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.

Summary: IP proved that it is entitled to the proposed industrial wastewater discharge permit for its paper mill in Escambia County and that the terms and conditions of the related consent orders are reasonable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACQUELINE LANE, )

)

Petitioner, )

)

vs. ) Case Nos. 08-3922

) 08-3923

INTERNATIONAL PAPER COMPANY and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

The final hearing in this case was held on June 22, 23, 24,

and 30, and July 1, 20 and 21, 2009, in Pensacola, Florida,

before Bram D. E. Canter, Administrative Law Judge of the

Division of Administrative Hearings (DOAH).

APPEARANCES

For Friends of Perdido Bay, Inc. and James Lane:

Marcy LaHart, Esquire

4804 Southwest 45th Street

Gainesville, Florida 32608

For Jacqueline M. Lane:

Jacqueline M. Lane, pro se

10738 Lillian Highway

Pensacola, Florida 32506

For International Paper Company:

Terry Cole, Esquire

Jeffrey Brown, Esquire

Oertel, Fernandez, Cole,

& Bryant, P.A.

Post Office Box 1110

Tallahassee, Florida 32302-1110

For the Department of Environmental Protection:

W. Douglas Beason, Esquire

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

The issues in this case are whether International Paper

Company (IP) is entitled to National Pollutant Discharge

Elimination System (NPDES) Permit No. FL0002526 issued by

Department of Environmental Protection (Department) and whether

the Department should approve Consent Order No. 08-0358, for the

operation of IP’s paper mill in Cantonment, Escambia County,

Florida.

PRELIMINARY STATEMENT

On April 12, 2005, the Department published notice of its

intent to issue an NPDES permit, a Consent Order, an exception

for the experimental use of wetlands, and a variance, which

would authorize IP to construct, modify, and operate industrial

wastewater facilities for IP’s paper mill in Cantonment and

discharge its wastewater into state waters. Jacqueline Lane and

her four adult children each filed petitions to challenge the

four Department authorizations. Friends of Perdido Bay, Inc.

(FOPB), and James Lane filed a similar petition. The Department

referred the six petitions to DOAH and the cases were

consolidated for hearing. See DOAH Case No. 05-1609.

On May 11, 2007, a Recommended Order was issued, which

recommended that the four authorizations be denied by the

Department. The Department issued a Final Order on August 8,

2007, which adopted the Recommended Order with some

modifications, and denied the four authorizations.

Thereafter, IP conducted additional studies, modified its

project, and re-applied for the four authorizations. On

July 18, 2008, the Department again published notice of its

intent to issue an NPDES permit, a Consent Order, an exception

for the experimental use of wetlands, and a variance for IP's

paper mill in Cantonment. Jacqueline Lane filed a petition

challenging the four authorizations. FOPB and James Lane filed

a similar petition. The Department referred the petitions to

DOAH and they were consolidated for hearing.

Before the final hearing, FOPB and James Lane filed a

petition challenging the validity of Florida Administrative Code

Rule 62-302.800(2), the rule which provides for exceptions from

state water quality criteria for the experimental use of

wetlands. Jacqueline Lane and IP intervened in the rule

challenge proceeding. IP subsequently withdrew its applications

for the exception and the associated variance, and a Final Order

of Dismissal was issued, determining that Petitioners lacked

standing to challenge the rule. See DOAH Case No. 09-2446RX.

FOPB and James Lane filed a second petition to challenge Rule

62-302.800(2), but voluntarily dismissed the petition.

Before the final hearing, FOPB and James Lane also filed a

petition with DOAH to challenge the validity of three other

Department rules that were applied by the Department in its

determination to issue the authorizations to IP: Florida

Administrative Code Rules 62-660.300(1), 62-4.242(1)(d), and 62-

302.300(6). This rule challenge was consolidated for hearing

with the permit cases. At the commencement of the final

hearing, FOPB and James Lane stated on the record that they were

withdrawing their challenge to the validity of Rules

62-660.300(1) and 62-4.242(1)(d), which left only Rule 62-

302.300(6) at issue. On October 1, 2009, a Final Order was

issued, determining that Petitioners had failed to demonstrate

that Rule 62-302.300(6) was an invalid exercise of delegated

legislative authority. See DOAH Case No. 08-6033RX.

At the final hearing, IP presented the testimony of

Dr. Mike Steltenkamp, who was accepted as an expert in the

fields of chemistry and environmental management, with a

specialty in pulp and paper bleaching technologies; Dr. Thomas

Simpson, who was accepted as an expert in the fields of wetland

and stream ecology; Dr. Robert J. Livingston, who was accepted

as an expert in the field of aquatic ecology with specialties in

pollution biology, ecosystem ecology, and anthropogenic effects;

