Title: State of Florida, Div. of Administrative Hearings Joint Hearings for: Manatee Co. & Sarasota Co., FL vs. State of Fla, DER & Estech Gen Chem. Corp., Estech Gen Chem. Corp. vs. State of Fl. DER & Manatee Co., Fl., Manatee, Co., Fl. & Sarasota, Co., Fl. and Manasota-88, Inc. vs. State of Fl., DER and Estech Gen. Chem. Corp., etc.
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Title: State of Florida, Div. of Administrative Hearings Joint Hearings for: Manatee Co. & Sarasota Co., FL vs. State of Fla, DER & Estech Gen Chem. Corp., Estech Gen Chem. Corp. vs. State of Fl. DER & Manatee Co., Fl., Manatee, Co., Fl. & Sarasota, Co., Fl. and Manasota-88, Inc. vs. State of Fl., DER and Estech Gen. Chem. Corp., etc.
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - State of Florida, Div. of Administrative Hearings Joint Hearings for: Manatee Co. & Sarasota Co., FL vs. State of Fla, DER & Estech Gen Chem. Corp., Estech Gen Chem. Corp. vs. State of Fl. DER & Manatee Co., Fl., Manatee, Co., Fl. & Sarasota, Co., Fl. and Manasota-88, Inc. vs. State of Fl., DER and Estech Gen. Chem. Corp., etc. (JDV Box 86)
General Note: Box 22, Folder 4 ( Court Cases in The State Of Florida - 1982 ), Item 1
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004475
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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Full Text



STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

I


MANATEE COUNTY, FLORIDA,


Petitioner,


and


SARASOTA COUNTY, FLORIDA,
and MANASOTA-88, INC.,

Intervenors,

VS.

STATE OF FLORIDA, DEPARTMENT
OF ENVIRONMENTAL REGULATION,

Respondent,

and

ESTECH GENERAL CHEMICALS
CORPORATION,

Intervenor.


ESTECH GENERAL CHEMICALS
CORPORATION,

Petitioner,

vs.

STATE OF FLORIDA, DEPARTMENT
OF ENVIRONMENTAL REGULATION,


CASE NO. 80-1486


CASE NO. 81-039


Respondent,


and


MANATEE COUNTY, FLORIDA;
SARASOTA COUNTY, FLORIDA;
and MANASOTA-88, INC.,

Intervenors.


MANATEE COUNTY, FLORIDA,

Petitioner,

and

SARASOTA COUNTY, FLORIDA,
and MANASOTA-88, INC.,

Intervenors,


)

)

)

)



)


vs.


STATE OF FLORIDA, DEPARTMENT
OF ENVIRONMENTAL REGULATION,

and

ESTECH GENERAL CHEMICALS
CORPORATION,


) CASE NO. 81-040


Respondents. )










ESTECH GENERAL CHEMICALS )
CORPORATION,
)
Petitioner,
)
vs. CASE NO. 81-335
)
STATE OF FLORIDA, DEPARTMENT
OF ENVIRONMENTAL REGULATION, )

Respondent,

and )

SARASOTA COUNTY, FLORIDA; )
MANATEE COUNTY, FLORIDA;
and MANASOTA-88, INC., )

Intervenors. )


ESTECH GENERAL CHEMICALS
CORPORATION,

Petitioner,

vs. ) CASE NO. 81-995

STATE OF FLORIDA, DEPARTMENT )
OF ENVIRONMENTAL REGULATION,
)
Respondent,
)
and
)
SARASOTA COUNTY, FLORIDA;
MANATEE COUNTY, FLORIDA; )
and .ANASOTA-88, INC.,
Intervenrs.
Intervenors.
)










RECOMMENDED ORDER


Pursuant to notice, these cases were consolidated,

and a joint hearing was held at Palmetto, Florida, on June 22

through July 9, 1981, before Linda M. Rigot, the assigned

Hearing Officer from the Division of Administrative Hearings.


APPEARANCES


For Estech General
Chemicals Corporation:


For State of Florida
Department of
Environmental Regulation:






For Manatee County:


For Sarasota County:






For Manasota-88, Inc.:


Robert L. Rhodes, Jr., Esquire
Betsy L. Holden, Attorney at Law
Holland & Knight, P.A.
Post Office Drawer BW
Lakeland, Florida 33802

Wade L. Hopping, Esquire
Calvin J. Livingston, Esquire
Hopping, Boyd, Green & Sams, P.A.
Post Office Box 6526
Tallahassee, Florida 32301

Walter D. Turner, Esquire
General Counsel
Estech, Inc.
30 North LaSalle Street
Chicago, Illinois 60602


David M. Levin, Esquire
Alfred W. Clark, Esquire
.Department of Environmental
Regulation
Twin Towers Office Building
2600 Blair Stone Road
Tallahassee, Florida 32301


Richard M. Goldstein, Esquire
Peeples, Earl, Moore & Blank, P.A.
One Biscayne Tower, Suite 3636
Two South Biscayne Boulevard
Miami, Florida 33131

E. N. Fay, Jr., Esquire
Mann & Fay, Chartered
1400 .Fourth Avenue, West
Bradenton, Florida 33505


Richard E. Nelson, Esquire
Nelson, Hesse, Cyril, Webber,
Smith & Widman, P.A.
Post Office Box 2524
Sarasota, Florida 33578


Thomas W. Reese, Esquire
123 Eighth Street, North
St. Petersburg, Florida 33701


These proceedings stem from Estech General Chemicals

Corporation's (hereinafter "Estech") application to the State










of Florida, Department of Environmental Regulation (hereinafter

"DER"), for permits to construct a phosphate mine and benefi-

ciation plant to be located in the watershed of Lake Manatee

in Manatee County, Florida.

