20-003305 Jacqueline M. Lane vs. International Paper Company And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, December 16, 2020.

Summary: The Department's entry of a consent order to ascertain causes of chronic toxicity violations was a reasonable exercise of its enforcement discretion.

For Respondent Department of Environmental Protection:

Kirk S . White, Esquire

Florida Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

S TATEMENT OF THE I SSUE

The issue to be determined in this case is whether the Consent Order

issued by Respondent, Department of Environmental Protection

(“Department”) on April 28, 2020 , OGC File No. 19 - 1453 (“Consent Order”) , is

a reasonable exercise of its enforcement authorit y.

P RELIMINARY S TATEMENT

On April 20, 2020 , the Department e ntered the Consent Order that

requires Respondent, International Paper Company ( “ International ” )

(collectively “Respondents”) to undertake a series of studies to establish the

cause of 19 documented occasions from 2015 to 2020 in which International

failed to meet its wastewater treatment plant permit limits for chronic whole

effluent toxicity (“WET”) f or the Ceriodaphnia dubia s pecies.

Petitioner timely filed a challenge to the C onsent O rder, which was

dismissed by the Department . Thereafter, o n June 25, 2020 , Petitioner filed

her First Amended Petition of Jacqueline Lane Challenging Consent Order

19 - 1453, by w hich she requested a formal hearing.

On July 21 , 2020 , this case was referred to DOAH for a formal

administrative h earing. The final hearing was scheduled for November 2, 9,

and 10, 2020 .

On July 30, 2020, upon Motion, Petitioner filed her Second Amended

Petition.

On August 6, 2020, International filed a Motion to Dismiss Second

Amended Petition . On August 14, 2020, that Motion was denied.

On August 18, 2020, Petitioner filed a Motion fo r Summary Judgment to

Dismiss Consent Order 19 - 1453 . On August 24, 2020, that Motion was

denied.

On August 21, 2020, the Department filed its Motion to Relinquish

Jurisdiction to the Department or in the Alternative Motion in Limine and/or Strike , in whi ch it argued that issues unrelated to the 19 failed chronic

toxicity samp les, and the means established in the Consent O rder to bring

International back into compliance , should not be considered in this

proceeding.

On August 25, 2020, the undersigned entered an O rder denying the

Motion to Relinquish Jurisdiction, and granting the Motion in Limine and/or Strike, which established the issues for disposition in this case as follows:

The underlying dispute concerns a Co nsent Order

entered into by DEP and International for the

specific purpose of resolving 19 occasions over the period from 2015 to 2020, for which International

reported effluent quality monitoring results that

failed to meet its wastewater treatment plant permit limits for chronic whole effluent toxicity for the Ceriodaphnia dubia species. The Consent

Order establishes a series of measures designed to

establish the reason(s) for the exceedances and

resolve them if shown to be caused by International’s opera tion of its wastewater

treatment facility.

Petitioner has alleged injury to her property which is based on the effect of the exceedances, and

whether the exceedances will be resolved by the

measures proposed. However, the Second Amended Petition goes wel l beyond the issues in the Consent

Order alleging, among other things, that in its

Class 3 freshwater experimental wetlands,

International is not meeting standards for specific

conductance, dissolved oxygen, pH, biochemical oxygen demand, biological health , transparency,

and turbidity, and that International’s effluent

contains sludges which contain toxic materials,

resulting in a number of alleged adverse effects and unresolved non - compliance with a previous

Consent Order. However, the narrow issue in the case is whether the Consent Order is a reasonable

exercise of DEP's enforcement discretion as to the

specific violations over which DEP has elected to

exercise its enforcement discretion.

* * *

In a Consent Order proceeding to resolve a specific enforce ment matter, evidence related to other

matters, including other alleged violations not

addressed by the Consent Order, is not relevant.

