97-000692 Joyce (Joy) E. Towles Cummings vs. Buckeye Florida, L.P., And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, September 11, 1997.

Summary: Petitions should be dismissed for lack of standing and lack of verified petitions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOYCE (JOY) E. TOWLES CUMMINGS , )

ET AL. , )

)

Petitioners , )

)

vs. ) Case Nos. 97-0692

) 97-0930

STATE OF FLORIDA, DEPARTMENT OF ) 97-1449

ENVIRONMENTAL PROTECTION, and )

BUCKEYE FLORIDA, L.P. , )

)

Respondents. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, Administrative Law Judge Don W. Davis,

duly designated by the Division of Administrative Hearings, held

a formal hearing in the above-styled case on July 7-10, 1997, in

Perry, Florida. The following appearances were entered:

APPEARANCES

For Petitioner Sharon Cutter:

Sharon Cutter, pro se

Route 1, Box 1130

Perry, Florida 32347

For Petitioners Ronnie Edwards,

Rebecca Edwards, and Mitchell Edwards:

Ronnie Edwards

Rebecca Edwards

Mitchell Edwards, pro se

Route 1, Box 160

Perry, Florida 32347

For Petitioner Joyce T. Cummings:

No Appearance

For Respondent Department of Environmental Protection:

Lynette L. Ciardulli, Esquire

Jennifer L. Fitzwater, Esquire

Department of Environmental

Protection,

2600 Blair Stone Road

Tallahassee, Florida 32399

For Respondent Buckeye Florida, L.P.:

Terry Cole, Esquire

Pat Renovitch, Esquire

Post Office Box 6507

Tallahassee, Florida 32314-6507

STATEMENT OF THE ISSUE

Whether Respondent Buckeye Florida L.P., (Buckeye), has

provided reasonable assurances to Respondent Department of

Environmental Protection (Department) that construction activity

for the proposed project will comply with applicable provisions

of Chapter 373, Florida Statutes, and related administrative

rules.

PRELIMINARY STATEMENT

Buckeye filed an application with the Department for a

permit to construct a pipeline, conveying treated effluent from

the current discharge point near Buckeye’s pulp mill in Perry,

Florida, to a discharge point in the estuary of the Fenholloway

River. Subsequently, the Department issued its Notice of Intent

to permit the proposed project on December 31, 1996.

Between February 10-27, 1997, the Department forwarded the

Petitioners’ challenges to the Division of Administrative

Hearings for conduct of formal administrative proceedings.

The cases of the various Petitioners were consolidated by

order issued March 31, 1997, and, following one continuance , the

matter was set for final hearing to be convened on July 7, 1997.

At the final heari ng, Petitioners presented testimony of

eight witnesses and six exhibits. Respondents presented nine

witnesses and 25 exhibits. Petitioner Cummings did not appear at

the final hearing and no evidence was presented on her behalf.

Upon commencement of the final hearing, the Petition of

Cummings was dismissed upon motion of Buckeye. Petitioner

Cummings was the only party who challenged the construction

variance related to the proposed permit and was also the only

party who asserted that closed loop technology should be

considered. The parties stipulated that these matters were no

longer at issue.

The transcript of the final hearing was filed with the

Division of Administrative Hearings on August 11, 1997.

Petitioners requested, and were granted, leave in excess of ten

days of the transcript’s receipt in which to file proposed

findings of fact. Proposed findings submitted by the parties

have been utilized in the preparation of this Recommended Order.

FINDINGS OF FACT

The Parties

1 . Petitioner Sharon Cutter lives in Taylor County,

Florida. Her home is about two miles south of the closest point

of the pipeline project.

2 . Petitioners Ronnie, Rebecca, and Mitchell Edwards also

reside in Taylor County. Their home is about two miles north of

the closest point of the pipeline project.

3 . The Department is the state agency that reviewed

Buckeye's application for the proposed permit and issued notice

of intention to permit the construction activity.

