted" and that Perdido Bay had been "greatly degraded within the 1.5 mile radius of where Elevenmile Creek dumped into the bay."
Nevertheless, Dr. Livingston discounted much of this historical record, especially with regard to the belief that the mill's effluent had adversely affected Perdido Bay, because it was not based on what he considers reliable scientific data. He found "little evidence in the long- term sediment record of a direct response to historical
activities of the pulp and paper mill, suggesting that the flushing capacity of Perdido Bay quickly diluted effluents that enter Perdido Bay from Elevenmile Creek."
The evidence is persuasive that the salinity stratification in Perdido Bay is a major cause of low DO in the Bay.9 However, the stratification does not explain all of the observed changes in water quality, biological productivity, and recreational values. The stratification does not account for the markedly better conditions in the Bay that existed before the Cantonment paper mill began operations. The Livingston studies confirmed that when nutrient loadings from the mill were high, they caused toxic algae blooms and reduced biological productivity in Perdido Bay. As recently as 2005, there were major toxic blooms of heterosigma in Tee and Wicker Lakes caused by increased nutrient loading from the mill. Other competent evidence showed that the mill's effluent has created nuisance conditions in the past, such as foam and scum, which adversely affected the recreational values of these public waters.
Some of the adverse effects attributable to the mill effluent were most acute in the area of the Bay near the Lanes' home on the northeastern shore of the Bay, because the flow from the Perdido River tends to push the
flow from Elevenmile Creek toward the northeastern shore. Petitioners were justified in feeling frustrated in having their concerns about the adverse impacts of the mill's effluent discounted for many years, and in having to wait so long for an effective regulatory response.
However, with regard to many of their factual disputes, Petitioners' evidence lacked sufficient detail regarding the dates of observations, the locations of observations, and in other respects, to distinguish the relative contribution of the mill effluent from other factors that contributed to the adverse impacts in the Bay, such as salinity stratification, natural nutrient loading from the Perdido River and other tributaries, and anthropogenic sources of pollution other than the paper mill.10
Petitioners generally referred to the mill effluent and its impacts to Perdido Bay as if they have been relatively constant for 65 years. The Livingston studies, however, showed clearly that the mill effluent and its impacts, as well as important factors affecting the impacts, such as drought, have frequently changed.
Focusing on the fact that the average daily BOD loading allowed under the proposed permit would be same as under the 1989 TOP (4,500 ppd), Petitioners remarked
several times at the final hearing that the proposed permit for the mill was no different than the existing permit.
According to Petitioners, if the mill is allowed to operate under the proposed permit, one can predict that the future adverse impacts to Perdido Bay will be the same as the past adverse impacts. However, the 1989 TOP and the proposed permit are very different. Therefore, it cannot be assumed that the impacts would be the same.
Petitioners' evidence was generally insufficient to correlate past adverse impacts to Perdido Bay with the likely impacts that would occur under the proposed permit. In contrast, that was the focus of the Livingston studies.
Development of the WQBELs
Whether Perdido Bay is an Alluvial System and Whether Elevenmile Creek is a Blackwater Stream
Alluvial systems are generally characterized by relatively high nutrient inputs from tributaries and associated wetlands that provide for high biological productivity in the receiving bay or estuary. Petitioners disagree with Dr. Livingston's characterization of the Perdido Bay system as an alluvial system. Petitioners presented the testimony of Donald Ray, a Department biologist, who said that the Perdido River is not an
alluvial river and the natural nutrient loadings to Perdido Bay are less than would occur in an alluvial system.
Although it is curious that two experienced biologists cannot agree on whether Perdido Bay is part of an alluvial system, the dispute is immaterial because it was not shown by Petitioners that any of the four proposed Department authorizations is dependent on the applicability of the term "alluvial." The WQBELs developed by
Dr. Livingston, for example, were not dependent on a determination that Perdido Bay meets some definition of an alluvial system, but were based on what the data indicated about actual nutrient loadings into Perdido Bay and the Bay's ecological responses to the loadings. If the dispute is not immaterial, then Dr. Livingston's opinion that Perdido Bay is part of an alluvial system is more persuasive, because he has greater experience and knowledge of the coastal bay systems on the Florida Panhandle than does Mr. Ray.
Petitioners also take exception to Dr.
Livingston's characterization of Elevenmile Creek as a blackwater creek. Petitioners claim Elevenmile Creek is naturally clear to "slightly tannic" stream. This dispute, however, is also immaterial because the proposed permit calls for the termination of the mill's discharge to
Elevenmile Creek, including its contribution of color to the Creek.
Petitioners assert that Dr. Livingston's characterizations of Perdido Bay as an alluvial system and Elevenmile Creek as a blackwater creek show he is biased and that his "overall analysis" lacks credibility.
Dr. Livingston's opinions on these points do not show bias nor compromise the credibility of his overall analysis of the Perdido Bay system, which is actually the product of many scientists and based on 18 years of data.11
2. Selection of 1988 and 1989 Mill Loadings as a Benchmark for the WQBELs
Generally, the Department establishes effluents limits for nutrients based on Chlorophyl A analysis. However, the Livingston studies showed that Chlorophyl A was not significantly associated with plankton blooms in Perdido Bay. Therefore, the Department accepted
Dr. Livingston's recommendation to base the WQBELs for nutrients on the nutrient loading from the mill in 1988 and 1989, which the Livingston studies showed were good years for Perdido Bay with respect to its biological health.
Phytoplankton are a fundamental component of the food web in Perdido Bay. The number of phytoplankton species is a sensitive indicator of the overall ecological
health of the Bay. The Livingston studies showed that the loadings of ammonia and orthophosphate from the mill had a direct effect on the number of phytoplankton species. In the years when the mill discharged high loadings of ammonia and orthophosphate, there were toxic algae blooms and reduced numbers of phytoplankton species. In 1988 and 1989, when the loadings of ammonia and orthophosphate were lower, there were no toxic algae blooms, and there were relatively high numbers of phytoplankton species.
Petitioners dispute that 1988 and 1989 are appropriate benchmarks years for developing the WQBELs because Petitioners claim there were high nutrient loadings and algae blooms in those years. Mr. Ray testified that the Department received citizen complaints about algae blooms in those years. Dr. Livingston's analysis was more persuasive, however, because it distinguished types of algae blooms according to their harmful effect on the food web and was based on considerably more water quality and biological data.
Petitioners also presented water quality data collected from 1971 to 1994 by the Bream Fishermen Association at one sampling station in the northeastern part of Perdido Bay, which indicate that in 1988 and 1989, the concentrations of nutrients were sometimes high. The
proposed nutrient WQBELs were derived from data about the actual response of the Perdido Bay ecosystem over time to various inputs. The sampling data from the Bream Fishermen Association were not correlated to ecosystem response and, therefore, are insufficient to refute Dr. Livingston's evidence that 1988 and 1989 were years of relatively high diversity and productivity in Perdido Bay. Furthermore, nutrients loadings would be reduced under the proposed permit.
3. DO and Sediment Oxygen Demand
The parties agreed that sediment oxygen demand (SOD) is a major reason for the low DO in Perdido Bay in areas where there is salinity stratification. SOD is caused by the bacterial degradation of particulate organic matter that settles to the bottom. SOD decreases DO in the lower water layer, but also can cause a reduction of DO in the surface layer. Low DO has substantially reduced the biological productivity of Perdido Bay.
