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.


View Dockets  
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.

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 IP’s 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 IP’s 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

1021Department’s 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 Champion’s

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. Livingston’s

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 IP’s

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. IP’s 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 IP’s

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 IP’s 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 IP’s

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 Department’s

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 IP’s 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 IP’s 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 IP’s effluent would cause

3937adverse impacts from high water temperatures resulting from

3945color in IP’s 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 IP’s

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. Pruitt’s testimony about oxygen dynamics in a

4317wetland showed that IP’s 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 IP’s

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 IP’s 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, IP’s 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 IP’s 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 IP’s

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

4843IP’s 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. IP’s 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 IP’s 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. IP’s 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 IP’s 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 Department’s 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 IP’s proposed discharge.

550878. The preponderance of the record evidence establishes

5516reasonable assurance that IP’s proposed project would comply

5524with all applicable laws and that the Consent Order establishes

5534reasonable terms and conditions to resolve the Department’s

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. Dep’t 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. Dep’t 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 IP’s

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. Dep’t 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 IP’s 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 IP’s 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 IP’s 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 IP’s proposed project

6591are permissible.

659396. FOPB and James Lane argue that the Department’s

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 Department’s 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 IP’s project

6801because IP’s effluent would not cause any degradation to the

6811receiving waters, but would actually improve their quality.

6819However, because IP’s 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 IP’s 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. IP’s project rates favorably under the four factors

7012in Florida Administrative Code Rule 62-4.242(1)(b) and shows

7020compliance with the Department’s 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

7149Department’s 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.

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PDF
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: 03/12/2010
Proceedings: (Agency) Final Order filed.
PDF:
Date: 03/11/2010
Proceedings: Agency Final Order
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
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: 12/21/2009
Proceedings: Notice of Change of Address filed.
PDF:
Date: 10/13/2009
Proceedings: Petitioner Jacqueline Lane's Proposed Recommended Order filed.
PDF:
Date: 10/12/2009
Proceedings: International Paper Company's Proposed Recommended Order filed.
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).
PDF:
Date: 10/05/2009
Proceedings: Order (Unopposed Motion to Extend Page Limit is granted).
PDF:
Date: 10/02/2009
Proceedings: Unopposed Motion to Extend Page Limit filed.
PDF:
Date: 09/21/2009
Proceedings: Notice of Address Change (Marcy LaHart).
Date: 09/01/2009
Proceedings: Transcript (Volumes I-XII) filed.
PDF:
Date: 07/27/2009
Proceedings: Non-Enforceable Return of Service (D. Ray) filed.
PDF:
Date: 07/23/2009
Proceedings: Order (Motion for Summary Final Order is denied).
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: Non-enforceable Return of Service filed.
PDF:
Date: 07/13/2009
Proceedings: Notice of Supplementing Expert Witness Disclosure filed.
PDF:
Date: 07/13/2009
Proceedings: 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 (leave to file the Second Amended Petition is granted).
PDF:
Date: 06/19/2009
Proceedings: Order (motion to exclude testimony is granted).
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: Joint Prehearing Stipulation filed.
PDF:
Date: 06/17/2009
Proceedings: Notice of Filing Joint Prehearing Stipulation filed.
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: 06/17/2009
Proceedings: IP's Notice Regarding Prehearing Stipulation 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: 06/05/2009
Proceedings: Order (IP's motion to dismiss is denied).
PDF:
Date: 06/03/2009
Proceedings: Notice of Cancelling Deposition (of J. Brooks) filed.
PDF:
Date: 06/03/2009
Proceedings: Department of Environmental Protection's List of Exhibits filed.
PDF:
Date: 06/02/2009
Proceedings: Order (the factual issues in these cases are now limited).
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: 05/27/2009
Proceedings: Notice of Taking Deposition filed.
PDF:
Date: 05/26/2009
Proceedings: Notice of Taking Deposition (Theodore Hoehn) filed.
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: Consent Order filed.
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 Witnesses 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: 05/08/2009
Proceedings: Notice of Unavailability of Petitioners Lane filed.
PDF:
Date: 05/08/2009
Proceedings: First Amended Petition of Petitioner Jacqueline Lane 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 (motion for continuance is denied).
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: 04/13/2009
Proceedings: Notice of Entry Upon Land 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: 12/18/2008
Proceedings: Response to Request for Entry on Land 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: Request to Correct the Record filed.
PDF:
Date: 12/08/2008
Proceedings: Return of Service (Donald Ray) 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: Order (Stipulated Motion to Amend Pre-hearing Order is granted).
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: 12/04/2008
Proceedings: Stipulated Motion to Amend Pre-hearing Order 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: International Paper Company`s Identification of Witnesses 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: 11/26/2008
Proceedings: Notice of Telephonic Hearing filed.
PDF:
Date: 11/25/2008
Proceedings: Notice of Taking Deposition filed.
PDF:
Date: 11/24/2008
Proceedings: Notice of Taking Depositions (of S. Speas, E. Hickman) filed.
PDF:
Date: 11/18/2008
Proceedings: Order on Motion in Limine.
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: 10/09/2008
Proceedings: Petitioner Lane`s Response to Order to Show Cause filed.
PDF:
Date: 10/07/2008
Proceedings: Corrected Certificate of Service filed.
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: Order of Pre-hearing Instructions.
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: 09/17/2008
Proceedings: Amended Order.
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: 09/12/2008
Proceedings: Notice of Telephonic Hearing filed.
PDF:
Date: 09/11/2008
Proceedings: Petitioner Lane`s Response to IP`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: IP`s First Motion in Limine 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: Order (motion to relinquish jurisdiction is denied).
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: Petitioner, Jacqueline Lane`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: 08/20/2008
Proceedings: International Paper Company`s Response to Initial Order 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: 08/14/2008
Proceedings: Order of Consolidation (DOAH Case Nos. 08-3922 and 08-3923).
PDF:
Date: 08/13/2008
Proceedings: Initial Order.
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: Intent to Issue filed.
PDF:
Date: 08/12/2008
Proceedings: Consent Order filed.
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: Petitioner Jacqueline Lane`s Notice of Unavailability 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.
PDF:
Date: 08/12/2008
Proceedings: Friends of Perdido Bay, Inc., and James Lane Petition for Administrative Hearing filed.
PDF:
Date: 08/12/2008
Proceedings: Request for Assignment of Administrative Law Judge, Notice of Pendency of Related Appellate Proceeding and Notice of Preservation of Record 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

Related DOAH Cases(s) (3):

Related Florida Statute(s) (3):

Related Florida Rule(s) (6):