4 . Buckeye is the applicant for the proposed permit. Since

1993, the Florida limited partnership has owned and operated a

softwood dissolving kraft pulp mill in Taylor County, southeast

of Perry.

BACKGROUND

Mill Operation

5 . Two stand-alone pulp manufacturing lines at the mill in

Perry daily produce about 1200 tons of cellulose. The first line

manufactures unique and highly specialized products used in meat

casings, rayon tire cord, rayon textile filament,

pharmaceuticals, rocket propellants, cellulose ethers for food,

and a variety of other products. The second line manufactures

fluff pulp for the disposable diaper industry, a specialty

product.

6 . The mill directly employs about 825 people. In economic

terms, the mill pays about $40 million annually in salaries and

has an overall annual regional impact of approximately $180

million.

7 . The mill’s wastewater system captures effluent from the

manufacturing process and includes 150 acres of aerated and

treatment lagoons. This system is common in terms of its use in

the industry.

8 . The mill discharges about 50 million gallons daily (MGD)

of treated effluent from an aeration pond into the Fenholloway

River near the river crossing of U.S. Highway 19, approximately

24.6 miles upstream from the Gulf of Mexico.

9 . Headwaters of the 27-mile Fenholloway River originate in

the San Pedro Bay at 100 feet above sea level. The river

generally runs from east to west through Taylor County to the

Gulf of Mexico at sea level. The major freshwater input to the

Fenholloway River below the current discharge point is Spring

Creek at mile point (MP) 13.6. The river is tidally influenced

and subject to salt water influence to about MP 3.5, and would

not be affected by reductions in flow from the current discharge

point.

History of the Fenholloway River

10 . Buckeye's discharge of treated industrial wastewater to

the Fenholloway River is regulated by state and federal permits.

The river has traditionally been a Class V (industrial use) water

body.

11 . A use attainability analysis is required by the Clean

Water Act every three years for any waterbody that is not at

least Class III (possible to use for recreation, propagation, and

maintenance of a healthy, well-balanced population of fish and

wildlife). The purpose of this analysis is to determine if

Class III uses are attainable, considering economic,

technological, and social factors. Historically, use

attainability analyses have primarily focused on changes in the

manufacturing process, as well as any modifications to the

treatment of the wastewaters.

12 . In 1991, the Department began a use attainability

analysis on the feasibility of reclassifying the Fenholloway

River from Class V to Class III. The three-year analysis was

completed in 1994 and indicated that Class III (fishable and

swimmable) designated uses and water quality criteria in the

Fenholloway River were technologically and economically feasible

through installation of technologies, involving mill changes, to

reduce pollutant generation. The technologies also include

construction of a pipeline to an area downstream where more

dilution of Buckeye’s discharged waste water will be available.

Additionally, the technologies include augmentation of natural

flow of the river with mitigative measures at the river

headwaters. Under these plans, the pipeline would remove the

mill discharge from about 20 miles of the river.

13 . Specifically, three major elements in the completed use

analysis are change in the manufacturing process to reduce the

color of the effluent by 50 percent; relocation of the discharge

point from its present location to a location 1.7 miles upstream

from the mouth of the river where there is more assimilative

capacity and dilution; and restoration of portions of the 7,000-

acre San Pedro Bay to wetlands by construction of a water control

structure.

14 . As a result of the completed 1994 Use Attainability

Analysis, the Environmental Regulation Commission (ERC) voted on

December 15, 1994, to repeal the Class V designation of the

Fenholloway River. The reclassification decision designating the

river as a Class III water body is effective December 31, 1997.

15. The action of the ERC wa s subject to review by the

United States Environmental Protection Agency (EPA). Upon

review, the EPA approved the change after concluding that Class

III water standards could be attained with implementation of the

proposed pipeline and restoration of portions of San Pedro Bay

wetlands through construction of a water control structure. The

EPA also concluded that "the only other alternative that would

result in the attainment of Class III standards would also have

widespread economic and social impacts, i.e., closure of the

mill."