On July 3, 1980, DER issued to Estech a letter of

its intent to issue a permit for the construction of an ini-

tial clay settling area at its proposed Duette mine site. On

August 8, 1980, Manatee County filed a Petition for Formal

Hearing or Proceedings with DER. This petition was transferred

to the Division of Administrative Hearings (hereinafter "DOAH")

and was assigned Case No. 80-1486.

On July 3, 1980, DER issued to Estech a letter of

its intent to issue a permit for the construction of discharge

points 002 and 003 to allow discharge from the Duette facility

into the East and North Forks of the Manatee River. On Decem-

ber 19, 1980, DER changed its position and issued a letter of

its intent to deny the requested discharge permits. On January 2,

1981, Estech filed a petition challenging DER's action. This

petition was transferred to DOAH and was assigned Case No.

81-039.

On December 10, 1980, DER issued to Estech a letter

indicating its intent to issue a dredge and fill permit for

the construction of its initial clay settling area at the

proposed Duette mine site. On December 22, 1980, Manatee

County filed a Petition for Formal Proceedings Under Section

120.57, Florida Statutes, with DER; This petition was trans-

ferred to DOAH and was assigned Case No. 81-040. In April,

1981, the application was supplemented to indicate that no

dredging would be required, but that only filling with upland

materials would take place.

On January 28, 1981, DER issued to Estech a letter

of its intent to deny state certification of Estech's proposed

National Pollutant Discharge Elimination System (NPDES) permit

for discharge points 002 and 003. On February 11, 1981, Estech

filed a Petition for Formal Hearing with DER. This petition









was transferred to DOAH and was assigned Case No. 81-335.

During the course of the final hearing, Estech voluntarily

withdrew its allegation that it is entitled to state certifi-

cation by DER's failure to timely deny state certification.

On February 18, 1981, Estech filed with DER an

Alternative Petition and Request for Mixing Zones, Zones- of

Discharge, Permit Conditions, Site Specific Alternative Cri-

teria or Variances. The purpose of this petition was to seek

relief from water quality standards involved in Case Nos.

81-039, 81-040 and 81-335. On March 30, 1981, DER issued to

Estech a letter of its intent to deny its alternative petition.

On April 6, 1981, Estech filed a Petition for Formal Hearing

challenging DER's intended action with regard to its alterna-

tive petition. This petition was transferred to DOAH and

assigned Case No. 81-995.

By Orders dated September 3, October 9, and Novem-

ber 10, 1980, Estech, Sarasota County and Manasota-88, Inc.,

were granted leave to intervene in Case No. 80-1486. By Order

dated February 18, 1981, Manatee County was granted leave to

intervene in Case No. 81-039. By Order dated February 26,

1981, DOAH Case Nos. 80-1486, 81-039, 81-040 and 81-335 were

consolidated. Additionally, Sarasota County's petitions to

intervene in Case Nos. 81-039, 81-040 and 81-335 were granted.

By Order dated March 3, 1981, Manasota-88, Inc., was granted

leave to intervene in Case No. 81-039.

By Order dated April 27, 1981, Estech's motion to

consolidate Case No. 81-995 with pending consolidated Case

Nos. 80-1486, 81-039, 81-040 and 81-335 was granted. The

Order also took note of the fact that Estech had voluntarily

withdrawn its request for variances during the-prehearing

conference held on April 13, 1981. The Hearing Officer recog-

nized the agreement of the parties to allow Manatee County,

Sarasota County, DER, Estech and Manasota-88, Inc., to par-

ticipate as parties in Case Nos. 80-1486, 81-039, 81-040,

81-335 and 81-995. Additionally, Manatee County agreed to










strike all references to the domestic waste treatment plant

contained in Count I of 'its amended petition in Case No.

80-1486 and to withdraw Count II of said amended petition.

In accordance with Chapter 17-1 and Sections 17-

3.031, 17-3.061(3), and 17-4.244(1) (c), Florida Administrative

Code, public notice was published and opportunity for public

hearing was given in regard to Estech's applications and its

request for site specific alternative criteria and mixing

zones.

On June 12, 1981, the parties to these consolidated

proceedings filed a prehearing stipulation, which was subse-

quently amended on June 19, 1981.

The final hearing on the consolidated cases commenced

on June 22, 1981, and was concluded on July 9, 1981. Ninety-one

exhibits were introduced; and testimony was received from

seventeen witnesses called by Estech, seven witnesses called

by Manatee County and two witnesses called by Sarasota County.

On July 1, 1981, eighteen public witnesses testified, and

three exhibits were introduced.

On July 7, 1981, a stipulation entered into by DER

and Estech was admitted into evidence over objection of the

other parties. The stipulation was offered by DER as a settle-

ment of issues between Estech and the Department's staff. The

stipulation does not purport to bind the Hearing Officer or

the Secretary of DER.

The parties have agreed to waive the requirement

that the Hearing Officer file a recommended order within

thirty days after receipt of the hearing transcript.

The issues in these consolidated cases are identi-

fied by the parties in the Prehearing Stipulation, as amended.

The issues broadly divide into the following general cate-

gories:

A. Whether Estech has provided reasonable assurance

that the construction of its initial clay settling area will

cop-ly with requirements of Chapter 17-9, Florida Administra-

tive Code.









B. Whether Estech has provided reasonable assurance

pursuant to Section 17-4.28, Florida Administrative Code, the

applicable provisions of Chapter 17-3, Florida Administrative

Code, and Chapter 403, Florida Statutes, that its proposed

filling activities will not result in violations of applicable

water-quality criteria.

C. Whether, after the filling (if permitted) by

Estech, the waters within the initial settling area are waters

of the State subject to all applicable water-quality criteria.

D. Whether Estech has provided reasonable assurance

pursuant to Section 17-4.07, Florida Administrative Code, and

the applicable provisions of Chapters 17-3 and 17-6, Florida

Administrative Code, that its proposed phosphate mining opera-

tion, including the construction of discharge points 002 and

003, will not result in violations of applicable state water-

quality criteria or effluent limitations.