Thomas Gallagher, an environmental engineer and water quality modeling expert, showed that even without the mill discharge, DO in the bottom waters of Perdido Bay would fall below the applicable Class III water quality standard of 5 mg/l. Low DO conditions are now a "natural" characteristic of the Bay, usually occurring during summer
and early fall when freshwater flows are low and temperatures are high. At these times, surface water DO levels are usually above the state standard, but DO in the bottom waters usually range between 1.0 and 2.0 mg/l.
Petitioners claim that the dominant source of the sediment in Perdido Bay is the carbon and nutrient loading in the mill's effluent that flows into the Bay from Elevenmile Creek. Mr. Ray, who sampled sediments in Perdido Bay over several years for the Department, believes that the mill effluent is the main source of the sediment and, consequently, the sediment oxygen demand.
Dr. Livingston did extensive sediment analyses in Perdido Bay. He compared the data with sediment data from other bays on the Florida Panhandle. It is Dr. Livingston's opinion that the mill effluent contributes little to the sediments or SOD in Perdidio Bay. His initial three-year study concluded:
[T]he hypoxic conditions of Elevenmile Creek are due, in part, to mill discharges. However, low
dissolved oxygen conditions at depth in Perdido Bay are not due to the release of mill effluents from Elevenmile Creek, and can actually be attributed to a long history of human activities that include alteration of the hydrological interactions at the gulfward end of the estuary. The entry of saline water from the Gulf and the resulting stratification have been
coupled with various forms of human development that release carbon, nitrogen, and phosphorus compounds into the estuary. The landward movement of high-salinity water from the Gulf of Mexico, laden with various types of oxygen-consuming compounds from various sources, together with oxygen demand from sediments to the lower water column that is isolated from reaeration due to salinity stratification, are thus responsible for a large portion of the observed hypoxic conditions at depth in Perdido Bay. [The paper mill] is responsible for a relatively small amount of these oxygen-consuming effects.
In East Bay, which is a part of Escambia Bay and a relatively pristine system, there was SOD that caused DO to fall below standards in the lower water layer.
Dr. Livingston also found severe oxygen deprivation at times in the lower waters of the Styx River and Perdido River, which do not receive mill effluent. Dr. Livingston believes the low DO that occasionally occurs in these rivers is due to agricultural runoff, urban discharges, and natural organic loading from adjacent wetlands.
There was extensive evidence, some of which was presented by Petitioners, showing that the mill loadings of carbon and nutrients are less than the loadings from the Perdido River. Mr. Gallagher concluded that the sediment in the Bay is mostly "terrestrial carbon," and not from the mill's effluent. His water quality modeling work
determined that the mill's effluent reduced bottom layer DO by about 0.1 mg/l.
Dr. Lane believes that the organic solids in the mill's effluent are accumulating in Perdido Bay sediments, but Mr. Gallagher pointed out that degrading solids cannot accumulate because they are degrading. In addition,
Mr. Gallagher said that logic dictates that solids that have not settled out after spending several days in the settling basins of IP's WWTP are not going to readily settle in the more turbulent environment of Perdido Bay. Some of the solids are oxidizing or being transported into the Gulf.
Mr. Gallagher determined that in summer and late fall, 60 percent of the water in the bottom layer in the upper Bay is from the Gulf and almost all the rest is from the Perdido River. He believes only 0.1 to 2.0 percent of the water in the bottom layer is mill effluent.
Dr. Livingston responded to the BOD and carbon issues that "these Petitioners raised over the years" by investigating them as part of the Livingston studies.
He found no relationship between loading and DO.
Dr. Livingston concluded that the mill was not having much effect on SOD.
Dr. Livingston and Mr. Gallagher referred to a carbon isotope study of the sediment in Perdido Bay by Coffin and Cifuentes. The isotope study was a part of the initial three-year Livingston study entitled "Ecological Study of the Perdido Bay Drainage System." The study identified a unique carbon isotope in the mill's effluent and looked for traces of the isotope in the sediments of Perdido Bay. Very little of the carbon isotope was found in the sediments, suggesting that the mill's effluent was not contributing much to the sediments. The carbon isotope study was not offered into evidence.
Petitioners assert that the isotope study is hearsay and cannot be used to support a finding of fact.12 However, Dr. Livingston's opinion about the sources of the sediment was not based solely on the isotope study. The isotope study was consistent with his other studies and with Mr. Gallagher's water quality modeling analysis. Therefore, the conclusions of the isotope study serve to support and explain Dr. Livingston's expert opinion that the mill effluent is not the primary source of the sediment and low DO in Perdido Bay.
Dr. Livingston summarized his opinion regarding DO and SOD as follows: "all of these lines of evidence, from all the bays that I have worked in and from them
scientific literature and from our own studies, every line of evidence simply eliminated the pulp mill as the primary source of the low dissolved oxygen in the bay."
4. Long-term BOD
BOD is a measurement of the oxygen demand exerted by the oxidation of carbon, nitrogen, and the respiration of algae. A five-day BOD analysis is the standard test used in the regulatory process. The use of the standard five-day BOD measurement is not restricted to organic material that is expected to completely degrade in five days. Five days is simply the time period selected to standardize the measurement. For example, the five-day BOD analysis is used in the regulation of domestic wastewater even though most of the organic material in domestic wastewater takes about 60 days to degrade and would exert an oxygen demand throughout the 60 days.
It was undisputed that paper mill effluent will continue to consume DO after five days. One estimate given was that it would take 100 days to completely degrade. Some of the naturally occurring organic material flowing into Perdido Bay from the Perdido River and Gulf of Mexico would also include material with long-term BOD.
Petitioners claim that long-term BOD analysis is essential to determine the true impacts of the mill's
effluent on Perdido Bay, but they failed to show that the Livingston studies did not consider long-term BOD.13 The evidence shows that Dr. Livingston's studies accounted for DO demand in all its forms and for any duration.
Dr. Livingston's studies focused on the response of Perdido Bay's food web to nutrients and various other inputs as they changed over time. If long-term BOD was having an adverse effect on the food web, the Livingston studies were designed to detect that effect. Dr. Livingston's opinion is that long-term BOD is not a significant problem for Perdido Bay because the Bay is part of a dynamic system and the sediments are regularly flushed out or otherwise recycled in a matter of a few months, not years.14
5. Carbon
Dr. Lane, who is a marine biologist, believes a major reason for low DO in Perdido Bay is "organic carbonaceous BOD." However, Dr. Lane presented no evidence other than statements of the theoretical process by which carbon from the mill would cause low DO in the Bay. She presented no scientific data from Perdido Bay to prove her theory.14 Dr. Livingston said that 16 years of studies in the Bay have found DO and carbon to be "totally uncorrelated."
Other Water Quality Issues 1. Toxicity
Petitioners allege that the mill effluent has had occasional problems passing toxicity tests. Un-ionized ammonia is the likely cause, and the reduction of
un-ionized ammonia in the proposed permit and the distribution of the effluent over the wetland tract should prevent toxicity problems from recurring.
Dr. Livingston examined tissue samples from various fish and invertebrates and found low levels of bioconcentrating chlorine compounds in Perdido Bay that he believes were "probably associated with discharges from the Pensacola mill." Although they are toxic substances,
Dr. Livingston found no diseased organisms and no evidence of food web magnification of these potentially bioaccumulable compounds.
