08-003923
Friends Of Perdido Ba, Inc. And James Lane vs.
International Paper Company And Department Of Environmental Protection
Status: Closed
Recommended Order on Wednesday, January 27, 2010.
Recommended Order on Wednesday, January 27, 2010.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8JACQUELINE LANE, )
11)
12Petitioner, )
14)
15vs. ) Case Nos. 08-3922
20) 08-3923
22INTERNATIONAL PAPER COMPANY and )
27DEPARTMENT OF ENVIRONMENTAL )
31PROTECTION, )
33)
34Respondents. )
36)
37RECOMMENDED ORDER
39The final hearing in this case was held on June 22, 23, 24,
52and 30, and July 1, 20 and 21, 2009, in Pensacola, Florida,
64before Bram D. E. Canter, Administrative Law Judge of the
74Division of Administrative Hearings (DOAH).
79APPEARANCES
80For Friends of Perdido Bay, Inc. and James Lane:
89Marcy LaHart, Esquire
924804 Southwest 45th Street
96Gainesville, Florida 32608
99For Jacqueline M. Lane:
103Jacqueline M. Lane, pro se
10810738 Lillian Highway
111Pensacola, Florida 32506
114For International Paper Company:
118Terry Cole, Esquire
121Jeffrey Brown, Esquire
124Oertel, Fernandez, Cole,
127& Bryant, P.A.
130Post Office Box 1110
134Tallahassee, Florida 32302-1110
137For the Department of Environmental Protection:
143W. Douglas Beason, Esquire
147The Douglas Building, Mail Station 35
1533900 Commonwealth Boulevard
156Tallahassee, Florida 32399-3000
159STATEMENT OF THE ISSUES
163The issues in this case are whether International Paper
172Company (IP) is entitled to National Pollutant Discharge
180Elimination System (NPDES) Permit No. FL0002526 issued by
188Department of Environmental Protection (Department) and whether
195the Department should approve Consent Order No. 08-0358, for the
205operation of IPs paper mill in Cantonment, Escambia County,
214Florida.
215PRELIMINARY STATEMENT
217On April 12, 2005, the Department published notice of its
227intent to issue an NPDES permit, a Consent Order, an exception
238for the experimental use of wetlands, and a variance, which
248would authorize IP to construct, modify, and operate industrial
257wastewater facilities for IPs paper mill in Cantonment and
266discharge its wastewater into state waters. Jacqueline Lane and
275her four adult children each filed petitions to challenge the
285four Department authorizations. Friends of Perdido Bay, Inc.
293(FOPB), and James Lane filed a similar petition. The Department
303referred the six petitions to DOAH and the cases were
313consolidated for hearing. See DOAH Case No. 05-1609.
321On May 11, 2007, a Recommended Order was issued, which
331recommended that the four authorizations be denied by the
340Department. The Department issued a Final Order on August 8,
3502007, which adopted the Recommended Order with some
358modifications, and denied the four authorizations.
364Thereafter, IP conducted additional studies, modified its
371project, and re-applied for the four authorizations. On
379July 18, 2008, the Department again published notice of its
389intent to issue an NPDES permit, a Consent Order, an exception
400for the experimental use of wetlands, and a variance for IP's
411paper mill in Cantonment. Jacqueline Lane filed a petition
420challenging the four authorizations. FOPB and James Lane filed
429a similar petition. The Department referred the petitions to
438DOAH and they were consolidated for hearing.
445Before the final hearing, FOPB and James Lane filed a
455petition challenging the validity of Florida Administrative Code
463Rule 62-302.800(2), the rule which provides for exceptions from
472state water quality criteria for the experimental use of
481wetlands. Jacqueline Lane and IP intervened in the rule
490challenge proceeding. IP subsequently withdrew its applications
497for the exception and the associated variance, and a Final Order
508of Dismissal was issued, determining that Petitioners lacked
516standing to challenge the rule. See DOAH Case No. 09-2446RX.
526FOPB and James Lane filed a second petition to challenge Rule
53762-302.800(2), but voluntarily dismissed the petition.
543Before the final hearing, FOPB and James Lane also filed a
554petition with DOAH to challenge the validity of three other
564Department rules that were applied by the Department in its
574determination to issue the authorizations to IP: Florida
582Administrative Code Rules 62-660.300(1), 62-4.242(1)(d), and 62-
589302.300(6). This rule challenge was consolidated for hearing
597with the permit cases. At the commencement of the final
607hearing, FOPB and James Lane stated on the record that they were
619withdrawing their challenge to the validity of Rules
62762-660.300(1) and 62-4.242(1)(d), which left only Rule 62-
635302.300(6) at issue. On October 1, 2009, a Final Order was
646issued, determining that Petitioners had failed to demonstrate
654that Rule 62-302.300(6) was an invalid exercise of delegated
663legislative authority. See DOAH Case No. 08-6033RX.
670At the final hearing, IP presented the testimony of
679Dr. Mike Steltenkamp, who was accepted as an expert in the
690fields of chemistry and environmental management, with a
698specialty in pulp and paper bleaching technologies; Dr. Thomas
707Simpson, who was accepted as an expert in the fields of wetland
719and stream ecology; Dr. Robert J. Livingston, who was accepted
729as an expert in the field of aquatic ecology with specialties in
741pollution biology, ecosystem ecology, and anthropogenic effects;
748Dr. Wade Nutter, who was accepted as an expert in the fields of
761hydrology and soil science, with a specialty in land treatment
771and application of wastewater; Dr. Bruce Pruitt, who was
780accepted as an expert in the field of ecology, with specialties
791in wetland ecology, water quality, oxygen dynamics, soil
799science, and geomorphology; and Jim Bays, who was accepted as an
810expert in the field of wetland ecology, with a specialty in
821treatment wetlands. The Department presented the testimony of
829Eric Hickman, who was accepted as an expert in the field of
841wetland evaluation and delineation; and Russ Frydenborg, who was
850accepted as an expert in the fields of aquatic biology and
861aquatic ecology. Petitioners presented the testimony of William
869Evans, a supervisor for the domestic wastewater permitting
877section for the Department's Northwest District; Dr. Mark Rains,
886who was accepted as an expert in the fields of ecohydrology and
898wetland ecology; Dr. Wayne Isphording, who was accepted as an
908expert in the fields of geochemistry, mineralogy, and
916engineering geology; Dr. Kevin White, who was accepted as an
926expert in the fields of civil engineering, environmental
934engineering, and the design, construction, and operation of
942treatment wetlands; Donald Ray, a Department stream ecologist;
950and Petitioner Dr. Jacqueline Lane, who was accepted as an
960expert in the fields of biology and stream ecology.
969Joint Exhibits 1 through 9 were admitted into evidence. IP
979Exhibits 13 through 24, 30, 33 through 50, and 79 were admitted
991into evidence. Department Exhibits 6 and 15 were admitted into
1001evidence. Petitioners Exhibits 1, 4, 8, 27, 28, and 35 were
1012admitted into evidence. Official recognition was taken of the
1021Departments Final Order in DOAH Case No. 05-1609.
1029The twelve-volume Transcript of the final hearing was filed
1038with DOAH. The parties filed proposed recommended orders that
1047were carefully considered in the preparation of this Recommended
1056Order.
1057FINDINGS OF FACT
1060A. Background 1
10631. The Department is the state agency authorized under
1072Chapter 403, Florida Statutes (2008), to regulate discharges of
1081industrial wastewater to waters of the state. Under a
1090delegation from the United States Environmental Protection
1097Agency, the Department administers the NPDES permitting program
1105in Florida.
11072. IP owns and operates the integrated bleached kraft
1116paper mill in Cantonment.
11203. FOPB is a non-profit Alabama corporation established in
11291988 whose members are interested in protecting the water
1138quality and natural resources of Perdido Bay. FOPB has
1147approximately 450 members. About 90 percent of the members own
1157property adjacent to Perdido Bay. James Lane is the president
1167of FOPB.
11694. Jacqueline Lane and James Lane live on property
1178adjacent to Perdido Bay.