E. Whether Estech has demonstrated its entitlement

to the establishment of any mixing zones and/or site specific

alternative criteria.

All parties have submitted, inter alia, post-hearing

proposed findings of fact in the form of a recommended order.

To the extent that any of those proposed findings of fact have

not been adopted in this Recommended Order, they have been

rejected as not having been supported by the evidence, as

having been irrelevant to the issues under consideration

herein, or as constituting unsupported argument of counsel

or conclusions of law.

FINDINGS OF FACT

1. Estech proposes to construct and operate a phosphate

mine (the Duette mine), beneficiation plant and rock-drying

facility on approximately 10,000 acres owned by it in north-

eastern Manatee County, Florida. No chemical plant will be

located at the site. The mine site is .located in the water-

shed of Lake Manatee, which serves as a source of potable

wa:ater for residents of Mlanatee and Sarasota Counties. The










mine site is situated between the North Fork and the East Fork

of the Manatee River, which converge approximately six miles

downstream of the mine site. The site is approximately eighteen

miles upstream from the Manatee County utilities' drinking-

water intake structure.

2. Estech has applied for and received approval of

its proposed development pursuant to the development of

regional impact requirements of Chapter 380, Florida Statutes.

Estech has also received the necessary air pollution source

construction permits for its proposed rock-drying facility

from DER and the United States Environmental Protection Agency

and a consumptive use permit from the Southwest Florida Water

Management District.

3. The master mining plan shows that, after the

first few years of operation, reclamation of areas disturbed

by mining will proceed concurrently with mining of new portions

of the site. The proposed operation of the Duette mine differs

in two significant respects from the mining practices followed

at other phosphate mines. First, all water from areas dis-

turbed by mining and not yet fully reclaimed will be contained

within the plant water system and discharged, if at all, only

through permitted discharge points. There will be no uncon-

trolled runoff from disturbed areas. Second, Estech will use

a sand-clay mix in its reclamation program, rather than making

separate deposits of sand tailings and dilute waste clays as

has been the general practice at other mines.

4. In connection with its mining project, Estech

proposes to build one 480-acre, above-grade, initial clay

settling area (ISA). Estech applied to DER on May 1, 1980,

for the requisite dam construction permit. Supplements to

the application were furnished to the Department in April,

1981.

5. The ISA serves two purposes: It operates as an

impoundment area for waste materials generated from the ini-

tial chases of the mining operation, before mine cuts are

available for waste disposal, and it provides one of the









storage areas for large volumes of water which are recirculated

during the mining and beheficiation process.

6. The design for the earthen dam surrounding the

ISA was prepared and evaluated by two qualified engineering

firms, Ardaman & Associates, Inc., and Bromwell Engineering.

Estech's application to construct the dam, the dam design, the

detailed earthwork specifications, and the construction draw-

ings were certified by professional engineers registered in

the State of Florida.

7. The initial clay settling area will be located

in the east one-half of Section 6, and the west one-half of

Section 5, in Township 34 South, Range 22 East, Manatee County,

Florida. Ardaman & Associates, Inc., conducted a detailed

investigation to evaluate the suitability of the proposed site.

A total of eighty test borings were taken and analyzed to

determine the characteristics of the soils present at the site

and their suitability as construction materials. On-site

inspections were conducted by both Ardaman & Associates, Inc.,

and Bromwell Engineering.

8. To ensure that the area is not subject to sink-

hole activity, a visual inspection was made; aerial photographs,

U.S.G.S. maps, and reports of the Florida Geological Survey

were examined; and local residents were interviewed. As an

additional precaution, test borings were taken in several minor

depressions located on Estech and adjacent property. Analyses

of these borings verified that the .depressions were not sink-

holes. Based on the site investigation conducted by Ardaman &

Associates, Inc., it is unlikely that a sinkhole would occur

either in the general vicinity of the dam or at the specific

location of the dam.

9. A soil-testing program was conducted which

included thirty-seven standard penetration test borings and

forty-three auger borings (i.e., eighty test borings) spaced

around the perimeter of the dam, as well as in potential

borrow areas. Over 639 soil samples were taken and returned










to the laboratory where they were analyzed. Field tests

included 606 penetration:resistance tests, and six in situ

permeability tests. Laboratory tests included 234 grain-

size analyses, thirty-four permeability tests, ten triaxial

shear tests and two compaction tests.

10. Estech's proposed ISA dam will provide a mini-

mum freeboard of five feet below the inside crest. The

outside crest of the top of the dam is six inches higher than

the inside crest, which will force all crest drainage to the

inside of the dam. Both inside and outside slopes are no

steeper than two horizontal to one vertical. Although most

phosphate dams have a crest width of twenty feet, Estech's

dam will have a crest width of twenty-five feet. The addi-

tional width helps to protect against erosion and assists in

the maintenance and the overall stability of the dam. Dam

inspection and maintenance roads are provided. The dam design

provides several positive seepage control features:

A. As a zoned dam, relatively impervious mate-

rials will be placed in the upstream section of the dam to

retard seepage.

B. More pervious materials will be placed in

the downstream sections so that any seepage can be conducted

away and not build excessive hydraulic pressures within the

dam.

C. A blanket drain will be installed within the

dam itself in order to collect seepage that comes through the

dam._

D. A downstream gravel drain will be installed

in the return water ditch which will collect any seepage that

goes through the foundation soils. --

E. The downstream slope will be flattened to

a four-to-one ratio so that even if seepage were to get past

the drains, the slope would remain stable.

As a final check on the effectiveness of these

safeguards, the dam will be filled with approximately fifteen

feet of clear water prior to introducing any sand-clay mix.










Piezometers will be placed at various locations around the

dam to monitor the water level. Flow from the drain and in

the ditch will be monitored and the dam will be inspected.