Mr. Ray testified that Perdido Bay was the worst of all the bays he has studied in terms of high sediment metals. Most of his sediment sampling was done in 1977 through 1983, years before the Livingston studies got started. His knowledge about subsequent years was based on only two samples, one in 1988 and another in 2005.16
Dr. Lane did an analysis of 12 sediment samples in Perdido Bay, Perdido River, and Elevenmile Creek in 1999 and
concluded that "Eleven Mile Creek appears to be the source of all elevated levels [of metals] except silver."
The Livingston studies included toxics analysis of Perdido Bay sediments, including metals, dioxin, and other chlorinated organic compounds. Dr. Livingston testified that metal concentrations in the sediments of Elevenmile Creek did not differ from the metal concentrations in the Perdido River and other streams in the area. The concentrations were not significantly different from concentrations in other bays he has studied that do not have a paper mill discharge.
2. Mutagenic Compounds
Petitioners claim that there are chemicals in paper mill effluent that are mutagenic and are causing changes in the sex of fish. They introduced an exhibit from the Department's exhibit list (DEP Exhibit 38) that discussed investigations of effluent from the Cantonment mill and other Florida paper mills which found abnormally high testosterone levels and related mutations in female Gambusia fish. The most recent such study16 implicates androgens produced by the microbial degradation of natural chemicals in the trees pulped at the mills, especially softwood trees (pines), as the cause.
Petitioners believe IP's proposal to begin using
100 percent pine at the Cantonment mill could cause mutations in fish and other animals exposed to the mill's effluent. Although IP and the Department are aware of the sex change studies, there was no evidence presented that the subject was investigated or addressed by them in the permitting process.
DEP Exhibit 38 is hearsay and no non-hearsay evidence was presented on the issue of mutagenic compounds in the mill's effluent. Therefore, no finding of fact in this Recommended Order can be based on the data and analysis in DEP Exhibit 38.18 Furthermore, Petitioners did not raise the issue of mutagenic compounds in the mill's effluent discharge in their petitions for hearing or in the pre-hearing stipulation.19
Antidegradation Policy
Petitioners claimed the proposed permit violated the antidegradation policy for surface waters established in Florida Administrative Code Rule 62-302.300(1). An element of that policy is to require, for any discharge that degrades water quality, a demonstration that the degradation is necessary or desirable under circumstances which are clearly in the public interest. Florida Administrative Code Rule 62-4.242(1)(a) contains a list of
factors to be considered and balanced in applying the antidegradation policy. These include consideration of whether the proposed project would be beneficial to public health, safety, or welfare and whether the discharge would adversely affect the, conservation of fish and wildlife, and recreational values.
The greater weight of the evidence supports the position of IP and the Department that the proposed discharge to the wetland tract would be an improvement over the existing circumstances. However, as discussed below, there was an insufficient demonstration that the discharge would not cause significant adverse impact to the biological community within the wetland tract, and there was an insufficient demonstration that the Perdido River OFW would not be significantly degraded. Without sufficient demonstrations on these points, it is impossible to find that the degradation has been minimized.
Petitioners did not prove that the proposed project was not in the public interest, but the burden was on IP to show the opposite. Because IP did not make a sufficient demonstration regarding potential adverse impacts on the biological community within the wetland tract and on the Perdido River OFW, IP failed to prove compliance with Florida's antidegradation policy.
Perdido River OFW
Florida Administrative Code Rule 62-302.300(2) contains the standards applicable to OFWs and prohibits a discharge that significantly degrades an OFW unless the proposed discharge is clearly in the public interest or the existing ambient water quality of the OFW would not be lowered.20 Petitioners contend that the water quality of the Perdido River would be significantly degraded by the mill's effluent under the authorizations.
Mr. Gallagher's modeling analysis predicted improved water quality in the Perdido River for DO and several other criteria over the conditions that existed in 1979, the year the river was designated as an OFW. However, the modeling also predicted that the discharge would reduce the DO in the river (as it existed in 1979) by
.01 mg/l under unusual conditions of effluent loading at the daily limit (based on a monthly average) during a drought. Mr. Gallagher's modeling indicated that a very small (less than 0.1 mg/l) reduction in DO in the surface water of the lower Perdido River would occur as a result of the proposed project. He considered that to be an "insignificant" effect and it was within the model's range of error.
However, IP made the wrong comparisons in its modeling analysis to determine compliance with the OFW rule, Florida Administrative Code Rule 62-4.242(2).
Mr. Gallagher used the model to compare the DO levels in the Perdido River that would result from the mill's discharge of BOD at the proposed permit limit of 4,500 ppd with the predicted DO levels that would have existed in 1979 if St. Regis was discharging 5,100 ppd of BOD. IP should have compared the DO levels resulting from the proposed permit with the actual DO levels in 1979, or at least the DO levels that the model would have simulated using actual BOD loadings by St. Regis in 1979.
The DO levels that would have existed in 1979 if St. Regis had discharged 5,100 ppd of BOD are irrelevant. No DO data from 1979 were presented at the hearing and no explanation was given for why DO data for 1979 were not used in the analysis. No evidence was presented that
St. Regis discharged 5,100 ppd of BOD as a monthly average in 1979.21 It might have discharged substantially less.22
Petitioners did not prove that the proposed permit would significantly degrade the Perdido River, but the burden was on IP to show the opposite. Because the wrong anti-degradation comparison was made, IP failed to
provide reasonable assurance that the Perdido River would not be significantly degraded by the proposed discharge.
The Experimental Use of Wetlands Exemption
Petitioners claim that IP did not demonstrate compliance with all the criteria for the experimental use of wetlands exemption. There are seven criteria set forth in Florida Administrative Code Rule 62-660.300(1)(a) that must be met to qualify for the exemption. IP is seeking a waiver from two of the criteria and those will be discussed later in this Recommended Order.
Impact on the Biological Community a. In General
Florida Administrative Code Rule 62- 660.300(1)(a)1 requires a demonstration that "the wetlands ecosystem may reasonably be expected to assimilate the waste discharge without significant adverse impact on the biological community within the receiving waters."
Dr. Nutter used a "STELLA" wetland model to predict the effects of discharging mill effluent to the wetland tract. The STELLA model was programmed to evaluate the "water budget" for the wetland tract, as well as simulate the fate of nitrogen, phosphorus, and total dissolved solids (TDS). Petitioners contend that the STELLA model is too limited to adequately assess potential
adverse impacts on the biological community, but the model was not the sole basis upon which Dr. Nutter formed his opinions. He also relied on relevant scientific literature, his general knowledge of wetland processes, and on his 40 years of experience in land treatment of wastewater.
The STELLA model predicted that there would be about a 10 percent reduction in nitrogen and phosphorus. Dr. Nutter testified that that figure was a conservative prediction and the scientific literature suggests there could be a greater reduction.
Wetlands are effective in processing TSS and BOD. Dr. Nutter ran the model with the proposed permit limits and the model predicted 90 to 95 percent BOD removal before the effluent reached berm 4.
