BEFORE THE STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
PINKHAM E. PACETTI, et al.,
v. DOAH CASE NO. 84-3810
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL REGULATION and
HOMER SMITH d/b/a
HOMER SMITH SEAFOOD,
PINKHAM E. PACETTI, et al.,
STATE OF FLORDIA DEPARTMENT
OF ENVIRONMENTAL REGULATION and
HOMER SMITH d/b/a
HOMER SMITH SEAFOOD,
) DOAH CASE NO. 84-381
On February 28, 1986, the Division of Administrative
Hearings' hearing officer in the above-styled case submitted his
Recommended Order to me. A copy of that order is attached as
Exhibit A. All parties to the proceeding were allowed ten days in
which to file exceptions to the Recommended Order. Petitioners,
Pinkham Pacetti, et al., ("Petitioners") filed timely exceptions,
a copy of which is attached as Exhibit B. Petitioners also
requested oral argument before me pursuant to Florida
Administrative Code Rule 17-103.200. Respondent, Homer Smith
Seafood, ('Smith") filed responses to Petitioners' exceptions, a
copy of which is attached as Exhibit C.
The subject of this proceeding is the Department of
Environmental Regulation's (the "Department") notice of intent to
issue a permit to Smith to construct a wastewater treatment
CITE as 8 FALR 4051 EALR
facility with a discharge to the St. Johns River.
Smith operates a calico scallop processing plant in St. Johrs
County. That plant presently discharges into Trout Creek, a
tributary of the St. Johns River. During 1984 and 1985, the
Department pursued an enforcement action in circuit court to
eliminate Smith's discharge to Trout Creek. As a result of that
litigation, Smith was allowed to continue his existing discharge
on an interim basis while seeking permits from the Department for
an alternative treatment system and discharge.
On June 28, 1985, the Department issued an amended notice of
intent to issue a permit for construction of a proposed wastewater
treatment facility involving dissolved air flotation (DAF) and for
a pipeline from the plant to the St. Johns River. The proposed
permit called for the wastewater treatment facility to be
constructed first, within 90 days of receipt of a Department
permit. The new plant would continue to discharge to Trout Creek
until construction of the pipeline.
After hearing eleven days of testimony and reviewing numerous
exhibits in the matter, the hearing officer issued his Recommended
Order, recommending issuance of the wastewater and dredge and fill
permits as proposed by the Department with certain additional
conditions. That order, 85 pages in length, contained unusually
detailed findings of fact and conclusions of law on all of the
RULING ON REQUEST FOR ORAL ARGUMENT
Rule 17-103.200 provides that, in the discretion of the
Secretary, oral argument may be held prior to entry of a final
order. After reviewing the pleadings in this case, I find no need
for oral argument to supplement the filing of proposed recommended
orders and exceptions. Thus Petitioners' request for oral
argument is denied.
AF/1LR'CITE as 8 FALR 4052
RULINGS ON EXCEPTIONS
Petitioners have filed eight separate exceptions. Generally
those exceptions either challenge a specific conclusion of law
made by the hearing officer or request that additional conditions
be placed on any permit that might be issued. However, certain
of Petitioners' exceptions raise multiple issues of fact and law.
The exceptions shall be dealt with in the order that they have
been raised by Petitioners but each individual exception shall be
ruled on separately as required by law.
1. Petitioners' first exception generally challenges the
hearing officer's conclusion of law that it is lawful to issue a
construction permit for Smith's proposed discharge. Petitioners
do not cite a particular paragraph in the Recommended Orders and,
in fact, there are numerous specific conclusions of law all of
which support permit issuance.
This exception is very lengthy and Petitioners recite
numerous facts; including both findings in the Recomended Order
and proposed findings of Petitioners, in support of their
argument. In summary, Petitioners argue that the hearing officer
should have concluded that the proposed discharge to the St. Johns
would "cause or contribute" to violations of the water quality
standards for dissolved oxygen because: (a) the hearing officer
erroneously used average values instead of worst case values and
(b) the hearing officer should have interpreted the Department's
rules to prohibit any discharge to a water body where the ambient
water quality does not meet standards.
