Title: Before the State of Florida, Dept. of Environmental Regulation - Final Order for File 4475
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Title: Before the State of Florida, Dept. of Environmental Regulation - Final Order for File 4475
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Abstract: Jake Varn Collection - Before the State of Florida, Dept. of Environmental Regulation - Final Order for File 4475 (JDV Box 86)
General Note: Box 22, Folder 4 ( Court Cases in The State Of Florida - 1982 ), Item 2
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A /


BEFORE THE STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION




MANATEE COUNTY, FLORIDA,

Petitioner,


and

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


Intervenors,


CASE NO. 80-1486


vs.

STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL REGULATION,

Respondent,

and

ESTECH GENERAL CHEMICALS
CORPORATION,


Intervenors.


ESTECH GENERAL CHEMICALS
CORPORATION,

Petitioner,


CASE NO. 81-039


STATE OF FLORIDA, DEPARTMENT
OF ENVIRONMENTAL REGULATION,

Respondent,

and

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


Intervenors.


vs.












MANATEE COUNTY, FLORIDA,

Petitioner,

and

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


Intervenors,


vs.


CASE NO. 81-040


STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL REGULATION,

and

ESTECH GENERAL CHEMICALS
CORPORATION,


Respondents.


ESTECH GENERAL CHEMICALS
CORPORATION,

Petitioner,

vs.

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.

STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL REGULATION,

Respondent,

and

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


CASE NO. 81-335
























CASE NO. 81-995


Intervenors.


& I









FINAL ORDER



On March 15, 1982, the Division of Administrative Hearings'

hearing officer in the above-styled case submitted her Recommended

Order to the Department of Environmental Regulation ("Department").

A copy of the recommended Order is attached as Exhibit A. On March

29, 1982, and April 13, 1982, I entered procedural orders setting

times for filing of exceptions, responses to exceptions and pro-

posed final orders. All parties to the proceeding filed exceptions

and responses, and Estech General Chemicals Corporation ("Estech"),

Manatee County, and Manasota-88, Inc. ("Manasota-88") filed pro-

posed final orders. As stipulated by the parties, my final order

in this cause was to be entered on or before May 28, 1982. Oral

arguments were held before me on May 11, 1982.



BACKGROUND

The case before me today is complicated in that it involves

numerous permit applications, substantive issues, and parties.

Estech has applied for four separate permits for its proposed

Duette Mine and beneficiation plant to be located in Manatee County

- a dam construction permit to build an initial clay settling area

(Florida Administrative Code Rule 17-9), a dredge and fill permit

(Florida Administrative Code Rule 17-4.28), a discharge permit

(Florida Administrative Code Rules 17-3 and 17-4), and state

certification for a National Pollutant Discharge Elimination System

(NPDES) permit. Estech also requested various relief mechanisms

including site specific alternative criteria and mixing zones. The

Department proposed to issue the dam construction and dredge and

fill permits and deny the discharge permit and NPDES certification.

Petitions for hearings on the various letters of intent were

consolidated below.

Prior to the final hearing in this case Estech had requested a

permit to discharge a portion of its mine process water to waters









of the state. During the hearing, however, the company and

Department staff reached an agreement by which there would be no

discharge to surface waters. A stipulation to this effect was

entered into evidence at the hearing.

After a hearing on the merits, the hearing officer recommended

that the Department issue the dam construction and dredge and fill

permits; however, she found that because Estech proposed to elimi-

nate its surface water discharge and was capable of containing all

water on site, the Department no longer had jurisdiction to require i

a discharge permit or NPDES certification.



RULINGS ON EXCEPTIONS

Most of the exceptions filed by the parties fall into one of

six general categories. For purposes of convenience, my rulings on

those exceptions will be organized in the same manner.