The data will be checked to determine if the seepage pattern

is performing according to design assumptions.

11. A seepage analysis (using flow nets) and sta-

bility analyses were conducted using a worst case scenario

which assumed the pond was filled with clear water to its

maximum pool elevation. In fact, the maximum clear water

depth in the pond will be only fifteen feet, rather than the

more severe condition of twenty-five feet used for purposes of

analysis. In addition, the least desirable engineering prop-

erties for the foundation and embankment soils were selected

for these analyses. The flow nets were used to determine the

location of the phreatic surface, flow lines, and lines of

equal head within the foundation and fill being designed.

12. The Estech dam design exceeds all the minimum

safet- factors required by Section 17-9.03(1) (e), Florida

Administrative Code.

13. The proposed dam site will be prepared by strip-

ping all vegetation, organic detritus and any other undesirable

materials from under the foundation, the drain and toe ditch.

Loose surficial sands will be compacted prior to placement of

fill materials, and prepared surfaces will be scarified and

wetted or dried as required to obtain proper compaction.

Filling operations will be completed prior to the initiation

of any construction activities associated with the ISA.

14. The general earthwork specifications prepared

by Ardaman & Associates, Inc., require materials that will be

satisfactory for use in the dam and exclude the use of extrane-

ous matter which could affect the compactibility, density,

permeability, or shear strength of the finished dam.

15. Water level within the dam will be controlled

by the use of three spillway structures which will be more

than adequate to maintain a five-foot freeboard and to










accommodate twelve inches of rainfall on the watershed during

any twenty-four-hour period.

16. Estech's proposed dam will be constructed in

accordance with the general earthwork specifications and

design prepared by Ardaman & Associates, Inc. All conduits

through the dam will have two or more seepage collars spaced

in accordance with good engineering practices pertinent to

the material used for the fill. Two collars will be installed

within the core of the dam.

17. Estech has committed to provide four additional

safeguards in excess of those required by Chapter 17-9, Florida

Administrative Code. The additional safeguards include:

A. Conducting an independent review of all

aspects of the Ardaman & Associates, Inc., design and con-

struction plans. Such an independent review was conducted by

Dr. Leslie Bromwell and Bromwell Engineering.

B. Proof testing the dam with clear water prior

to impounding any waste materials by placing fifteen feet of

water into the dam before commencing actual operations. In

addition, piezometers will be installed around the dam to

monitor the performance of the dam with regard to seepage

through the foundation and through the dam itself. The proof

test and monitoring will provide an indication of how the dam

will perform under full design load.

C. Carrying out a comprehensive instrumentation,

surveillance and inspection plan, which will include the instru-

mentation installed during the clear water test and any addi-

tional instrumentation indicated as a result of that test.

The dam will be inspected by a representative of the design

engineer once a month during the first year of operation. In

addition, qualified, trained personnel of Estech will conduct

inspections of the dam three times a day.

D. Estech will use sand-clay mix inside the

initial settling area rather than dilute clays alone. This

will provide additional protection for the Lake Manatee


10










reservoir in that if a dam failure were to occur, the sand-

clay nix would only flow a few miles from the point of the

breach in the dam and would not reach the Lake Manatee reser-

voir.

18. Although the most likely cause of dam failure

would be piping, protection against piping through the dam is

provided by the selection of materials and their method of

placement. Adequate compaction of the correct materials into

various zones in the dam will ensure that piping does not

occur. In addition, the internal drain and the downstream

drain will collect seepage that might otherwise cause erosion,

which in turn could result in a piping failure. The use of

sand-clay mix will further reduce any possibility of a piping

failure through the foundation soils. The sand-clay mix forms

an impervious layer along the floor and sides of the ISA dam,

and whatever small amount of water might pass through the ISA

dam will be collected by the drainage system.

19. The design of Estech's dam will meet or exceed

applicable requirements of Chapter 17-9, Florida Administrative

Code; and provided that it is properly maintained, it should

remain structurally sound in excess of one hundred years.

20. The area proposed for the location of the bene-

ficiation plant and ISA currently contains several small ponds,

streams and ditches connected to the East Fork of the Manatee

River. DER asserts "dredge and fill" permitting jurisdiction

under Chapter 403, Florida Statutes, over certain of these

ponds, ditches and streams. DER also asserts jurisdiction

over the portion of an unnamed tributary that will be impacted

by construction of the southern part of the ISA.

21. The property included within the ISA and plant

site -.as purchased by Estech from the Turner family in the

mid-1960's. The Turner family had purchased the property in

1939 from timbering interests. Prior to the Turner purchase,

the land contained some isolated depressions that collected

afterr during the rainy season. There were no channelized


11










watercourses. In order to enhance the use of the land as

pasture, the Turners dug numerous agricultural drainage ditches

in the 1940's. These ditches connected the various isolated

depressions located on the property with the river. This

ditch system allowed for the more rapid transport of standing

water out of the pasture area so that the grass would not

"sour" in the hot summer months.

22. The ponds and 'the connecting drainage ditches

are not currently susceptible to navigation for commerce by

boats or other forms of customary water travel because they

are too shallow and the flows are too intermittent. It is

clear that the area in question was not susceptible to navi-

gation before the ditches were artificially created in the

1940's. There is no physical indication in the ISA area of

the existence of any channel capable of navigation that might

have been in existence as of 1845.

23. In 1975 and 1976 the ponds and drainage ditch

system began to receive runoff and irrigation drainage from a

row-crop operation operated to the north of the ISA area.

This flow is dominated by irrigation water from a ten-inch

well. Approximately seventy percent of the flow through the

ponds and drainage ditches is made up of this agricultural

water. Row-crop farming operations are scheduled to terminate

at the latest in May of 1982. The land will then be planted

in permanent pasture, and virtually the entire source of the

agricultural runoff to the system will no longer exist.

