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CLAUDIO CASTILLO vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 96-005181 (1996)
Division of Administrative Hearings, Florida Filed:Miami, Florida Nov. 05, 1996 Number: 96-005181 Latest Update: Oct. 06, 1997

The Issue The issue for determination is whether Petitioner is liable for the costs and expenses incurred by Respondent in responding to a pollutant discharge, occurring on November 6, 1992, at the waters off John Lloyd State Park, Dania, Florida, and for damages to natural resources resulting from the pollutant discharge.

Findings Of Fact On November 6, 1992, a DC-7 airplane crashed off the Atlantic Coast of Florida, more particularly, 100 yards from John Lloyd State Park, and one quarter of a mile north of Dania Pier in Dania, Florida. The DC-7 was a chartered cargo airplane and had departed from Miami International Airport. The DC-7 was chartered from Claudio Castillo by Miguel Delpino, United States General Manager of Aerochago Airlines, to carry cargo for Aerochago Airlines. Even though Aerochago Airlines owned aircraft, its aircraft was unavailable due to maintenance work being performed. During the flight from Miami International Airport, the DC-7 developed engine trouble, i.e., two of its engines failed. The aircraft began to lose altitude. In an attempt to regain altitude, the captain of the aircraft dumped 3,000 gallons of aviation fuel. However, the DC-7 failed to regain altitude and crashed. Remaining on the crashed aircraft were 3,000 gallons of aviation fuel and 150 gallons of motor oil. When the DC-7 crashed, only the crew and two passengers were on board. One of the passengers was Mr. Castillo. On the same day of the crash, the Florida Marine Patrol (FMP) of the Department of Natural Resources, now the Department of Environmental Protection (DEP), arrived at the crash scene at 3:20 a.m. and investigated the crash. The DEP had four employees investigating the crash: three FMP officers and one employee from the Office of Coastal Protection. The remaining aviation fuel and motor oil in the crashed DC-7 was discharging into the coastal waters. The DEP employees attempted to abate the discharge. The equipment necessary for the employees' investigation of the crash and abatement of the discharge and the cost for the equipment were the following: (a) a DEP vehicle at a cost of $7.00; (b) a twin engine vessel at a cost of $120.00; (c) an underwater sealant kit at a cost of $16.66; (d) scuba tanks at a cost of $9.00; and (e) photographs at a cost of $24.00. The total hours expended by DEP's four employees were 36 hours, at a cost of $685.84. Due to the DC-7 leaking aviation fuel and motor oil into Florida's coastal waters, removal of the aircraft from the Atlantic Ocean was necessary. DEP contracted with Resolve Towing and Salvage (RTS) to remove the DC-7. RTS is a discharge cleanup organization approved by DEP. RTS' contractual responsibilities included removal of the entire DC-7 aircraft and all debris within 100 yards of the center of the aircraft; disposal of the aircraft; plugging the engines to help stop the leakage; and removal and delivery of the engines which failed to the National Transportation Safety Board (NTSB) and the Federal Aviation Authority (FAA). Because the submerged DC-7 was located in an environmentally sensitive coral and sea-plant area, RTS was required to use extreme care in removing the aircraft. The contractual cost was fixed at $34,000.00 A DEP employee, Kent Reetz, was at the scene of the crash during RTS' cleanup. His responsibility was to monitor the removal of the DC-7 by RTS and to ensure that the aircraft's removal was in compliance with DEP's standards. During the removal of the DC-7 from the water, the fuselage ruptured, scattering debris which was dangerous to the public and to the coral and sea-plants. DEP determined that RTS was not responsible for the fuselage rupturing, but that the rupture was caused by several storms, prior to the aircraft's removal, and by the aircraft being submerged for an extended period in salt water. DEP contracted with RTS to remove the dangerous debris emitted when the fuselage ruptured. The contractual cost was fixed at $9,050.00 The total contractual cost between DEP and RTS was $43,050.00. DEP paid RTS from the Coastal Protection Trust Fund. In responding to the pollutant discharge, DEP incurred a total cost of $43,912.50. DEP assessed damages to the natural resources based upon the amount of pollutants discharged which were 3,000 gallons of aviation fuel and 150 gallons of motor oil. Using the statutory formula, DEP assessed damages to the natural resources in the amount of $57,898.72. Based upon the costs incurred by DEP in responding to the pollutant discharge in the amount of $43,912.50 and the damages to the natural resources in the amount of $57,898.72, DEP sought reimbursement and compensation from Mr. Castillo in the total amount of $101,811.22. DEP invoiced Mr. Castillo for reimbursement of the costs and for compensation for the damages. DEP provided Mr. Castillo with detailed and itemized expense documents for the costs that it had incurred in responding to the pollutant discharge. The documents showed the expenses incurred, what each expense represented, and the formula for computing each expense. Further, DEP provided Mr. Castillo with a document showing the amount of the damages to the natural resources, the formula for computing the damages, and how the damages were computed. The charter of November 6, 1992, was not the first time that Mr. Delpino had chartered the same DC-7 from Mr. Castillo. Prior to and, again, at the previous charter, Mr. Castillo represented to Mr. Delpino that he, Mr. Castillo, was the owner of the DC-7. The owner of a chartered aircraft is responsible for obtaining the aircraft's crew and insurance and for maintaining the aircraft. For the previous charter, Mr. Castillo was responsible for obtaining the DC-7's crew and the insurance and for maintaining the aircraft. Mr. Delpino had no reason to expect the charter for November 6, 1992, to be any different. Furthermore, Mr. Castillo did not inform Mr. Delpino that the responsibilities would be different. For the present charter, as before, Mr. Castillo handled all matters relating to the crew, insurance, and maintenance. Regarding the insurance, Mr. Castillo presented to Mr. Delpino an insurance certificate which, after the crash, was discovered to be false. Also, regarding maintenance, prior to the crash, the two engines which failed were to be removed and repaired, but, although they were removed, they were returned without being repaired. Mr. Castillo was the owner of the DC-7. Also, the crash of the DC-7 was investigated by several federal governmental agencies, including the FAA, the U.S. Coast Guard, and the NTSB. Both the Coast Guard and the NTSB issued reports on the crash, which identified Mr. Castillo as the owner of the DC-7. Mr. Castillo was responsible for the discharge of the 3,000 gallons of aviation fuel and 150 gallons of motor oil from the DC-7 into Florida's coastal waters.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection (DEP) enter a final order assessing Claudio Castillo $43,912.50 for costs related to DEP responding to the pollutant discharge on November 6, 1992, at Florida's coastal waters off John Lloyd State Park, Dania, Florida, and $57,898.72 for damages to natural resources resulting from the pollutant discharge--all totaling $101,811.22. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997.