16. The Department and Buckeye executed the Fenholloway

River Agreement on March 29, 1995. In that agreement, the

parties set forth steps and schedules necessary to achieve

standards required for reclassification of the Fenholloway River

to a Class III water body. The agreement was publicly noticed

and was not challenged by anyone.

Permit Application

17. Buckeye applied for the proposed permit on August 31,

1995, in accordance with the terms of the Fenholloway River

Agreement. The Department then requested and received additional

information from Buckeye. Thereafter, on December 31, 1996, the

Department notified Buckeye of its intention to issue the

proposed permit.

18. Buckeye has applied for other authorizations and

permits that are required from the Department for the pipeline

project, but which are not part of this proceeding. For example,

Buckeye applied for an easement from the state for private use of

sovereignty submerged lands and an operation and discharge permit

for its wastewater treatment system.

Pipeline Project

19. Buckeye proposes to construct a 15.3-mile underground,

linear pipeline from the mill (MP 24.6) in Perry to an underwater

discharge point (MP 1.7) in the Fenholloway River. The project

also includes a water control structure in the San Pedro Bay, an

effluent pump station at the Perry mill, an oxygenation facility

near the end of the pipeline, and an outfall diffuser structure

at the discharge point.

20. The pipeline route is 80,200 feet l ong. It was

selected over alternative routes to minimize environmental

impacts. The river crossings are underground primarily to

minimize water quality impacts during construction.

21. The underground pipeline will be constructed from 20-

foot sections of semi-flexible ductile iron pipe manufactured by

the American Cast Iron Pipe Company in Birmingham, Alabama. The

sections will be connected with flexible joints. Most of the

pipeline will have 30 inches of earth over it; however, the pipe

is strong enough to support 20 feet of earth. At the underground

river crossings and outfall/diffuser area, the pipe will have

five feet of earth over it.

22. The ductile iron pipe is 60 inches in diameter and 1/2

inch thick. The pipe is lined with 1/4 inch thick cement to

prevent internal erosion and wrapped with polyethylene (double

wrapped for the last 9000 feet of wetlands ) to prevent external

corrosion. The treated effluent that will flow through the pipe

is an easy material to handle from a corrosion viewpoint, as it

is a weak and stable effluent, similar to water. Ductile iron

pipe is routinely used to transmit raw sewage.

23. The diffuser will be made of concrete pipe, with a

steel core and wrap wires around it, since the durability of

concrete is proven in a saltwater environment. At the

outfall/diffuser, the river is about 700-900 feet wide and 8 to

11 or 12 feet deep (low to high tide).

24. The maximum working pressure in the pipeline will be

50-60 pounds per square inch (psi). The ductile iron pipe is

rated at 150 psi.

25. The pump station will have capacity to transmit about

76 million gallons of treated effluent per day. The pipeline is

capable of receiving up to 100 MGD of the type of treated

effluent now discharged by the mill.

26. Presuming correct installation, the pipeline will not

leak or crack. It will be tested for water tightness before,

during, and after construction.

27. Monitoring of the pressure in the pipeline will occur

at the effluent pump station near the mill. Any significant

change in pressure will activate an alarm system. The mill can

immediately shut off the pumps.

28. The pipeline meets all industry standards and should

last well over 100 years. The concrete diffuser may have to be

replaced every 10-20 years, but there is easy access for

replacement.

29. Test borings along the pipeline route have revealed no

sinkholes. If sinkholes are encountered during construction,

they will be filled before the pipe is installed. The

predominant type of sinkholes that could develop after

installation are doline or solution sinks. They typically settle

at a rate of 1 foot every 5,000-6,000 years. The pipe and

flexible joints (which flex 12 inches) will easily tolerate this

minimal movement.