24. Only a very small portion of the northernmost

pond area (Pond No. 3 on Figure 2 of Estech Ex. 3D) has been

mapped as a flood-prone area by the U.S. Geological Survey.

This indicates that the area is of a relatively high elevation

not subject to continuous water flow.

25. The total area of DER-claimed "dredge and fill"

permitting jurisdiction involves approximately 13.8 acres.

Some portion of this area contains water at times of the

year and contains lands on which the dominant species are one









of, or a combination of, those species listed in Section

17-4.02(17), Florida Administrative Code, as indicators of

the "landward extent of waters of the state." The ponds and

connecting ditches ultimately connect to the unnamed tributary,

which in turn connects to the East Fork of the Manatee River.

26. Estech proposes to fill the areas located within

DER's jurisdiction with overburden materials (sand, random

fill and silty sand) taken from upland areas located on site.

The fill materials will raise the low-lying areas to an eleva-

tion at or above that of the current landward extent of DER's

jurisdiction. This filling will be completed before any other

construction activities associated with the ISA or plant site

are commenced.

27. A water-quality sampling program demonstrated

that, when present, the waters contained in the ponds and

connecting ditches are derived largely from irrigation return

water which is of lower quality than the waters in the East

and North Forks of the Manatee River. The wetlands areas in

question simply are not of a size or quality sufficient to

provide any significant water quality benefit. The drainage

area served by the ponds and connector ditches is small. The

quantity of water from this area contributed to the East Fork

of the Manatee River is insignificant. Filling of the ponds

and connecting ditches will not cause or contribute to a long-

or short-term violation of water-quality standards in waters

of the State outside of.the ISA area, nor would it reduce the

quality of waters of the State outside the ISA area below the

Class IA classification of the river as long as adequate turbid-

ity control measures are employed during construction activities.

Estech has committed to the use of such turbidity control mea-

sures.

28. Estech applied to DER for permits to construct

two discharge points through which excess water within its

system could be discharged into the East Fork (discharge

soint 002) and North Fork (discharge point 003) of the Manatee

River. Inr its original applications, Estech proposed almost










continual discharge of excess water from its system. Subse-

quent to that time, the proposal was modified in a number of

ways to reduce or eliminate the frequency and volume of dis-

charges, as follows:

A. The usage of river water from the East Fork

of the Manatee River was eliminated, thus eliminating the

need for an intake structure.

B. An in-process water treatment plant will be

built to eliminate the need for using up to 4,100 gallons of

deep-well water per minute in the flotation process, except

during periods of low rainfall, thereby decreasing the amount

of potential excess water in the system.

C. The storage capacity of the below-grade

reservoir will be increased by constructing a dike around it.

29. A comprehensive water balance study for the

Duette mine was performed to determine the amount of storage

necessary to contain all of the excess water predicted to be

accumulated over the life of the mining operation and to

develop a plan for controlling any predicted discharges so as

to minimize their impact on the receiving water bodies.

30. Whether or not there will be a discharge from

the system depends on the amount of storage available and the

amount of excess rainfall which must be stored. For the

system to be in balance, the amount of water coming into the

system must equal the amount leaving the system. If more water

enters the system than leaves, then the amount of water stored

increases. If the needed storage exceeds the maximum storage

available, an overflow or discharge will occur. Conversely,

if the water leaving the system exceeds the water entering

the system, then the water stored in the system will be

depleted. If the water in storage is depleted below the

level needed for operation of the mining and beneficiation

process, then "make-up" water must be added to the system by

pumping from permitted deep wells. Because the amount of

water entering and leaving the system varies from time to


14










time, the amount of storage needed must be calculated on the

basis of cumulative inflows and outflows over the life of the

system.

31. The sources of water entering the Duette mine

system, in order of importance, are rainfall, water in the

ore being mined (matrix), net seepage into the mine cuts, and

water from shallow wells. An additional source would be any

make-up water pumped from deep wells. Water is consumed or

leaves the system through evaporation, disposal as part of

sand-clay mix and sand tailings,shipment off site as part of

the wet phosphate product or evaporation in the rock dryer as

wet product is dried for shipment, and seepage losses.

32. In addition to being the largest contributor of

water to the system, rainfall is also the most variable.

Twenty-four years of rainfall data are available from National

Oceanic and Atmospheric Administration (NOAA) records for

1956 to 1979 for the Fort Green rainfall station, which coin-

cidentally is located at Keentown almost in the center of the

Duette mine site. Average annual rainfall at the Fort Green

station is 54 inches per year, but has ranged from a low of

38 inches in 1974 to a high of 84 inches in 1960. Monthly

rainfall has similarly varied from a low of zero inches in

April, 1967, to a high of 19.11 inches in July, 1960.

33. If the average annual rainfall of fifty-four

inches per year occurred evenly on a daily basis over the

life of the mine, the water consumed by the system would

exceed the approximately 9,000 gallons per minute contributed

to the water system by rainfall at the Duette site. Thus,

the system would never discharge. However, because rainfall

varies significantly from year to year while water consumption

remains more constant, storage is required to hold the water

from long-term, above-average rainfall until it can be used

in the system.

34. To evaluate the impact of variations in rainfall,

a series of computer analyses were performed which matched










the twenty-four-year rainfall record from Fort Green with the

water consumption during the mine life to produce a "worst

case" analysis in which years having the highest rainfall were

matched with the mining years having the lowest water consump-

tion. These analyses show that under the "worst case" rainfall,

16,620 acre feet of storage would be adequate to prevent any

discharge during the mine life.

35. Under this "worst case" scenario, if only 10,000

acre feet of storage were available and discharges were not

controlled in any way, there are predicted to be approximately

thirty days of discharge from the system out of a mine life

of over 8,700 days (twenty-four years). Without any control,

the discharges from the system would not necessarily coincide

with periods of peak receiving stream flow.