Petitioners quote a number of findings of fact in the
Recommended Order regarding the ambient water quality in the
St. Johns near the proposed point of discharge and add their own
interpretations of these findings. Interpretations aside, the
basic facts do not appear to be in dispute. Violations of the
water quality standard for dissolved oxygen (DO) have been
measured in the river; and the hearing officer found that the
worst case projections suggest that the standard could be
CITE as 8 FALR 4053 F LR
violated, without the proposed discharge, as much as ten percent
of the time. (Findings of Fact Nos. 77-90).
(a) Petitioners first argue that, in assessing the impacts of
Smith's proposed discharge, the hearing officer incorrectly
considered average values in the river and not worst case
conditions. The specific statement to which Petitioners object is
found at page 68 of the Recommended Order. The hearing officer
notwithstandingg this basic premise of the
need to seek special relief in those instances
where water quality was below standards and the
contemplated discharge will further degrade
that water quality, in dealing with the subject
of dissolved oxygen it is not inappropriate for
the Department to look at average values in
determining ambient background conditions for
the select water body.
Petitioners apparently read this one sentence to mean that
Smith has not and need not demonstrate compliance with standards
under a worst case scenario. However, when read in its entirety
this conclusion of law does not stand for that proposition. In
fact, in addition to the worst case modeling cited above, the
hearing officer specifically recognizes that violations of the DO
standard occur at some locations in the river. His conclusion,
however, is that it is reasonable for the Department "to grant the
normal permits in those instances where ambient dissolved oxygen
conditions are occasionally below standards and the
proposed activity would offer no meaningful contribution to these
violations .. In this case, the hearing officer considered
the expected location of violations in the water body, the levels
of DO in the waste stream itself, the amount of the projected DO
sag to result from the discharge, and the ambient levels of L at
the proposed point of discharge. Based on all of these t,.=tors,
the hearing officer concluded that the impact of Smith's proposed
discharge would be negligible and would not contribute to any
existing violations. I do not interpret the hearing officer's
statement regarding average values to mean that it is unnecessary
to show compliance with standards at all places and at all times.
Contrary to Petitioners' assertions, the hearing officer did
F/ LR ('7CITE as 8 FALR 4054
require and the permit applicant did present a worst case scenario
in predicting the expected impacts of Smith's discharge on ambient
water quality. Paragraph number 105 of the Recommended Order
ennumerates the conservative assumptions that were made by the
applicant's consultants in modeling predicted impacts.
In light of my construction of the hearing officer's
conclusion of law number 20, Petitioners' exception l(a) is
(b) The fundamental policy issue raised by Petitioners' first
exception is whether the Department must deny a permit where
ambient water quality is below applicable standards (even where
violations are infrequent and minor), the proposed discharge
contains the parameters of concern, and no relief from applicable
standards has been applied for or obtained.
The specific regulatory language at issue is contained in
Florida Administrative Code Rule 17-3.011(5) which provides
Pollution which causes or contributes to
new violations of water quality standards or
to continuation of existing violations is
harmful to the waters of this State and shall
not be allowed.
In objecting to the hearing officer's conclusion that the
proposed discharge is permittable, the Petitioners argue that it
has been the Department's practice to deny permit applications
where there are violations of the water quality standard for DO
and the proposed discharge would lower DO levels in the receiving
body of water. Petitioners point to some testimony in the record
that the Department would never grant a permit where the DO
standard was being violated and a DO depleting discharge was
In response, Smith points to cases in which the Department
has allowed discharges to water bodies below standards where the
impact of the discharge would be negligible, including Caloosa
Property Owners' Association, Inc. v. Department of Environmental
Regulation, 462 So.2d 523 (Fla. 1st OCA 1985).