11825. The mill's wastewater effluent is discharged into
1190Elevenmile Creek, which is a tributary of Perdido Bay. Perdido
1200Bay is approximately 28 square miles in area. U.S. Highway 90
1211crosses the Bay, going east and west, and forms the boundary
1222between what is often referred to as the "Upper Bay" and "Lower
1234Bay." The Bay is relatively shallow, especially in the Upper
1244Bay, ranging in depth between five and ten feet.
12536. At the north end of Perdido Bay is a large tract of land
1267owned by IP, known as the Rainwater Tract. The northern part of
1279the tract is primarily fresh water wetlands. The southern part
1289is a tidally-affected marsh. The natural features and hydrology
1298of the fresh water wetlands have been substantially altered by
1308agriculture, silviculture, clearing, ditching, and draining.
13147. Tee Lake and Wicker Lake are small lakes (approximately
132450 acres in total surface area) within the tidal marsh of the
1336Rainwater Tract. Depending on the tides, the lakes can be as
1347shallow as one foot, or several feet deep. A channel through
1358the marsh allows boaters to gain access to the lakes from
1369Perdido Bay.
13718. Florida Pulp and Paper Company first began operating
1380the Cantonment paper mill in 1941. St. Regis Paper Company
1390acquired the mill in 1946. In 1984, Champion International
1399Corporation (Champion) acquired the mill. Champion changed the
1407product mix in 1986 from unbleached packaging paper to bleached
1417products such as printing and writing grades of paper.
14269. The mill is integrated, meaning that it brings in logs
1437and wood chips, makes pulp, and produces paper. The wood is
1448chemically treated in cookers called digesters to separate the
1457cellulose from the lignin in the wood because only the cellulose
1468is used to make paper. Then the "brown stock" from the
1479digesters goes through the oxygen delignification process, is
1487mixed with water, and is pumped to paper machines that make the
1499paper products.
150110. In 1989, the Department and Champion signed a Consent
1511Order to address water quality violations in Elevenmile Creek.
1520Pursuant to the Consent Order, Champion commissioned a
1528comprehensive study of the Perdido Bay system that was
1537undertaken by a team of scientists led by Dr. Robert Livingston,
1548an aquatic ecologist and professor at Florida State University.
1557The initial three-year study by Dr. Livingston's team of
1566scientists was followed by a series of related scientific
1575studies (the Livingston studies").
158011. Champion was granted variances from the water quality
1589standards in Elevenmile Creek for iron, specific conductance,
1597zinc, biological integrity, un-ionized ammonia, and dissolved
1604oxygen (DO).
160612. In 2001, IP and Champion merged and Champions
1615industrial wastewater permit and related authorizations were
1622transferred to IP.
162513. In 2002, IP submitted a permit application to upgrade
1635its wastewater treatment plant (WWTP) and relocate its
1643discharge. The WWTP upgrades consist of converting to a
1652modified activated sludge treatment process, increasing
1658aeration, constructing storm surge ponds, and adding a process
1667for pH adjustment. The new WWTP would have an average daily
1678effluent discharge of 23.8 million gallons per day (mgd). IP
1688proposes to convey the treated effluent by pipeline 10.7 miles
1698to the Rainwater Tract, where the effluent would be distributed
1708over the wetlands as it flows to lower Elevenmile Creek and
1719upper Perdido Bay.
172214. IP's primary objective in upgrading the WWTP was to
1732reduce the nitrogen and phosphorus in the mill's effluent
1741discharge. The upgrades are designed to reduce un-ionized
1749ammonia, total soluble nitrogen, and phosphorus. They are also
1758expected to achieve a reduction of biological oxygen demand
1767(BOD) and TSS.
177015. IP plans to obtain up to 5 mgd of treated municipal
1782wastewater from a new treatment facility planned by the Emerald
1792Coast Utility Authority (ECUA), which would be used in the paper
1803production process and would reduce the need for groundwater
1812withdrawals by IP for this purpose. The treated wastewater
1821would enter the WWTP, along with other process wastewater and
1831become part of the effluent conveyed through the pipeline to the
1842wetland tract.
184416. The effluent limits required by the proposed permit
1853include technology-based effluent limits (TBELs) that apply to
1861the entire pulp and paper industry. TBELs are predominantly
1870production-based, limiting the amount of pollutants that may be
1879discharged for each ton of product that is produced.
188817. The proposed permit also imposes water quality-based
1896effluent limits (WQBELs) that are specific to the Cantonment
1905mill and the waters affected by its effluent discharge. The
1915WQBELs for the mill are necessary for certain constituents of
1925the mill's effluent because the TBELs, alone, would not be
1935sufficient to prevent water quality criteria in the receiving
1944waters from being violated.
194818. The Livingston studies represent perhaps the most
1956complete scientific evaluation ever made of a coastal ecosystem.
1965Dr. Livingston developed an extensive biological and chemical
1973history of Perdido Bay and then evaluated the nutrient loadings
1983from Elevenmile Creek over a 12-year period to correlate mill
1993loadings with the biological health of the Bay. The Livingston
2003studies confirmed that when nutrient loadings from the mill were
2013high, they caused toxic algae blooms and reduced biological
2022productivity in Perdido Bay. Some of the adverse effects
2031attributable to the mill effluent were most acute in the area of
2043the Bay near the Lanes' home on the northeastern shore of the
2055Bay because the flow from the Perdido River tends to push the
2067flow from Elevenmile Creek toward the northeastern shore.
207519. Because Dr. Livingston determined that the nutrient
2083loadings from the mill that occurred in 1988 and 1989 did not
2095adversely impact the food web of Perdido Bay, he recommended
2105effluent limits for ammonia nitrogen, orthophosphate, and total
2113phosphorous that were correlated with mill loadings of these
2122nutrients in those years. The Department used Dr. Livingstons
2131data, and did its own analyses, to establish WQBELs for
2141orthophosphate for drought conditions and for nitrate-nitrite.
2148WQBELs were ultimately developed for total ammonia,
2155orthophosphate, nitrate-nitrite, total phosphorus, BOD, color,
2161and soluble inorganic nitrogen.
216520. The WQBELs in the proposed permit were developed to
2175assure compliance with water quality standards under conditions
2183of pollutant loadings at the daily limit (based on a monthly
2194average) during low flow in the receiving waters.
220221. Petitioners did not dispute that the proposed WWTP is
2212capable of achieving the TBELs and WQBELs. Their main complaint
2222is that the WQBELs are not adequate to protect the receiving
2233waters.
223422. A wetland pilot project was constructed in 1990 at the
2245Cantonment mill into which effluent from the mill has been
2255discharged. The flora and fauna of the pilot wetland project
2265have been monitored to evaluate how they are affected by IPs
2276effluent.
227723. An effluent distribution system is proposed for the
2286wetland tract to spread the effluent out over the full width of
2298the wetlands. This would be accomplished by a system of berms
2309running perpendicular to the flow of water through the wetlands,
2319and gates and other structures in and along the berms to gather
2331and redistribute the flow as it moves in a southerly direction
2342toward Perdido Bay. The design incorporates four existing tram
2351roads that were constructed on the wetland tract to serve the
2362past and present silvicultural activities there. The tram
2370roads, with modifications, would serve as the berms in the
2380wetland distribution system.
238324. As the effluent is discharged from the pipeline, it
2393would be re-aerated and distributed across Berm 1 through a
2403series of adjustable, gated openings. Mixing with naturally
2411occurring waters, the effluent would move by gravity to the next
2422lower berm. The water will re-collect behind each of the
2432vegetated berms and be distributed again through each berm. The
2442distance between the berms varies from a quarter to a half mile.
245425. Approximately 70 percent of the effluent discharged
2462into the wetland would flow a distance of approximately 2.3
2472miles to Perdido Bay. The remaining 30 percent of the effluent
2483would flow a somewhat shorter distance to lower Elevenmile
2492Creek.