Florida Laws (8) 120.569120.57376.031376.041376.051376.11376.12376.121
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STANLEY HARTSON, ET AL. vs. DNR, ET AL., 77-000960 (1977)
Division of Administrative Hearings, Florida Number: 77-000960 Latest Update: May 04, 1978

Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as a personal view of the premises by the Hearing Officer, the following relevant facts are found: In January of 1975, Central Development Company, as the owner of the Mainland Lot 20, Parkers Haven, and the owner of Parker Island, submitted to the Trustees of the Internal Improvement Fund its application for an easement across the sovereignty land between these properties in King's Bay, Crystal River. An application for a permit from the Department of Environmental Regulation to construct a concrete bridge across this land had previously been submitted. By letter dated March 16, 1977, Edward H. Cederholm with the Department of Natural Resources was notified that the Department of Environmental Regulation had determined that the bridge proposed by the applicant would have no significant adverse effect on water quality. Representatives from the Department of Natural Resources had previously concluded, after a biological and hydrographic assessment, that the bridge in itself would not significantly affect aquatic biological resources nor would it have significant adverse hydrographic effects. The Game and Fresh Water Fish Commission had no objection to the bridge itself, but did express concern over the future development of Parker Island. The request for a right-of-way easement for the bridge construction was a scheduled item for the Trustees' Agenda for April 7, 1977. The Staff of the Department of Natural Resources recommended approval of the easement request, noting that "the executed easement will be provided to the applicant upon affirmative permitting action by D.E.R." The Trustees deferred action on the request until a public hearing pursuant to Florida Statutes Section 253.115 could be conducted by the Department of Natural Resources. The Department of Natural Resources thereafter withdrew its recommendation to the Trustees pending the outcome of the public hearing. That public hearing was conducted in Crystal River on September 9, 1977, by the Department of Natural Resources. Having previously submitted an application to the Department of Environmental Regulation for the installation and maintenance of power poles and lines on and between Banana and Parker Island in Citrus County, Florida Power Corporation submitted an application to the Department of Natural Resources for an easement or other form of consent for the same. Presumably, the public hearing held on September 9, 1977, included this issue as well as the proposed bridge issue. No application has been received by the Department of Natural Resources for the construction and maintenance of a boardwalk by the Banana Island Recreation Association, Inc. The petitioners herein attempted to present evidence that it would not be in the public interest for Department of Natural Resources or the Trustees to grant easements for the bridge, power poles and lines, or boardwalk projects for the reasons that said projects would: present a hazard or serious impediment to navigation in the area; have an adverse effect upon water quality and aquatic resources; endanger an already endangered species - the manatee; and deprive waterfront property owners of their common law riparian rights to an unobstructed view. Additionally, petitioners contend that the applicants and Department of Natural Resources have failed to comply with the provisions of Chapter 253 regarding sales and conveyances of land, the title to which is vested in the Trustees. The Department of Natural Resources forwarded the requests for hearings to the Division of Administrative Hearings, and the undersigned Hearing Officer was duly designated to conduct the hearings. Upon the agreement of all parties, the hearing in this cause was consolidated with the hearings on the Department of Environmental Regulation permit applications for the bridge, the power poles and lines and the boardwalk. The separate recommended orders entered in those cases contain specific findings of fact concerning the evidence presented at the hearing relating to the effect of those projects upon navigation, water quality, aquatic resources, the manatee and riparian rights to an unobstructed view. In summary, it was concluded that the petitioners failed to present sufficient evidence that the public interest in these areas would be harmed by the granting of the Department of Environmental Regulation permits. The reader of this recommended order is specifically referred to the findings of fact and conclusions of law contained in the recommended orders entered in Case Nos. 76- 1102, 76-1103 and 77-849 and 850, all of which are attached hereto.

Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Board of Trustees of the Internal Improvement Trust Fund issue to Central Development Company and Florida Power Corporation the required easements or other forms of consent authorizing the proposed usages of sovereignty lands as set forth in their applications for the same. Respectfully submitted and entered this day of September, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida COPIES FURNISHED: Kenneth F. Hoffman, Esquire Post Office Box 1872 Tallahassee, Florida 32302 Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 Baya Harrison, III, Esquire Post Office Box 391 Tallahassee, Florida 32302 David Gluckman, Esquire 3348 Mahan Drive Tallahassee, Florida 32303 Mr. H. A. Evertz, III Florida Power Corporation Post Office Box 14042 St. Petersburg, Florida 33733 Kent A. Zaiser, Esquire Assistant Department Attorney Department of Natural Resources Crown Building 202 Blount Street Tallahassee, Florida ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF NATURAL RESOURCES TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND STANLEY HARTSON et al., ) ) Petitioner, ) ) vs. ) CASE NO. 77-960 ) DEPARTMENT OF NATURAL RESOURCES, ) et al., ) ) Respondents. ) )

Florida Laws (4) 253.03253.115253.12253.77
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DADE COUNTY BOARD OF COUNTY COMMISSIONERS vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 81-001981RX (1981)
Division of Administrative Hearings, Florida Number: 81-001981RX Latest Update: Sep. 24, 1982