After considering the record in this case and the precedents
cited by Smith, I reject the exceptions and adopt the position of
8 FALR 4055
the hearing officer. It is true that the Department has
frequently denied permits where a water body has been below
standards for a particular parameter and a proposed discharge
would contain that parameter. It is reasonable to assume under
those circumstances that the new discharge would contribute to the
existing violation. However, this does not mean that a permit
applicant should be prohibited from attempting to demonstrate that
his proposed discharge will not "cause or contribute." Obviously
such a demonstration will have to be site specific and should take
into consideration the ambient water quality, the type of
discharge, the parameter of concern and other relevant factors.
What, then, must the applicant demonstrate? It seems likely
that in most cases there will be at least a theoretical impact.
However, where the impact (including cumulative impacts) is only
theoretical and where it could not be detected or measured in real
life and would not cause biological impacts, the Department may
reasonably find that the proposed discharge would not cause or
contribute. Not only must the applicant demonstrate that his
discharge would not exacerbate an existing violation, he a.ust also
demonstrate that his discharge would not cause a violation to
occur if the ambient water quality were at or above the standard.
Such a demonstration may be difficult or even impossible to make
in many situations, but that should not prevent the applicant from
having such an opportunity.
Both the hearing officer and the First District Court of
Appeal in the Caloosa Property Owners' case recognized that a
theoretical impact may not be a basis for denying a permit. The
hearing officer, while accepting as fact that Smith's proposed
discharge could cause a DO deficit of up to 0.1 mg/l, concluded
that the discharge "would offer no meaningful contribution" to th-e
existing violations (conclusion of Law No. 20) and that the im-act
of the discharge would be "negligible" (Conclusion of Law No.
23.E.). The court used much the same language; it held that the
Department had the authority to permit a discharge to a water bzdy
not meeting standards where "the effect on water quality is fcun=
F iLR cCIEas 8 FALR 4056
to be negligible." Caloosa Property Owners' Association, Inc. v.
Department of Environmental Regulation, supra at 526.
2. Petitioners' second exception is essentially a
restatement of exception number l.(b). Petitioners argue that
when it was determined that violations of the DO standard existed,
Smith should have been required to obtain some administrative
relief such as a variance or the establishment of a site specific
alterrntive criterion (SSAC). If I were to accept Petitioners'
pe-ition, the Department would quickly be inundated with requests
for relief. As the hearing officer held, "it is a reasonable
policy choice for the Department to grant the normal permits in
those instances were ambient dissolved oxygen conditions are
occasionally below standard, unrelated to any contributing
pollution source, and the proposed activity would offer no
meaningful contribution to these violations .." Since I have
already concluded that it was appropriate to allow Smith to
demonstrate that his discharge would not contribute to a
violation, I reject this exception. One of Petitioners' arguments
requires an additional response, however.
Petitioners point out that if Smith had been required to
obtain either a variance pursuant to Section 403.201, Florida
Statutes, or a SSAC pursuant to Rule 17-3, a public hearing would
have been requirtI. The suggestion is made that the lack of such
a hearing deprives the Petitioners of their legal rights.
A variance may be issued, when appropriate to allow a
violation of applicable rules by a pollution source. The
Petitioners had ample opportuntiy to present testimony and
evidence on this issue. The hearing officer has concluded that
Smith will not violate any rules so a variance is not necessary.
A SSAC is a mechanism to establish a more appropriate in stream
water jality criterion for a water body or s.qment of a water
body. Once established, the new criterion would apply to all
dischargers. In this case the hearing officer found that a SSAC
is unnecessary for such de minimus excursions. The result of tnis
is that Smith is subject to the established criterion for DO
CITE as 8 FALR 4057 FLLR
contained in Chapter 17-3, Florida Administrative Code. In any
event Petitioners have had the opportunity allowed by Chapter 120,
Florida Statutes, to challenge the Department's proposal to grand:
Smith a permit. They have not been deprived of any legal rights.
3. Petitioners's next exception is to the conclusion of law
that Smith should be allowed to discharge into Trout Creek until
such time as the pipeline to the St. Johns River is constructed.