249326. A computer simulation performed by Dr. Wade Nutter
2502indicated that the effluent would move through the wetland tract
2512at a velocity of approximately a quarter-of-a-foot per second
2521and the depth of flow across the wetland tract will be 0.6
2533inches. It would take four or five days for the effluent to
2545reach lower Elevenmile Creek and Perdido Bay. As the treated
2555effluent flows through the wetland tract, there will be some
2565removal of nutrients by plants and soil. Nitrogen and
2574phosphorous are expected to be reduced approximately ten
2582percent. BOD in the effluent is expected to be reduced
2592approximately 90 percent.
259527. Construction activities associated with the effluent
2602pipeline, berm, and control structures in the wetland tract, as
2612originally proposed, were permitted by the Department through
2620issuance of a Wetland Resource Permit to IP. The United States
2631Army Corps of Engineers has also permitted this work.
2640Petitioners did not challenge those permits.
264628. A wetland monitoring program is required by the
2655proposed permit. The stated purpose of the monitoring program
2664is to assure that there are no significant adverse impacts to
2675the wetland tract, including Tee and Wicker Lakes. After the
2685discharge to the wetland tract commences, the proposed permit
2694requires IP to submit wetland monitoring reports annually to the
2704Department.
270529. A monitoring program was also developed by
2713Dr. Livingston and other IP consultants to monitor the impacts
2723of the proposed discharge on Elevenmile Creek and Perdido Bay.
2733It was made a part of the proposed permit.
274230. The proposed Consent Order establishes a schedule for
2751the construction activities associated with the proposed WWTP
2759upgrades and the effluent pipeline and for incremental
2767relocation of the mill's discharge from Elevenmile Creek to the
2777wetland tract. IP is given two years to complete construction
2787activities and begin operation of the new facilities. At the
2797end of the construction phase, least 25 percent of the effluent
2808is to be diverted to the wetland tract. The volume of effluent
2820diverted to the wetlands is to be increased another 25 percent
2831every three months thereafter. Three years after issuance of
2840the permit, 100 percent of the effluent would be discharged into
2851the wetland tract and there would no longer be a discharge into
2863Elevenmile Creek.
286531. The proposed Consent Order establishes interim effluent
2873limits that would apply immediately upon the effective date of
2883the Consent Order and continue during the two-year construction
2892phase when the mill would continue to discharge into Elevenmile
2902Creek. Other interim effluent limits would apply during the 12-
2912month period following construction when the upgraded WWTP would
2921be operating and the effluent would be incrementally diverted
2930from Elevenmile Creek to the wetland tract. A third set of
2941interim effluent limits would apply when 100 percent of the
2951effluent is discharged into the wetland tract.
295832. IP is required by the Consent Order to submit quarterly
2969reports of its progress toward compliance with the required
2978corrective actions and deadlines.
2982B. Project Changes
298533. After the issuance of the Final Order in 05-1609, IP
2996modified its manufacturing process to eliminate the production
3004of white paper. IP now produces brown paper for packaging
3014material and fluff pulp used in such products as filters and
3025diapers. IPs new manufacturing processes uses substantially
3032smaller amounts of bleach and other chemicals that must be
3042treated and discharged.
304534. IP reduced its discharge of BOD components, salts that
3055increase the specific conductance of the effluent, adsorbable
3063organic halides, and ammonia. IP also reduced the odor
3072associated with its discharge.
307635. In the findings that follow, the portion of the
3086Rainwater Tract into which IP proposes to discharge and
3095distribute its effluent will be referred to as the effluent
3105distribution system, which is the term used by Dr. Nutter in
3117his 2008 White Paper (IP Exhibit 23). The effluent
3126distribution system includes the berms and other water control
3135structures as well as all of the natural areas over which IPs
3147effluent will flow to Perdido Bay.
315336. Most of the existing ditches, sloughs, and depressions
3162in the effluent distribution system are ephemeral, holding water
3171only after heavy rainfall or during the wet season. Even the
3182more frequently wetted features, other than Tee and Wicker
3191Lakes, intermittently dry out. There is currently little
3199connectivity among the small water bodies that would allow fish
3209and other organisms to move across the site.
321737. Fish and other organisms within these water bodies are
3227exposed to wide fluctuations in specific conductivity, pH, and
3236DO. When the water bodies dry out, the minnows and other small
3248fish die. New populations of fish enter these water bodies from
3259Elevenmile Creek during high water conditions, or on the feet of
3270water birds.
327238. IP's consultants conducted an extensive investigation
3279and evaluation of animal and plant communities in the Rainwater
3289Tract in coordination with scientists from the Department and
3298the Florida Fish and Wildlife Conservation Commission. Among
3306the habitats that were identified and mapped were some wet
3316prairies, which are designated S-2," or imperiled, in the
3325Florida Natural Area Inventory. In these wet prairies are rare
3335and endangered pitcher plants.
333939. IP modified the design of the proposed effluent
3348distribution system to shorten the upper berms and remove 72.3
3358acres of S-2 habitat. The total area of the system was reduced
3370from 1,484 acres to 1,381 acres.
337840. The proposed land management activities within the
3386effluent distribution system are intended to achieve restoration
3394of historic ecosystems, including the establishment and
3401maintenance of tree species appropriate to the various water
3410depths in the system, and the removal of exotic and invasive
3421plant species.
342341. A functional assessment of the existing and projected
3432habitats in the effluent distribution system was performed. The
3441Department concluded that IPs project would result in a six
3451percent increase in overall wetland functional value within the
3460system. That estimate accounts for the loss of some S-2
3470habitat, but does not include the benefits associated with IPs
3480conservation of S-2 habitat and other land forms outside of the
3491effluent distribution system.
349442. IP proposes to place in protected conservation status
3503147 acres of wet prairie, 115 acres of seepage slope, and 72
3515acres of sand hill lands outside the effluent distribution
3524system. The total area outside of the wetland distribution
3533system that the Consent Order requires IP to perpetually protect
3543and manage as conservation area is 1,188 acres.
355243. The Consent Order was modified to incorporate many of
3562the wetland monitoring provisions that had previously been a
3571part of the former experimental use of wetlands authorization.
358044. IP proposes to achieve compliance with all proposed
3589water quality standards and permit limits by the end of the
3600schedule established in the Consent Order, including the water
3609quality standards for specific conductance, pH, turbidity, and
3617DO, which IP had previously sought exceptions for pursuant to
3627Florida Administrative Code Rule 62-660.300(1).
3632C. Limitation of Factual Issues
363745. As explained in the Conclusions of Law, the doctrine
3647of collateral estoppel bars the parties in these consolidated
3656cases from re-litigating factual issues that were previously
3664litigated by them in DOAH Case No. 05-1609. The Departments
3674Final Order of August 8, 2007, determined that IP had provided
3685reasonable assurance that the NPDES permit, Consent Order,
3693exception for the experimental use of wetlands, and variance
3702were in compliance with all applicable statutes and rules,
3711except for the following area: the evidence presented by IP was
3722insufficient to demonstrate that IPs wastewater effluent would
3730not cause significant adverse impact to the biological community
3739of the wetland tract, including Tee and Wicker Lakes.
374846. Following a number of motions and extensive argument
3757on the subject of what factual issues raised by Petitioners are
3768proper for litigation in this new proceeding, an Order was
3778issued on June 2, 2009, that limited the case to two general
3790factual issues:
37921. Whether the revised Consent Order and
3799proposed permit are valid with respect to
3806the effects of the proposed discharge on the
3814wetland system, including Tee and Wicker
3820Lakes, and with respect to any modifications
3827to the effluent distribution and treatment
3833functions of the wetland system following
3839the Final Order issued in DOAH Case No. 05-
38481609; and
38502. Whether the December 2007 report of the
3858Livingston team demonstrates that the WQBELS
3864are inadequate to prevent water quality
3870violations in Perdido Bay.
3874D. Petitioners Disputes
387747. Petitioners proposed recommended orders include
3883arguments that are barred by collateral estoppel. For example,
3892Jacqueline Lane restates her opinions about physical and
3900chemical processes that would occur if IPs effluent is
3909discharged into the wetlands, despite the fact that some of
3919these opinions were rejected in DOAH Case No. 05-1609.
392848. Dr. Lane believes that IPs effluent would cause
3937adverse impacts from high water temperatures resulting from
3945color in IPs effluent. There is already color in the waters of
3957the effluent distribution system under background conditions.