Dr. Wade Nutter, who was accepted as an expert in the fields of

hydrology and soil science, with a specialty in land treatment

and application of wastewater; Dr. Bruce Pruitt, who was

accepted as an expert in the field of ecology, with specialties

in wetland ecology, water quality, oxygen dynamics, soil

science, and geomorphology; and Jim Bays, who was accepted as an

expert in the field of wetland ecology, with a specialty in

treatment wetlands. The Department presented the testimony of

Eric Hickman, who was accepted as an expert in the field of

wetland evaluation and delineation; and Russ Frydenborg, who was

accepted as an expert in the fields of aquatic biology and

aquatic ecology. Petitioners presented the testimony of William

Evans, a supervisor for the domestic wastewater permitting

section for the Department's Northwest District; Dr. Mark Rains,

who was accepted as an expert in the fields of ecohydrology and

wetland ecology; Dr. Wayne Isphording, who was accepted as an

expert in the fields of geochemistry, mineralogy, and

engineering geology; Dr. Kevin White, who was accepted as an

expert in the fields of civil engineering, environmental

engineering, and the design, construction, and operation of

treatment wetlands; Donald Ray, a Department stream ecologist;

and Petitioner Dr. Jacqueline Lane, who was accepted as an

expert in the fields of biology and stream ecology.

Joint Exhibits 1 through 9 were admitted into evidence. IP

Exhibits 13 through 24, 30, 33 through 50, and 79 were admitted

into evidence. Department Exhibits 6 and 15 were admitted into

evidence. Petitioners Exhibits 1, 4, 8, 27, 28, and 35 were

admitted into evidence. Official recognition was taken of the

Department’s Final Order in DOAH Case No. 05-1609.

The twelve-volume Transcript of the final hearing was filed

with DOAH. The parties filed proposed recommended orders that

were carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

A. Background 1

1. The Department is the state agency authorized under

Chapter 403, Florida Statutes (2008), to regulate discharges of

industrial wastewater to waters of the state. Under a

delegation from the United States Environmental Protection

Agency, the Department administers the NPDES permitting program

in Florida.

2. IP owns and operates the integrated bleached kraft

paper mill in Cantonment.

3. FOPB is a non-profit Alabama corporation established in

1988 whose members are interested in protecting the water

quality and natural resources of Perdido Bay. FOPB has

approximately 450 members. About 90 percent of the members own

property adjacent to Perdido Bay. James Lane is the president

of FOPB.

4. Jacqueline Lane and James Lane live on property

adjacent to Perdido Bay.

5. The mill's wastewater effluent is discharged into

Elevenmile Creek, which is a tributary of Perdido Bay. Perdido

Bay is approximately 28 square miles in area. U.S. Highway 90

crosses the Bay, going east and west, and forms the boundary

between what is often referred to as the "Upper Bay" and "Lower

Bay." The Bay is relatively shallow, especially in the Upper

Bay, ranging in depth between five and ten feet.

6. At the north end of Perdido Bay is a large tract of land

owned by IP, known as the Rainwater Tract. The northern part of

the tract is primarily fresh water wetlands. The southern part

is a tidally-affected marsh. The natural features and hydrology

of the fresh water wetlands have been substantially altered by

agriculture, silviculture, clearing, ditching, and draining.

7. Tee Lake and Wicker Lake are small lakes (approximately

50 acres in total surface area) within the tidal marsh of the

Rainwater Tract. Depending on the tides, the lakes can be as

shallow as one foot, or several feet deep. A channel through

the marsh allows boaters to gain access to the lakes from

Perdido Bay.

8. Florida Pulp and Paper Company first began operating

the Cantonment paper mill in 1941. St. Regis Paper Company

acquired the mill in 1946. In 1984, Champion International

Corporation (Champion) acquired the mill. Champion changed the

product mix in 1986 from unbleached packaging paper to bleached

products such as printing and writing grades of paper.

9. The mill is integrated, meaning that it brings in logs

and wood chips, makes pulp, and produces paper. The wood is

chemically treated in cookers called digesters to separate the

cellulose from the lignin in the wood because only the cellulose

is used to make paper. Then the "brown stock" from the

digesters goes through the oxygen delignification process, is

mixed with water, and is pumped to paper machines that make the

paper products.

10. In 1989, the Department and Champion signed a Consent

Order to address water quality violations in Elevenmile Creek.

Pursuant to the Consent Order, Champion commissioned a

comprehensive study of the Perdido Bay system that was

undertaken by a team of scientists led by Dr. Robert Livingston,

an aquatic ecologist and professor at Florida State University.

The initial three-year study by Dr. Livingston's team of

scientists was followed by a series of related scientific

studies (“the Livingston studies").

11. Champion was granted variances from the water quality

standards in Elevenmile Creek for iron, specific conductance,

zinc, biological integrity, un-ionized ammonia, and dissolved

oxygen (DO).

12. In 2001, IP and Champion merged and Champion’s

industrial wastewater permit and related authorizations were

transferred to IP.

13. In 2002, IP submitted a permit application to upgrade

its wastewater treatment plant (WWTP) and relocate its

discharge. The WWTP upgrades consist of converting to a

modified activated sludge treatment process, increasing

aeration, constructing storm surge ponds, and adding a process

for pH adjustment. The new WWTP would have an average daily

effluent discharge of 23.8 million gallons per day (mgd). IP

proposes to convey the treated effluent by pipeline 10.7 miles

to the Rainwater Tract, where the effluent would be distributed

over the wetlands as it flows to lower Elevenmile Creek and

upper Perdido Bay.