Therefore, it is

O

RDERED that:

* * *

3. The scope of this proceeding is limited to whether

International failed to meet its wastewater treatment plant permit limits for chronic whole effluent toxicity for the Ceriodaphnia dubia species; the reasonableness and efficacy of measures designed to establish the reason(s) for the

exceedances; and the reasonableness of the proposed resolution of the exceedances if shown to be caused by International’s operation of its wastewater treatment facility.

On September 22, 2020, the parties jointly moved for the hearing dates to

be modified, and that the final hearing proceed on November 9 and 10, 2020.

The motion was granted.

On September 29, 2020, Petitioner filed a Motion to Amend H er Second

Amended Petition to Maintain Standing in T his Case . On September 30,

2020, that m otion was denied, based on the ground that the bases for

Petitioner’s standing set forth in the m otion had been previously pled. Thus,

no supplemental pleading was necessary.

On November 4, 2020 , the parties filed their Join t Prehearing Stipulation

(“JPS”). The JPS contained five stipulations of fact, and six stipulations of

law, each of which are adopted and incorporated herein. The JPS also

identified disputed issues of fact and law remaining for disposition.

On November 5, 2020, Respondents filed a Motion in Limine to Exclude

from Evidence Petitioner's Exhibits 6 through 9, 18 through 21, 27 , and 28

(which in its text also requested exclusion of Petitioner’s Exhibit 29).

Petitioner filed a response. On November 9, 2020, prior to the commencement

of the hearing, Petitioner filed a Motion to Dismiss.

The final hearing was convened on November 9 , 2020, as scheduled , and

was completed on that date .

At the commencement of the hearing , the outstanding motions were taken

up. For reasons set forth on the record, the Motion to Dismiss was denied; the

Motion in Limine was granted as to Petitioner’s Exh ibits 27 through 29 ; and

ruling was reserved on the Motion in Limine regarding Petitioner’s

Exhibits ` 6 through 9 and 18 through 21.

By stipulation of the parties, the order of presentation was established ,

starting with the Department ’s case - in - chief, fo llowed by International, and

concluding with Petitioner. Witnesses were allowed to be fully questioned

while on the stand, without “scope” objections.

At the final hearing , the Department offered the testimony of Krista

McGraw, an Environmental Manager in its Northwest District Compliance

Assurance Program ; and Nancy Ross, a c onsultant to the Department’s

Wastewater Management Program. Department Exhibits 1 through 7 were

received in evidence. International offered the testimony of Laurie McClain,

Project Manager at its Pensacola paper mill ; and William Goodfellow,

Principal Scientist and Practice Developer for Xponent, Inc. , who was

accepted as an expert in w hole e ffluent t oxicology t esting and t oxicity

r eduction e valuation. International ’s Exhibits 8, 11, 13, 16, 18, 24, 26, 27, 29,

and 30 were received in evidence. Petitioner testified on her own behalf, and

recalled Ms. Ross. Petitioner’s Exhibits 1, 6, 13, 14, 20, and 21 were received in evidence. In addition, P etitioner’s Exhibits 7, 8, 10 through 12, and 15

through 19 were not received in evidence, but were proffered. Those proffered

e xhibits accompany the record of this proceeding, but have not been reviewed or considered in the development of this Recommended Order.

A one - volume T ranscript of the proceedings was filed on November 30,

2020 . All parties timely filed p roposed r ecommended o rder s, which ha ve been

duly considered by the undersigned in the preparation of this Recommended Order.

F INDINGS O F F ACT

1. Respondent , International, operates a paper mill in Cantonment,

Florida, near Pensacola (the “ M ill”). The M ill produces unbleached linerboard

for cardboard boxes, and global cellulose fiber, used in the production of baby

diapers, feminine hygiene produ cts, and the like.

2. Petitioner owns a home that front s Perdido Bay in Escambia County,

Florida. She has lived in that home for more than 40 years.