In ruling on these exceptions, I specifically note the

standards of review contained in Chapter 120. Section 120.57(1)

(b)9., Florida Statutes, provides that an agency head may not

reject the hearing officer's findings of fact unless she

determines, after a review of the complete record, that such find-

ings were not based upon competent substantial evidence. This is a

stringent test indeed, and the courts have rarely upheld an

agency's reversal of findings of fact. McDonald v. Department of

Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Venetian

Shores Home & Property Owners v. Ruzakawski, 336 So.2d 399 (Fla. 3d

DCA 1976).

1. Exceptions to Hearing Officer's Findings of Fact

Regarding Water Quality Data In its Exception No. 2, Estech asks

that I reject the hearing officer's Findings of Fact Nos. 45 and 46

relating to various water quality data submitted by the company.

The hearing officer found that the data were inconclusive and

failed to demonstrate scientific accuracy. Estech argues both that

the data are no longer relevant since the company does not propose


-2-


I









to discharge to surface waters and that the hearing officer misin-

terpreted the testimony and evidence.

While there may be some contradictory evidence with respect to

the water quality data, I find that there is competent substantial

evidence in the record to support Findings of Fact Nos. 45 and 46.

Therefore, Estech's Exception No. 2 is rejected.

2. Exceptions to Hearing Officer's Findings of Fact

Regarding Water Balance Manasota-88's exceptions relating to the

water balance evidence challenge the sufficiency of the data

presented by Estech on several grounds. Again, I find that there

is sufficient evidence in the record to support the hearing

officer's Findings of Fact Nos. 28 through 36 with respect to the

reliability of the water balance calculations.

3. Exceptions to Hearing Officer's Conclusion that

Estech's Dam Would Comply With Chapter 17-9, F.A.C. Without

citing a specific finding of fact or conclusion of law, Manasota-88

argues that the construction permit for the dam associated with the

initial clay settling area (ISA) should be denied since Estech did

not provide evidence regarding its plans for inspection and main-

tenance of the dam after construction. Florida Administrative Code

Rule 17-9 establishes design and construction requirements appli-

cable to the construction of any new dam. The hearing officer has

specifically found that Estech's proposed dam will be constructed

in accordance with the criteria of 17-9 and the record supports

such a finding. Once a new dam has been built, the inspection and

maintenance requirements contained in 17-9 and in appropriate

permit conditions would apply and failure to comply with those

requirements would be a violation of Chapter 403, Florida Statutes.

It is not necessary, however, to present detailed evidence with

respect to such inspection and maintenance plans to obtain a

construction permit. I specifically find that the evidence

presented at the hearing by Estech regarding post-construction

procedures was sufficient. Therefore, Manasota-88's Exception IB.

is rejected.


-3-









4. Exceptions Relating to Jurisdiction to Require

Certain Permits All parties take exception in one form or another

to the hearing officer's Conclusion of Law No. 9 that the

Department lost "jurisdiction" to require permits and NPDES

certification for discharge points 002 and 003, and to issue or

deny various relief mechanisms related to any proposed discharge,

such as site specific alternative criteria or mixing zones. (See

Estech's Exception No. 5; Department's Exception No. 1;

Manasota-88's Exception Nos. 11, 12, and 13; Manatee County's

Exception No. 9.) This Conclusion of Law could be sustained only

if the Department's jurisdiction were limited to those sources

which actually discharged to waters of the state. Section

403.087(1), Florida Statutes, however, requires that a Department

permit be obtained prior to construction or operation of any

stationary installation "which will reasonably be expected to be a

source of air or water pollution." Likewise, Section 403.061 (14),

Florida Statutes, gives the Department the authority to establish a

permitting system for sources which "may" result in pollution.

Obviously, the intent of these sections is to give the Department

jurisdiction over potential sources of pollution. The record

clearly demonstrates that the proposed Estech mine could

potentially result in a discharge of pollutants to waters of the

state. Only by proper design of the project can such discharges be

controlled or eliminated. To assure that the source is properly

designed, the project must be subjected to Department permitting

review.