14. IP's primary objective in upgrading the WWTP was to

reduce the nitrogen and phosphorus in the mill's effluent

discharge. The upgrades are designed to reduce un-ionized

ammonia, total soluble nitrogen, and phosphorus. They are also

expected to achieve a reduction of biological oxygen demand

(BOD) and TSS.

15. IP plans to obtain up to 5 mgd of treated municipal

wastewater from a new treatment facility planned by the Emerald

Coast Utility Authority (ECUA), which would be used in the paper

production process and would reduce the need for groundwater

withdrawals by IP for this purpose. The treated wastewater

would enter the WWTP, along with other process wastewater and

become part of the effluent conveyed through the pipeline to the

wetland tract.

16. The effluent limits required by the proposed permit

include technology-based effluent limits (TBELs) that apply to

the entire pulp and paper industry. TBELs are predominantly

production-based, limiting the amount of pollutants that may be

discharged for each ton of product that is produced.

17. The proposed permit also imposes water quality-based

effluent limits (WQBELs) that are specific to the Cantonment

mill and the waters affected by its effluent discharge. The

WQBELs for the mill are necessary for certain constituents of

the mill's effluent because the TBELs, alone, would not be

sufficient to prevent water quality criteria in the receiving

waters from being violated.

18. The Livingston studies represent perhaps the most

complete scientific evaluation ever made of a coastal ecosystem.

Dr. Livingston developed an extensive biological and chemical

history of Perdido Bay and then evaluated the nutrient loadings

from Elevenmile Creek over a 12-year period to correlate mill

loadings with the biological health of the Bay. The Livingston

studies confirmed that when nutrient loadings from the mill were

high, they caused toxic algae blooms and reduced biological

productivity in Perdido Bay. Some of the adverse effects

attributable to the mill effluent were most acute in the area of

the Bay near the Lanes' home on the northeastern shore of the

Bay because the flow from the Perdido River tends to push the

flow from Elevenmile Creek toward the northeastern shore.

19. Because Dr. Livingston determined that the nutrient

loadings from the mill that occurred in 1988 and 1989 did not

adversely impact the food web of Perdido Bay, he recommended

effluent limits for ammonia nitrogen, orthophosphate, and total

phosphorous that were correlated with mill loadings of these

nutrients in those years. The Department used Dr. Livingston’s

data, and did its own analyses, to establish WQBELs for

orthophosphate for drought conditions and for nitrate-nitrite.

WQBELs were ultimately developed for total ammonia,

orthophosphate, nitrate-nitrite, total phosphorus, BOD, color,

and soluble inorganic nitrogen.

20. The WQBELs in the proposed permit were developed to

assure compliance with water quality standards under conditions

of pollutant loadings at the daily limit (based on a monthly

average) during low flow in the receiving waters.

21. Petitioners did not dispute that the proposed WWTP is

capable of achieving the TBELs and WQBELs. Their main complaint

is that the WQBELs are not adequate to protect the receiving

waters.

22. A wetland pilot project was constructed in 1990 at the

Cantonment mill into which effluent from the mill has been

discharged. The flora and fauna of the pilot wetland project

have been monitored to evaluate how they are affected by IP’s

effluent.

23. An effluent distribution system is proposed for the

wetland tract to spread the effluent out over the full width of

the wetlands. This would be accomplished by a system of berms

running perpendicular to the flow of water through the wetlands,

and gates and other structures in and along the berms to gather

and redistribute the flow as it moves in a southerly direction

toward Perdido Bay. The design incorporates four existing tram

roads that were constructed on the wetland tract to serve the

past and present silvicultural activities there. The tram

roads, with modifications, would serve as the berms in the

wetland distribution system.

24. As the effluent is discharged from the pipeline, it

would be re-aerated and distributed across Berm 1 through a

series of adjustable, gated openings. Mixing with naturally

occurring waters, the effluent would move by gravity to the next

lower berm. The water will re-collect behind each of the

vegetated berms and be distributed again through each berm. The

distance between the berms varies from a quarter to a half mile.

25. Approximately 70 percent of the effluent discharged

into the wetland would flow a distance of approximately 2.3

miles to Perdido Bay. The remaining 30 percent of the effluent

would flow a somewhat shorter distance to lower Elevenmile

Creek.

26. A computer simulation performed by Dr. Wade Nutter

indicated that the effluent would move through the wetland tract

at a velocity of approximately a quarter-of-a-foot per second

and the depth of flow across the wetland tract will be 0.6

inches. It would take four or five days for the effluent to

reach lower Elevenmile Creek and Perdido Bay. As the treated

effluent flows through the wetland tract, there will be some

removal of nutrients by plants and soil. Nitrogen and

phosphorous are expected to be reduced approximately ten

percent. BOD in the effluent is expected to be reduced

approximately 90 percent.