Stipulated Facts

3 . The Department is the administrative agency of the State of Florida

having the power and duty to protect Florida’s air and water resources and to administer and enforce the provisions of c hapter 403, F lorida Statutes , and

the rules promulgated thereunder.

4 . On April 28, 2020, the Department and International executed the

Con sent Order to resolve 19 exceedances of its limits in Department

Wastewater Permit No. FL000256 - 008 - IW1S (“Permit”) from 2015 to 2019 for

chronic WET for the Ceriodaphnia dubia species (“Exceedances”).

5 . Petitioner timely filed a petition challenging the Consent Order.

6 . Petitioner is substantially affected by the Consent Order and , thus, only

for the purposes of this proceeding, has standing to challenge the Consent Order.

Internation al’s Mill

7 . Water used in International’s linerboard and cellulose fiber production

is drawn from two primary sources. Most, and previously all, of the process water is from on - site wells. However, since late 2011 or early 2012, up to

20 percent (5 million gallons per day (“MGD”)) of International’s total process

input water (approximately 24 MGD) has consisted of reclaimed water from

Emerald Coast Utility Authority (“ECUA”) .

8 . Effluent from International’s process areas is received at its waste water

treatment plant ( “ WWTP ” ) through a mix box. The e ffluent is then

transmitted to two primary clarifiers , which allow solids to settle out of the

effluent. Those solids are periodically removed, dewatered , and taken to a

landfill.

9 . From the primary c larifiers, the effluent is transmitted to Pond 1,

which is an aerated basin, and then through Pond 3 and Pond 4 , which

provide secondary clarification. Solids that settle in those ponds are dredged

and removed . 1

1 0 . F rom Pond 4 , the effluent is discharged to another mix box, at which

compliance samples are collected prior to discharge of the effluent via t he

transmission pipeline to the wetlands that constitute the freshwater effluent

distribution system . 2

1 1 . International holds a variety of environmental permits for the

operation of the M ill. The National Pollutant Discharge Elimination System

(“NPDES”) permit for its WWTP requires monitoring, reporting, and

compliance for roughly 70 regulated parameters. Th e state is delegated the

authority to perform many of the permitting and enforcement duties required

by the NPDES program . Under that authority, the Department issued the

Permit, which authorizes International to release treated effluent from the

M ill process that, after traveling through a number of marshes of varying

salinity, discharges to the salt waters of Perdido Bay.

Whole Effluent Toxicity Testing

1 2 . The Consent Order is designed to address a situation in which

International discovered that spl it compliance samples of its effluent

submitted to two independent laboratories were resulting in different results

in chronic WET .

1 3 . Toxicity is measured by exposing fish and invertebrate test species to

effluent collected after it has passed through a process or treatment facility .

1 Prior to the end of 2019, activated sludge was removed from Pond 3 and returned to Pond 1.

That practice has ceased. The end of that practice had no effect on the toxicity of the Mill

effluent at the compliance point.

2 ECUA also disposes of three MGD of reclaimed water to International’s effluent discharge

pipeline at a point after the compliance point. That disposal does not affect the issues in this

proceeding.

The test species and methods are established by rule to ensure consistency in

measurement and analysis of the effluent.

1 4 . Unlike testing for known chemical parameters in a wastestream,

where the chemicals are sampled for se t concentrations, WET testing is

performed when different parameters in the effluent that could result in

toxicity to specific organisms are unknown, or the effluent is very complex.

The WET testing strategy is designed to evaluate constituents of the wast estream that could be detected analytically, as well as those that are not

individually sampled , or that affect toxicity in unanticipated combinations.

1 5 . WET testing is reported at the method detection limit at which toxicity

impacts an organism. It take s into consideration the test organism's ability to

functionally deal with conditions on a metabolism basis, and is a more sensitive test procedure than traditional chemical analytical parameters.