3964The increased amount of shading from the trees that IP is
3975planting in the effluent distribution system would tend to lower
3985water temperatures. Peak summer water temperatures would
3992probably be lowered by the effluent. Petitioners evidence was
4001insufficient to show that the organisms that comprise the
4010biological community of the effluent distribution system cannot
4018tolerate the expected range of temperatures.
402449. Dr. Lane also contends that the BOD in IP's effluent
4035would deplete DO in the wetlands and Tee and Wicker Lakes. Her
4047contention, however, is not based on new data about the effluent
4058or changes in the design of the effluent distribution system.
406850. There is a natural, wide fluctuation in DO in the
4079wetlands of the effluent distribution system because DO is
4088affected by numerous factors, including temperature, salinity,
4095atmospheric pressure, turbulence, and surface water aeration.
4102There are seasonal changes in DO levels, with higher levels in
4113colder temperatures. There is also a daily cycle of DO, with
4124higher levels occurring during the day and lower levels at
4134night.
413551. It is typical for DO levels in wetlands to fall below
4147the Class III water quality standard for DO, which is five
4158milligrams per liter (mg/l). An anaerobic zone in the water
4168column is beneficial for wetland functions. DO levels in the
4178water bodies of the effluent distribution system currently range
4187from a high of 11 to 12 mg/l to a low approaching zero.
420052. The principal factor that determines DO concentrations
4208within a wetland is sediment oxygen demand (SOD). SOD refers to
4219the depletion of oxygen from biological responses (respiration)
4227as well as oxidation-reduction reactions within the sediment.
4235The naturally occurring BOD in a wetland is large because of the
4247amount of organic material. The BOD associated with IPs
4256effluent would be a tiny fraction of the naturally occurring BOD
4267in the effluent distribution system and would be masked by the
4278effect of the SOD. It was estimated that the BOD associated
4289with IP's effluent would represent only about .00000000001
4297percent of the background BOD, and would have an immeasurable
4307effect.
430853. Dr. Pruitts testimony about oxygen dynamics in a
4317wetland showed that IPs effluent should not cause a measurable
4327decrease in DO levels within the effluent distribution system,
4336including Tee and Wicker Lakes.
434154. FOPB and James Lane assert that only 200 acres of the
4353effluent distribution system would be inundated by IPs
4361effluent, so that the alleged assimilation or buffering of the
4371chemical constituents of the effluent would not occur. That
4380assertion misconstrues the record evidence. About 200 acres of
4389the effluent distribution system would be permanently inundated
4397behind the four berms. However, IP proposes to use the entire
44081,381-acre system for effluent distribution.
441455. The modifications to the berms and the 72-acre
4423reduction in the size of the effluent distribution system would
4433not have a material effect on the assimilative capacity of
4443system. The residence time and travel time of the effluent in
4454the system, for example, would not be materially affected.
446356. Variability in topography within the effluent
4470distribution system and in rainfall would affect water depths in
4480the system. The variability in topography, including the
4488creation of some deeper pools, would contribute to plant and
4498animal diversity and overall biological productivity within the
4506system.
450757. The pH of the effluent is not expected to change the
4519pH in the effluent distribution system because of natural
4528buffering in the soils.
453258. The specific conductance (saltiness) of IPs effluent
4540is not high enough to adversely affect the biological community
4550in the fresh water wetlands of the effluent distribution system.
4560IP is already close to maintaining compliance with the water
4570quality standard for specific conductance and would be in full
4580compliance by the end of the compliance schedule established in
4590the proposed Consent Order.
459459. After the 2007 conversion to brown paper
4602manufacturing, IPs effluent has shown no toxicity. The
4610effluent has passed the chronic toxicity test, which analyzes
4619the potential for toxicity from the whole effluent, including
4628any toxicity arising from additive or synergistic effects, on
4637sensitive test organisms.
464060. Dr. Lane points out that the limits for BOD and TSS in
4653the proposed NPDES permit exceed the limits established by
4662Department rule for discharges of municipal wastewater into
4670wetlands. However, paper mill BOD is more recalcitrant in the
4680environment than municipal wastewater BOD and less bio-
4688available in the processes that can lower DO. In addition, the
4699regulatory limits for municipal wastewater are technology-based,
4706representing secondary treatment. The secondary treatment
4712technology is not applicable to IPs wastewater.
471961. Sampling in the pilot wetland at the paper mill
4729revealed a diversity of macroinvertebrates, including predator
4736species, and other aquatic organisms. Macroinvertebrates are a
4744good measure of the health of a water body because of their
4756fundamental role in the food web and because they are generally
4767sensitive to pollutants.
477062. Petitioners contend that the pilot wetland at the
4779paper mill is not a good model for the effect of the IPs
4792effluent in the wetland distribution system, primarily because
4800of the small amount of effluent that has been applied to the
4812pilot wetland. Although the utility of the pilot wetland data
4822is diminished in this respect, it is not eliminated. The health
4833of the biological community in the pilot wetland contributes to
4843IPs demonstration of reasonable assurance that the biological
4851community in the effluent distribution system would not be
4860adversely affected.
486263. The effluent would not have a significant effect on
4872the salinity of Tee and Wicker Lakes. Under current conditions,
4882the lakes have a salinity of less than one part per thousand 25
4895percent of the time, less than 10 parts per thousand 53 percent
4907of the time, and greater than 10 parts per thousand 22 percent
4919of the time. In comparison, marine waters have a salinity of
49302.7 parts per thousand.
493464. IPs effluent would not affect the lower end of the
4945salinity range for Tee and Wicker Lakes, and would cause only a
4957minor decrease in the higher range. That minor decrease should
4967not adversely affect the biota in Tee and Wicker Lakes or
4978interfere with their nursery functions.
498365. The proposed hydrologic loading rate of the effluent
4992amounts to an average of six-tenths of an inch over the area of
5005effluent distribution system. The addition of IPs effluent to
5014the wetlands of the effluent distribution system and the
5023creation of permanent pools would allow for permanent fish
5032populations and would increase the opportunity for fish and
5041other organisms to move across the effluent distribution system.
505066. Biological diversity and productivity is likely to be
5059increased in the effluent distribution system.
506567. By improving fish habitat, the site would attract
5074wading birds and other predatory birds.
508068. Although the site would not be open to public use
5091(with the exception of Tee and Wicker Lakes), recreational
5100opportunities could be provided by special permission for guided
5109tours, educational programs, and university research. Even if
5117public access were confined to Tee and Wicker Lakes, that would
5128not be a reduction in public use as compared to the existing
5140situation.
514169. IPs discharge, including its discharges subject to
5149the interim limits established in the Consent Order, would not
5159interfere with the designated uses of the Class III receiving
5169waters, which are the propagation and maintenance of a healthy,
5179well-balanced population of fish and wildlife.
518570. The wetlands of the effluent distribution system are
5194would not be unreasonably destructive to the receiving waters,
5203which would involve a substantial alteration in community
5211structure and function, including the loss of sensitive taxa and
5221their replacement with pollution-tolerant taxa.
522671. The proposed WQBELs would maintain the productivity in
5235Tee and Wicker Lakes. There would be no loss of the habitat
5247values or nursery functions of the lakes which are important to
5258recreational and commercial fish species.
526372. IP has no reasonable, alternative means of disposing
5272of its wastewater other than by discharging it into waters of
5283the state.
528573. IP has demonstrated a need to meet interim limits for
5296a period of time necessary to complete the construction of its
5307alternative waste disposal system. The interim limits and
5315schedule for coming into full compliance with all water quality
5325standards, established in the proposed Consent Order, are
5333reasonable.
533474. The proposed project is important and beneficial to
5343the public health, safety, and welfare because (1) economic
5352benefits would accrue to the local and regional economy from the
5363operation of IPs paper mill, (2) Elevenmile Creek would be set
5374on a course of recovery, (3) the wetlands of the effluent
5385distribution system would become a site of greater biological
5394diversity and productivity, (4) the environmental health of
5402Perdido Bay would be improved, (5) the Departments decades-long
5411enforcement action against IP would be concluded, (6)
5419substantial areas of important habitat would be set aside for
5429permanent protection, and (7) the effluent distribution system
5437would yield important information on a multitude of scientific
5446topics that were debated by these parties.