27. Construction activities associated with the effluent

pipeline, berm, and control structures in the wetland tract, as

originally proposed, were permitted by the Department through

issuance of a Wetland Resource Permit to IP. The United States

Army Corps of Engineers has also permitted this work.

Petitioners did not challenge those permits.

28. A wetland monitoring program is required by the

proposed permit. The stated purpose of the monitoring program

is to assure that there are no significant adverse impacts to

the wetland tract, including Tee and Wicker Lakes. After the

discharge to the wetland tract commences, the proposed permit

requires IP to submit wetland monitoring reports annually to the

Department.

29. A monitoring program was also developed by

Dr. Livingston and other IP consultants to monitor the impacts

of the proposed discharge on Elevenmile Creek and Perdido Bay.

It was made a part of the proposed permit.

30. The proposed Consent Order establishes a schedule for

the construction activities associated with the proposed WWTP

upgrades and the effluent pipeline and for incremental

relocation of the mill's discharge from Elevenmile Creek to the

wetland tract. IP is given two years to complete construction

activities and begin operation of the new facilities. At the

end of the construction phase, least 25 percent of the effluent

is to be diverted to the wetland tract. The volume of effluent

diverted to the wetlands is to be increased another 25 percent

every three months thereafter. Three years after issuance of

the permit, 100 percent of the effluent would be discharged into

the wetland tract and there would no longer be a discharge into

Elevenmile Creek.

31. The proposed Consent Order establishes interim effluent

limits that would apply immediately upon the effective date of

the Consent Order and continue during the two-year construction

phase when the mill would continue to discharge into Elevenmile

Creek. Other interim effluent limits would apply during the 12-

month period following construction when the upgraded WWTP would

be operating and the effluent would be incrementally diverted

from Elevenmile Creek to the wetland tract. A third set of

interim effluent limits would apply when 100 percent of the

effluent is discharged into the wetland tract.

32. IP is required by the Consent Order to submit quarterly

reports of its progress toward compliance with the required

corrective actions and deadlines.

B. Project Changes

33. After the issuance of the Final Order in 05-1609, IP

modified its manufacturing process to eliminate the production

of white paper. IP now produces brown paper for packaging

material and “fluff” pulp used in such products as filters and

diapers. IP’s new manufacturing processes uses substantially

smaller amounts of bleach and other chemicals that must be

treated and discharged.

34. IP reduced its discharge of BOD components, salts that

increase the specific conductance of the effluent, adsorbable

organic halides, and ammonia. IP also reduced the odor

associated with its discharge.

35. In the findings that follow, the portion of the

Rainwater Tract into which IP proposes to discharge and

distribute its effluent will be referred to as the “effluent

distribution system,” which is the term used by Dr. Nutter in

his 2008 “White Paper” (IP Exhibit 23). The effluent

distribution system includes the berms and other water control

structures as well as all of the natural areas over which IP’s

effluent will flow to Perdido Bay.

36. Most of the existing ditches, sloughs, and depressions

in the effluent distribution system are ephemeral, holding water

only after heavy rainfall or during the wet season. Even the

more frequently wetted features, other than Tee and Wicker

Lakes, intermittently dry out. There is currently little

connectivity among the small water bodies that would allow fish

and other organisms to move across the site.

37. Fish and other organisms within these water bodies are

exposed to wide fluctuations in specific conductivity, pH, and

DO. When the water bodies dry out, the minnows and other small

fish die. New populations of fish enter these water bodies from

Elevenmile Creek during high water conditions, or on the feet of

water birds.

38. IP's consultants conducted an extensive investigation

and evaluation of animal and plant communities in the Rainwater

Tract in coordination with scientists from the Department and

the Florida Fish and Wildlife Conservation Commission. Among

the habitats that were identified and mapped were some wet

prairies, which are designated “S-2," or imperiled, in the

Florida Natural Area Inventory. In these wet prairies are rare

and endangered pitcher plants.

39. IP modified the design of the proposed effluent

distribution system to shorten the upper berms and remove 72.3

acres of S-2 habitat. The total area of the system was reduced

from 1,484 acres to 1,381 acres.

40. The proposed land management activities within the

effluent distribution system are intended to achieve restoration

of historic ecosystems, including the establishment and

maintenance of tree species appropriate to the various water

depths in the system, and the removal of exotic and invasive

plant species.

41. A functional assessment of the existing and projected

habitats in the effluent distribution system was performed. The

Department concluded that IP’s project would result in a six

percent increase in overall wetland functional value within the

system. That estimate accounts for the loss of some S-2

habitat, but does not include the benefits associated with IP’s

conservation of S-2 habitat and other land forms outside of the

effluent distribution system.

42. IP proposes to place in protected conservation status

147 acres of wet prairie, 115 acres of seepage slope, and 72

acres of sand hill lands outside the effluent distribution

system. The total area outside of the wetland distribution

system that the Consent Order requires IP to perpetually protect

and manage as conservation area is 1,188 acres.