1 6 . A facility that discharges to a freshwater system is required to use

freshwater organisms as its testing target species. If a facility’s effluent is freshwater, and its direct receiving waters are freshwater, the testing target species will be freshwater organisms , even if the ultimate receiving water

body i s saltwater. Fla. Admin. Code R . 62 - 620.620(3)(g) .

1 7 . Since the Mill effluent is considered to be freshwater, and is initially

discharged to a series of artificially created freshwater treatment marshes before it reaches the tidally influenced marshes and waters of Perdido Bay,

freshwater species are used to measure chronic toxicity . For such species, salt

ions can be toxic.

3

1 8 . Chronic toxicity is measured by its effect on the reproduction or

growth of the target species. Unlike acute toxicity, in which individual

3 Sodium, potassium, ma gnesium, and calcium ions , all considered to be “salts , ” are present

in freshwater , and are essential chemicals required by aquatic organisms . Nonetheless,

increases or imbalances in these ions can result in acute or chronic toxic effects to sensitive

organisms.

organisms die from the toxic effects of the target constituent, chronic toxicity

is measured by its sub - lethal effect on the test species.

19 . The WET test for the International effluent uses a freshwater species

of water flea, Ceriodaphnia dub ia , as the test target species. Ceriodaphnia

dubia is very sensitive to salt ions.

2 0 . WET testing is performed at the Instream Waste Concentration

(“IWC”). For International’s Permit, the effluent is collected at the end of the WWTP, before ECUA’s three MGD reclaimed water disposal point and before

discharge to receiving waters . Thus, the International IWC is 100 percent ,

which means organisms have to be able to live and reproduce in the

undiluted effluent just as they would in laboratory culture water. A ccording

to Mr. Goodfellow, an IWC of 100 percent is “one of the more tough

challenging yardsticks to measure effluent compliance.”

4

2 1 . The Inhibition Concentration (“IC”) is a linear regression analysis

with the goal of determining the concentration of effluent that results in a

reduction of the reproduction or growth rate in the test organisms. As applied to the issues in this case, IC

25 the is the concentration of toxic constituents in

WWTP wastewater stream that results in a 25 percent reduction in the

reproduction rate of Ceriodaphnia dubia compared to control water. 5 Since

test concentrations can be varied by dilution, IC 25 allows one to analyze an

entire data set of concentrations against the control into the overall

assessment.

2 2 . The Permit req uires that the IC 25 be measured at a concentration of

100 percent effluent, meaning that the Ceriodaphnia dubia test organisms

4 At many facilities, the IWC is established where the effluent would be fully mixed in the

receiving water. Thus, the discharged effluent will have been diluted by the receiving waters

or subject to natural bio - or photo - degradation that occurs in the receiving water.

Mr. Goodfellow te stified that, prior to this case, 90 to 95 percent was the highest IWC he had

seen, with many facilities at 70 to 50 percent or lower.

5 Similarly, IC 50 is the concentration of toxic constituents in a wastewater stream that results

in a 50 percent reduction in reproduction compared to control water. IC 25 is more stringent

than IC 50 , and is the standard required by the Permit.

can experience no more than a 25 percent reduction in their rate of

reproduction when in 100 percent effluent than their rate of reproduction in

control laboratory culture water , i.e., a difference of 15 young produced in the

effluent versus 20 young produced in the laboratory culture water . 6

2 3 . WET testing is inexpensive and quick. Since Ceriodaphnia dubia can

go through three g enerations in the course of seven days, one can change

individual concentrations and measure the effect of the change i n

reproduction over a relatively short period.

2 4 . In this case, WET test samples collected by International were split,

with the samples sent to separate independent certified laboratories for

analysis. Though the split samples were identical in their constituent

makeup, the results produced differing toxicity results between the laboratories.

2 5 . The Consent Order was designed to test the hypothesis that the

sensitivity of laboratory - specific test cultures of Ceriodaphnia dubia to

inorganic salt or ion composition in the Mill effluent could produce th e mixed

results being reported by the different laboratories .