Dr. Nutter expected pH levels to be in the range of background levels in the wetlands, which vary between 6.5 and 8.0.23
Dr. Nutter predicts that in high flow conditions, there will be more DO in the water flowing from the wetlands into Tee and Wicker Lakes. During low flow conditions, he predicts no change in the DO level. Background DO levels in the wetland tract now range between
and 5.0 mg/l. Mr. Gallagher's water quality modeling
for Perdido Bay assumed that the water flowing from the wetland tract would have a DO level of 2.0 mg/l, which Dr. Nutter believes this is a conservative estimate, meaning it could be higher.
Specific Conductance
A fundamental premise of the relocated discharge is that it solves the mill's decades-long failure to meet the stricter water quality standards applicable in the fresh waters of Elevenmile Creek because the new receiving waters would be marine waters. However, the majority (about 70 percent) of the wetland tract is a freshwater wetland. The tidal influence does not reach above berm 4 in the wetland tract. Before the mill's effluent reaches marine waters, it would be distributed over the entire freshwater portion of the wetland tract.
Dr. Livingston explained that, but for the mill's discharge, minnows and other small "primary" freshwater fish species would be found in Elevenmile Creek. The primary fish cannot tolerate the mill's discharge because the high levels of sodium chloride and sulfide (specific conductance) cause osmoregulatory problems, disrupting their blood metabolism and ion regulation. High conductivity also eliminates sensitive microinvertebrates.
Because Tee and Wicker Lakes are in the tidally influenced, southern portion of the wetland tract, the fish and other organisms in the lakes are polyhaline, which means they are adapted to rapid changes in salinity, temperature and other habitat features. That is not true of the organisms in the freshwater area of the wetland tract.
A constructed wetlands pilot project was built in 1990 at the Cantonment mill. The initial operational phase of the pilot project was July 1991 through June 1993. A second phase was conducted for just three months, from September 1997 through December 1997. The pilot project generated some information about "benthic macroinvertebrate diversity," which was "low to moderate." In addition, there were "observations" made of "three amphibian species, three reptile species, approximately 31 bird species, three fish species that were introduced, and two mammal species."
The information generated by the pilot project is ambiguous with respect to the effect of the effluent on fish and other organisms attributable to the specific conductance of the effluent, indicating both successes and failures in terms of survival rates. Moreover, the data presented from the pilot wetland project lacks sufficient detail, both with respect to the specific conductivity of
the effluent applied to the wetlands and with respect to the response of salt-intolerant organisms to the specific conductivity of the effluent, to correlate the findings of the pilot project with the proposed discharge to the wetland tract.
Freshwater wetlands do not have naturally high levels of specific conductance. The specific conductance in the wetland tract is 100 micromhos/cm or less.24 The proposed interim limit for specific conductance for the discharge into the wetland tract is "2,500 micromhos/cm or 50% above background, whichever is greater."
Using total dissolved solids (TDS) as a surrogate for analyzing the effects on specific conductance, Dr. Nutter predicted that average TDS effluent concentrations would only be reduced by 1.0 percent.25 His prediction is consistent with the literature on the use of wetlands for wastewater treatment, which indicates wetlands are not effective in reducing TDS and specific conductance.
The wetland tract would not assimilate TDS in mill's effluent. The potential exists, therefore, for the discharge to cause specific conductance in the freshwater area of the wetland tract to reach levels that are too high for fish and other organisms which can only live, thrive, and reproduce in waters of lower specific conductance. It
was the opinion of Barry Sulkin, an environmental scientist, that the "freshwater community" would be adversely impacted by the salts in the effluent.
Although the freshwater area of the wetland tract is not dominated by open water ponds, creeks, and streams,26 the evidence shows that it contains sloughs, creeks, and other surface water flow. No evidence was presented about the biological community associated with the sloughs, creeks, and other waters in the wetland tract, other than general statements about the existing plants and the trees that are being planted.
Petitioners did not prove that granting the exemption would cause significant adverse impact to the biological community in the freshwater area of the wetland tract, but it was IP's burden to affirmatively demonstrate the opposite. Because IP did not adequately address the impact of increased specific conductance levels on fish and other organisms in the freshwater area of the wetland tract, IP did not provide reasonable assurance that the proposed discharge would be assimilated so as not to cause significant adverse impact on the biological community within the wetland tract.
Tee and Wicker Lakes
When the Department issued the proposed exemption order, it did not have sufficient data and analyses regarding Tee and Wicker Lakes to determine with reasonable confidence that these waterbodies would not be adversely impacted by the proposed discharge. A transparency study of the lakes, which IP introduced as an exhibit at the final hearing, had not previously been reviewed by Department staff. Dr. Livingston is still developing data and analyses for the lakes to use in the NSAI analysis.
The proposed NSAI monitoring plan states that one of its objectives is to determine the "ecological state" of the tidal ponds, including whether the ponds "could comprise an important nursery area for estuarine populations." In addition, the monitoring is to determine "the normal distributions of salinity, temperature, color, and dissolved oxygen" in the tidal ponds. These are data that must be known before a determination is possible that the discharge would not have a significant adverse impact on the biological community associated with the lakes.
Petitioners did not prove that granting the exemption would cause significant adverse impact to the biological community of Tee and Wicker Lakes, but it was
IP's burden to affirmatively demonstrate the opposite. Because insufficient data exists regarding baseline conditions in Tee and Wicker Lakes, IP did not provide reasonable assurance that the proposed discharge would not cause significant adverse impact on the biological community within the wetland tract.
2. Public Interest and Public Health
Florida Administrative Code Rule 62- 660.300(1)(a)2. requires the applicant to demonstrate that "granting the exemption is in the public interest and will not adversely affect public health or the cost of public health or other related programs."
Public Interest
Petitioners made much of a statement by
Mr. Evans that the public interest consideration in this permit review was “IP’s interest”. Petitioners claimed that this statement was an admission by the Department that it gave no consideration to the public interest. However, in context, Mr. Evan's statement was not such an admission. Moreover, Florida Administrative Code Rule 62-302.300(6) expressly provides that the public interest is not confined to activities conducted solely for public benefits, but can also include private activities conducted for private purposes.
The proposed exemption order does not directly address the public interest criterion, but it notes that "existing impacted wetlands will be restored." In IP's application for the exemption, it states that the exemption would "contribute to our knowledge of wetlands in general and to the refinement of performance guidelines for the application of pulp mill wastewater to wetlands."
Petitioners dispute that the wetland tract is being restored. The evidence shows that some restoration would be accomplished. The natural features and hydrology of the tract have been substantially altered by agriculture, silviculture, clearing for pasture, ditching, and draining. The volume of flow in the discharge would offset the artificial drainage that occurred. A mixture of hardwood tree species would be planted, which would restore more of the diversity found in a natural forested wetland.
However, an aspect of the project that could substantially detract from the goal of restoration is the transformation of the freshwater wetlands to an unnatural salty condition. Dr. Nutter said that the salt content of the mill's effluent was equivalent to Gatorade, but for many freshwater organisms, that is too salty.
Another public benefit of the exemption that was discussed at the final hearing is that it would allow IP to
relocate its discharge from Elevenmile Creek and thus end its adverse impacts to the Creek. That public benefit is not given much weight because IP has not shown that its adverse impacts to Elevenmile Creek cannot be eliminated or substantially reduced by decreasing its production of paper products. The evidence shows only that IP has attempted to solve its pollution problems through environmental engineering.27
A sufficient public interest showing for the purpose of obtaining the experimental use of wetlands exemption should not be a rigorous challenge if all the other exemption criteria are met, because that means the proposed wetland discharge was shown to have no harmful consequences. The public interest showing in this proceeding was insufficient, however, because the other exemption criteria were not met and there is a reasonable potential for harmful consequences.