545375. The proposed project would not adversely affect the
5462conservation of fish or wildlife or their habitats.
547076. The proposed project would not adversely affect
5478fishing or water-based recreational values or marine
5485productivity in the vicinity of the proposed discharge.
549377. There is no Surface Water Improvement and Management
5502Plan applicable to IPs proposed discharge.
550878. The preponderance of the record evidence establishes
5516reasonable assurance that IPs proposed project would comply
5524with all applicable laws and that the Consent Order establishes
5534reasonable terms and conditions to resolve the Departments
5542enforcement action against IP for past violations.
5549CONCLUSIONS OF LAW
555279. The standing of Petitioners to challenge the proposed
5561Department authorizations was established in DOAH Case No. 05-
55701609.
557180. As the permit applicant, IP has the burden to prove by
5583a preponderance of the evidence that it is entitled to the
5594permit. Dep't of Transp. v. J.W.C. Co., Inc ., 396 So. 2d 778,
5607787 (Fla. 1st DCA 1981).
561281. A permit applicant need not prove all items in the
5623application down to the last detail. A petitioner must identify
5633the specific areas of controversy. J.W.C . at 789. Once the
5644applicant has made a preliminary showing of entitlement, the
5653burden of presenting contrary evidence shifts to the petitioner
5662to present evidence of equivalent quality to prove the facts
5672alleged in the petition. Id.
567782. Florida Administrative Rule 62-4.070(1) states that a
5685permit shall be issued only if the applicant affirmatively
5694provides the Department with reasonable assurance based on
5702plans, test results, installation of pollution control
5709equipment, or other information, that the construction,
5716expansion, modification, operation, or activity of the
5723installation will not discharge, emit, or cause pollution in
5732contravention of Department standards or rules.
573883. "Reasonable assurance" in this context means a
5746demonstration that there is a substantial likelihood of
5754compliance with standards, or "a substantial likelihood that the
5763project will be successfully implemented." See Metropolitan
5770Dade County, v. Coscan Florida, Inc. , 609 So. 2d 644, 648 (Fla.
57823d DCA 1992). It does not mean absolute guarantees.
579184. If a discharge will not cause a measurable change in a
5803water quality parameter, the effect on that parameter is
5812insignificant. See Pacetti v. Fla. Dept of Envtl. Regulation ,
5821DOAH Case Nos. 84-3810 and 84-3811 (DER 1986).
582985. When receiving waters currently fall below one or more
5839water quality standards under existing conditions, a permit may
5848be issued if the applicant will not cause or contribute to a
5860violation. Friends of the Everglades v. Dept of Envtl.
5869Regulation , 496 So. 2d 181, 183 (Fla. 1st DCA 1986); Metro Dade
5881County v. Coscan, Inc. , 609 So. 2d 644, 646 (Fla. 3d DCA 1992).
589486. The disputed issues in this case were narrowed by the
5905doctrine of collateral estoppel because these same parties
5913previously litigated factual issues associated with IPs
5920proposed project in DOAH Case No. 05-1609. The essential
5929elements of the doctrine are that the parties are identical and
5940that the particular matter was fully litigated and determined in
5950a contest that results in a final decision. Dept of Health and
5962Rehab. Servs. v. B.J.M. , 656 So. 2d 906 (Fla. 1995).
597287. The factual issues in the current consolidated cases
5981were limited to whether IPs effluent would adversely affect the
5991biological community of the effluent distribution system,
5998including Tee and Wicker Lakes, and whether the December 2007
6008report of the Livingston team demonstrates that the WQBELS are
6018inadequate to prevent water quality violations in Perdido Bay.
602788. Petitioners were barred by collateral estoppel from
6035re-litigating their opinions about physical and chemical
6042processes affecting, for example, toxicity and oxygen dynamics,
6050that were rejected in DOAH Case No. 05-1609.
605889. IP presented new evidence on the biological community
6067of the wetlands in the effluent distribution system and provided
6077reasonable assurance that IPs effluent would not adversely
6085affect the biological community.
608990. Petitioners failed to prove that any new data in the
6100December 2007 report of the Livingston team demonstrate that the
6110proposed WQBELS are inadequate to prevent water quality
6118violations in Perdido Bay.
612291. The Department may issue an operation permit for a
6132discharge that will not comply with all applicable statutes and
6142rules if the applicant is able to meet one of the special
6154conditions of Section 403.088(2)(e), Florida Statutes:
61601. The applicant is constructing,
6165installing, or placing into operation, or
6171has submitted plans and a reasonable
6177schedule for constructing, installing, or
6182placing into operation, an approved
6187pollution abatement facility or alternative
6192waste disposal system;
61952. The applicant needs permission to
6201pollute the waters within the state for a
6209period of time necessary to complete
6215research, planning, construction,
6218installation, or operation of an approved
6224and acceptable pollution abatement facility
6229or alternative waste disposal system;
62343. There is no present, reasonable,
6240alternative means of disposing of the waste
6247other than by discharging it into the waters
6255of the state;
62584. The granting of an operation permit will
6266be in the public interest;
62715. The discharge will not be unreasonably
6278destructive to the quality of the receiving
6285waters; or
62876. A water quality credit trade that meets
6295the requirements of s. 403.067.
630092. Now that IP has demonstrated that its effluent would
6310not be harmful to the wetlands of the effluent distribution
6320system, but would enhance the biological diversity and
6328productivity of the wetlands, the granting of the permit will be
6339in the public interest for that reason and the other reasons
6350stated in paragraph 74. IP demonstrated that it qualifies for
6360an operation permit under Section 403.088(2)(e)1. through 5.,
6368Florida Statutes.
637093. A permit issued pursuant to Section 403.088(2)(e),
6378Florida Statutes, must be accompanied by an order which
6387establishes a schedule for achieving compliance with all permit
6396conditions. See § 403.088(2)(f), Fla. Stat. That requirement
6404would be achieved by the proposed Consent Order.
641294. FOPB and James Lane argue that, because Section
6421373.414(4), Florida Statutes, specifically addresses the use of
6429wetlands to treat municipal wastewater, and no statute or rule
6439specifically addresses the use of wetlands to treat industrial
6448wastewater, it necessarily follows that the latter is
6456prohibited. However, there is no statute or rule that prohibits
6466the discharge of industrial wastewater to wetlands. There are
6475numerous statutes and rules that address any discharge of
6484these laws are sufficient authority for the proposed NPDES
6493permit and Consent Order.
649795. FOPB and James Lane also contend that IPs effluent
6507would permanently change the hydroperiod of the wetlands within
6516the effluent distribution system, but they cite no law that
6526prohibits such a change. Pollutant discharges made in
6534compliance with all applicable regulations usually change the
6542receiving waters. The relevant permitting question, therefore,
6549is not whether the receiving waters are changed, but whether the
6560changes are permissible under the law. Based on the Findings of
6571Fact and Conclusions of Law stated herein, the changes to the
6582receiving waters that would result from IPs proposed project
6591are permissible.
659396. FOPB and James Lane argue that the Departments
6602the plant communities of the effluent distribution system failed
6611to comply with the mandate of Section 373.414(18), which
6621directs the Department to establish a uniform mitigation
6629assessment method (UMAM) for wetlands. However, that statute
6637makes UMAM mandatory only in the environmental resource
6645permitting program. This proceeding involves a Chapter 403
6653industrial wastewater discharge, which IP showed would meet all
6662state water quality standards at the end of the compliance
6672period and qualifies to temporarily exceed some standards under
6681the special conditions established in Section 403.088(2)(e),
6688Florida Statutes, including the condition that the discharge not
6697be unreasonably destructive to the quality of the receiving
6706waters. The Departments functional assessment demonstrated
6712that the discharge would not be unreasonably destructive to the
6722quality of the receiving waters.