Findings Of Fact Petitioners in this proceeding challenge the validity of one of the Department of Environmental Regulation's ("DER") Class III water quality standards contained in Rule 17-3.121(7), Florida Administrative Code. This rule, commonly known as the "Biological Integrity Rule," reads as follows: Biological Integrity--the Shannon- Weaver Diversity Index of benthic macroinvertebrates shall not be reduced to less than 75 percent of established background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and, in predominantly fresh waters, collected and composited from a minimum of three Hester-Dendy type artificial substrate samplers of 0.10 to 0.15 meters squared area each, incubated for a period of four weeks; and, in predominantly marine waters, collected and composited from a minimal of three natural substrate samples, taken with Ponar type samplers with minimum sampling area of 225 square centimeters. Petitioners challenge this rule as a result of DER's intended denial of an application by Dade County for a permit to renourish the beach at Key Biscayne. DER's decision not to issue the beach renourishment permit was based in part upon its conclusion that there existed an expected violation of the Biological Integrity Rule as a result of the proposed beach renourishment. Whether or not the permit should be granted is an issue currently pending in another DOAH proceeding, Dade County Department of Environmental Resources Management, et al. v. State of Florida, Department of Environmental Regulation, DOAH Case No. 80-2201. Petitioners contend that Rule 17-3.121(7), Florida Administrative Code, is an invalid exercise of delegated legislative authority because: It fails to accomplish the purpose of the enabling legislation in that it contains no information as to where it is to be applied; It is incapable of consistent and objective application, and thus vests unbridled discretion in the DER staff; It is too vague and indefinite to determine whether it conforms to the statutory limitation on DER's authority; and It purports to but does not measure environmental integrity or environmental quality. The project for which Petitioners have applied for a permit requires the placement of fill on the beach at Key Biscayne in an area which extends landward from a point referred to as the 'design toe of fill." The permit application on file requests permission from DER to place fill material up to the design toe of fill. According to the permit application, it will take approximately two years after the initial placement of sand in the project area for that sand to reach the design toe of fill. There is no information contained in the original permit application regarding the location of the fill as it is initially placed within the project area, nor did DER request any additional information on that subject. The parties have stipulated that 45 acres of sea grass will ultimately be covered by fill. This area represents all the sea grass acreage landward of the design toe of fill, not just the acreage of sea grass which will be covered during the initial placement of fill within the project area. DER has no written policy establishing where the Biological Integrity Rule is to be applied. The record in this proceeding contains differing opinions from members of the DER staff concerning where the rule should be applied in order to determine whether a given project complies with the requirements of the rule. These explanations vary from applying the requirements of the rule within the area to be dredged or filled, to applying the rule outside the fill area, to applying the rule immediately adjacent to the fill area, to determining where the rule should be applied on a case-by-case basis. There is nothing in the record in this proceeding in the form of agency "orders" or any other form of agency "action" to indicate any prior DER interpretation of where the parameters of the Biological Integrity Rule are to be applied and measured. The rule uses the Shannon-Weaver Diversity Index of benthic macroinvertebrates as a measure in order to regulate the biological quality of a water body. The regulatory aspect of the rule depends upon some change in the existing biological community. If the index is reduced by more than 25 percent, a violation of the rule has occurred. The index is a function of two factors: the number of species of organisms in a given sample, and the number of individuals of each species in a sample. The higher the number of species in a given sample, and the more even the number of individuals of each species, the higher the index will be. The opposite is also true. If the number of species or the evenness of numbers of individuals among species is reduced, then the index decreases. The two factors are combined to arrive at the index. Naturally, these are only two of a vast number of factors actually present in the environment, but when taken together they give an accurate indication of existing water quality. Although this index does not reveal a number or these factors, such as existing biomass, types of species present in a sample, and the quality of those species, it is the most widely used scientifically valid single measure of environmental quality available. DER has had many years of experience with this index, and uses it in its routine monitoring program. In fact, this index is recommended for use in such programs by the Federal Environmental Protection Agency. The formula for the Shannon-Weaver index is found in Rule 17-3.021(23), Florida Administrative Code. Although the rule containing the formula for the index was not specifically challenged in the Petition filed in this cause, it bears mentioning here because the formula as published in the Florida Administrative Code, contains so many typographical errors as to make the definition of the formula meaningless. However, the record in this proceeding establishes that the Shannon-Weaver Diversity Index is so commonly known, accepted and utilized in the scientific community as to make the proper parameters for its application easily ascertainable. Thus, because the definition of the formula was not specifically challenged in this petition, and additionally because the proper definition of the index is so widely known and easily ascertainable, inaccuracies contained in DER's published definition of the index are harmless insofar as this proceeding is concerned.

Florida Laws (2) 120.56120.57
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DEPARTMENT OF ENVIRONMENTAL REGULATION vs. CITY OF NORTH MIAMI AND MUNISPORT, INC., 80-001168 (1980)
Division of Administrative Hearings, Florida Number: 80-001168 Latest Update: Mar. 18, 1981

Findings Of Fact At final hearing, the parties stipulated to the following facts: The Department of Environmental Regulation is an administrative agency of the State of Florida created by Chapter 75-22, Laws of Florida, and vested with the power and duty to implement and enforce the provisions of the Florida Air and Water Pollution Control Act, Part I, Chapter 403, Florida Statutes. Pursuant to these Acts, the Department is authorized to regulate the construction and operation of solid waste disposal facilities and stationary installations reasonably expected to be sources of pollution. Respondent, City [of North Miami], owns the property on which is located a solid waste facility known as "Munisport Sanitary Landfill" located at 14301 Biscayne Boulevard, North Miami, Dade County, Florida; latitude 25 degrees 54' 9" North, longitude 80 degrees 9' 5" West in Sections 21 and 22, Township 52 South, Range 42 East. Respondent, Munisport, operates a solid waste disposal facility under contract with the City. On March 7, 1977, the Department issued to the City of North Miami permit/certification number 13-31-028GM (hereinafter "dredge and fill permit") which modified and superseded permit/classification number 13-31-0286. The permit was issued under the provisions of Sections 253.123, 253.124, and 403.087, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The permit also provided water quality certification required by Public Law 92-500. The dredge and fill permit was issued for the purpose of constructing a continuous 5,000 foot-long earthen dike with a modified top width of 12 feet aligned waterward of the mean high water line such that the waterward toe of the dike would be on or landward of the property line. Approximately 6,000 cubic yards of material would be dredged from the 63-acre tract located behind the dike and waterward of the mean high water line. Portions of the tract would be excavated to minus 35 feet mean low water to form nontidal lakes. Approximately 1,000,000 cubic yards of fill material would be enplaced as follows: Clean fill to be utilized to produce an elevation of a minimum of two feet above the calculated ground water table, after which fresh refuse and a two-foot final cover of clean fill would be placed. Within a zone of 100 feet from the landward crest of the dike, yard trash and construction debris would be the only types of solid waste acceptable as fill, and A ten-foot wide by three-foot deep circulation canal would be dredged on the outside perimeter of the dike. General condition 13 of the dredge and fill permit provides that the permit does not indicate an endorsement or approval of any other Department permit/approval that may be required for other aspects of the total project. A solid waste operation permit would also be required. On June 8, 1979, the City and Munisport received from the Department Operation Permit No. SWO-13-5152 (hereinafter "solid waste operation permit"). The purpose of the solid waste operation permit was to allow and regulate the placement of solid waste (refuse, yard trash and construction debris) in the area behind the dike described above and on adjacent uplands in order to generate an appropriate elevation for a golf course. General condition number two of the solid waste operation permit states that: This permit is valid only for the specific processes and operations indicated in the attached drawings or exhibits. Any authorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit shall constitute grounds for revocation and enforcement action by the Department (emphasis added). Specific condition number six of the solid waste operations permit provides that the subject facility be operated at all times at the maximum level of efficiency so as to minimize the adverse effect on the environment of contaminated storm water runoff or leachates which cause degradation of surface or ground waters. Specific condition number nine of the solid waste operation permit provides that "no solid waste shall be placed within thirty feet of any existing or future lake". Prior to the issuance of the solid waste operation permit, Respondents' permit application was subjected to a de novo review during a Section 120.57(1), Florida Statutes, hearing requested by the Florida Audubon Society and others. The record of these proceedings explained and expanded upon the application and, therefore, became a part thereof. Respondents' consultant testified in these proceedings as follows: We have an agreement with the Department of Environmental Regulation that goes back several years that we would not dig up any old land fill material nor would we place any land fill material in an area that would eventually become a lake. Testimony of Mr. Thomas Joseph Checca on October 18, 1978; Transcript of proceedings in Florida Audubon Society, et al. v. State of Florida, Department of Environmental Regulation, City of North Miami, Florida and Munisport, Inc., DOAH Case No. 78-316. On October 25, 1979, an inspection of the above-described facility was made by Mr. Scott Quaas, an employee of the Department, who observed that two lakes had been constructed in old waste on the site without the required 30-foot setback as required by the aforementioned permit conditions. A letter of notice was issued by the Department regarding that and other violations on November 16, 1979. On December 18, 1979, a follow-up inspection of the subject facility was made by Mr. Quaas, at which time it was observed that two more lakes had been excavated through waste previously deposited at the site, thereby causing such waste to come in direct contact with the water in the lakes adjacent thereto. It was also observed that no 30-foot setback was provided at the new lakes. Notice of these additional violations was provided to Munisport on January 16, 1980. An on-site meeting regarding the above-described violation was held on January 24, 1980, at which time it was agreed that Respondents would reply by February 1, 1980, as to whether corrective actions would be taken regarding the aforementioned violations. As of the date of final hearing in this cause, corrective action had been taken to eliminate these violations. Specific condition number 13 of the solid waste operation permit requires the posting of a performance bond or other security acceptable to the Department which adequately covers the cost of monitoring and final closing procedures required under the permit and Chapter 17-7, Florida Administrative Code, and procedures listed in the application for permit which may become necessary to correct any pollution detected at the site in violation of Department rules. No such bond or security has been posted with the Department. Extensive discussions between the Department and representatives of the City and Munisport have failed to produce agreement regarding the terms of a performance bond or security. The parties were notified of this violation and were given an opportunity to respond. Leachate (runoff containing pollutants) has been allowed to enter lakes on the site. A leachate plume containing ammonia has been detected beneath the subject sanitary landfill site, which plume has reached ground waters of the State and is being observed to be moving off the site in an east- southeast direction, toward Biscayne Bay. This leachate plume contains total Ammonia-Nitrogen (NH3-N) in amounts which are substantially in excess of the water quality standards of .5 milligrams per litre for Dade county, Florida. See, Chapters 24-11(4), Dade County Code. It was not anticipated when Operation Permit Number SWO-13-5152 was issued that leachate would be allowed to enter the lakes or that a leachate plume would form in the manner which is presently being observed. In addition to being a pollutant, Ammonia-Nitrogen is the first substance generally observed when a leachate plume forms. There exists a significant possibility that other pollutants contained in solid waste deposited at the site will also begin to reach ground waters of the State and the waters of Biscayne Bay. General condition number eight of the solid waste operation permit states that: This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant, or aquatic life or property and penalties therefore caused by the construction or operation of this permitted source, nor does it allow the permittee to cause pollution in contravention of Florida Statutes and department rules, except where specifically authorized by an order from the department granting a variance or exception from department rules or state statutes. Specific condition number 15 of the solid waste operation permit states that: These permit conditions do not exempt the applicant from complying with pollution control requirements of other Federal, State, Municipal, County or Regional water pollution control rules, regulations, ordinances or codes, nor does it authorize any violation thereof.

Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered revoking the permits and certification which are the subject of this proceeding in their entirety or such lesser action as may be deemed appropriate by the Department in the exercise of its discretion as the State agency charged with the power and duty to control and prohibit the pollution of air and water under Section 403.061, Florida Statutes, and as the agency responsible for the implementation and enforcement of the provisions of the Florida Resource Recovery and Management Act which regulates the appropriate disposal of solid waste and landfill operation in this State. DONE and ENTERED this 24th day of February, 1981, in Tallahassee, Leon County, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1981. COPIES FURNISHED: William P. White, Jr., Esq. Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Willard K. Splittstoesser, Esq. 776 N.E. 125th Street North Miami, FL 33161 Marvin P. Sadur, Esq. 2000 L. Street, N.W., Suite 612 Washington, D.C. 20036

Florida Laws (8) 120.57403.061403.087403.161403.182403.703403.707403.708
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FAYE DOBBS vs IMC FERTILIZER, INC., AND SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, 90-002650 (1990)
Division of Administrative Hearings, Florida Filed:Bartow, Florida Apr. 30, 1990 Number: 90-002650 Latest Update: Jan. 07, 1991

The Issue Whether Petitioner's application for renewal of water use permit application #200781.02 should be granted to withdraw a combined average withdrawal of 9,320,000 gallons of water per day and a maximum combined withdrawal rate of 18,600,000 gallons per day, subject to the terms and conditions listed in proposed permit for use at applicant's Haynesworth Mane.

Findings Of Fact IMCF operates a phosphate mining facility known as the Haynesworth Mine located on SR 37 in western Polk County, south of Bradley Junction. IMCF leases this mine from Brewster Phosphates, which is a joint venture of American Cyanamid Corporation and Kerr-McGee Corporation. The mine includes approximately 14,100 acres. IMCF took control of the mine from Brewster in 1986. At the time IMCF took control of this mine, a consumptive water use permit was extant which was due to expire in 1989. It is to renew this permit that the application here being considered was filed. After requesting and obtaining additional information and evaluating the application, Respondent issued its notice of intent to issue the permit. Phosphate ore is extracted by a dragline which opens mining cuts of 30 to 40 feet in depth at this facility. Seepage occurs into the mine cuts which must be removed in order to see and extract the phosphate ore. Dewatering is also necessary to protect the dragline from slope stability problems. Water pumped out of the mining cuts is introduced into the mine water recirculating system where it is used for numerous purposes, such as hydraulically pumping the extracted material to the beneficiation plant where clay and sand is extracted from the phosphate ore. The beneficiation plant uses large quantities of water, utilizing supplies from within the mine system (surface waters) and some from deep wells. It is the water from the deep wells that is the primary concern of the Intervenor. The surface water comes primarily from rainfall, mine cut seepage and make up water from the deep wells. Recycled water is of lower quality than well water due to the presence of organic materials or suspended solids, but it is used for many purposes, such as washing ore before being sent to settling ponds and later decanted from the top of the settling areas and returned to the water recirculating system. By use of recircled water in the beneficiation plant, the quantity of well water needed in later stages of the mining process and for make up due to evaporation and transpiration losses is reduced. Evidence presented shows that IMCF, by improving the recirculation system, has reduced the amount of well water needed in the overall mining process from 1220 gallons of deep well water per ton of phosphate rock produced in 1987 to 775 gallons per ton in 1989. The use here proposed is greater than was approved in the expiring permit; however, this increase is due almost entirely to the inclusion of the water pumped in the dewatering operation and the sealing water wells which were not counted in earlier years in determining the quantity permitted to be pumped. Withdrawal of water from the mine cuts affects only the surficial aquifer and can result in a withdrawal of water from adjoining property. To mitigate this problem, a setback of 1100 feet from adjacent property has been established in which mining cannot be conducted. Additionally, a ditch is to be installed between the mining cut and the property line which is kept full of water to provide recharge to the surficial aquifer. Phosphate mining is a reasonable and beneficial use of water, and is consistent with the public interest. The use here proposed was grandfathered in long before the Intervenor received a consumptive use permit in 1986 and will not interfere with any legal use of water existing at the time of the application. Considerable testimony was presented describing the computer modelling process used by IMCF and SFWMD in determining that the maximum drawdown of the water allowed by this proposed permit would not have a deleterious effect on adjacent property owners or on the Florida aquifer from which much of this water will be drawn. As a result, it is found that the rate of flow in nearby streams or watercourse will not be lowered; the level of the potentiometric surface will not be lowered below the regulatory level established by SFWMD; the drawdown will not induce salt water encroachment; will not cause the water table to be lowered so that lake stages or vegetation will be significantly affected on property not owned by the applicant; will not cause the potentiometric surface to be lowered below sea level; and the granting of this permit is in the public interest. The Intervenor's property consists of a 62 acre orange grove planted on reclaimed phosphate land that was mined more than 30 years ago and is surrounded by the 14,100 acres now controlled by IMCF. Her primary concern is that IMCF's mining operations will withdraw surficial water that would otherwise go to her orange grove, and that sufficient water will be withdrawn from the Florida aquifer that she will not have sufficient water to irrigate her grove. To support this position, Intervenor presented evidence that prior to 1986 her grove prospered with only natural rainfall. However, in 1986 it was found necessary to install a well to provide irrigation to this grove; and a permit was obtained from SFWMD. Subsequently, during a dry spell in April 1988 the surface pressure at Intervenor's pump dropped from 22 psi to less than 15 psi, and she was told the pumps would be burned out if pumping continued and the pressure dropped further. She attributed this low pressure at her pump to IMCF taking water from the aquifer from which her water also was drawn. During the period around April 1988, the ground water level dropped 15 to 20 feet below the average level of the water from which Intervenor drew her irrigation water. This resulted in the submersible pump having to lift water 15 to 20 feet (or more) higher than it had to lift when the pressure of the pump was 22 psi. In other words, Intervenor's pump was completely submerged in the water in the upper Florida aquifer, but the pump was not powerful enough to provide 22 psi pressure at the earth's surface. Changes in the ground water levels vary during each year depending on the amount of rainfall and the demands of those removing water from the aquifer. Spring time usage is normally heavy for agricultural purposes, and, as shown on Exhibit 25, each spring the ground water levels are closer to sea level than at any other time of the year. Intervenor also contended that IMCF should retain all of the water used in the mining process on its land rather than allowing the excess during heavy rainfall periods to be discharged into the Alafia River. No evidence was presented by Intervenor to show this to be a feasible solution; nor was evidence presented that this discharge polluted the Alafia River as contended by Intervenor. The Haynesworth Mine is a stationary installation which is reasonably expected to be a source of water pollution. Accordingly, it is required to obtain a permit from the Department of Environmental Regulation to discharge water into the Alafia River and is subject to various restrictions in so doing. No evidence was presented that IMCF or Haynesworth Mines violated any of the provisions of Chapter 403, Florida Statutes, in this regard.