30. The diffuser has 20 ports, spaced five feet apart which

can be rotated based on desired direction of discharge. Some

will face upstream and some downstream to ensure good mixing of

the treated effluent and river water. At mean low water, there

will be about six feet of clearance above the ports. When the

plume from the ports reaches the surface, it will have a ripple

of about a quarter of an inch. The ripple will not impact a

canoe. The closest port to the west bank is 25 feet, but due to

the angle of that port, effect of any discharge from that port

will be 73 feet from the bank.

31. The contractor selected to construct the pipeline is

believed to have an outstanding reputation for construction

projects similar to this one. Buckeye will accept responsibility

for the pipeline and implement its usage only after extensive

tests (culminating in final hydrostatic testing), assuring that

construction meets all requirements of the proposed permit and

industry standards.

32. Buckeye will operate, maintain, and inspect the

pipeline and related facilities once they are completed, using

acceptable

management practices. Coverage will be seven days a week, the

same as for the mill facility at present.

33. Cleaning the pipe will be a mechanical process, not

using cleaning agents. Barnacles will not be a problem due to

the constant flow in the pipe.

Water Quality Standards

34. Buckeye will meet all water quality standards, except

for turbidity during construction at the two river crossings and

outfall/diffuser. A variance for turbidity at these three

locations during construction was requested by Buckeye and

approved by the Department. The only challenge to that variance

has been dismissed.

35. Buckeye will minimize turbidity during construction by

using a series of best management practices. For example,

Buckeye will use silt curtains, silt fences and filtration bags.

As a consequence, turbidity will be minimal, temporary in nature

and negligible.

36. The technologies which Buckeye will employ is expected

at this time to improve the water quality in the river, estuary

and Gulf.

Environmental Impacts

37. Buckeye provided reasonable assurance to the Department

that construction of the proposed pipeline project will not

adversely affect the public health, safety, welfare, or property

of others. Overall, the proposed project will positively affect

the public health, safely, welfare, and property of others.

38. There is no risk to humans and ecological receptors

that may be associated with metals or dioxin in river sediments.

Conservation

39. There are no threatened or endangered wildlife species

that will be impacted by the proposed project. The four species

of special concern (gopher tortoise, American alligator, eastern

indigo snake, and Sherman fox squirrel) in the project area will

be minimally affected due to special protection programs and

temporary relocation.

40. The draft permit contains conditions providing for the

protection of species of special concern that were recommended by

the Florida Game and Fresh Water Fish Commission. The relocation

of gopher tortoises and the eastern indigo snake are examples.

These conditions are typically used to ensure the protection of

species.

41. Buckeye will provide for the protection of manat ees

that was recommended by the Department's Bureau of Protected

Species Management, even though none have been observed in the

project area.

42. There will be minimal or negligible effect on the

habitat value of fish and wildlife.

Navigation, Erosion or Shoaling

43. At each of the two subaqueous river crossings (upstream

at MP 17.8 and MP 24.4), boats will not be able to navigate

approximately 100 feet of the river for the six-seven days during

construction of the coffer dam structures. However, a canoeist

could portage around these sites. Due to tree-falls in this

upper reach of the river, portages are required anyway.

44. The permit conditions require Buckeye to work 24-hours

per day while constructing the subaqueous river crossings in

order to minimize adverse affects to navigation.

45. At the outfall/diffuser area downstream in the estuary,

boat traffic will never be prevented from moving up and down the

river. However, it will be slowed or temporarily stopped (no

more than 20 minutes during four blasts) during a 30-day

construction period. Detonation will be conducted in a manner to

reduce total acoustical shockwave. The minimum six-foot

clearance above the diffuser ports will not be an impedance to

navigation.

46. Presently, there is erosion of the banks at the

outfall/diffuser site due to boat wake and tidal influence. The

construction of the last 80 feet of the diffuser has the

potential of temporarily accelerating this erosion on the west

bank of the river by causing boat traffic to be moved closer to

that bank during construction. To protect this bank during

construction, Buckeye has agreed to place filter fabric overlaid

with sandbags on the exposed sections of the bank. This will

prevent erosion caused by the construction of the diffuser.