672797. Section 403.088(2)(b), Florida Statutes, establishes
6733to determine whether a discharge will reduce the quality of the
6744receiving waters below the classification established for them,
6753and, if not, whether the degradation is necessary or desirable
6763under federal standards and under circumstances which are
6771clearly in the public interest.
677698. IP and the Department disagreed about the
6784applicability of the antidegradation policy. IP contends that
6792the antidegradation policy is not applicable to IPs project
6801because IPs effluent would not cause any degradation to the
6811receiving waters, but would actually improve their quality.
6819However, because IPs effluent would introduce pollutants into
6827the receiving waters, and the Consent Order provides for a
6837period of time when interim limits would be in effect,
6847application of the antidegradation policy to IPs discharge is
6856appropriate.
685799. Florida Administrative Code Rule 62-4.242(1)(b)
6863establishes four factors that the Department is to consider and
6873balance in determining whether any degradation is necessary or
6882desirable and clearly in the public interest:
68891. Whether the proposed project is
6895important to and is beneficial to the public
6903health, safety, or welfare (taking into
6909account the policies set forth in Rule 62-
6917302.300, F.A.C., and, if applicable, Rule
692362-302.700, F.A.C.); and
69262. Whether the proposed discharge will
6932adversely affect conservation of fish and
6938wildlife, including endangered or threatened
6943species, or their habitats; and
69483. Whether the proposed discharge will
6954adversely affect the fishing or water-based
6960recreational values or marine productivity
6965in the vicinity of the proposed discharge;
6972and
69734. Whether the proposed discharge is
6979consistent with any applicable Surface Water
6985Improvement and Management Plan that has
6991been adopted by a Water Management District
6998and approved by the Department.
7003100. IPs project rates favorably under the four factors
7012in Florida Administrative Code Rule 62-4.242(1)(b) and shows
7020compliance with the Departments antidegradation policy.
7026RECOMMENDATION
7027Based upon the foregoing Findings of Fact and Conclusions
7036of Law, it is:
7040RECOMMENDED that the Department enter a final order
7048granting NPDES Permit No. FL0002526 and approving Consent Order
7057No. 08-0358.
7059DONE AND ENTERED this 27th day of January, 2010, in
7069Tallahassee, Leon County, Florida.
7073BRAM D. E. CANTER
7077Administrative Law Judge
7080Division of Administrative Hearings
7084The DeSoto Building
70871230 Apalachee Parkway
7090Tallahassee, Florida 32399-3060
7093(850) 488-9675
7095Fax Filing (850) 921-6847
7099www.doah.state.fl.us
7100Filed with the Clerk of the
7106Division of Administrative Hearings
7110this 27th day of January, 2010.
7116ENDNOTES
71171/ The findings set forth in paragraphs 1 through 32 are derived
7129from findings made previously in the Recommended Order issued in
7139DOAH Case No. 05-1609, which were subsequently adopted in the
7149Departments Final Order issued on August 8, 2007. These are
7159not the only findings from DOAH Case No. 05-1609 that are
7170relevant in this proceeding, but they were selected for the
7180purpose of providing background information.
7185COPIES FURNISHED :
7188W. Douglas Beason, Esquire
7192Department of Environmental Protection
7196The Douglas Building, Mail Station 35
72023900 Commonwealth Boulevard
7205Tallahassee, Florida 32399-3000
7208Marcy LaHart, Esquire
7211Marcy I. LaHart, P.A.
72154804 Southwest 45th Street
7219Gainesville, Florida 32608
7222Terry Cole, Esquire
7225Oertel, Fernandez, Cole & Bryant, P.A.
7231Post Office Box 1110
7235Tallahassee, Florida 32302-1110
7238Jacqueline M. Lane
724110738 Lillian Highway
7244Pensacola, Florida 32506
7247Michael W. Sole, Secretary
7251Department of Environmental Protection
7255The Douglas Building
72583900 Commonwealth Boulevard
7261Tallahassee, Florida 32399-3000
7264Tom Beason, General Counsel
7268Department of Environmental Protection
7272The Douglas Building, Mail Station 35
72783900 Commonwealth Boulevard
7281Tallahassee, Florida 32399-3000
7284Lea Crandall, Agency Clerk
7288Department of Environmental Protection
7292The Douglas Building, Mail Station 35
72983900 Commonwealth Boulevard
7301Tallahassee, Florida 32399-3000
7304NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
7310All parties have the right to submit written exceptions
7319within 15 days from the date of this Recommended Order. The
7330exceptions should be filed with the agency that will issue the
7341Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 03/12/2010
- Proceedings: Department of Environmental Protection's Responses to Jacqueline Lane's Exceptions to Recommended Order filed.
- PDF:
- Date: 03/12/2010
- Proceedings: Respondent International Paper Company's Response to Excepitons filed.
- PDF:
- Date: 03/12/2010
- Proceedings: Petitioner Jacqueline Lane's Exceptions to Judge Canter's Recommended Order Dated January 27, 2010, filed.
- PDF:
- Date: 02/22/2010
- Proceedings: Department of Environmental Protection's Responses to Jacqueline Lane's Exceptions to the Recommended Order filed.
- PDF:
- Date: 01/27/2010
- Proceedings: Recommended Order (hearing held June 22, 23, 24 and 30, and July 1, and 20-24, 2009). CASE CLOSED.
- PDF:
- Date: 01/27/2010
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 10/12/2009
- Proceedings: International Paper Companys Notice of Filing Attached Proposed Recommended Order filed.
- PDF:
- Date: 10/12/2009
- Proceedings: Department of Environmental Protection's Proposed Recommended Order filed.
- PDF:
- Date: 10/12/2009
- Proceedings: Friends of Perdido Bay, Inc., and James Lane's Proposed Recommended Order (filed in Case No. 08-003923).
- Date: 09/01/2009
- Proceedings: Transcript (Volumes I-XII) filed.
- Date: 07/20/2009
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 07/16/2009
- Proceedings: International Paper Company's Response in Opposition to Motion for Summary Final Order filed.
- PDF:
- Date: 07/13/2009
- Proceedings: Notice of Taking a Deposition in Lieu of Witness Testimony filed.
- PDF:
- Date: 07/08/2009
- Proceedings: Notice of Hearing (hearing set for July 20 and 21, 2009; 10:00 a.m., Central Time; Pensacola, FL).
- Date: 07/08/2009
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 07/08/2009
- Proceedings: Petitioner Lane's Response to IP's Emergency Motion to Set Final Hearing filed.
- PDF:
- Date: 07/07/2009
- Proceedings: International Paper Company's Emergency Motion to Set Final Hearing filed.
- Date: 06/30/2009
- Proceedings: CASE STATUS: Hearing Partially Held; continued to date not certain.
- PDF:
- Date: 06/25/2009
- Proceedings: Amended Notice of Hearing (hearing set for June 30 and July 1, 2009; 10:00 a.m., Central Time; Pensacola, FL; amended as to Time).
- Date: 06/22/2009
- Proceedings: CASE STATUS: Hearing Partially Held; continued to June 30, 2009; 10:00 a.m.; Pensacola, FL.
- PDF:
- Date: 06/19/2009
- Proceedings: Order (motion for official recognition of the Final Order in DOAH Case No. 05-1609 is granted).
- Date: 06/18/2009
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 06/17/2009
- Proceedings: Petitioner Lane's Response to IP's Notice Regarding Prehearing Stipulation filed.
- PDF:
- Date: 06/17/2009
- Proceedings: Notice of Filing Joint Prehearing Stipulation with Stipulation Attached filed.
- PDF:
- Date: 06/15/2009
- Proceedings: International Paper Company's Motion to Exclude Testimony of Expert Witnesses filed.
- PDF:
- Date: 06/15/2009
- Proceedings: IP's Response in Opposition to Motion for Leave to File Second Amended Petition filed.
- PDF:
- Date: 06/15/2009
- Proceedings: Order Granting Extension of Time (Pre-hearing Stipulation to be filed by June 16, 2009).
- PDF:
- Date: 06/12/2009
- Proceedings: International Paper Company's Motion to Extend Prehearing Stipulation Deadline filed.