Public Health
Petitioners raised the issue of the presence of Klebsiella bacteria, which can be a public health problem when they occur at high levels. The more detection of Klebsiella, however, does not constitute a public health concern. Petitioners did not show that Klebsiella bacteria exist in the mill's effluent at levels that exceed
applicable water quality standards. Petitioners also did not present competent evidence about the likely fate of Klebsiella bacteria in the proposed effluent distribution system. Dr. Lane's statement that Klebsiella bacteria might be a problem is not sufficient to rebut IP's prima facie showing that the proposed permit will not cause or contribute to a violation of water quality standards applicable to pathogenic bacteria.
Petitioners also point to past incidents of high total coliform concentrations in Elevenmile Creek in support of their contention that the proposed exemption poses a risk to public health. However, these past incidents in Elevenmile Creek are not sufficient to prove that fecal coliform in the effluent discharged to the wetland tract will endanger the public health. IP proposes to restrict access to the wetland distribution system. Furthermore, the fate of bacteria in the wetlands is much different than in the Creek. The more persuasive evidence is that the wetland tract would destroy the bacteria by solar radiation and other mechanisms so that bacteria concentrations in waters accessible by the public would not be at levels which pose a threat to public health.
Protection of Potable Water Supplies and Human Health
Florida Administrative Code Rule 62- 660.300(1)(a)5. requires the applicant for the exemption to demonstrate that "the presently specified criteria are unnecessary" to protect potable water supplies and human health, which presupposes that the applicant has applied for an exemption from water quality criteria applicable to human health. IP has not requested such an exemption and, therefore, this particular criterion appears to be inapplicable. Even if it were applicable, the evidence does not show that the effluent would cause a problem for potable water supplies or human health.
4. Contiguous Waters
Florida Administrative Code Rule 62- 660.300(1)(a)6. requires a showing that "the exemption will not interfere with the designated uses of contiguous waters."
Contiguous waters, for the purpose of this criterion, would be Elevenmile Creek, Perdido Bay, and the Perdido River. Petitioners argue that Tee and Wicker Lakes should be considered contiguous waters for the purpose of this criterion of the exemption rule. However, Tee and Wicker Lakes are within the exempted wetland tract so they are not contiguous waters.
Petitioners contend that IP failed to account for the buildup of detritus in the wetlands and its eventual export to Perdido Bay. Their contention is based primarily on the opinion of Dr. Kevin White, a civil engineer, that treatment wetlands must be scraped or burned to remove plant buildup. However, Dr. Nutter explained that periodic removal of plant material is needed for the relatively small "constructed wetland" treatment systems that Dr. White is familiar with, but should not be needed in the 1,464-acre wetland tract.
Nevertheless, because IP did not provide reasonable assurances that the proposed permit and related authorizations would not significantly degrade the Perdido River OFW, IP failed to meet this particular exemption criterion regarding interference with contiguous waters.
5. Scientifically Valid Experimental Controls
Florida Administrative Code Rule 62- 660.300(1)(a)6. requires a showing that "scientifically valid environmental controls are provided . . . to monitor the long-term effects and recycling efficiency."
Petitioners' argument about this particular criterion was largely misplaced. The term "environmental controls" modifies the term "monitor" and connotes only that the experiment would be monitored in a manner that
will generate reliable information about long-term effects and performance. For monitoring purposes, IP's proposed NSAI protocol is an innovative and comprehensive plan that complies with this exemption criterion.
Petitioners' objections to the lack of sufficient information about Tee and Wicker Lakes is more appropriately an attack on the sufficiency of IP's showing that its discharge would not cause a significant adverse impact on the biological community within the wetland tract. That issue was discussed above.
6. Duration of the Exemption
Petitioners argue that the exemption can not exceed five years in duration, but the time schedules established by the proposed Consent Order and proposed permit would allow the exemption to be in effect for nine years. The Department's exemption order states that the five years does not begin to run until IP begins to discharge effluent at D-003 into the wetland tract. The possibility that IP might seek to renew the exemption after five years does not make the exemption something other than a five-year exemption. The Department's action on the request to renew the exemption would be subject to public review and challenge by persons whose substantial interests are affected.
The Waiver
The proposed waiver order would excuse IP from compliance with the criteria in Florida Administrative Code Rule 62-660.300(1)(a)3. and 4., which require that public access and recreation be restricted in the area covered by the exemption for experimental use of wetlands. Without the waiver, the public would have to be excluded from Tee and Wicker Lakes.
Section 120.542, Florida Statutes, requires a showing by the person seeking the waiver that the purpose of the underlying statute will be achieved by other means and the application of a rule would create a substantial hardship or would violate principles of fairness. Petitioners contend that IP failed to demonstrate substantial hardship. However, Petitioners do not want public access to Tee and Wicker Lakes restricted. The sole reason for their objection to the proposed waiver is apparently to thwart the issuance of the exemption.
Section 120.542, Florida Statutes, defines "substantial hardship" as a demonstrated economic, technological, legal, or other type of hardship to the person requesting the waiver. In the proposed waiver order, the Department identifies IP's hardship as the possibility that denial of the waiver could result in
denial of IP's NPDES permit and closure of the mill. The proposed waiver order then describes the number of jobs and other economic benefits of the mill that would be lost if the mill were closed.
As discussed in the Conclusions of Law below, the Department's interpretation of Section 120.542, Florida Statutes, to accept a demonstration of hardship that is associated with denial of the waiver is mistaken. The statute requires that the hardship arise from the application of the rule. In this case, IP must demonstrate that it would suffer substantial hardship if it were required to restrict public access and recreation on Tee and Wicker Lakes.
Petitioners claimed that IP has no authority to restrict the public from gaining access to Tee and Wicker Lakes because those are public waterbodies which the public has a right to enter and use. A substantial legal hardship for IP in complying with the exemption rule, therefore, is that compliance is impossible.
The Consent Order 1. Compliance Schedule
Subsections 403.088(2)(d) and (e), Florida Statutes, provide that no permit shall be issued unless a reasonable schedule for constructing, installing, or
placing into operation of an approved pollution abatement facility or alternative waste disposal system is in place. Petitioners claim the time schedules for compliance are not reasonable. Petitioners presented no competent evidence, however, that the WWTP upgrades, pipeline construction, and other activities required by the proposed permit can be accomplished in a shorter period of time.
One recurring theme in the Petitioners' case was that the adverse impacts associated with the continued discharge to Elevenmile Creek should not be allowed to continue, even for an interim period associated with construction of the WWTP upgrades and effluent pipeline. However, Petitioners also advocated the relocation of the discharge to the Escambia River, or to a "constructed wetlands." Both of these alternatives would have required a transition period during which the discharge to Elevenmile Creek would likely have continued. Furthermore, the Consent Order imposes interim limits on the discharge to Elevenmile Creek that would apply immediately upon issuance of the proposed permit. Although altered by the mill's effluent discharge, Elevenmile Creek is now a relatively stable biological system. The proposed permit would effectuate some improvement in the creek and Perdido Bay even during the construction phase.