Salt Ion Composition Work Plan

2 6 . T he Consent Order requires the implementation of a Salt Ion

Composition Work Plan (“ Plan ”) to analyze the impact of the salt ion

composition of the treated effluent on the toxicity results, and to evaluate

whether the salt ion composition of the M ill effluent is causing or

contributing to violations.

2 7 . Salt ions in the Mill effluent result from the paper making process or

the neutralization process as part of wastewater treatment. Although very

minor levels of salt ions could be present in the ECUA contribution to the

6 Likewise, an IC 25 of 50 percent effluent means that test organisms would produce

25 percent fewer young in an effluent test concentration of 50 percent effluent and

50 percent laborat o ry control water .

Mill process water, and even in th e well water, they are inconsequential in

the effluent salt ion concentration.

2 8 . Although all test cultures of Ceriodaphnia dubia are clones, the

species can rapidly reproduce. Thus, variations in the sensitivity of

laboratory strains over time may have led to the variation in results.

29 . The Plan involves a comparison of the Mill effluent with a mock

effluent that contains only salt ions in solution with dilution water , without

any other constituents of the Mill effluent. Those two effluents are then to be

independently evaluated for toxicity, and mixed together in specified

concentrations to determine if consistent toxicity results are achieved.

3 0 . The Plan uses a series of serial dilutions of the Mill effluent, and

measures the effect of the effluen t on the test species against a control

solution, which can either be laboratory water or the facility’s receiving

waters. In this case, International’s effluent will be compared to the mock

effluent to determine its toxic effect.

3 1 . The serial dilutions of the effluent start at 100 percent effluent, and

are then to be halved and mixed with the mock effluent resulting in five

concentrations, i.e., 100 percent (whole) effluent, 50 percent effluent;

25 percent effluent, 12.5 percent effluent, and 6.25 percen t effluent. For each

concentration, the test species organisms are evaluated for the impact from

exposure to the effluent mixtures on their survival and reproduction over a

seven - day period. 7 By performing toxicity tests on each one of those samples,

it is possible to factor the impact of the mock effluent versus the

International effluent, and identify the contribution of the various salt ions in

the solutions.

3 2 . If the chronic toxicity violations are due to salt ions, then the mock

effluent, the Mill ef fluent, and any combination of the two, would continue to

exhibit toxicity. However, if the mock effluent does not impair the

7 For the other freshwater test species, the fathead minnow, survival a nd growth of the

larvae are measured over the same seven - day period.

reproduction of Ceriodaphnia dubia , then a conclusion can be drawn that the

violations of the Permit toxicity standard are the res ult of other pollutants in

the Mill effluent. In that case, toxicity would be expected to decrease as the

ratio of mock effluent to Mill effluent increases, because the other non - salt

ion pollutant s in the Mill e ffluent would be diluted by the mock effluent .

3 3 . It would be preferable for the mock effluent and the Mill effluent to

have the same concentration of the ions at issue. However, the Plan proposes

to make the mock effluent at 150 percent of the Mill effluent salt ion

concentration. The Depar tment explained that International has a limited

period in which to conduct the salt ion study. Not all of its samples exhibit

chronic toxicity. The increase to 150 percent of the Mill effluent would ensure

that the mock effluent is at chronically toxic le vels. Having a different

concentration is “messy” in that there is not a one - to - one comparison, but it

remains possible to review the data and to get results from it.

3 4 . International’s response to the Department’s concern explained that

since the tests will be performed as serial dilutions, the mock effluent and

Mill effluents will be assessed at different dilutions, and will allow toxilogical

responses at levels above typical Mill effluent. International was confident that its proposal would allow for t he characterization of the relationship

between Mill effluent and Ceriodaphnia dubia survival and reproduction at

high and low concentrations.

