Title: Pinkham E Pacetti, et al, Petitioners vs State of Florida Dept of Environmental Regulation and Homer Smith d/b/a Homer Smith Seafood "Final Order"
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Permanent Link: http://ufdc.ufl.edu/WL00004315/00001
 Material Information
Title: Pinkham E Pacetti, et al, Petitioners vs State of Florida Dept of Environmental Regulation and Homer Smith d/b/a Homer Smith Seafood "Final Order"
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - Pinkham E Pacetti, et al, Petitioners vs State of Florida Dept of Environmental Regulation and Homer Smith d/b/a Homer Smith Seafood "Final Order" (JDV Box 89)
General Note: Box 19, Folder 11 ( Groundwater Discharge Permitting Materials Solid & Hazardous Waste Management Short Course - 1989 ), Item 9
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004315
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text




v. DOAH CASE NO. 84-3810









) 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

relevant issues.


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


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

concluded that:

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
Tallahassee, Florida.


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


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