43. The Consent Order was modified to incorporate many of

the wetland monitoring provisions that had previously been a

part of the former experimental use of wetlands authorization.

44. IP proposes to achieve compliance with all proposed

water quality standards and permit limits by the end of the

schedule established in the Consent Order, including the water

quality standards for specific conductance, pH, turbidity, and

DO, which IP had previously sought exceptions for pursuant to

Florida Administrative Code Rule 62-660.300(1).

C. Limitation of Factual Issues

45. As explained in the Conclusions of Law, the doctrine

of collateral estoppel bars the parties in these consolidated

cases from re-litigating factual issues that were previously

litigated by them in DOAH Case No. 05-1609. The Department’s

Final Order of August 8, 2007, determined that IP had provided

reasonable assurance that the NPDES permit, Consent Order,

exception for the experimental use of wetlands, and variance

were in compliance with all applicable statutes and rules,

except for the following area: the evidence presented by IP was

insufficient to demonstrate that IP’s wastewater effluent would

not cause significant adverse impact to the biological community

of the wetland tract, including Tee and Wicker Lakes.

46. Following a number of motions and extensive argument

on the subject of what factual issues raised by Petitioners are

proper for litigation in this new proceeding, an Order was

issued on June 2, 2009, that limited the case to two general

factual issues:

1. Whether the revised Consent Order and

proposed permit are valid with respect to

the effects of the proposed discharge on the

wetland system, including Tee and Wicker

Lakes, and with respect to any modifications

to the effluent distribution and treatment

functions of the wetland system following

the Final Order issued in DOAH Case No. 05-

1609; and

2. Whether the December 2007 report of the

Livingston team demonstrates that the WQBELS

are inadequate to prevent water quality

violations in Perdido Bay.

D. Petitioners’ Disputes

47. Petitioners’ proposed recommended orders include

arguments that are barred by collateral estoppel. For example,

Jacqueline Lane restates her opinions about physical and

chemical processes that would occur if IP’s effluent is

discharged into the wetlands, despite the fact that some of

these opinions were rejected in DOAH Case No. 05-1609.

48. Dr. Lane believes that IP’s effluent would cause

adverse impacts from high water temperatures resulting from

color in IP’s effluent. There is already color in the waters of

the effluent distribution system under background conditions.

The increased amount of shading from the trees that IP is

planting in the effluent distribution system would tend to lower

water temperatures. Peak summer water temperatures would

probably be lowered by the effluent. Petitioners evidence was

insufficient to show that the organisms that comprise the

biological community of the effluent distribution system cannot

tolerate the expected range of temperatures.

49. Dr. Lane also contends that the BOD in IP's effluent

would deplete DO in the wetlands and Tee and Wicker Lakes. Her

contention, however, is not based on new data about the effluent

or changes in the design of the effluent distribution system.

50. There is a natural, wide fluctuation in DO in the

wetlands of the effluent distribution system because DO is

affected by numerous factors, including temperature, salinity,

atmospheric pressure, turbulence, and surface water aeration.

There are seasonal changes in DO levels, with higher levels in

colder temperatures. There is also a daily cycle of DO, with

higher levels occurring during the day and lower levels at

night.

51. It is typical for DO levels in wetlands to fall below

the Class III water quality standard for DO, which is five

milligrams per liter (mg/l). An anaerobic zone in the water

column is beneficial for wetland functions. DO levels in the

water bodies of the effluent distribution system currently range

from a high of 11 to 12 mg/l to a low approaching zero.

52. The principal factor that determines DO concentrations

within a wetland is sediment oxygen demand (SOD). SOD refers to

the depletion of oxygen from biological responses (respiration)

as well as oxidation-reduction reactions within the sediment.

The naturally occurring BOD in a wetland is large because of the

amount of organic material. The BOD associated with IP’s

effluent would be a tiny fraction of the naturally occurring BOD

in the effluent distribution system and would be masked by the

effect of the SOD. It was estimated that the BOD associated

with IP's effluent would represent only about .00000000001

percent of the background BOD, and would have an immeasurable

effect.

53. Dr. Pruitt’s testimony about oxygen dynamics in a

wetland showed that IP’s effluent should not cause a measurable

decrease in DO levels within the effluent distribution system,

including Tee and Wicker Lakes.

54. FOPB and James Lane assert that only 200 acres of the

effluent distribution system would be inundated by IP’s

effluent, so that the alleged assimilation or buffering of the

chemical constituents of the effluent would not occur. That

assertion misconstrues the record evidence. About 200 acres of

the effluent distribution system would be permanently inundated

behind the four berms. However, IP proposes to use the entire

1,381-acre system for effluent distribution.

55. The modifications to the berms and the 72-acre

reduction in the size of the effluent distribution system would

not have a material effect on the assimilative capacity of

system. The residence time and travel time of the effluent in

the system, for example, would not be materially affected.

56. Variability in topography within the effluent

distribution system and in rainfall would affect water depths in

the system. The variability in topography, including the

creation of some deeper pools, would contribute to plant and

animal diversity and overall biological productivity within the

system.