2. Contingency Plan
The proposed Consent Order includes a contingency plan in the event that the NSAI monitoring analysis shows adverse impacts to the biological community within the wetland tract. The plan provides for alternative responses including relocating all or part of the wetland discharge to Elevenmile Creek. Petitioners object to the plan, primarily because they contend it is vague.
The provisions in the contingency plan for relocating all or part of the discharge from the wetland tract to Elevenmile Creek, appear to reflect a presumption that the negatives associated with continued discharge to the wetlands would outweigh the negatives associated with returning the discharge to Elevenmile Creek. However, it is not difficult to imagine scenarios where the harm to the biological community of the wetland tract is small in relationship to the harm to the biological community that might have reestablished itself in Elevenmile Creek.
Because the selection of an alternative under the contingency plan requires the consideration of data and analyses associated with future events, it is impossible to know at this time whether future action taken by the
Department and IP pursuant to the contingency plan would be reasonable.
If the contingency plan is intended by the Department and IP to authorize future action when circumstances described in the plan are present, then the plan is too vague. On the other hand, there is adequate detail in the plan if the purpose of the plan is merely to establish a framework for future decision-making that would be subject to permit modification, public review and challenge. Clarification is needed.
2. Penalties
Petitioners complained that the stipulated of
$500 per day for violations of the proposed Consent Order is too small to provide a deterrent to a company of the size of IP. Petitioners are correct, but did not present evidence to show what size penalty would be appropriate.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and subject matter of this proceeding pursuant to Sections
120.569 and 120.57(1), Florida Statutes.
The Department has authority to issue NPDES permits under Federal delegation pursuant to Section 403.0885(2), Florida Statutes. The NPDES program is implemented through rules found in Florida Administrative
Code Chapters 62-4, 62-302, 62-620, 62-650, and 62-660, but primarily in Chapter 62-620.
Standing
In order to establish their standing, the Lanes must establish that they have a substantial interest that would be affected by the proposed agency action.
§ 120.569(1), Fla. Stat.
For organizational standing, FOPB must prove that a substantial number of its members, but not necessarily a majority, have a substantial interest that would be affected; that the subject matter of the proposed project is within the general scope of the interests and activities for which the organization was created; and that the relief requested is of the type appropriate for the organization to receive on behalf of its members. See Florida League of Cities, Inc. v. Department of Environmental Regulation, 603 So. 2d 1363 (Fla. 1992); Friends of the Everglades, Inc. v. Board of Trustees of the
Internal Improvement Trust Fund, 595 So. 2d 186 (Fla. 1st DCA 1992).
IP contends that Petitioners lack standing because they failed to demonstrate that the Department authorizations would result in substantial harm to the waters of the State, or that Petitioners will suffer any
injury in fact as a result of the Department authorizations. However, Petitioners presented evidence of their interest in fishing, swimming, boating, and making other uses of the waters into which IP's wastewater effluent flows (primarily Perdido Bay), and there is no dispute that these waters are affected by IP's effluent.
Therefore, Petitioners proved their standing in this case.
Petitioners' standing is not dependent on proving their claim that the proposed permit and related authorizations would cause substantial adverse impacts to water quality and natural resources. Standing and the merits of a claim are different concepts. See, e.g., Village Park Mobile Home Ass'n., Inc. v. State Dept. of Business Regulation, 506 So. 2d 426, 433 (Fla. 1st DCA 1987); St. Martin's Episcopal Church v. Prudential-Bache Securities, 613 So. 2d 108, 109, n. 4 (Fla. 4th DCA 1993). If standing was based on whether a claim was proved, every losing petitioner would lack standing.
Burden and Standard of Proof
As the applicant for the permit and the related Department authorizations, IP has the ultimate burden of proving its entitlement by a preponderance of the evidence. Dept. of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Florida Administrative Rule 62-4.070(1) states that a permit shall be issued only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards or rules.
"Reasonable assurance," in this context means a demonstration that there is a substantial likelihood of compliance with standards, or "a substantial likelihood that the project will be successfully implemented." Metropolitan Dade County, v. Coscan Florida, Inc., 609
So. 2d 644, 648 (Fla. 3d DCA 1992). See also City of Newberry v. Watson Constr. Co., 19 F.A.L.R. 2067, 2080 (DER 1996). It does not mean absolute guarantees. Save our Suwannee v. Florida Dep't of Envtl. Protection and
Piechocki, 18 F.A.L.R. 1467, 1472 (DEP 1996).
Competent substantial evidence based upon detailed site plans and engineering studies, coupled with credible expert engineering testimony is a sufficient basis for a finding of reasonable assurances. Hamilton County
Board of County Commissioners v. FDEP, 587 So. 2d 1378 (Fla. 1st DCA 1991).
Reasonable assurance standard requires the applicant to address "reasonably foreseeable contingencies" in establishing entitlement. See Putnam County Envtl. Council, Inc. v. Florida Dep’t of Envtl. Protection and Georgia-Pacific
Corp., 24 F.A.L.R. 4674, RO at 4714, (Fla. DEP 2002), app. den., Case Nos. 1D02-3673 and 1D02-3674 (Fla. 1st DCA, Nov. 26, 2003).
The applicant bears the ultimate burden of providing reasonable assurance that that all applicable criteria and standards will be met. J.W.C. Co., supra. If the applicant presents prima facie evidence of entitlement to the permit, the burden shifts to the objecting party to present "contrary evidence of equivalent quality." Id. at 789. This burden cannot be satisfied with speculative concerns about potential or possible adverse environmental effects. See Rowe v. Oleander Power Project, L.P., 22 F.A.L.R. 1173, 1185 (DEP 1999); Chipola Basin Protective Group, Inc. v. Fla. Chapter Sierra Club,
11 F.A.L.R. 467, 481 (DER 1988); J.T. McCormick v. City of Jacksonville, 12 F.A.L.R. 960, 971 (DER 1990).
The Proposed Permit
IP's water quality modeling indicated that the discharge allowed under the proposed permit would cause a 0.1 mg/l decrease in DO levels in Perdido Bay under circumstances of
maximum BOD loading and low flow conditions. Because the DO levels in Perdido Bay sometimes fall below the Class III water quality standard of 5.0 mg/l, Petitioners assert that it is wrong to allow IP to contribute to the existing violation of the water quality standard for DO.
The Amendment to the Fact Sheet that accompanies the proposed permit states:
Although Elevenmile Creek and Perdido Bay are not expected to meet the applicable Class III DO criteria with or without the [IP] discharge, the modeling indicates the [IP] discharge will not cause DO levels to be significantly decreased below background DO levels. As such, the [IP] discharge at the proposed permitted BOD5 level is not expected to cause or contribute to a violation of the DO standard.
The salinity stratification and sediment oxygen demand in Perdido Bay, cause DO levels in the bottom water layer of Perdido Bay to fall below the Class III water standard of 5.0 mg/l even without the mill's discharge. The modeled decrease in DO of 0.1 mg/l that would be caused by the mill's effluent under unusual conditions is an insignificant impact and does not prevent approval of the proposed permit. See Pacetti v. Florida Dep’t of Envtl. Regulation, DOAH Case Nos. 84-3810 and 84-3811 (DER FO, April 18, 1986) (a lowering of DO by 0.1 mg/l in waters that are naturally below the DO standard is a de minimus impact and does not prevent issuance of the permit).
IP provided reasonable assurance that the proposed permit would not result in a discharge of pollution in contravention of Department standards or rules, except as specifically noted below.