36. Rainfall records covering a longer period of

time are available from the NOAA rainfall station at Bartow,

located several miles from the site. While there have been

twenty-four-year periods during which the average rainfall

recorded at Bartow exceeded the twenty-four-year average rain-

fall recorded at Fort Green, the Fort Green station has

experienced a four-year accumulation of rainfall which is very

similar to the highest four-year accumulation at Bartow.

Since potential overflows of the Duette system are more depen-

dent on the accumulation of several years of heavy rainfall

.than on a single year's rainfall event or long-term averages,

the use of the Fort Green data in producing the "worst case"

rainfall scenario was appropriate. However, as a double check,

an analysis was done combining the highest twenty-year rainfall

record from Bartow (1921 to 1940) with the highest four-year

record from the Fort Green station. -This "worst-worst case"

analysis produced a twenty-four-year simulated accumulation

of 1,411 inches of rainfall, i.e., an average of 58.8 inches

a year for the twenty-four-year period. When this larger

rainfall simulation was compared with projected water usage

of the 7ine, it showed slightly less storage would be required









to prevent any discharge during the mine life (16,491 acre

feet) than the storage required under the.analysis using only

the historical Fort Green data (16,620 acre feet). This

apparent anomaly of higher rainfall requiring less storage

occurs because the timing of the simulated rainfall based on

the NOAA records reduced the need for deep-well, make-up water

coming into the system prior to the critical years of the

rainfall cycle.

37. Two aspects of the water-balance calculation

were the subject of conflicting expert testimony: the effect

of possible slower consolidation of sand-clay mix in the ini-

tial clay settling area on the available storage capacity of

the system, and the amount of mine cut seepage which can be

expected. Based on experience with consolidation of dilute

clays, which start with a smaller percentage of solids and

can be expected to consolidate more slowly than the floccu-

lated sand-clay mix to be used by Estech, the consolidation

rate used in the Estech water-balance calculations is reason-

able. Moreover, it is clear that the rate of consolidation

of sand-clay mix does not directly impact the volume of-

available storage. No water enters the system as a result of

consolidation. As the sand-clay mix consolidates, water which

had been trapped within the sand-clay mix is freed and rises

to the surface. However, the total volume occupied by the

combination of the sand-clay mix and its associated water does

not change; therefore, the amount of available water storage

area does not change. Further, the estimate of mine cut seep-

age into the system used in calculating the water balance is

also reasonable.

38. The total water storage available on site varies

from year to year throughout the life of the mine. Excluding

the tw'.o active mining areas, the Duette mine system has a

minim-u storage capacity after the fifth year of mining of

approximately 10,000 acre feet, consisting of 3,500 acre feet

in the below-grade reservoir, 4,000 acre feet in the sand-clay










reclamation areas,and 2,500 acre feet in the initial clay

settling area. If the two active mining areas (excluding

active dragline cuts) are used for additional water storage,

then after the fifth year of mining, the available storage

fluctuates between a low of approximately 16,682 acre feet

and a high of approximately 27,149 acre feet. Not included

in the above calculations are an additional 1,000 acre feet of

storage located in the active dragline cuts which is available

for use on an emergency basis.

39. E.stech did not initially propose to use active

mining areas for water storage. Instead, it proposed to use

only the 10,000 acre feet of storage available in other areas.

However, there is one chance in twenty-five that 10,000 acre

feet will not be sufficient to store the predicted accumula-

tions of water and that overflows would occur if only 10,000

acre feet of storage were used. To prevent uncontrolled over-

flows, Estech originally proposed to make controlled discharges

at a rate of no more than fifteen percent of stream flow when-

ever necessary to avoid the risk of an overflow. Therefore,

the recirculation system and discharge points were designed

to control discharges so that they will not exceed fifteen

percent of stream flow at the time and point of discharge.

This is accomplished by measuring the flow in the receiving

streams and metering the amount of discharge to stay at or

below fifteen percent of the stream flow. To control dis-

charges in this manner requires that discharges commence

before the storage system is completely filled, so that surge

capacity remains available to prevent an overflow while con-

trolled discharges are being made. An analysis of the

historical Fort Green station daily rainfall data and his-

torical daily stream flow data for the Manatee River demon-

strates that if discharges are made at a rate of fifteen

percent of stream flow whenever storage in the system exceeds

8,500 acre feet, the accumulated water would never exceed

1,00% acre feet;and, therefore, there would be no uncontrolled

disca rces. However, even more storage is now. available.










40. Based on the availability of 16,682 to 27,149

acre feet of storage during the critical years of the mining

operations and the demonstration that 16,620 acre feet of

storage would be sufficient to prevent any discharge from the

system under the predicted worst case rainfall scenario (which

has less than one chance in 1,000 of occurring), there is a

reasonable certainty that no process water will be discharged

from the system over the life of the mine provided that

Estech is required to use the two active mining areas (exclud-

ing active dragline cuts) for additional storage if needed.

41. Estech has agreed to take all measures necessary

to prevent surface water discharges from the Duette mine,

including the construction and utilization of the maximum

available storage area. Included within the maximum available

water storage area are the initial waste disposal area (ISA);

the 210-acre surge/storage reservoir; the sand-clay reclama-

tion areas; the ditch system; the plant water ponds (i.e.,

storage within the recirculation system); the two active mining

areas; and, on an emergency basis only, the active dragline

cuts wherein the draglines are physically operating.

42. Estech has further agreed to construct an earthen

embankment pursuant to Chapter 17-9, Florida Administrative

Code, standards around the 210-acre reservoir so that it can

contain an additional 3,500 acre feet of storage. Further,

Estech has agreed to not construct the stream intake structure

previously planned to be located at the site of the 210-acre

reservoir on the East Fork of the Manatee River.