Thus, I must reject the hearing officer's conclusions of law

to the extent that it holds that State discharge permits and NPDES

certification are unnecessary. However, I cannot agree with

Manasota-88's arguments that Estech must still obtain site specific

criteria if all waters are contained on site instead of discharging

to surface waters of the state. Under those circumstances, Estech

would not be an "affected" person under Florida Administrative Code


-4-









Rule 17-3.031 so as to be entitled to alternative criteria.

Likewise, if Estech does not propose to discharge any waters from

the site, it would not be entitled to or need a mixing zone under

Florida Administrative Code Rule 17-4.244.

5. Exceptions Relating to Admission of the Stipulation

Between the Department staff and Estech and Amendment of the

Application- In their exceptions, Manasota-88 and Manatee and

Sarasota Counties generally raise objections to the stipulation

that fall into one of two broad categories. First, a number of the

exceptions object to admission of the Stipulation into evidence and

allege that certain of the hearing officer's Findings of Fact are

based solely on the stipulation and not on other testimony and

evidence in the record (see Manasota-88's Exception No. IIIA.;

Sarasota County's Exceptions Nos. 4, 5, 6, 7, and 8; Manatee

County's Exceptions Nos. 1, 4, 5, 6, 10, and 11(a)).

All parties agree that the Stipulation may not be accepted

into evidence to prove the truth of its contents. It may, however,

be used to establish that an agreement exists which would require

the company to take certain actions (Hearing Officer's Findings of

Fact Nos. 41, 42). The question that must be answered, then, is

whether independent evidence exists in the record to support the

hearing officer's findings of fact.

A complete review of the record shows that competent substan-

tial evidence does exist. Estech's witness, Dr. Garlanger, testi-

fied on both direct and cross examination to the amount of storage

capacity that would be necessary to achieve a no discharge scenario

and its availability during the mining activities. Based on this

evidence, the hearing officer found that sufficient storage capa-

city was available to prevent all discharges to surface water.

These findings must stand.

Manasota-88 and Manatee and Sarasota Counties also argue, how-

ever, that admission of evidence relating to the no discharge


-5-









scenario violates their right to due process of law in that it

constitutes a substantial amendment to the discharge permit appli-

cation during mid-proceeding. (Manasota-88's Exception No. IIIB.;

Manatee County's Exception No. l(e) and (f); Sarasota County's

Exception Nos. 1, 6.)

It is clear under Florida law that an application for a permit

can be amended after its submission to the agency and even during

an administrative proceeding on the application. See Hopwood v.

Department of Environmental Regulation, 402 So.2d 1296 (Fla. 1st

DCA 1981); Florida Department of Transportation v. J.W.C. Co.,

Inc., 396 So.2d 778 (Fla. 1st DCA 1981). However, "major or

substantial amendments to or modifications of a permit application

in mid-proceeding may well constitute a due process problem of

notice to the agency." Hopwood v. Department of Environmental

Regulation, supra at 1299. In the present case, while the Depart-

ment does not object to the amendment, the other parties to the

proceeding argue that Estech's switch from a discharge to a no

discharge scenario during the final hearing on the permit

applications has prevented them from preparing adequately for the

hearing and thus deprived them of due process.

After reviewing the record, I must conclude that the process

has not been so unfair that it has deprived the parties of any

constitutional right.

The first consideration is whether the amendment to the appli-

cation has really been "major or substantial." In fact, the change

proposed by Estech is only one of degree. In any application for a

phosphate mine of this type, the amount of the proposed discharge

(and thus the water balance) would be an issue. Estech has not

introduced a new issue, it has simply proposed to completely elimi-

nate its discharge by increasing its water storage area. This

issue was raised by the Department prior to the hearing and

addressed by Estech at that time. (See Estech Exhibit 42A). Thus

Estech's no discharge proposal was subject to both discovery and


-6-









cross-examination. Nothing in the record suggests that the objec-

tors should have been surprised by Estech's amendment or unprepared

to address it. But, if such had been the case, the parties could

have requested a continuance of the hearing to allow them to

prepare their cases. The record, however, reflects that when

questioned by the hearing officer, all parties indicated their

readiness to present their cases after the stipulation had been

executed between Estech and the Department.