- PDF:
- Date: 06/11/2009
- Proceedings: International Paper Companys Motion for Official Recognition of Final Order and Prior Hearing Transcript filed.
- PDF:
- Date: 06/11/2009
- Proceedings: Notice of Filing Petitioner's List of Trial Exhibits and Amended List of Witnesses and Their Opinions filed.
- PDF:
- Date: 06/11/2009
- Proceedings: Order (request for clarification and motion for leave to amend are denied).
- PDF:
- Date: 06/11/2009
- Proceedings: Order (Granting motion to supplement expert witness disclosure filed by International Paper Company).
- PDF:
- Date: 06/10/2009
- Proceedings: Motion for Clarification and Request to Amend Petition of Petitioner Jacqueline Lane filed.
- PDF:
- Date: 06/10/2009
- Proceedings: International Paper Company's Unopposed Motion to Supplement Expert Witness Disclosures filed.
- PDF:
- Date: 06/09/2009
- Proceedings: Friends of Perdido Bay, Inc. and James Lane's Second Amended Petition for Administrative Hearing filed.
- PDF:
- Date: 06/09/2009
- Proceedings: Friends of Perdido Bay, Inc. and James Lane's Motion for Leave to File Their Second Amended Petition for Administrative Hearing filed.
- PDF:
- Date: 06/02/2009
- Proceedings: Friends of Perdido Bay, Inc. and James Lane's Response to International Paper's Motion to Dismiss Amended Petitions and in the Alternative to Exclude Evidence (filed in Case No. 08-3923).
- PDF:
- Date: 05/22/2009
- Proceedings: Motion to Dismiss Amended Petitions and in the Alternative to Exclude Evidence filed.
- PDF:
- Date: 05/21/2009
- Proceedings: Amended Notice of Hearing (hearing set for June 22 through 24, 30, and July 1, 2009; 1:00 p.m., Central Time; Pensacola, FL; amended as to location of hearing).
- PDF:
- Date: 05/18/2009
- Proceedings: Order (Petitioners` claim that Florida Administrative Code Rule 62-660.300 is an invalid exercise of delegated legislative authority is dismissed).
- PDF:
- Date: 05/15/2009
- Proceedings: Department of Environmental Protection`s Notice of Filing Executed Consent Order filed.
- PDF:
- Date: 05/13/2009
- Proceedings: Notice of Filing Letter withdrawing International Paper Company`s Petitions for Wetlands Exemption and Waiver filed.
- Date: 05/13/2009
- Proceedings: CASE STATUS: Pre-Hearing Conference Held.
- PDF:
- Date: 05/08/2009
- Proceedings: Department of Environmental Protection`s Witness Disclosure and Expert Opinion Disclosure filed.
- PDF:
- Date: 05/08/2009
- Proceedings: Friends of Perdido Bay, Inc. and James Lane`s First Amended Petition for Administrative Hearing filed.
- PDF:
- Date: 05/08/2009
- Proceedings: International Paper Company`s Identification of General Expert Witness Opinions filed.
- PDF:
- Date: 05/08/2009
- Proceedings: Department of Environmental Protection's Witness Disclosure and Expert Opinion Disclosure filed.
- PDF:
- Date: 04/30/2009
- Proceedings: International Paper`s Response in Opposition to Motion for Continuance filed.
- PDF:
- Date: 04/30/2009
- Proceedings: Order (if Respondents desire to file a response to the motion, they shall do so no later than April 30, 2009).
- PDF:
- Date: 04/29/2009
- Proceedings: Department of Environmental Protection's Response in Opposition to Jacqueline Lane's Motion for Continuance filed.
- PDF:
- Date: 04/24/2009
- Proceedings: Order (Petitioners shall file an amended petition(s) no later than May 8, 2009).
- PDF:
- Date: 04/24/2009
- Proceedings: Motion for Continuance of the Hearing Scheduled to Begin June 22, 2009 filed.
- PDF:
- Date: 04/23/2009
- Proceedings: International Paper`s Response regarding Prehearing Conference filed.
- Date: 04/22/2009
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 04/16/2009
- Proceedings: Response of Petitioner Jacqueline Lane to Department of Environmental Protection`s & International Paper`s Joint Motion for Leave to File a Revised Consent Order filed.
- PDF:
- Date: 04/14/2009
- Proceedings: Response of Petitioner Jacqueline Lane to Department of Envirnomental Protection`s & International Paper`s Joint Motion for Leave to File a Revised Consent Order filed.
- PDF:
- Date: 04/09/2009
- Proceedings: Department of Environmental Protection`s & International Paper Company`s Joint Motion for Leave to File a Revised Consent Order and Request for a Pre-hearing Conference filed.
- PDF:
- Date: 03/12/2009
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for June 22 through 24, 30, and July 1, 2009; 1:00 p.m., Central Time; Pensacola, FL).
- Date: 03/11/2009
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 03/09/2009
- Proceedings: Motion for Continuance of the Hearing Scheduled for the Week of May 4, 2009 filed.
- PDF:
- Date: 12/30/2008
- Proceedings: Unopposed Motion for Extension of Time to File Petitioner`s Response to International Paper`s First Set of Interrogatories and Request for Documents filed.
- PDF:
- Date: 12/29/2008
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for May 4 through 8, 2009; 9:00 a.m., Central Time; Pensacola, FL).
- PDF:
- Date: 12/24/2008
- Proceedings: Department of Environmental Protection`s Motion for Continuance filed.
- PDF:
- Date: 12/22/2008
- Proceedings: Order (Jacqueline Lane`s motion for clarification is granted; Jacqueline Lane`s motion to amend her petition again is denied).
- PDF:
- Date: 12/19/2008
- Proceedings: International Paper Companys Objections and Notice of Service of Answers to Interrogatories filed.
- PDF:
- Date: 12/19/2008
- Proceedings: Response to Petitioner Lanes Motion to Clarify What Issues Have Been Estopped filed.
- PDF:
- Date: 12/19/2008
- Proceedings: Department of Environmental Protection`s Notice of Serving Answers to Petitioner Jacqueline Lane`s First Set of Interrogatories filed.
- PDF:
- Date: 12/12/2008
- Proceedings: Response in Opposition to Petitioner Lane`s "Motion to Amend Her Petition a Second Time" filed.
- PDF:
- Date: 12/12/2008
- Proceedings: Petitioner Lane`s Response to the ALJ`s Order of December 8, 2008, Motion to Clarify What Issues Have Been Estopped, and Motion to Amend Her Petition a Second Time filed.
- PDF:
- Date: 12/11/2008
- Proceedings: Department of Environmental Protection`s Corrected Notice of Filing Petitioners` Second Amended List of Potential Witnesses and their Opinions filed.
- PDF:
- Date: 12/11/2008
- Proceedings: Department of Environmental Protection`s Notice of Filing Petitioners` Second Amended List of Potential Witnesses and their Opinions filed.
- PDF:
- Date: 12/11/2008
- Proceedings: Department of Environmental Protection`s Notice of Filing Petitioners` List of Potential Witnesses and their Opinions filed.
- PDF:
- Date: 12/11/2008
- Proceedings: Notice of Filing Petitioners Second Amended List of Witnesses filed.
- PDF:
- Date: 12/08/2008
- Proceedings: Petitioners Friends of Perdido Bay and James Lane`s Notice of Serving of Interrogatories upon Respondent Florida Department of Environmental Protection filed.
- PDF:
- Date: 12/08/2008
- Proceedings: Notice of Filing Petitioners First Amended List of Witnesses filed.
- PDF:
- Date: 12/08/2008
- Proceedings: Order (Petitioner Lane`s request to amend her petition in the manner she describes in her motion is denied).
- PDF:
- Date: 12/05/2008
- Proceedings: Department of Environmental Protection`s Notice of Filing Copy of Petition to Determine Invalidity of Administrative Rules filed.
- PDF:
- Date: 12/05/2008
- Proceedings: Department of Environmental Protection`s Response in Opposition to Jacqueline Lane`s Motion to Amend Petition for Administrative Hearing filed.
- PDF:
- Date: 12/05/2008
- Proceedings: International Paper Company`s Response in Opposition to Motion to Amend filed.