Recommendation It is recommended that consumptive use permit #200781.02 be issued to IMC Fertilizer Inc., subject to the conditions contained in the draft permit. ENTERED this 7th day of January, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1991. COPIES FURNISHED: Robert W. Sims, Esquire Post Office Box 1526 Orlando, FL 32802 Catherine D'Andrea, Esquire 2379 Broad Street Brooksville, FL 34699-6899 Faye Dobbs Post Office Box 3407 Lakeland, FL 33802

Florida Administrative Code (1) 40D-2.301
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COCA COLA COMPANY vs. SOUTHWEST FLORIDA REGIONAL PLANNING COUNCIL, 76-001736 (1976)
Division of Administrative Hearings, Florida Number: 76-001736 Latest Update: Jun. 15, 1977

Findings Of Fact Application No. 76-00493 is for an existing consumptive use permit for five wells located in the Peace River Basin, Polk County on 608.6 acres. The permit seeks a total average annual withdrawal of 7.2 million gallons per day and a maximum daily withdrawal of 14.97 million gallons per day. Ninety-five percent of the water withdrawal will be used for industrial purposes and five percent will be used for irrigation. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flow meters of the propeller-driven type on all withdrawal points covered by the application except that well located at Latitude 28 degrees 03' 13", Longitude 81 degrees 47' 54". That the applicant shall record the pumpage from the above meters on a weekly basis and submit a record of that pumpage quarterly to the district beginning January 15, 1977. That the permit shall expire on December 31, 1980

Recommendation It is hereby RECOMMENDED that a consumptive use permit be granted in the amounts applied for in Application No. 76-00493 subject to the conditions set forth in paragraph 2 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Coca Cola Company Post Office Box 247 Auburndale, Florida 33823

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FLORIDA CHAPTER OF THE SIERRA CLUB AND SAVE OUR SUWANNEE, INC. vs SUWANNEE AMERICAN CEMENT COMPANY, INC., AND DEPARTMENT OF ENVIRONMENTAL PROTECTION, 99-003096 (1999)
Division of Administrative Hearings, Florida Filed:Gainesville, Florida Jul. 21, 1999 Number: 99-003096 Latest Update: May 23, 2000

The Issue The issue is whether the Petition for Administrative Hearing should be dismissed for failure to state a cause cognizable under Florida Law.