IP did not provide reasonable assurance that the proposed permit would not cause the Perdido River to be significantly degraded.
IP did not provide reasonable assurance that the mill's effluent would be assimilated so as not to cause significant adverse impact on the biological community within the wetland tract.
Section 403.088(1)(e), Florida Statutes, sets forth special conditions that must be met to obtain an operation permit for a discharge that will not meet permit conditions or applicable statutes and rules. The statute requires an applicant to show, among other things, that issuing the permit will be in the public interest and the discharge will not be unreasonably destructive to the quality of the receiving waters. IP did not make an adequate showing on these two criteria.
Because IP did not make a sufficient demonstration that the discharge to the wetlands would not cause significant adverse impact to the biological community within the wetland tract, and IP did not make a sufficient showing that the discharge would not significantly degrade the Perdido River OFW,
it cannot be determined that issuance of the proposed permit would be in the public interest. Furthermore, a discharge is unreasonably destructive if its destructive effect can be reduced or eliminated by reasonable means. Because IP did not make a sufficient showing with regard to the potential adverse impact of the proposed discharge on the biological community within the wetland tract, it is impossible to know whether any destructive effects could be reduced or eliminated by reasonable means.28 Therefore, IP did not meet the special permit conditions required by Section 403.088(1)(e), Florida Statutes.
Because IP did not provide reasonable assurance that the proposed permit would not result in a discharge of pollution in contravention of Department standards or rules, Florida Administrative Code Rule 62-4.070(2) requires the Department to
deny the permit.
The Exemption
Petitioners argue that it was improper to include Tee and Wicker Lakes in the exemption because they are not wetlands. Although Florida Administrative Code Rule 62-660.300(1) is entitled "Exemptions to Provide for the Experimental Use of Wetlands for Low-Energy Water and Wastewater Recycling," the rule text refers to "wetlands and fresh waters," "waters affected," "receiving waters," and "waters." The purpose of the rule and the use of terms other than "wetlands" provide support
for the Department's interpretation of the rule to allow associated lakes or ponds to be included within the area of the exemption when, as in this case, the lakes or ponds are relatively small and located within a much larger wetland system.
However, IP failed to demonstrate that granting the exemption would not cause significant adverse impact on the biological community within the wetland tract as required by Florida Administrative Code Rule 62.660.300(1)(a). With regard to the freshwater area of the wetland tract, IP did not provide reasonable assurance that the specific conductance of the mill's effluent would not cause significant adverse impact to fish and other organisms. With regard to Tee and Wicker Lakes, IP does not have adequate baseline information about the biological community associated with the lakes to provide reasonable assurance that the proposed discharge would not cause significant adverse impact. Ongoing studies being conducted for the NSAI monitoring program would generate the needed information, but reasonable assurances must be based on current information. See Metropolitan Dade County v. Coscan Florida, Inc. 609 So. 2d 644 (Fla. 3d DCA 1992).
The Department intends to apply Florida Administrative Code Rule 62-660.300(1) in two stages, the first stage being the issuance of the proposed exemption order that
"provides the opportunity to develop the information necessary to amend the water quality standards by Secretary Order," and the second stage being the issuance of a "permanent exemption with alternative criteria." The undersigned provided the parties an opportunity to supplement their PROs with argument on the validity of the Department's application of the exemption rule in this bifurcated manner. The Department's interpretation of the rule, so that permanent alternative criteria would not be established until the results of the experiment (i.e., actual use of the wetland tract to assimilate the mill's effluent) are
known, is reasonable.
The Waiver
The proposed Waiver Order is based on an erroneous analysis of the substantial hardship showing required by Section 120.542, Florida Statutes. The analysis focused on the consequences to IP of the denial of the waiver, which was assumed to be closure of the mill. However, the statute requires that the hardship arise from the application of the rule that the petitioner seeks to have waived. In this case, IP must demonstrate that it would suffer substantial hardship if it were required to restrict public access and recreation on Tee and Wicker Lakes.
The hardship that must be shown to qualify for a waiver should be commensurate with the potential environmental
harm or other negative consequences of granting the waiver. The record in this case does not show there would be public health problems or other negative consequences associated with the public's continued access to and use of Tee and Wicker Lakes.
Granting the waiver preserves the public interest in public access and recreation on public waters. Granting the waiver would also be consistent with Petitioners' desire to maintain public access and recreation on Tee and Wicker Lakes. IP's legal hardship in complying with the public access and recreation criteria would be substantial because restricting public access to public waters would require the approval of the Board of Trustees of the Internal Improvement Trust Fund, the difficulty of which is widely known and was acknowledged by Petitioners. The record evidence that Tee and Wicker Lakes are public waters is sufficient to establish IP's substantial hardship for the purpose of the waiver.
However, it is recommended that IP's petition for exemption be denied and the waiver would serve no independent purpose. Therefore, IP's petition for waiver should also be denied.
The Consent Order
IP provided reasonable assurance that the proposed Consent Order complies with all applicable Department statutes and rules, except as specifically noted below.
If an applicant for an operation permit involving a discharge that will not comply with all applicable statutes and rules is able to meet the special conditions of Section 403.088(1)(e), Florida Statutes, an order must be issued to accompany the permit which establishes a schedule for achieving compliance with all permit conditions. § 403.088(1)(f), Fla. Stat. That is the purpose of the proposed Consent Order. However, because IP did not comply with all the special conditions of Section 403.088(1)(e), Florida Statutes, the proposed Consent Order should not be approved.
The Contingency Plan for Management of the Combined Effluent Distribution Project Wetland Site, which is Attachment I to the proposed Consent Order, states that it is
intended "to safeguard the biological integrity" of the wetland tract, including Tee and Wicker Lakes. Alternative management options are discussed in the contingency plan that would be implemented if the NSAI monitoring program results in determination that the biological integrity of the wetland tract has been adversely affected by the effluent. The contingency plans are described as "built-in," suggesting that they are
pre-authorized and would not require new agency action. This interpretation is supported by a statement that the Department would be contacted for assistance if problems are encountered
that are "not anticipated or accounted for in the contingency plan."
However, there is insufficient detail in the contingency plan to determine now that the relocation of 50 percent of the discharge to Elevenmile Creek, for example, would be an appropriate response to future circumstances. Any relocation of the discharge would have to include an assessment of whether the adverse impact to the biological community of the wetland tract is worse than the adverse impact that might occur to the biological community of Elevenmile Creek. The contingency plan should be amended to clarify what agency action, if any, is required to implement the management alternatives. Because the contingency plan appears now to
pre-authorize future action without reasonable assurance that the future action would be appropriate, it creates another ground for disapproving the proposed Consent Order.
The $500 per day stipulated penalty provision of the proposed Consent Order is too low to be a deterrent to non- compliance or an incentive for quick correction of noncompliance. However, the record contains no evidence upon which to base a higher penalty figure. A stipulated penalty amount, such as $2,500 per day, might be too large for noncompliance with some of the less important provisions of the proposed Consent Order. A penalty range such as "up to $10,000
per day" might grant too much discretion to the Department. The penalty provision of the proposed Consent Order should be revised to increase the stipulated penalty amount, but to also distinguish between major and minor problems associated with noncompliance.