- PDF:
- Date: 12/04/2008
- Proceedings: Petitioner Jacqueline Lane`s Request for Entry Upon International Paper`s Property filed.
- PDF:
- Date: 12/03/2008
- Proceedings: Amended Notice of Hearing (hearing set for January 14 through 16 and 20 through 23, 2009; 9:00 a.m.; Tallahassee, FL; amended as to locations).
- PDF:
- Date: 12/03/2008
- Proceedings: Department of Environmental Protection`s Amended Witness Disclosure and Expert Opinion Disclosure filed.
- PDF:
- Date: 12/03/2008
- Proceedings: Department of Environmental Protection`s Amended Witness Disclosure and Expert Opinion Disclosure filed.
- Date: 12/02/2008
- Proceedings: CASE STATUS: Pre-Hearing Conference Held.
- PDF:
- Date: 12/02/2008
- Proceedings: Department of Environmental Protection`s Witness Disclosure and Expert Opinion Disclosure filed.
- PDF:
- Date: 12/02/2008
- Proceedings: Petitioner`s Notice of Serving Expert and Fact Witness List filed.
- PDF:
- Date: 12/02/2008
- Proceedings: International Paper Company`s Identification of General Expert Witness Opinions filed.
- PDF:
- Date: 12/01/2008
- Proceedings: International Paper Company`s Identification of General Expert Witness Opinions filed.
- PDF:
- Date: 12/01/2008
- Proceedings: Motion to Amend Petitioner Lane`s First Petition to Include Data not Available at Previous Hearing in Case No. 05-1609 to Show that Wobel`s are not Adequate Per ALJ`s Order Dated November 18, 2008 filed.
- PDF:
- Date: 11/26/2008
- Proceedings: Notice of Service of International Paper Companys First Set of Interrogatories to Petitioners filed.
- PDF:
- Date: 11/26/2008
- Proceedings: International Paper Company`s First Request for Production to Petitioners filed.
- PDF:
- Date: 11/17/2008
- Proceedings: Omitted Exhibit A from Department of Environmental Protection`s Response to Order Dated October 28, 2008 filed.
- PDF:
- Date: 11/14/2008
- Proceedings: Petitioner Lane`s Notice of Filing the First Set of Interrogatories to Respondent, International Paper and to Respondent, Department of Environmental Protection filed.
- PDF:
- Date: 11/14/2008
- Proceedings: Department of Environmental Protection`s Response to Order Dated October 28, 2008 filed.
- PDF:
- Date: 11/07/2008
- Proceedings: Order Granting Extension of Time (response shall be filed by November 14, 2008).
- PDF:
- Date: 11/07/2008
- Proceedings: Department of Environmental Protection`s Unopposed Request for Extension of Time to File Response to Order Requiring Response filed.
- PDF:
- Date: 10/28/2008
- Proceedings: Order Requiring Response (Department shall file a response to the motion in limine no later than November 7, 2008).
- PDF:
- Date: 10/24/2008
- Proceedings: Petitioner Lane`s Response to Judge Canter`s October 14, 2008 Order filed.
- PDF:
- Date: 10/14/2008
- Proceedings: Order (IP`s motion in limine to excludefrom this proceeding the issue of the Cantonment`s Mill`s reconfiguration to unbleached Kraft is granted).
- PDF:
- Date: 10/03/2008
- Proceedings: International Paper Company`s Response to Order to Show Cause, Renewed Motion in Limine, and Request for Oral Argument filed.
- PDF:
- Date: 09/23/2008
- Proceedings: Notice of Hearing (hearing set for January 14 through 16 and 20 through 23, 2009; 9:00 a.m., Central Time; Pensacola, FL).
- PDF:
- Date: 09/16/2008
- Proceedings: Order (Motion in Limine is granted with regard to the issues identified in paragraphs 1 through 6 above).
- Date: 09/15/2008
- Proceedings: CASE STATUS: Pre-Hearing Conference Held.
- PDF:
- Date: 09/15/2008
- Proceedings: Petitioners` James Lane and Friends of Perdido Bay`s Response to International Paper`s Motion in Limine filed.
- PDF:
- Date: 09/12/2008
- Proceedings: Department of Environmental Protection`s Response to International Paper Company`s First Motion in Limine filed.
- PDF:
- Date: 09/11/2008
- Proceedings: Notice of Dates when Petitioner Jacqueline Lane and James Lane will be Unavailable for a Hearing in 2008 filed.
- PDF:
- Date: 09/10/2008
- Proceedings: Order (Department of Environmental Protection`s Unopposed Request for an Extension of Time is granted, response shall be filed by September 12, 2008).
- PDF:
- Date: 09/05/2008
- Proceedings: Department of Environmental Protection`s Unopposed Request for an Extension of Time filed.
- PDF:
- Date: 09/04/2008
- Proceedings: Order (response to the motion in limine to be filed by September 12, 2008).
- PDF:
- Date: 09/03/2008
- Proceedings: Petitioner Jacqueline Lane`s Unopposed Motion for Extension of Time to File a Response to IP`s Motion in Limine filed.
- Date: 09/03/2008
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 09/02/2008
- Proceedings: Notice of Filing (Appellate Order Granting Motion to Stay Appeal) filed.
- PDF:
- Date: 08/29/2008
- Proceedings: Supplemental Response to Judges Canter`s August 14, 2008 Order to Confer filed.
- PDF:
- Date: 08/27/2008
- Proceedings: Second Response to Judges Canter`s Order to Confer and Advise of Dates filed.
- PDF:
- Date: 08/26/2008
- Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for September 3, 2008; 10:00 a.m., Eastern Standard Time).
- PDF:
- Date: 08/25/2008
- Proceedings: Respondent International Paper Company`s Response to Order Requiring Response filed.
- PDF:
- Date: 08/25/2008
- Proceedings: Response to Judges Canter`s Orders to Confer and Advise of Dates filed.
- PDF:
- Date: 08/21/2008
- Proceedings: Department of Environmental Protection`s Response to Initial Order filed.
- PDF:
- Date: 08/21/2008
- Proceedings: Department of Environmental Protection`s Response in Opposition to Jacqueline Lane`s Motion to Dismiss filed.
- PDF:
- Date: 08/19/2008
- Proceedings: International Paper Company`s Response to Petitioner Lane`s Motion to Dismiss filed.
- PDF:
- Date: 08/14/2008
- Proceedings: Order Requiring Response (parties shall advise the Administrative Law Judge in writing no later than August 25, 2008, of several dates and times when they are available for motion hearing/pre-hearing teleconference).
- PDF:
- Date: 08/12/2008
- Proceedings: Department of Evironmental Protection Notice of Referral of Related Cases filed. (DOAH Case No.`s 08-3922 and 08-3923)
- PDF:
- Date: 08/12/2008
- Proceedings: International Paper Company`s Motion for Expedited Hearing filed.
- PDF:
- Date: 08/12/2008
- Proceedings: Petitioner Jacqueline Lane`s Response in Oppositon to International Paper`s Motion for Expedited Hearing filed.
- PDF:
- Date: 08/12/2008
- Proceedings: Petitioner Jacqueline Lane`s Motion to Dismiss the Second Permit for International Paper Due to Res Judicata filed.
- PDF:
- Date: 08/12/2008
- Proceedings: Notice of Intent to Authorize the Experimental Use of Wetlands for Low-Energy Water and Wastewater Recycling Under Florida Administrative Cod Rule 62-600.300(1) filed.
- PDF:
- Date: 08/12/2008
- Proceedings: Final Order Granting International Paper Company`s Petition for a Waiver under Section 120.542, F.S. filed.
Case Information
- Judge:
- BRAM D. E. CANTER
- Date Filed:
- 08/12/2008
- Date Assignment:
- 08/13/2008
- Last Docket Entry:
- 03/12/2010
- Location:
- Pensacola, Florida
- District:
- Northern
- Agency:
- ADOPTED IN PART OR MODIFIED
Counsels
-
W. Douglas Beason, Esquire
Address of Record -
Terry Cole, Esquire
Address of Record