Findings Of Fact On November 30, 1998, Suwannee American filed its application and fee for an air construction permit for a dry process, preheater/precalciner type portland cement plant. The cement plant will emit oxides of nitrogen as a result of the combustion of fuels. A small fraction of the nitrogen oxides will, through oxidation, convert to nitrate. Some of the nitrate will become available for deposition as fall- out through two mechanisms: (a) dry deposition from particulate deposition; and (b) wet deposition from rainfall. Nitrate that lands on land and water surfaces can remain there, be taken up by vegetation, or enter ground and surface waters. The cement plant will also emit mercury. Joseph Kahn, a permit engineer in the Department's Division of Air Resources, Bureau of Air Regulation, was assigned to review the application. Early in the review process, Mr. Kahn became aware that members of the public and the Department's staff in its park's division had concerns about the atmospheric deposition of mercury and nitrate emissions from the cement plant. By letter dated December 29, 1998, Mr. Kahn requested the applicant to furnish additional information, including but not limited to, an additional impacts analysis of mercury and nitrogen deposition pursuant to Rule 62-212.400(5)(e), Florida Administrative Code. 1/ Specifically, the December 29, 1998, letter made the following inquiries: 8. Please compare other NOx [nitrogen oxide] limits established by BACT (for LaFarge and Great Star Cement, for example) with the proposed NOx limit and discuss the variables that affect emissions of NOx from Portland cement plants that are applicable to the proposed facility. * ** Please discuss the basis for the estimated emissions of mercury and provide illustrative calculations. Please estimate the possible impact or deposition of mercury at the Ichetucknee Springs State Park and the Santa Fe and Suwannee Rivers in the vicinity of the proposed facility. Please perform an additional impact analysis in the PSD [prevention of significant deterioration] Class II area near the facility including the Ichetucknee springs State Park and the Santa Fe and Suwannee Rivers in the vicinity of the proposed facility. This analysis must include impact on growth, soils and vegetation, and visibility. On February 25, 1999, the Department received Suwannee American's response to the December 29, 1999, letter. The response states as follows in regards to the deposition of mercury: Response: The PSD report used an emission factor for mercury from AP-42, Table 11.6-9, for cement Kilns with fabric filters. The other available emission factor in AP-42 is for cement kilns with ESPs. As this kiln will utilize an ESP for the pyroprocessing system, this response uses the ESP emission factor: 0.00022 pounds/ton of clinker X 839,5000 tons/year = 185 tons per year. Mercury emission data from nine cement plants ere evaluated as reported in the EPA Document Locating and Estimating Air Emission From sources of Mercury and Mercury compounds. These data are shown in the following table: [Table Omitted] The use of the average value from these tests results in a lower and consistent value: 0.000171 pounds/ton of clinker X 839,500 tons/year = 144 pounds per year. Emission estimates based on expected mercury levels in limestone, clay, sand, fly ash, and coal that will be used by Suwannee American result in an estimated emission rate of 129 pounds per year. The ambient air impact of mercury at the Ichetucknee Springs State Park and the Santa Fe and Suwannee rivers in the vicinity of the proposed facility is estimated as 0.00003- 0.00005 ug/m 3/ as a maximum annual concentration. The Reference Air concentration (RAC) for mercury (40 CFR 266, Appendix IV) is 0.3/m 3/ annual average. The deposition of mercury at the Ichetucknee Springs State Park and the Santa Fe and Suwannee Rivers in the vicinity of the proposed facility is estimated as 0.00002- 0.00005 g/m 2/ as a maximum annual deposition. If this level of deposition continued for 50 years and if all deposited mercury was to accumulate in the top six inches of soil, the increase in mercury levels in the soil would be on the order of 0.006 mg/kg. Safe mercury levels in soil established by Rule 62-785, F.A.C., are 3.7 mg/kg for direct exposure and 2.1 mg/kg for groundwater protection. After receiving the applicant's response to the December 29, 1998, request for additional information, Mr. Kahn performed independent evaluations to determine whether nitrate or mercury deposition would be of special concern in the area around the proposed plant. As to nitrate deposition, Mr. Kahn determined that approximately 50 tons per year of the NOx would be converted and deposited as nitrate within a 23-mile radius of the plant. He concluded that the estimated nitrate deposition from the cement plant was not significant because it was less than 0.1 percent of the annual total loading rate of nitrate (50,000 tons per year) from all other sources in the counties surrounding the Suwannee River. Mr. Kahn's independent analysis of mercury deposition yielded similar results. He concluded that, compared to the background levels of mercury existing in the soils around the proposed facility, and compared to the criteria of the Department's direct exposure soil criteria, 2/ the estimated additional mercury deposition from the cement plant would not be significant. Mr. Kahn and the applicant made several conservative assumptions in making an analysis of mercury deposition. For example, they assumed that mercury would be emitted and deposited in the cement plant's vicinity at a constant rate for 50 years. They also assumed that all of the mercury deposited on the ground would remain in the top six inches of the soil and would not migrate into any other media. On March 25, 1999, the Department conducted a public meeting on Suwannee American's application. The public commented on various issues. As to atmospheric deposition of substances, the public's comments were not structured enough for the Department to consider them per se in the application review. By letter dated March 26, 1999, the Department summarized the public concerns and requested Suwannee American to furnish the following information in relevant part: 2. Estimate potential mercury emissions from the pyroprocessing system, and characterize the fraction of mercury that will come from other raw material, coal, petroleum coke and tires. Please evaluate control methods for mercury emissions. * * * 8. What portion of the proposed plant's Nox emissions will be deposited as nitrate through dry and wet deposition within an area 25 miles radius from the site? Investigate pollution prevention techniques that may result in lower overall NOx emissions. On or about April 21, 1999, Suwannee American responded to the above-referenced questions. As to question no. 2, the responses states as follows: Response: Potential mercury emissions were submitted to the Department on February 25, 1999. Using three different approaches, the projected emissions were in all cases below the 200 pound per year threshold established by Rule 62-212.400(2)(f) and Table 212.400-2, F.A.C. as a significant emission rate increase (for PSD permitting purposes). Because the expected emissions are below the threshold amount, there is no regulatory requirement to apply BACT review for the de minimis emissions that are expected. Approximately 40 percent of the mercury will be contributed by fuel (coal) and 60 percent by raw materials. When petroleum coke or tires are used as fuel, the mercury contributed by fuel is expected to decrease. As to question no. 8, Suwannee American's response stated as follows: Response: The applicant notes that the matters inquired of in this request are not related to those matters allowed under Section 403.0876(1), F.S., and therefore requests that the Department begin processing the permit application