47. The permit requires Buckeye to use the best management

practices to control erosion during construction. With those in

place, there will be minimal erosion or shoaling during

construction.

48. Construction will not adversely a ffect the fishing or

recreational values or marine productivity.

49. The proposed project will not cause adverse water

quantity impacts to receiving waters or adjacent lands. It will

not cause permanent dewatering.

50. The proposed project will not cause sedimentation

downstream of the outfall/diffuser, decrease the storage of

waters, reduce the floodway conveyance, or reduce surface water

storage volumes.

Project Nature

51. The project will be permanent. The construction

trestle at the diffuser/outfall will be temporary.

52. Most of the impacts of the project to vegetation and

wildlife are temporary during construction. Natural revegetation

will return most areas to their normal condition.

53. The only permanent impact to wetlands is the loss of

0.39 acres for construction of the oxygenation facility in a

river swamp area. In addition, 5.48 acres of forested wetlands

will be converted to shrub wetlands condition. These are the

only permanent impacts to wetlands associated with the proposed

project. Disturbance of wetlands will be minimized.

54. The construction of the proposed pipeline project is

expected to take less than one year. All of the necessary

easements on private lands have been obtained. Buckeye's

requested easements on sovereign submerged land are pending.

Buckeye owns all of the other land for the proposed project.

Historical And Archaeological Resources

55. An extensive study of the pipeline corridor by an

archeological firm with an excellent reputation reveals that

there are no significant archeological sites found along the

corridor. In addition to the study, subsequent examinations of

the corridor by state and private archeologists (including

underwater explorations by a consultant) confirmed this

conclusion.

56. The Department of State has advised the Department that

the Buckeye project will not affect any sites eligible for

listing in the National Register of Historic Places or any sites

of historical or archaeological value. There are 16 possible

historical sites along the project route. None are deemed

significant or eligible for listing on the National Historic

Registry.

57. A study of the San Pedro Bay mitigation area also

revealed no significant archeological sites.

58. There is a significant archeological site (site 142) on

the west bank of the river near the outfall/diffuser. Neither

construction of the pipeline nor discharge of the treated

effluent transmitted by the pipeline will impact that site,

including the banks, due to the planned erosion control plan.

Wetland Areas Affected

59. The proposed project affects wetlands. However, any

impacts to wetlands are sufficiently offset by the proposed

mitigation plan in the San Pedro Bay.

Cumulative Impacts

60. There are no significant adverse cumulative impacts

which would result from the proposed project. There is a

beneficial cumulative impact in the improvement to the water

quality of the river, allowing reclassification of the river from

Class V to Class III.

61. Along the p ipeline route, there will be no adverse

hydrological impact to the wetlands.

62. The removal of Buckeye’s treated effluent from the

current discharge point near the mill will cause a drop in the

surface water elevations of the river’s upper reach (above

Hampton Springs) by one-half foot, a drop which is not considered

significant. Due to tidal effects in the river at the diffuser

location, there will be no hydraulic difference at the proposed

location of the discharge.

63. Downstream of Spring Cree k, the Fenholloway River picks

up flow from springs, groundwater, discharge from Spring Creek

and tidal effect. There will be no impact on water levels

downstream of Spring Creek caused by the relocation of the

discharge point from the mill to the estuary, due to these

additional flow contributions.

Mitigation Area in San Pedro Bay

64. The proposed permit requires Buckeye to restore 25

acres of drained wetlands in San Pedro Bay included within a

7,000-acre parcel that Buckeye owns. In the past, the area was

hydrologically altered due to forestry activities.

65. The San Pedro Bay area is the headwaters of the

Fenholloway River. Construction of the proposed water control

structure in the part of the Bay that Buckeye owns will rehydrate

the area and restore it to natural conditions.