57. The pH of the effluent is not expected to change the

pH in the effluent distribution system because of natural

buffering in the soils.

58. The specific conductance (saltiness) of IP’s effluent

is not high enough to adversely affect the biological community

in the fresh water wetlands of the effluent distribution system.

IP is already close to maintaining compliance with the water

quality standard for specific conductance and would be in full

compliance by the end of the compliance schedule established in

the proposed Consent Order.

59. After the 2007 conversion to brown paper

manufacturing, IP’s effluent has shown no toxicity. The

effluent has passed the chronic toxicity test, which analyzes

the potential for toxicity from the whole effluent, including

any toxicity arising from additive or synergistic effects, on

sensitive test organisms.

60. Dr. Lane points out that the limits for BOD and TSS in

the proposed NPDES permit exceed the limits established by

Department rule for discharges of municipal wastewater into

wetlands. However, paper mill BOD is more recalcitrant in the

environment than municipal wastewater BOD and less “bio-

available” in the processes that can lower DO. In addition, the

regulatory limits for municipal wastewater are technology-based,

representing “secondary treatment.” The secondary treatment

technology is not applicable to IP’s wastewater.

61. Sampling in the pilot wetland at the paper mill

revealed a diversity of macroinvertebrates, including predator

species, and other aquatic organisms. Macroinvertebrates are a

good measure of the health of a water body because of their

fundamental role in the food web and because they are generally

sensitive to pollutants.

62. Petitioners contend that the pilot wetland at the

paper mill is not a good model for the effect of the IP’s

effluent in the wetland distribution system, primarily because

of the small amount of effluent that has been applied to the

pilot wetland. Although the utility of the pilot wetland data

is diminished in this respect, it is not eliminated. The health

of the biological community in the pilot wetland contributes to

IP’s demonstration of reasonable assurance that the biological

community in the effluent distribution system would not be

adversely affected.

63. The effluent would not have a significant effect on

the salinity of Tee and Wicker Lakes. Under current conditions,

the lakes have a salinity of less than one part per thousand 25

percent of the time, less than 10 parts per thousand 53 percent

of the time, and greater than 10 parts per thousand 22 percent

of the time. In comparison, marine waters have a salinity of

2.7 parts per thousand.

64. IP’s effluent would not affect the lower end of the

salinity range for Tee and Wicker Lakes, and would cause only a

minor decrease in the higher range. That minor decrease should

not adversely affect the biota in Tee and Wicker Lakes or

interfere with their nursery functions.

65. The proposed hydrologic loading rate of the effluent

amounts to an average of six-tenths of an inch over the area of

effluent distribution system. The addition of IP’s effluent to

the wetlands of the effluent distribution system and the

creation of permanent pools would allow for permanent fish

populations and would increase the opportunity for fish and

other organisms to move across the effluent distribution system.

66. Biological diversity and productivity is likely to be

increased in the effluent distribution system.

67. By improving fish habitat, the site would attract

wading birds and other predatory birds.

68. Although the site would not be open to public use

(with the exception of Tee and Wicker Lakes), recreational

opportunities could be provided by special permission for guided

tours, educational programs, and university research. Even if

public access were confined to Tee and Wicker Lakes, that would

not be a reduction in public use as compared to the existing

situation.

69. IP’s discharge, including its discharges subject to

the interim limits established in the Consent Order, would not

interfere with the designated uses of the Class III receiving

waters, which are the propagation and maintenance of a healthy,

well-balanced population of fish and wildlife.

70. The wetlands of the effluent distribution system are

would not be unreasonably destructive to the receiving waters,

which would involve a substantial alteration in community

structure and function, including the loss of sensitive taxa and

their replacement with pollution-tolerant taxa.

71. The proposed WQBELs would maintain the productivity in

Tee and Wicker Lakes. There would be no loss of the habitat

values or nursery functions of the lakes which are important to

recreational and commercial fish species.

72. IP has no reasonable, alternative means of disposing

of its wastewater other than by discharging it into waters of

the state.

73. IP has demonstrated a need to meet interim limits for

a period of time necessary to complete the construction of its

alternative waste disposal system. The interim limits and

schedule for coming into full compliance with all water quality

standards, established in the proposed Consent Order, are

reasonable.

74. The proposed project is important and beneficial to

the public health, safety, and welfare because (1) economic

benefits would accrue to the local and regional economy from the

operation of IP’s paper mill, (2) Elevenmile Creek would be set

on a course of recovery, (3) the wetlands of the effluent

distribution system would become a site of greater biological

diversity and productivity, (4) the environmental health of

Perdido Bay would be improved, (5) the Department’s decades-long

enforcement action against IP would be concluded, (6)

substantial areas of important habitat would be set aside for

permanent protection, and (7) the effluent distribution system

would yield important information on a multitude of scientific

topics that were debated by these parties.

75. The proposed project would not adversely affect the

conservation of fish or wildlife or their habitats.