under Section 403.0876(2)(a), F.S. However, in a continuing effort to be responsive to the concerns behind the questions asked, the applicant submits the following information, provided the submittal does not affect the permit processing time clock. Approximately 7% or less of the plant's NOx emissions will be deposited as nitrate through dry and wet deposition within an area 25 miles radius from the site. This is approximately 0.1 pounds per acre per year, and is less than one percent of the wet and dry background deposition measured at the Bradford Forest, near Starke, Florida. This analysis was very conservative, as it assumed nitrate deposition between five miles and 25 miles to be equal to the deposition rate at five miles (i.e., there was no credit taken for the decrease in deposition rate with distance beyond five miles). This approach is also conservative in that it assumed all NOx from the plant would immediately convert to nitrate and be available for deposition. This is a worst case assumption. Pollution prevention operating procedures that may result in lower overall NOx emissions are being evaluated. One technique planned for the facility is the stockpiling of limestone to allow natural drainage before pyroprocessing. Lower material moisture contents allow for the use of less fuel and hence, less NOx. After receiving Suwannee American's response to the Department's March 26, 1999, letter, Mr. Kahn reviewed the applicant's analysis. He compared information presented by the applicant with his own estimates of nitrate and mercury deposition. Suwannee American's data confirmed Mr. Kahn's prior conclusion that atmospheric depositions of mercury and nitrate from the cement plant would not be a significant fraction of the existing total deposition and total loading of those elements from all sources. Mr. Kahn did not perform any further analysis to estimate the impact of nitrate or mercury emissions on the area surrounding the proposed plant. He never made any comparisons to the Department's surface water quality criteria or standards related to Outstanding Florida Water (OFW) bodies. In other words, Mr. Kahn did not attempt to discern the specific impact of mercury and nitrate deposition on the ground water and surface water surrounding the proposed plant. His additional impact analysis was limited to comparing the estimated mercury and nitrate depositions from the proposed facility to the existing total loading of those elements from all sources in the area around the cement plant. Concluding that the impacts would be insignificant, he then informally advised certain members of the public, including Mr. Greenhalgh and some of Sierra Club/SOS' members, that the water pollution and OFW rules did not apply. The Department's Division of Air Resources never applies the standards relating to water quality or an OFW. Those standards are applied and enforced by the Department's staff in its water resource division when a water pollution permit is required. If there are off-site impacts that are not covered by the PSD rules, the applicant will be required to apply for other applicable permits. 3/ The parties do not assert that, in order to construct the cement plant, Suwannee American requires a separate water pollution permit to determine its compliance with the OFW rules. No one from the Department's water resource division officially reviewed the application at issue here. In performing his independent evaluation of additional impacts, Mr. Kahn sought information regarding the total nutrient loading in the Middle Suwannee River Basin from all sources from the Department's water resource staff, including Mr. Greenhalgh. Mr. Greenhalgh is a professional geologist who works for the Department in its water resource division. Specifically, Mr. Greenhalgh is one of the individuals working on the Department's Total Maximum Daily Load (TMDL) analysis for the Middle Suwannee River Basin. In response to Mr. Kahn's inquires, Mr. Greenhalgh stated that the basin had already exceeded its assimilative capacity and could not tolerate additional inputs of nitrate. Other members of the Department's water resource division gave Mr. Kahn similar opinions. However, Mr. Greenhalgh admits that he has not done any calculations to determine the impact of atmospheric deposition of nitrates from the proposed plant on the surrounding area. Mr. Greenhalgh directed Mr. Kahn's attention to a paper written by David Hornsby, an employee of a water management district, concerning the total nitrate loading from all sources in the Middle Suwannee River Basin. Mr. Kahn used data from the paper to make his comparisons between the total nitrate loading from all sources in the area to his estimate of nitrate deposition from the proposed plant. Mr. Kahn then informed Mr. Greenhalgh that the Department could not deny the permit on the basis of nitrate atmospheric deposition because the Department did not regulate all sources of nitrate in the basin. Except for the applicant, and the informal consultations with members of the Department's Division of Water Resources, no one furnished Mr. Kahn with any technical information regarding the atmospheric deposition of mercury and nitrates. The Federal Environmental Protection Agency has not developed or approved methods for calculating air deposition rates for emissions. In the absence of such standards, the methods used by Suwannee American and Mr. Kahn to determine the proposed facility's additional impact on the surrounding area were appropriate and reliable. The Department has adopted the federal government's acid rain rule (Rule 62-214.420, Florida Administrative Code.) That rule specifically addresses water quality impacts from the emissions and atmospheric deposition of sulfur dioxide and NOx from certain electric power plant facilities. The parties agree that the acid rain rule does not apply in this case. Permits for electrical power plants are issued under the authority of the Florida Electrical Power Plant Siting Act. The Governor and Cabinet sitting as the electrical power plant siting board approve power plant siting applications. The Department's Division of Air Resources performs a PSD review for electric power plant siting applications. Unlike the circumstances in this case, an electrical power plant siting application also requires other sections of the Department to consider impacts on water quality, solid waste, and land use. Under the terms of the Florida Electrical Power Plant Siting Act, the Department has required one other applicant to perform the type of additional impact analysis that was performed in this case. That application involved an existing Florida Power and Light Company, Inc. (FP&L) electrical power plant located near Tampa Bay, an OFW. The FP&L electrical power plant requested permission to convert to orimulsion fuel. In the FP&L power plant case, the Department took the position that water quality concerns were satisfied by a demonstration of compliance with air quality standards. There is no specific permit application that one would fill out or apply for to determine if one would be in compliance with the OFW rule. The OFW rule is usually considered in the context of another permit. However, there is no evidence that the Department has ever considered the OFW rule in the context of a new source PSD permit application. Suwannee American's proposed cement plant will be located within three miles of an OFW. There is no evidence that the Department has ever considered another application for a new source PSD (prevention of significant deterioration) permit within such close proximity to an OFW. Sierra Club/SOS' only factual allegation is that Suwannee American has not provided reasonable assurances that it would not significantly degrade the Santa Fe River, an OFW, through the atmospheric deposition of mercury, in contravention to Rule 62-302.700, Florida Administrative Code. 4/

Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order dismissing the Petition for Administrative Hearing in DOAH Case No. 99-3096, with prejudice for lack of standing. DONE AND ENTERED this 21st day of October, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 21st day of October, 1999.

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BEKER PHOSPHATE CORPORATION vs. FLORIDA LAND AND WATER ADJUDICATORY COMMISSION AND MONROE COUNTY, 77-000842 (1977)
Division of Administrative Hearings, Florida Number: 77-000842 Latest Update: Apr. 17, 1978

Findings Of Fact During 1974, Beker Phosphate Corporation applied to the Board of County Commissioners of Manatee County for a development order approving proposed phosphate mine operations. Beker is seeking to engage in phosphate mining on over ten thousand acres of land located in Manatee County in the watersheds of the Manatee and Myakka Rivers. The TBRPC is the regional planning agency which reviews development of regional impact applications in Manatee County. On December 9, 1974, the TBRPC recommended that the proposed mine be approved with modifications. On January 28, 1975, the Board of County Commissioners of Manatee County issued a DRI Development Order. The order approved the application submitted by Beker subject to thirteen specified conditions which are set out in the order. A copy of this development order was received in evidence at the final hearing as a Appellant's Exhibit 3. Neither the Division of State Planning nor any appropriate regional planning agency appealed the development order to the Florida Land and Water Adjudicatory Commission. Sarasota County did attempt to appeal the order; however, on June 17, 1975, the Land and Water Adjudicatory Commission accepted the Hearing Officer's recommended order and dismissed the appeal. This action was affirmed by the First District Court of Appeal. Sarasota County v. Beker Phosphate Corporation, 322 So.2d 655 (1975). In its application for development order, Beker had proposed to construct two secondary dams prior to commencing mining activities. One of these was to be constructed on the East fork of the Manatee River, and one on Wingate Creek. The dams were located down stream from initial waste clay settling areas. One of the purposes of the secondary dams was to serve as a back up system in the event that there was a break in the primary dam. In approving the application, the Board of County Commissioners of Manatee County required that the secondary dams be constructed prior to the commencement of mining activities. The primary motivation of Manatee County in requiring construction of the secondary dams was not protection from leaks in the primary dam system, but rather a desire to plan for the County's long term water needs. The Board anticipates that a reservoir would eventually be constructed behind the secondary dams, and that these reservoirs would serve the long-term water needs of the people of Manatee County. Since the secondary dams were to be constructed in wetland areas, Beker needed to obtain a permit from the Department of Environmental Regulation in order to construct the dams. An application was submitted. On November 29, 1976, the Department of Environmental Regulation issued a Notice of Intent to Deny the application. Beker subsequently petitioned for a hearing in accordance with the provisions of Section 120.57(1), Florida Statutes (1976 Supp). The request was forwarded to the Division of Administrative Hearings. A final hearing was scheduled, but due to subsequent action taken by the Board of County Commissioners of Manatee County, and due to this proceeding, the hearing was postponed and the case has been held in abeyance since April 5, 1977. No formal hearing has been conducted with respect to the application to construct the secondary dams, and no final order has been issued by the Department of Environmental Regulation. While the Department of Environmental Regulation matter was pending before the Division of Administrative Hearings Mr. Louis Driggers, the Chairman of the Board of County Commissioners of Manatee County, became concerned that the proceeding could have an adverse effect upon the county's long-range desire to construct a reservoir which would serve water supply needs. Mr. Driggers had a conference with Secretary Landers of the Department of Environmental Regulation, and learned that the agency's initial objections to the secondary dams were that the dams themselves would cause destruction of wetlands areas, and that since the primary dams were being constructed in accordance with Department of Environmental Regulation Rules and Regulations, there would be no need for the secondary dams. This opinion was set out in a letter from Mr. Landers to Mr. Driggers dated March 14, 1977 (Beker Exhibit 1). Mr. Driggers subsequently relayed this information to other members of the Board of County Commissioners, and on April 12, 1977, the Board adopted a resolution modifying a portion of the DRI development order which it had issued on January 28, 1975. The earlier order was specifically amended to delete the requirement that the secondary dams be constructed prior to the beginning of mining operations. The requirement that the secondary dams be constructed has not been altogether deleted; however, it is no longer a purpose of the dams to provide any secondary protection from a putative phosphate spill. The dams now have as their primary purpose long-range water supply and flood control. Manatee County is in effect now able to insist that Beker construct the dams at any time that the county so desires, assuming that all proper permits can be obtained. It is unlikely that the county will ever request that a secondary dam be constructed in Wingate Creek in the Myakka River watershed. The Board of County Commissioners of Manatee County did not submit the issues resolved in the April 12 order to the appropriate regional planning agency, and did not, through its order specifically consider all of the potential regional impacts of the order. The Commission concluded that the amendment did not constitute a substantial deviation from the original development order. Following entry of the order the SWFRPC filed this appeal to the Florida Land and Water Adjudicatory Commission. The SWFRPC, and Sarasota County contend that the April 12 amendment constitutes a substantial deviation from the original development order, and that the Board of County Commissioners of Manatee County should have entered the order only after conducting all of the proceedings contemplated in Florida Statutes Chapter 380. Beker Phosphate, Manatee County, and the TBRPC contend that the April 12 order does not constitute a substantial deviation from the original development order. Testimony presented at the hearing related primarily to the secondary dam originally proposed for construction in Wingate Creek in the Myakka River watershed. An initial waste clay settling area with a capacity of 8,848 acre- feet is proposed for construction primarily within the Myakka River watershed adjacent to Wingate Creek. Phosphate slimes would be stored above ground and permitted to settle in this area. The proposed secondary dam would have been located approximately three miles downstream from the settling area. The secondary dam would have had a capacity of 260 acre-feet. The secondary dam would thus have the capacity to contain a limited spill from the primary settling area. The secondary dam would provide no protection from a complete destruction or break down of the dams surrounding the primary settling area, or of any spill from the primary area greater than 260 acre-feet. Such a spill would result in destruction of the secondary dam. Spills of less than 40 acre- feet of material from the primary settling area would have no substantial impact on areas below the secondary dam whether the dam was constructed or not. Spills of a volume between 40 acre-feet and 260 acre-feet could, without the construction of secondary dams, have an impact upon areas below the secondary dams. Turbidity caused by such a spill, and deleterious substances contained in the slime could result in substantial environmental impacts, including destruction of vegetation, and short-term and long-term fish kills at least as far down the system as upper Myakka Lake, which is located in Sarasota County. No evidence was presented to indicate that a spill of from 40 to 260 acre-feet from the primary settling area is likely or more than a mere hypothetical possibility. The only testimony respecting the likelihood of any spill was that if the dams surrounding the primary settling area were constructed in accordance with Department of Environmental Regulation Rules and Regulations, and were properly inspected, there is no likelihood of a breakdown in the dams or of a spill. Argument was presented at the hearing to the effect that phosphate slimes could escape the settling area, or other areas within the mining operation, but there was no evidence to that effect, and certainly no evidence that such leakages or minor spills would be as large as 40 acre-feet. Deletion of the requirement for construction of secondary dams prior to commencement of mining activities as set out in the January 28, 1975 development order, would constitute a substantial deviation from that order only if there were some likelihood of a breakdown in the dams surrounding the primary settling area, or of some leakage at some point in the mining operations that would result in a spill of from 40 to 260 acre-feet of material into the Myakka watershed. No evidence was offered that would serve to establish even the remotest likelihood of such an event. The evidence does, however, establish that construction of the secondary dam in Wingate Creek would have adverse environmental consequences. The construction would take place in a viable wetlands area. The natural flow of water through the Myakka watershed would be disturbed. Construction of the dam would appear to constitute a concession that more than 4 acres of valuable and viable flood plain along Wingate Creek would be given up for the sake of the phosphate mining operations. It is possible that without the dams the result of any spill could be confined to a smaller area than that surrounded by the secondary dams. Without the dams the normal flow of water through the system will not be disturbed, and areas below the primary settling area can remain in their natural condition.

Florida Laws (3) 120.57380.06380.07
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B. K. ROBERTS vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 81-001079RX (1981)
Division of Administrative Hearings, Florida Number: 81-001079RX Latest Update: Jun. 17, 1983

Findings Of Fact Petitioner and DER have stipulated to the following facts: Petitioner is the owner and developer of real property in Franklin County, Florida. 2. DER has adopted Rules 17-4.28(2), 17-4.28(8)(a) and 17-4.242(1)(a)2, Florida Administrative Code, which: require a permit for dredge and fill activities under Chapter 403, Florida Statutes; prohibit permitting of dredge and fill activities in Class II waters approved for shellfish harvesting by the Department of Health and Rehabilitative Services (now the Department of Natural Resources); and require an affirmative public interest showing of an applicant for a license to construct a stationary installation in "Outstanding Florida Waters." These rules substantially affect Petitioner for the following reasons: Petitioner applied to DER for a development permit to dredge a navigation channel from his private canal into Alligator Harbor in Franklin County. The navigation channel was proposed to be 40 feet wide and 400 feet long, and was to be dredged to a depth of minus four (-4) feet mean low water, which would entail removing approximately 3,890 cubic yards of material. On May 28, 1980, DER issued an intent to deny the requested permit in file No. 19- 28442-1E. On June 11, 1980, Petitioner filed a petition for administrative hearing on DER's intent to deny his permit application. On June 12, 1980, DER informed Petitioner it would take no action on its Intent to Deny letter of May 28, 1980, for 60 days and allow Petitioner to submit additional information on the merits of his permit application during that period. DER took no further action regarding the Intent to Deny or Petitioner's permit application, and, after Petitioner's request, on March 5, 1981, DER forwarded the petition for administrative hearing filed with it on June 11, 1980, to the Division of Administrative Hearings. DER's Intent to Deny Petitioner's permit application stated DER had permitting jurisdiction under Chapter 403, Florida Statutes, and under Rule 17-4.28(2), Florida Administrative Code, because the proposed dredging would be in waters of the state within the definition contained in Rule 17-4.28(2), Florida Administrative Code. DER's Intent to Deny Petitioner's application asserted that Petitioner's proposed project was located in Class II waters approved for shellfish harvesting and that dredging in such areas was prohibited by Rule 17- 4.28(8)(a), Florida Administrative Code. DER's Intent to Deny Petitioner's application stated that Petitioner had not "affirmatively demonstrated that the proposed activity or discharge is clearly in the public interest pursuant to Section 17-4.242(2). . . . The parties have agreed that the reference in the aforementioned quote should have been to Section 17-4.242(1)(a)2. Counsel for each of the parties have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not contained in this order, they have been specifically rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.

Florida Laws (8) 120.54120.56120.57403.021403.031403.061403.087403.088
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