3 5 . Ms. Ross opined that it was acceptable to allow for the study to

proceed as proposed. The Department approved the implementation of the

Plan . The evidence was persuasive that the Plan is a reasonable and effective

measure to assess the contribution of salt ions in the Mill effluent on chronic toxicity as measured by its effect on Ceriodaphnia dubia reproduction.

E CUA Contribution Study

3 6 . If the P lan proves inconclusive that the excee da nces of the chronic

toxicity standard were due to a salt ion imbalance, then the contribution of ECUA ’s reclaimed water as process source water to the chronic toxicity

standard violations is to be evaluated. International began to have more

frequent intermittent failures of the WET standard at roughly the same time

as International began to accept ECUA reclaimed water as a component of its

process input water, which was in late 2011 or early 2012.

3 7 . Implementation of the Plan with the normal ECUA influent load was

determined to be sequentially important because discontinuing ECUA

reclaimed water as source water before the implementation of the Plan wou ld

introduce additional variability into the verification of the salt ion

composition hypothesis.

3 8 . ECUA reclaimed water makes up as much as 20 percent of

International’s source process water. ECUA has, among its customers, a number of industrial users. Even in advanced wastewater treatment systems,

as are the ECUA wastewater facilities, industrial toxins are not effectively

treated and removed. Thus, it is likely that ECUA reclaimed water has toxic

constituents of unknown concentration. If the salt ion P lan does not resolve

the toxicity issue, adjusting the amount of ECUA reclaimed water as source

process water may result in incremental improvement in the toxicity levels of

International’s effluent , such that International can consistently pass the

permit limitation for chronic WET .

39 . The effect of the ECUA reclaimed water on toxicity of International’s

WWTP effluent will be assessed by first eliminating the ECUA contribution

to International’s source process water, and allowing the WWTP system to

reach equilibrium, a process that can take up to from 30 to 45 days for the

ECUA constituents to clear the WWTP system . Samples of the effluent will

then be collected and WET tested to determine the toxicity of the

International effluent in isolation . ECUA recl aimed water will then be added

back into International’s process water in slow increments, with samples of

the resulting effluent being regularly tested.

4 0 . The evidence was persuasive that the ECUA contribution study is a

reasonable and effective measure to assess the contribution of ECUA’s

reclaimed water on chronic toxicity.

Toxicity Identification Evaluation

4 1 . If both the salt ion P lan and the elimination of the ECUA source water

fail to identify the cause of the chronic toxicity failure, then International will

implement a Toxicity Identification Evaluation (“TIE”) , the “third leg” 8 of the

Consent Order , by which specific constituen ts of the M ill effluent are

removed, one - by - one, with an assessment of each on Ceriodaphnia dubia .

4 2 . During regular monthly compliance during the process of scheduled

WET testing or during the ECUA evaluation , any toxic samples that are

identified will be further evaluated using the TIE testing procedures to help inform as to the princip al toxicant.

4 3 . The TIE takes a complex effluent through a series of chemical and

physical treatments , called fractionation s , that either removes or complexes

potential toxins , with a comparison of the reaction of the test organisms to

the effluent with and without various constituents in the effluent. The

manipulations include pH adjustment, aeration, filtration, extraction, chelation, oxidant reduction, and other means of adjusting the effluent . In

s ome instances , the process removes a constituent from the effluent , and in

some instances , e.g., with ch elation of metals, it renders the constituent

biologi c ally unavailable , meaning that the chemical may still be in the

effluent , but can no longer be toxic because it is bound in a form that cannot

be taken in by the test organism.

4 4 . Every time a TIE mani pulation is complete, the resulting effluent is

exposed to the test organisms for an evaluation of the effect of the modification on toxicity, and co mparing it against the baseline effluent . The

8 Mr. Goodfellow likened the process established by the Consent Order as a three - legged

stool, with the first leg being the salt ion P lan, the second being the elimination of ECUA

source water, and the third being the TIE’s methodical elimination of effluent constituents,

and measuring the effect of each on the reproductive rate of the Ceriodaphnia dubia species.