76. The proposed project would not adversely affect

fishing or water-based recreational values or marine

productivity in the vicinity of the proposed discharge.

77. There is no Surface Water Improvement and Management

Plan applicable to IP’s proposed discharge.

78. The preponderance of the record evidence establishes

reasonable assurance that IP’s proposed project would comply

with all applicable laws and that the Consent Order establishes

reasonable terms and conditions to resolve the Department’s

enforcement action against IP for past violations.

CONCLUSIONS OF LAW

79. The standing of Petitioners to challenge the proposed

Department authorizations was established in DOAH Case No. 05-

1609.

80. As the permit applicant, IP has the burden to prove by

a preponderance of the evidence that it is entitled to the

permit. Dep't of Transp. v. J.W.C. Co., Inc ., 396 So. 2d 778,

787 (Fla. 1st DCA 1981).

81. A permit applicant need not prove all items in the

application down to the last detail. A petitioner must identify

the specific areas of controversy. J.W.C . at 789. Once the

applicant has made a preliminary showing of entitlement, the

burden of presenting contrary evidence shifts to the petitioner

to present evidence of equivalent quality to prove the facts

alleged in the petition. Id.

82. Florida Administrative Rule 62-4.070(1) states that a

permit shall be issued only if the applicant affirmatively

provides the Department with reasonable assurance based on

plans, test results, installation of pollution control

equipment, or other information, that the construction,

expansion, modification, operation, or activity of the

installation will not discharge, emit, or cause pollution in

contravention of Department standards or rules.

83. "Reasonable assurance" in this context means a

demonstration that there is a substantial likelihood of

compliance with standards, or "a substantial likelihood that the

project will be successfully implemented." See Metropolitan

Dade County, v. Coscan Florida, Inc. , 609 So. 2d 644, 648 (Fla.

3d DCA 1992). It does not mean absolute guarantees.

84. If a discharge will not cause a measurable change in a

water quality parameter, the effect on that parameter is

insignificant. See Pacetti v. Fla. Dep’t of Envtl. Regulation ,

DOAH Case Nos. 84-3810 and 84-3811 (DER 1986).

85. When receiving waters currently fall below one or more

water quality standards under existing conditions, a permit may

be issued if the applicant will not cause or contribute to a

violation. Friends of the Everglades v. Dep’t of Envtl.

Regulation , 496 So. 2d 181, 183 (Fla. 1st DCA 1986); Metro Dade

County v. Coscan, Inc. , 609 So. 2d 644, 646 (Fla. 3d DCA 1992).

86. The disputed issues in this case were narrowed by the

doctrine of collateral estoppel because these same parties

previously litigated factual issues associated with IP’s

proposed project in DOAH Case No. 05-1609. The essential

elements of the doctrine are that the parties are identical and

that the particular matter was fully litigated and determined in

a contest that results in a final decision. Dep’t of Health and

Rehab. Servs. v. B.J.M. , 656 So. 2d 906 (Fla. 1995).

87. The factual issues in the current consolidated cases

were limited to whether IP’s effluent would adversely affect the

biological community of the effluent distribution system,

including Tee and Wicker Lakes, and whether the December 2007

report of the Livingston team demonstrates that the WQBELS are

inadequate to prevent water quality violations in Perdido Bay.

88. Petitioners were barred by collateral estoppel from

re-litigating their opinions about physical and chemical

processes affecting, for example, toxicity and oxygen dynamics,

that were rejected in DOAH Case No. 05-1609.

89. IP presented new evidence on the biological community

of the wetlands in the effluent distribution system and provided

reasonable assurance that IP’s effluent would not adversely

affect the biological community.

90. Petitioners failed to prove that any new data in the

December 2007 report of the Livingston team demonstrate that the

proposed WQBELS are inadequate to prevent water quality

violations in Perdido Bay.

91. The Department may issue an operation permit for a

discharge that will not comply with all applicable statutes and

rules if the applicant is able to meet one of the special

conditions of Section 403.088(2)(e), Florida Statutes:

1. The applicant is constructing,

installing, or placing into operation, or

has submitted plans and a reasonable

schedule for constructing, installing, or

placing into operation, an approved

pollution abatement facility or alternative

waste disposal system;

2. The applicant needs permission to

pollute the waters within the state for a

period of time necessary to complete

research, planning, construction,

installation, or operation of an approved

and acceptable pollution abatement facility

or alternative waste disposal system;

3. There is no present, reasonable,

alternative means of disposing of the waste

other than by discharging it into the waters

of the state;

4. The granting of an operation permit will

be in the public interest;

5. The discharge will not be unreasonably

destructive to the quality of the receiving

waters; or

6. A water quality credit trade that meets

the requirements of s. 403.067.

92. Now that IP has demonstrated that its effluent would

not be harmful to the wetlands of the effluent distribution

system, but would enhance the biological diversity and

productivity of the wetlands, the granting of the permit will be

in the public interest for that reason and the other reasons

stated in paragraph 74. IP demonstrated that it qualifies for

an operation permit under Section 403.088(2)(e)1. through 5.,

Florida Statutes.