43. Based on the availability of 16,682 to 27,149

acre feet of storage during critical years of mining opera-

tions, Estech's stipulations regarding its management of

on-site water, and the demonstration that 16,620 acre feet

of storage is sufficient to prevent any discharge from the

system, Estech has provided reasonable assurance that no

process water will ever be discharged from the Duette mine

during its lifetime and that operation of the Duette mine,









which is a potential source of pollution, will not ever

result in pollution.

44. Three of these consolidated cases involve the

water quality of any potential discharges of the process water

from the Duette mine site. Specifically, these three cases

involve permits for discharge points 002 and 003; the state

certification for the NPDES permit; and Estech's request for

mixing zones, zones of discharge, permit conditions, and site

specific alternative criteria. The water-quality impact of

discharges depends on a combination of the quality of the

discharge, the quantity of the discharge, and the quality of

the receiving water body. There is a great deal of evidence

in the record as to the expected quality of the process water

which could potentially be discharged from the mine's water

storage system. The methods used by Estech's consultants to

predict the quality of the process water included: (1) a

laboratory-scale simulation of the Duette beneficiation pro-

cess using Duette water and matrix, (2) a simulation of the

Duette process which subjected sand and clay slurries from the

Watson mine to the sand-clay mixing process proposed for Duette,

and (3) an analysis of data from a small-scale simulation of

the Duette process performed by Estech at the Watson mine.

Because a laboratory-scale simulation may not be indicative

of the expected results of full-scale operation, a laboratory

simulation of the Watson mining process was compared to

actual data from the Watson mine to use as a guide in scaling

up the results of .the laboratory simulation of the Duette pro-

cess.

45. Estech's substantial "water-quality" evidence is

inconclusive. Many of the opinions of its experts are based

upon or incorporate the results of the tests described in the

preceding paragraph. Those tests fail to demonstrate scien-

tific accuracy.

A. The laboratory-scale simulation of the Duette

process involved two components: (1) water from the Duette










site which was accidentally contaminated with isopropyl alcohol

used to disinfect the barrels in which the water was transported,

and (2) Duette matrix samples obtained from a warehouse where

they had been stored approximately a year earlier.

B. The "full-scale" Watson test used Watson

matrix, not Duette matrix. All experts agree that phosphate

matrix varies from location to location. Estech's experts

testified that the "Watson process" constituents and the

"Duette process" constituents are not comparable.

C. The laboratory-scale Watson process utilized

water obtained from the Watson mine over only one four-day

period. The water used was a single, composite sample. Fur-

ther, during the laboratory testing, the water was contaminated

by high suspended solids due to "scalping" the water too

closely.

46. The unreliability of Estech's water-quality

studies is further verified by the number of reports and

"supplemental" reports issued over a short period of time,

between the initial scheduling of these cases for final

hearing and the final hearing. Some of the "supplemental"

information changed the data contained in the prior reports,

whether sponsored as more accurate data or typographical

errors.


CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties. Sec-

tion 120.57(1), Florida Statutes (1981).

2. Section 403.087, Florida Statutes (1981), sets

forth projects for which DER has been granted permitting

authority and provides, in pertinent part, that:

No stationary installation which will
reasonably be expected to be a source
of air or water pollution shall be
operated, maintained, constructed,
expanded, or modified without an
appropriate and currently valid permit
issued by the department .


1










Clearly, the applications for permits for filling in the ini-

tial settling area (Case No. 81-040) and constructing the ISA

dam (Case No. 80-1486) involve "a stationary installation

which will reasonably be expected to be a source of .

water pollution." Those applications,accordingly, are subject to

the provisions of Section 17-4.07, Florida Administrative Code,

which establishes the standards for the issuance or denial of

permits and provides for the imposition of permit conditions.

That Section provides, in pertinent part, as follows:

(1) A permit may be issued to the
applicant upon such conditions as the
Department may direct, only if the
applicant affirmatively provides the
Department with reasonable assurance
based on plans, test results and other
information, that the construction,
expansion, modification, operation,
or activity of the installation will
not discharge, emit, or cause pollu-
tion in contravention of Department
standards, rules or regulations.
After receipt of all required informa-
tion the Department must either issue
or deny the permit within sixty (60)
days.



(3) The Department shall issue permits
to construct, operate, maintain, expand,
or modify an installation which may rea-
sonably be expected to be a source of
pollution only when it determines that
the installation is provided or equipped
with pollution control facilities that
will abate or prevent pollution to the
degree that will comply with the stan-
dards or rules promulgated by the
Department except as provided in Chap-
ter 403.088, F.S.



(5) 2TheDepartment may issue any permit
upon specified conditions reasonably
necessary for the prevention of pollu-
tion.

3. Under Section 17-4.07, Estech has the ultimate

burden of providing "reasonable assurance" that the earthen

dam surrounding its initial clay settling area (ISA) will

comply with the requirements of Chapter 17-9, Florida Adminis-

trative Code.

4. The evidence clearly shows that Estech's proposed

cam r. ets all of the applicable criteria set forth in Chapter

17-9, Florida ..d-.inistrative Code, including the design criteria








in Sections 17-9.01 and 17-9.03, Florida Administrative Code.

Likewise, by its evidence that no discharge from the dam will

occur and that the sand-clay mix will act as a sealant on the

floor and inside walls of the dam, Estech has proven by compe-

tent, substantial evidence that its construction of the ISA

will not cause or contribute to a violation of the groundwater

criteria in Chapter 17-3, Florida Administrative Code. No

competent, substantial evidence was submitted by any opposing

party to the contrary; therefore, Estech has provided the

"reasonable assurance" necessary to entitle it to issuance of

the dam construction permit which is the subject of Case No.

80-1486.