66. Through the development of a computer model of the San

Pedro Bay, Buckeye studied how the hydrology and hydraulics in

this area would be affected by the proposed water control

structure. The model shows that the structure will enable the

area to hold more water and return to more natural conditions (to

rehydrate the area).

67. The water control structure will reduce the low-flow

days in the Main Bay Canal (connecting San Pedro Bay to the mill

area). It will not cause flooding or affect any off-site

property. It will reduce erosion.

68. The proposed mitigation is sufficient to offset the

impacts of the proposed project.

Other Facts Relating to Petitioners

69. Petitioners' properties are located about t wo miles

from any part of the pipeline project. Construction of the

pipeline project will have no substantial affect on Petitioners'

properties or any other interest of Petitioners which is unique

to them to the exclusion of the general public.

70. Petitioners will continue to be able to travel to the

river, use their boats on the river, and view the plants and

wildlife along the river from their boats. Even during

construction, they will be able to access the river and launch

their boats from the Hicks Landing, located on Buckeye property.

After construction, they will be able to launch from this site

and at Peterson's Landing. Thus, construction of the project

will not substantially affect access to the river or uses of the

river related to boating activity.

CONCLUSIONS OF LAW

71. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter. Section

120.57(1), Florida Statutes.

Standing

72. In their Amended Petitions, Petitioners state that they

submitted their petitions pursuant to Section 120.57(1), Florida

Statutes. That statute provides standing to Petitioners in this

proceeding only if their "substantial interests will be affected

by the proposed agency action." Yet, insofar as real property is

concerned, Petitioners do not contend that their real property

will be substantially affected by the proposed pipeline project,

real property which is at least two miles from any portion of the

project.

73. Petitioners have the burden of showing, as a matter of

fact, that they have "substantial interests" that will be

adversely affected if the Department issues the proposed permit

to Buckeye. The purpose of this standing requirement:

[I]s to ensure that a party

has a "sufficient interest in

the outcome of the litigation

which warrants the court's

entertaining it," and to

assure that a party has a

personal stake in the outcome.

Gregory v. Indian River Co. , 610 So. 2d 547, 554 (Fla. 1st DCA

1992).

74. The record is devoid of competent, substantial evidence

demonstrating that the Department's action in issuing the

proposed permit affects any substantial interest of Petitioners

which is unique to Petitioners to the exclusion of the general

public. Consequently, Petitioners failed to demonstrate any

right to a 120.57 proceeding wherein they could challenge

Buckeye's entitlement to the proposed permit. See Florida

Department of Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778,

787 (Fla. 1st DCA 1981)

75. In order to demonstrate that the Department's action

affects their "substantial interests," Petitioners must prove the

degree and nature of their alleged interests. Agrico Chemical

Co. v. Department of Environmental Regulation , 406 So. 2d 478,

482 (Fla. 2nd DCA 1981). To do this, they must demonstrate that

they will suffer injury in fact which is of sufficient immediacy

to entitle them to a Section 120.57 hearing and that such

substantial injury is of a type or nature which the proceeding is

designed to protect. Petitioners have not proven standing

pursuant to provisions of Section 120.57(1), Florida Statutes.

76. In the course of this proceeding, Petitioners have also

disclosed that they rely upon provisions of Section 403.412(5),

Florida Statutes, to permit their standing and participation.

Section 403.412(5), Florida Statutes, provides:

In any administrative, licensing, or other

proceedings authorized by law for the

protection of the air, water, or other

natural resources of the state from

pollution, impairment, or destruction, the

Department of Legal Affairs, a political

subdivision or municipality of the state, or

a citizen of the state shall have standing to

intervene as a party on the filing of a

verified pleading asserting that the

activity, conduct, or product to be licensed

or permitted has or will have the effect of

impairing, polluting, or otherwise injuring

the air, water or other natural resources of

the state. (emphasis supplied).