93. A permit issued pursuant to Section 403.088(2)(e),

Florida Statutes, must be accompanied by an order which

establishes a schedule for achieving compliance with all permit

conditions. See § 403.088(2)(f), Fla. Stat. That requirement

would be achieved by the proposed Consent Order.

94. FOPB and James Lane argue that, because Section

373.414(4), Florida Statutes, specifically addresses the use of

wetlands to treat municipal wastewater, and no statute or rule

specifically addresses the use of wetlands to treat industrial

wastewater, it necessarily follows that the latter is

prohibited. However, there is no statute or rule that prohibits

the discharge of industrial wastewater to wetlands. There are

numerous statutes and rules that address any discharge of

these laws are sufficient authority for the proposed NPDES

permit and Consent Order.

95. FOPB and James Lane also contend that IP’s effluent

would permanently change the hydroperiod of the wetlands within

the effluent distribution system, but they cite no law that

prohibits such a change. Pollutant discharges made in

compliance with all applicable regulations usually change the

receiving waters. The relevant permitting question, therefore,

is not whether the receiving waters are changed, but whether the

changes are permissible under the law. Based on the Findings of

Fact and Conclusions of Law stated herein, the changes to the

receiving waters that would result from IP’s proposed project

are permissible.

96. FOPB and James Lane argue that the Department’s

the plant communities of the effluent distribution system failed

to comply with the “mandate of Section 373.414(18),” which

directs the Department to establish a uniform mitigation

assessment method (UMAM) for wetlands. However, that statute

makes UMAM mandatory only in the environmental resource

permitting program. This proceeding involves a Chapter 403

industrial wastewater discharge, which IP showed would meet all

state water quality standards at the end of the compliance

period and qualifies to temporarily exceed some standards under

the special conditions established in Section 403.088(2)(e),

Florida Statutes, including the condition that the discharge not

be unreasonably destructive to the quality of the receiving

waters. The Department’s functional assessment demonstrated

that the discharge would not be unreasonably destructive to the

quality of the receiving waters.

97. Section 403.088(2)(b), Florida Statutes, establishes

to determine whether a discharge will “reduce the quality of the

receiving waters below the classification established for them,”

and, if not, whether the degradation is “necessary or desirable

under federal standards and under circumstances which are

clearly in the public interest.”

98. IP and the Department disagreed about the

applicability of the antidegradation policy. IP contends that

the antidegradation policy is not applicable to IP’s project

because IP’s effluent would not cause any degradation to the

receiving waters, but would actually improve their quality.

However, because IP’s effluent would introduce pollutants into

the receiving waters, and the Consent Order provides for a

period of time when interim limits would be in effect,

application of the antidegradation policy to IP’s discharge is

appropriate.

99. Florida Administrative Code Rule 62-4.242(1)(b)

establishes four factors that the Department is to consider and

balance in determining whether any degradation is “necessary or

desirable” and “clearly in the public interest”:

1. Whether the proposed project is

important to and is beneficial to the public

health, safety, or welfare (taking into

account the policies set forth in Rule 62-

302.300, F.A.C., and, if applicable, Rule

62-302.700, F.A.C.); and

2. Whether the proposed discharge will

adversely affect conservation of fish and

wildlife, including endangered or threatened

species, or their habitats; and

3. Whether the proposed discharge will

adversely affect the fishing or water-based

recreational values or marine productivity

in the vicinity of the proposed discharge;

and

4. Whether the proposed discharge is

consistent with any applicable Surface Water

Improvement and Management Plan that has

been adopted by a Water Management District

and approved by the Department.

100. IP’s project rates favorably under the four factors

in Florida Administrative Code Rule 62-4.242(1)(b) and shows

compliance with the Department’s antidegradation policy.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is:

RECOMMENDED that the Department enter a final order

granting NPDES Permit No. FL0002526 and approving Consent Order

No. 08-0358.

DONE AND ENTERED this 27th day of January, 2010, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of January, 2010.

ENDNOTES

1/ The findings set forth in paragraphs 1 through 32 are derived

from findings made previously in the Recommended Order issued in

DOAH Case No. 05-1609, which were subsequently adopted in the

Department’s Final Order issued on August 8, 2007. These are

not the only findings from DOAH Case No. 05-1609 that are

relevant in this proceeding, but they were selected for the

purpose of providing background information.

COPIES FURNISHED :

W. Douglas Beason, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Marcy LaHart, Esquire

Marcy I. LaHart, P.A.

4804 Southwest 45th Street

Gainesville, Florida 32608

Terry Cole, Esquire

Oertel, Fernandez, Cole & Bryant, P.A.

Post Office Box 1110

Tallahassee, Florida 32302-1110

Jacqueline M. Lane

10738 Lillian Highway

Pensacola, Florida 32506

Michael W. Sole, Secretary

Department of Environmental Protection

The Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions

within 15 days from the date of this Recommended Order. The

exceptions should be filed with the agency that will issue the

Final Order in this case.