5. DER has jurisdiction under Chapter 403, Florida

Statutes, over the proposed filling of the ponds, connecting

ditches and streams and the unnamed tributary of the East Fork

of the Manatee River as outlined on Attachment E to Estech

Exhibit 3A. See also, Section 17-4.28, Florida Administra-

tive Code. The ponds and connecting ditches and the unnamed

tributary located in the ISA area are not navigable waters of

the State; and the requirements of Chapter 253, Florida Stat-

utes, are, therefore, not applicable to the proposed filling

activity.

6. To be entitled to a Chapter 403 fill permit, the

applicant must provide reasonable assurance to the Department

that the short-term and long-term effects of the activity will

not result in violations of the water-quality criteria, stan-

dards, requirements or provisions of Chapters 17-3 and 17-4,

Florida Administrative Code. Since Estech has agreed to

utilize turbidity control measures, and since the area to be

filled does not provide any significant water-quality benefit,

Estech has provided such reasonable assurance and is, therefore,

entitled to the fill permit sought in Case No. 81-040.

7. After construction, the ISA is a treatment work

and, as such, does not constitute waters of the State. See

Sections 403.031(3) and 403.031(6), Florida Statutes (1981).







8. The applications for permits for discharge points

002 and 003 (Case No. 81-039); the state certification of

Estech's proposed National Pollutant Discharge Elimination

System (NPDES) permit for discharge points 002 and 003 (Case

No. 81-335); and Estech's request for mixing zones, zones of

discharge, permit conditions, and site specific alternative

criteria (Case No. 81-995) comprise the "water-quality" cases.

Because of the invalid testing procedures in Estech's water-

quality studies, which tests were relied upon by Estech's

experts, Estech has failed to provide reasonable assurance

that its previously proposed discharge would have met water-

quality standards.

9. Under Estech's expanded "maximum available stor-

age area," Estech has provided reasonable assurance that

available storage will always exceed the accumulated water to

be stored and, therefore, no water will be discharged from

the system. Since Estech has now agreed to a "no discharge"

water storage system, discharge points 002 and 003 can no

longer "reasonably be expected to be a source of air or water

pollution .. .", Section 403.087(1), Florida Statutes (1981),

and DER has lost jurisdiction since the proposed discharge

points are no longer a permittable activity. Similarly, the

state certification for the NPDES permit and the relief mecha-

nisms from water-quality standards are no longer determinations

within DER's permitting jurisdiction. In other words, whether

to approve or deny the permits sought by Estech in its water-

quality cases, in accordance with the standards set forth in

Chapters 17-3 and 17-4, Florida Administrative Code, is no

longer at issue.


RECOMMENDATION

Based upon the foregoing Findings of Fact and

Conclusions of Law, it is, therefore,

RECOMMENDED THAT a final order be entered:

(1) In Case No. 80-1486 approving Estech's applica-

tion for a Dermit to construct the initial settling area,

subjec -:c the applicable conditions set forth in the initial










Notice of Intent to Issue Permit and including as an additional

condition that no discharge be made through Estech's proposed

discharge points 002 and 003;

(2) In Case No. 81-040 approving Estech's applica-

tion for a fill permit for the initial settling area and plant

site area, subject to the applicable conditions set forth in

the initial Notice of Intent to Issue Permit;

(3) In Case No. 81-039 dismissing Estech's applica-

tion for permits for discharge points 002 and 003 for the

reason that they are not subject to permitting jurisdiction;

(4) In Case No. 81-335 dismissing Estech's request

for state certification of Estech's proposed National Pollutant

Discharge Elimination System (NPDES) permit for discharge points

002 and 003 on the ground of mootness; and

(5) In Case No. 81-995 dismissing Estech's request

for mixing zones, zones of discharge, permit conditions, and

site specific alternative criteria on the ground of mootness.

RECOMMENDED this /j day of March, 1982, in

Tallahassee, Florida.




LINDA M. RIGOT
Hearing Officer
Division of Administrative Hearings
Department of Administration
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675

Filed with the Clerk of the Division,
of Administrative Hearings this jS
day of March, 1982.

Cooies furnished:

(See next page.)


I I










80-1486, 81-039, 81-040
81-335, 81-995


Copies furnished:

E. N. Fay, Jr., Esquire
Mann and Fay, Chartered
Post Office Box 959
Bradenton, Florida 33506

William L. Earl, Esquire
William F. Tarr, Esquire
Peeples, Earl, Moore & Blank, P.A.
One Biscayne Tower, Suite 3636
Two South Biscayne Boulevard
Miami, Florida 33131

Richard M. Goldstein, Esquire
One Biscayne Tower, Suite 1980
Two South Biscayne Boulevard
Miami, Florida 33131

Robert C. Apgar, Esquire
Peeples, Earl, Moore & Blank, P.A.
300 East Park Avenue
Tallahassee, Florida 32301

Richard L. Smith, Esquire
Richard E. Nelson, Esquire
Nelson, Hesse, Cyril, Weber,
Smith & Widman
2070 Ringling Boulevard
Post Office Box 2524
Sarasota, Florida 33577

Thomas W. Reese, Esquire
123 Eighth Street North
St. Petersburg, Florida 33701

David M. Levin, Esquire
Alfred W. Clark, Esquire
Department of Environmental
Regulation
Twin Towers Office Building
2600 Blair Stone Road
Tallahassee, Florida 32301

Lawrence E. Sellers, Jr., Esquire
Robert L. Rhodes, Jr., Esquire
Holland & Knight
Post Office Drawer BW .
Lakeland, Florida,33802

Wade L. Hopping, Esquire
Hopping, Boyd, Green & Sams
Suite 420, Lewis State Bank Bldg.
Post Office Box 6526
Tallahassee, Florida 32301

Calvin J. Livingston, Esquire
Holland & Knight
Post Office Drawer 810
Tallahassee, Florida 32302

Ms. Victoria Tschinkel, Secretary
Department of Environmental.
Regulation
Twin To-.ers Office Building
2600 Blair Stone Road
Tallahassee, Florida 32301


L




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