77. Notably, the Petitioners' entry into the proceeding,

pursuant to Section 403.412(5), Florida Statutes, is considered

to be in the capacity of intervenors with the implied requirement

of an existing controversy. Such a controversy may be considered

to exist after an agency has entered, as in this case, an

intended decision to grant the requested permit. MANASOTA-88,

Inc. v. Department of Environmental Regulation , (Fla. App. 1st

Dist. 1983).

78. Although MANASOTA , supra , creates an opportunity for

Petitioners to challenge the proposed permit, they must comply

with procedures established by Section 403.412(5), Florida

Statutes, requiring that any such intervention must be by

"verified" petitions. It is observed that Petitioners did not

provide such verified petitions. Consequently, all the Petitions

are found to be deficit in that respect and, accordingly, should

be dismissed on that basis.

79. Alternatively, if it is assumed that Petitioners have

standing, Buckeye has affirmatively provided the Department with

the required "reasonable assurance that state water quality

standards . . . will not be violated and reasonable assurance

that such activity [construction of the pipeline project] . . .

is not contrary to the public interest." Section 373.414(1),

Florida Statutes; and Rule 62-312.080, Florida Administrative

Code.

80. Just as Petitioners are required to offer proof of

standing, Buckeye must demonstrate entitlement to the proposed

permit by a preponderance of the competent, substantial evidence.

See J.W.C. , supra . Buckeye has met this requirement.

81. The proof establishes that the proposed pipeli ne

project complies with the applicable surface water quality

standards in Rule Chapters 62-302, Florida Administrative Code;

and that the proposed project satisfies the "public interest

test" of Section 373.414(1)(a), Florida Statutes, as well as

related Rules 40B-4.2030 and 40B-400.103-.104, Florida

Administrative Code.

82. Finally, Section 373.414(8), Florida Statutes, requires

a consideration of the "cumulative impacts upon surface water and

wetlands." Respondents demonstrated at hearing that the proposed

project will meet all surface water quality standards, with the

exception of turbidity during construction. However, such

turbidity during construction is allowed by the temporary

construction variance issued by the Department. Consequently,

Buckeye has demonstrated compliance with applicable requirements

of Section 373.414, Florida Statutes and related rules.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that a final order be entered dismissing all the

Petitions and issuing the proposed draft environmental resource

permit to Buckeye.

DONE AND ENTERED this 11th day of September, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of September, 1997.

ENDNOTES

1 / For a site to be significant, it must be eligible to be listed

on the National Historic Registry. For an archeological site,

that means the archeological site must have contributed in the

past or be able to contribute in the future information

significant to the region's prehistory. (Tr. IV at 429 - Hardin;

Tr. VI at 626 - Kammerer)

The following procedure is followed to determine if a site is

significant: test the site and collect artifact, evaluate the

stratigraphy of the site to ascertain if it has been disturbed in

the past, examine the collected information to learn the type and

time of the site, and determine if the site can provide new

information. (Tr. VI at 623-624 - Kammerer)

2 / Hydrology is the science involving the calculations or the

methods to convert rainfall and distribution of rainfall to a

particular runoff or a quantity of water. It takes into account

the rainfall distribution, the quantity or rain, the cover of the

land that you're looking at, the slope, the topography, and so

forth, and converts all of that through systems of known

relationship to a runoff quantity. (Tr. II at 209- Vickstrom)

3 / Hydraulics is taking a known quantity of water and routing it

through structures like bridges or culverts or control structures

like weirs or over dam embankments, through ditches, to convert

that quantity of water to a flood elevation or a stage. (Tr. II

at 209 - Vickstrom)

COPIES FURNISHED:

Ronnie Edwards

Rebecca Edwards

Mitchell Edwards

Route 1, Box 167

Perry, Florida 32347

Terry Cole, Esquire

Post Office Box 6507

Tallahassee, Florida 32314-6507

Sharon Cutter

Route 1, Box 1130

Perry, Florida 32347

Lynette Ciardulli, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

F. Perry Odom, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Virginia B. Wetherell, Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.