TIE allows for the individual study of each potentially toxic constituent of the

effluent.

4 5 . A challenge for doing a TIE is that if a compliance test shows an

effluent is toxic, it can take several days to a week before the effluent can be

evaluated, because its toxicity is not known until the end of the test. When

evaluating a subtle toxicity, such as reproduction, a compliance test must be

run through the entire seven - day test period. Toxicity of effluent can vary

and even go away through natural processes. Thus, especially with subtle

toxicities, it may be difficult to determine the toxicity o f a particular sample

of effluent the second time it is subject to evaluat ion through the TIE.

Nonetheless, the evidence was persuasive that the TIE is a reasonable and

effective measure to evaluate the effect of individual constituents in the Mill

effluen t on chronic toxicity.

Other Consent Order Provisions

4 6 . The scheduled date on which the studies contemplated and approved

in the Consent Order are to be completed is January 1, 2022. How this

litigation over the terms of the Consent Order might affect it s endpoint is

unknown, and is not an issue in this proceeding.

4 7 . Pursuant to a previous 2010 Consent Order, International undertook a

program of long - term monitoring in the receiving waters for the M ill effluent .

The results of that monitoring demonstrat ed that the freshwater surface

waters within the wetlands that constitute the receiving effluent distribution system do not meet Class III water quality criteria for dissolved oxygen, specific conductance, and pH. On February 24, 2020, International submit ted

a petition for rulemaking pursuant to Florida Administrative Code R ule 62 - 302.800(2), to establish Site Specific Alternative Criteria (“SSAC”)

for those parameters in the freshwater receiving waters. Those water quality

standards, and potential violations thereof, though referenced as “Moderating Conditions” in the Consent Order, are not the subject of the corrective actions required by the Consent Order. Any agency action with respect to the

adoption of the SSAC rule will be subject to separate notice and an

opportunity for a hearing in a separate proceeding.

4 8 . If the Plan demonstrates that the salt ions in the effluent account for

the chronic toxicity violations, International proposes to petition f or a

variance from the chronic toxicity standard. It is difficult to correct an ion

imbalance within the effluent itself . Such violations are commonly addressed

through a variance or mixing zone. International does not have mixing

capability. Thus, if the chronic toxicity violations are the result of an ion

imbalance, the evidence support s that a variance is a reasonable approach

toward s achieving compliance. There is no evidence to the contrary.

Furthermore, a ny agency action with respect to the petition f or variance will

be subject to separate notice and an opportunity for a hearing in a separate

proceeding.

49 . While the proposed investigative and corrective measures are being

implemented, the Consent Order provides for stipulated monetary penalties .

Thos e penalties were not challenged, and are not at issue.

Conclusion

5 0 . The preponderance of the evidence established that the sequential

investigative measures required by the Consent Order -- the Salt Ion

Composition Work Plan, the ECUA Contribution Study, and the Toxicity

Identification Evaluation -- are reasonable and effective measures to

establish the reason for the 19 instances in which International reported effluent quality monitoring results that failed to meet its WWTP Permit limits for chronic WET for the Ceriodaphnia dubia species.

C ONCLUSIONS OF LAW

A. Jurisdiction .

5 1 . DOAH has jurisdiction over the subject matter of this proceeding and

of t he parties thereto . §§ 120.569 and 120.57(1), Fl a. Stat.

B. Burden of Proof and Analysis

5 2 . The Department has the authority to resolve violations of

environmental standards by entry of a settlement with the violator.

§ 403.121 (2)(g), Fla. Stat. That authority has been exercised in this case

through entry of the Consent Order.