While the wastewater treatment plant must be constructed and
operation commenced within a relatively short period after receipt
of a Department permit, the construction of the pipeline into the
river cannot occur until Smith receives approval to use state j
owned lands from the Trustees of the Internal Improvement Trust
Fund. As a result, there will be some indeterminate time after
construction of the wastewater facility before discharge to the
river can begin. Smith is presently allowed to discharge
substantially lower quality effluent to Trout Creek under the
terms of a circuit court order.
In the Recommended Order, the hearing officer found that the
discharge, after treatment by the DAF unit, would be very unliKely
to cause fish kills in Trout Creek although it could contribute to
violations of water quality standards in the Creek. (Findings of
Fact Nos. 154, 156) However, he determined that it was
appropriate to allow that discharge for a limited period of time jj
for numerous equitable reasons which are set out in paragraph 25
of the conclusions of law. Since it will be necessary for Smith
to conduct testing while operating the wastewater facility to
determine compliance with applicable requirements and since the
Department of Natural Resources has declined to consider granting
the required approval for the pipeline to the river until the DAF
unit is constructed and tested, I concur with the hearing officer.
I will, however, impose an additional permit condition on Smitn
limiting the time during which such testing may occur. That
condition is discussed in detail in paragraph 8, below.
4. The fourth exception is to the hearing officer's
conclusion of law that the permit should not be denied on the
- I IC-P~YI-~--L- I------~ .rt~*.PB~----r~-----
F/1LR CITE as 8 FALR 4058
grounds of cumulative impacts. Under this doctrine, the
Department, in deciding whether to issue or deny a permit,
considers not only the impacts of the project for which a permit
is being sought, but also the impacts of similar projects which
can reasonably be expected to cause pollution. The Department, in
its final orders, has repeatedly stated that cumulative impacts
may be a basis for denial of a permit. However, the Department
has declined to apply that doctrine where the future impacts are
too speculative to justify denial of a pending application. In
this case the hearing officer has specifically found that there
was insufficient evidence presented about the effects of future
developments in the area to justify denial of Smith's permit.
That finding is supported by the record; thus, I agree with the
hearing officer that the permit should not be denied on this
5. In its fifth exception, Petitioners' request that Smith
be required to utilize a "Sandfloat" treatment system. This
system incorporates sand filtration with the dissolved air
floatation proposed by Smith. Petitioners argue that the
Sandfloat system would provide additional protection since it
would achieve greater reduction of biological oxygen demand than
the OAF unit alone. After hearing all the evidence, however, the
hearing officer did not accept this proposition. He specifically
found that the possibility of additional treatment had not been
established by Petitioners. Thus I find no basis for requiring
the Sandfloat system, and the exception is rejected.
6. The sixth exception requests that, if I approve issuance
of the permit with a temporary discharge to Trout Creek, I
condition the permit so that only one scallop processing machine
could be operated at one time until the DAF unit is operating
properly and two or more flow-through bioassays have been
successfully completed. Smith argues in response that such a
restriction could hamper optimization of the DAF unit.
On the surface, Petitioners' request appears to be a means of
minimizing impacts on Trout Creek prior to construction of the
CITE as 8 FALR 4059 F1ALR
pipeline. Unfortunately, there is no support in the record for
such a condition. The hearing officer in this case has heard
extensive testimony and entered a recommended order with explicit
and detailed findings of fact and conclusions of law.
Undoubtedly, if such a proposal had been made to the hearing
officer, appropriate findings would have been included. In the
absence of any support in the record, I decline to adopt the
Petitioners' proposed condition.
7. Petitioners' seventh exception requests that any permit
issued be conditioned on monitoring of chlorine and turbidity at
the point of discharge. Smith objects to such a condition on the
grounds that there is no evidence that monitoring is necessary and
that the hearing officer found that any turbidity caused by the
discharge would be quickly dissipated.
It is standard practice for the Department to require
monitoring for parameters in a discharge that may cause pollution.