Finally, to the extent that the proposed Consent Order incorporates or authorizes those specific provisions of the proposed permit and exemption that are determined in this Recommended Order to be in conflict with Department statutes and rules, the proposed Consent Order is also in conflict with Department statutes and rules.
Summary
The more persuasive evidence presented at the final hearing strongly indicates that the proposed Department authorizations would likely effectuate a significant improvement to the Perdido Bay system over the current discharge to Elevenmile Creek. However, IP must demonstrate more than improvement. It must demonstrate compliance with all applicable Department standards and rules. Improving overall environmental conditions is in the public interest, but the statutes and rules that require consideration of the public interest also contain other criteria that make it impossible to ignore the areas where IP's showing was insufficient.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order:
Denying proposed revised NPDES Permit Number FL0002526- 001/001-IW1S;
Disapproving revised Consent Order Number 04-1202;
Denying IP's petition for authorization for the experimental use of wetlands; and
Denying IP's petition for waiver.
DONE AND ENTERED this 11th day of May, 2007, in Tallahassee, Leon County, Florida.
S
BRAM D. E. CANTER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2007.
ENDNOTES
1/ Two exhibits were introduced as Petitioners' Exhibit 5, the curriculum vita of Mr. Sulkin and a similar document for
Dr. White. They have been re-marked for the record, respectively, as Petitioners' Exhibits 5 and 5A.
2/ All references to the Florida Statutes are to the 2006 codification, unless otherwise indicated.
3/ FOPB's Articles of Incorporation (Petitioners' Exhibit 6) state that it is an Alabama corporation. James Lane testified that FOPB is "registered" in Florida.
4/ Petitioners Jacqueline Lane and James Lane were among the challengers, but they dropped out of the case before the hearing based on their belief that DER's requirement for nutrient studies would lead to acceptable modifications to the mill's effluent that would eliminate its adverse effects on Perdido Bay.
5/ The parties often referred to the wetland tract as the Rainwater Tract. However, because the wetland tract is only a portion of the entire Rainwater Tract, the latter name is not being used in this Recommended Order.
6/ Because DO in the effluent is expected to be depleted during the effluent's 10-mile conveyance through the pipeline, there is a passive aeration system at the end of the pipeline.
7/ The proposed permit allows for discharges to Elevenmile Creek from D-001 in an emergency situation, such as a pipeline break.
8/ Remarkably, some Department witnesses whose testimony was presented by Petitioners had little or no familiarity with the data and analyses generated by the Livingston studies, even though their employment responsibilities require them to be knowledgeable about the biology and water quality of the Perdido Bay system.
9/ Dr. Lane appeared to adopt the opinion that salinity stratification is the major cause of hypoxia in her examination of Dr. Stephen Schropp. See Transcript at 2180.
10/ For example, Dr. Livingston found no infauna (organisms living in the sediments) in Wolf Bay, which is southwest of, but connected to Perdido Bay, and which indicates that significant adverse impacts are being caused by sources other than the mill.
11/ Although Champion and IP funded the Livingston studies, they had no say in the study results that were published. Dr.
Livingston was never paid a salary or fee for his work on the studies. IP paid him for his time as an expert witness at the hearing.
12/ In her cross-examination, Dr. Lane asked Mr. Gallagher to relate the results of the Coffin and Cifuentes study, and Petitioners' Exhibit 59 includes a critique of the study.
However, the failure of a party to object to hearsay evidence does not convert hearsay evidence into non-hearsay evidence.
13/ Petitioner's own witness, Dr. Richard Weikowitz, said the long-term BOD assumption in the Mr. Gallagher's model was reasonable.
14/ Dr. Livingston said, "Everywhere I've gone, I've found that BOD has been overrated as a variable that's of importance to these systems."
15/ Petitioners presented the testimony of Glen Butts, a marine biologist with the Department, but he disagrees with Petitioners' theory that the problem in Perdido Bay is organic loading. He thinks the problem is toxicity.
16/ Mr. Ray testified that mercury concentrations were high, but another witness for Petitioners, Dr. Steven Schropp, testified that mercury concentrations were low.
17/ The study that was introduced into evidence as DEP Exhibit
38 is not dated. However, there is information in the study that indicates it was completed in 2001 or later.
18/ The hearsay study concludes that the mutagenic compounds in the effluent are probably not chlorinated compounds, so the study does not support or explain Dr. Livingston's tissue analysis which implicated chlorine compounds.
19/ In their petitions, Petitioners cited Florida Administrative Code Rule 62.302.500, which prohibits discharges that cause mutagenic effects. However, the same rule also prohibits discharges that cause nuisance conditions such as scum and odor, and Petitioners specifically alleged that IP's discharge was causing nuisance scum and odor.
20/ The OFW rule's contemplation of a discharge that would significantly degrade an OFW but not lower ambient water quality is just one of several ambiguities in the rule.
21/ There was also no evidence presented that 5,100 ppd for BOD was a permit limit in 1979. The record does not identify any permit issued prior to Champion's 1982 permit.
22/ For example, the mill has a permit limit of 4,500 ppd, but the long-term average BOD loading has only been 2,544 ppd.
23/ Curiously, Petitioners repeatedly pointed out that IP would be deviating from the Class III water quality standards for pH, transparency, and DO. Deviating from existing standards is the idea behind the exemption.
24/ Water samples taken in the wetland tract showed specific conductance of 37.2 micromhos/cm in one place and 60 micromhos/cm in another. Mr. Ray's samples from "little creeks" in the wetland tract showed "about" 100 micromhos/cm.
25/ In its antidegradation analysis, IP states that the ECUA wastewater would have a diluting effect that could reduce by 20 percent the specific conductance in the combined discharge to the wetland tract.
26/ Aerial photography of the wetland track shows some stream- like features below berm 1. Petitioners contend these are streams, but the more persuasive evidence indicates they are firebreaks that were cut in 2001 by Florida Division of Forestry personnel to control a fire in the area.
27/ IP stated that the Cantonment mill employs 650 people and spends millions annually in Escambia County for goods and services and these public benefits would terminate if the mill closed down. However, this worse case scenario for IP was not correlated with any particular set of regulatory controls. IP did not show that it was impossible to meet water quality standards except by closing down the mill.
28/ Dilution of the effluent, for example, might be a reasonable means to reduce or avoid the problems associated with the specific conductance of the discharge.
COPIES FURNISHED:
Michael W. Sole, Secretary
Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-2400
W. Douglas Beason, Esquire
Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Terry Cole, Esquire
Oertel, Fernandez, Cole & Bryant, P.A.
301 South Bronough Street, Fifth Floor Post Office Box 1110
Tallahassee, Florida 32302-1110
Jacqueline M. Lane 10738 Lillian Highway
Pensacola, Florida 32506
Howard K. Heims, Esquire Littman, Sherlock & Heims, P.A. Post Office Box 1197
Stuart, Florida 34995-1197
Marcy I. LaHart, Esquire 711 Talladega Street
West Palm Beach, Florida 33405-1443
David K. Thulman, Esquire
Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Stacey D. Cowley, Esquire
Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-2400
Lea Crandall, Agency Clerk
Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-2400
Tom Beason, General Counsel
Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-2400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 08, 2007 | Agency Final Order | |
| May 11, 2007 | Recommended Order | Recommend denial of a proposed permit, exemption, waiver, and consent order pertaining to the paper mill`s effluent discharge for failing to provide reasonable assurance that it would comply with all applicable statutes and rules. |