5 3 . Petitioner’s concern s with the Consent Order are , essentially, that it

does not go far enough to address what she believes to be potential causes of toxicity related to the Mill that are not addressed by the studies required by

the Consent Order , and that investigatory measures to determine the cause

of the 19 violations of the chronic toxicity standard failed to accept what she

alleged to be the “known” causes of the violations . Those include long - chain

fatty acids, dissolved copper, constituents in t he solids contained in the

WWTP treatment pond sludges, and the total solids discharged to the effluent distribution system marshes. Petitioner’s concerns may or may not

have merit. Regardless, as explained herein, whether the Consent Order addresses all e xisting or potential violations at the Mill is not subject to

review in this proceeding.

54 . For a consent order that is a resolution of environmental violations

designed to bring a violator back into compliance with the law, as opposed to being a substit ute for a permit, the appropriate standard of review is whether

the Department abused its enforcement discretion in agreeing to the consent

order. M.A.B.E Properties, Inc. v. Dep’t of Envtl. Prot. , Case No. 10 - 2334,

FO at 3 (Fla. DOAH Nov. 4, 2010 ; Fla. DEP Jan. 31 , 2011) , aff'd per curiam ,

84 So. 3d 1041 (Fla. 4th DCA 2012) . The Consent Order in this case is one

designed to identify the cause of the 19 exceedances of International’s chronic

toxicity limits.

55 . T he Department has the burden of proving the C onsent O rder is a

reasonable exercise of its enforcement discretion. Id. “ The abuse of discretion

standard does not turn on whether the consent order embodies the best

possible settlement or even whether a bette r settlement could have been

reached, but, rather, whether the settlement that was reached was

reasonable under the circumstances. It merely needs to be appropriate given

all of the factors that must be considered by the agency in reaching an

agreement. ” I d.

56 . Allegations that a consent order fails to address all existing or

potential violations are not subject to administrative review . Arlington Ridge

C mty. Ass’n , v. GI Shavings, LLC , Case No. 18 - 5297 , FO at 47 (Fla. DOAH

June 19, 2019; Fla. DEP Sept. 13, 2019) .

57 . A Consent Order can only be approved or disapproved. It cannot be

approved with modifications. M.A.B.E. Properties, Inc. , Case No. 10 - 2334 ,

Order on Motions at 2 ; citing Lambou v. Dep’t of Envtl. Prot. , Case

No. 02 - 4601 (Fla. D OAH June 24, 2003; Fla. DEP Sept. 22, 2003).

C. Conclusion

5 8 . The preponderance of the evidence established that the sequential

investigative measures required by the Consent Order were reasonable under the circumstances and appropriate given all of the f actors related to the

19 exceedances of International’s WWTP Permit limits for chronic WET for

the Ceriodaphnia dubia species. Th us, th e Department met its burden of

proving that the Consent Order is a reasonable exercise of its enforcement discretion.

5 9 . As to alleged violations not encompassed by the Consent Order,

Ms. Lane has a remedy under the citizen suit provisions in section

403.412(2), Florida Statutes, which authorizes any citizen of the state to

maintain an action for injunctive relief for a vio lation of the state's

environmental laws. Arlington Ridge Cmty. Ass’n, Case No. 18 - 5297,

FO at 47; M.A.B.E. Properties, Inc. , Case No. 10 - 2334, FO at 2.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Environmental Protection enter a

final order approving the Consent Order , OGC File No. 19 - 1453 .

D ONE A ND E NTERED this 16th day of December , 202 0 , in Tallahassee,

Leon County, Florida.

E. G ARY E ARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of December , 20 2 0 .

C OPIES F URNISHED :

Gregory M. Munson, Esquire

Gunster, Yoakley and Stewart, P.A.

Suite 601

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Kirk S. White, Esquire

Florida Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Jacqueline M. Lane

10738 Lillian Highway

Pensacola, Florida 32506

(eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building Mail Station 35 3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Justin G. Wolfe, General Counsel

Department of Environmental Protection

Legal Department, Suite 1051 - J

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Noah Valenstein, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to s ubmit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.