The hearing officer has recommended in his order that chlorine be
used at intervals to kill bacteria that may form in the pipeline.
I find that it is appropriate for Smith to monitor at the point
of discharge to assure compliance with applicable standards.
Likewise, monitoring for turbidity is appropriate. The fact
that the hearing officer found that Smith had provided reasonable
assurances that turbidity would not be a problem is irrelevant.
Reasonable assurances are not absolute assurances. The purpose of
monitoring is to demonstrate actual compliance.
8. The final exception requests that the Department impose a
permit condition requiring cessation of discharge within ten days
if Smith fails to comply with permit conditions or fails a
flow-through bioassay test.
I recognize, as the hearing officer did, the somewhat
experimental nature of the proposed discharge and the need to
carefully monitor the effects of that discharge. However, the
condition suggested by Petitioners is unreasonable. It is
appropriate, however, to impose some time limitation on the
testing period allowed for the new wastewater treatment plant.
I prpit hwvr ips o tm iiai o h
F/ILR ('1TE s 8 FALR 4060
Typically, the Department issues a construction permit for a
period of time as necessary to allow for construction of the
facility and six months of operation to test the facility and make
any necessary adjustments. There is no reason why Smith should be
granted a greater period of time. Accordingly, an additional
permit condition shall be imposed providing that Smith shall have
no more than the equivalent of six months to operate the plant.
At the end of that time Smith must be in compliance and must apply
for an operation permit under Section 403.088, Florida Statutes.
Failure to be in compliance at the end of the six month testing
period will result in the Department seeking a judicially imposed
injunction ordering Smith to cease any noncomplying discharge.
Although the hearing officer did not anticipate any problems, if,
at any time during the testing period, the discharge results in
significant damage to the water body or associated plant or animal
life, the Department will take appropriate enforcement action. I
would note that the circuit court has expressly retained
jurisdiction in the unlikely event that Smith's discharge causes
further fish kills.
Having considered the record in this matter, it is
1. The hearing officer's findings of fact and conclusions of
law are adopted in toto.
2. Within 10 days of issuance of this order, the Department
shall issue permits for construction of a wastewater treatment
facility and dredging and filling associated with the construction
of a pipeline to the St. Johns River with all conditions proposed
by the Department in the intent to issue, conditions recommended
by the hearing officer in paragraphs 152 and 168 of the hearing
officer's findings of fact, and the following additional
a. The permitted shall monitor for both chlorine and
turbidity at the point of discharge into the river in addition to
other required monitoring.
b. After construction of the facility, Smith shall have six
CITE as 8 FALR 4061 F/ILR
months to test the operation of the plant and make necessary
3. Failure to meet any of the conditions imposed by this
order will result in appropriate enforcement.
4. Within 60 days prior to expiration of this permit, Smith
shall apply for an operation permit for the discharge to the
St. Johns River.
Any party to this Order has the right to seek judicial review
of the Order pursuant to Section 120.68, Florida Statutes, by the
filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules
of Appellate Procedure, with the Clerk of the Department in the
Office of General Counsel, 2600 Blair Stone Road, Tallahassee,
Florida 32301; and by filing a copy of the Notice of Appeal ,
accompanied by the applicable filing fees with the appropriate
District Court of Appeal. The Notice of Appeal must be filed 1 I
within thirty (30) days from the date this Order is filed with the
Clerk of the Department.
DONE AND ENTERED this /8 day of April, 1986, in
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL REGULATION I
FILING AND ACK!OWVLE'r-r.ET l
FILED. on ths c','-. pul .funl to O120.52 (9). _1/
Ficr.d, St'!-Lr. "":;. rt- dL.-';n_- -d t.,.plrt- VICTORIA J. 7SCHINKEL
mint Cleri:. i.ece.i u: wtlich IS h~reby c lo0w Secretary
-I) ( Twin Towers Office Building
.. 7 t 2600 Blair STone Road
Clerk Data Tallahassee, Florida 32301