In light of the facts of this case, I find that there has been 4

no deprivation of due process.

6. Exceptions Relating to Compliance With the Depart-

ment's Groundwater Requirements This category of exceptions

raises the most difficult issue presented to the Department in this

case. It is difficult for many reasons. While it is clear from

the record that there will be discharges to the ground water from

some parts of the site, the hearing officer made no findings of

fact regarding the impact of such discharges or their compliance

with state standards. Likewise, the parties failed to deal with

this issue in any effective way at the hearing. Perhaps this is

not surprising, however, in light of the Department's past prac-

tices in regulating groundwater discharges from phosphate mining

activities. To put this issue in perspective, it is important to

understand those agency practices and the positions the various

parties have taken in this case. For that purpose, I take official

recognition of the final orders of the Department issuing permits

for phosphate mining activities.

In 1979, the Department adopted a rule which established water

quality criteria for the two classifications of receiving ground-

waters and provided for establishment of a zone of discharge within

which the specific criteria would not apply. (Florida Administra-

tive Code Rules 17-3.071, 17-3.101. 17-3.151, 17-4.245.) In

general, the Department has not required an applicant to obtain a

separate groundwater permit, especially if the source were subject


-7-









to other permitting requirements; but there have been exceptions to

that practice. See Capeletti Bros., Inc. v. Department of

Environmental Regulation, DOAH Case No. 79-1602R (entered July 7,

1980). Most sources which discharge to groundwater are now subject

to a permit review. Since 1979, the Department has continued to

expand its efforts in the area of groundwater regulation.

Regulations were adopted in late 1981 governing underground

injection wells and more recently the Department has held public

workshops in anticipation of amending its existing groundwater

rule. The Department's concern for achieving effective control of

groundwater pollution is also evident in its current set of

proceedings to adopt detailed hazardous waste regulations under

Chapter 403, Florida Statutes.

Despite these trends, however, when issuing permits for phos-

phate mining operations, the Department has not included conditions

requiring compliance with the groundwater criteria; several more

recent permits have contained conditions requiring groundwater

monitoring. In the instant case, the Department did not consider

groundwater requirements.

Section 120.68(12), Florida Statutes, provides that, on appeal

of final agency action, the appellate court shall remand a case to

the agency when it finds that the agency's action was inconsistent

with "a prior agency practice, if deviation therefrom is not

explained by the agency." In a similar vein, Florida Administra-

tive Code Rule 17-1.63 requires that approval or denial of permit

applications be consistent with prior Department decisions unless

explained in writing.

On this basis, Estech argues that the Department has recog-

nized a de facto exemption from groundwater permitting requirements

by not having applied its existing rule to such activities in the

past. On the other hand, Manatee County and Manasota-88 argue that

the hearing officer erred in not including findings of fact and

conclusions of law relating to groundwater contamination in her

recommended order and that the Department must deny Estech a permit


-8-









on the basis of failure to provide reasonable assurances that it

would comply with the groundwater rule.

The hearing officer in this case concluded only that the

construction of the ISA would not cause or contribute to a

violation of groundwater standards, since the sand-clay mix

collected in the ISA would be impermeable and act as a sealant.

The record, however, is clear that there will be substantial

seepage of mine process water into the groundwater from the other

mining activities, including the recirculation ditches. Moreover,

the hearing officer specifically found that the water quality data

submitted by Estech was suspect. Thus the record in this case

contains no reliable data with respect to the quality of the water

being discharged into the surficial aquifer. Obviously this

discharge is of great concern to the citizens of Manatee County

since the proposed mine site is within 'the watershed of Lake

Manatee, a primary source of drinking water.

In light of the Department's past practices, it would be

unfair to Estech, and contrary to the Department's rules and

Chapter 120, to deny it the permits it has sought on the grounds

that it has failed to provide reasonable assurances that discharges

to the aquifer will meet water quality criteria. On the other

hand, fairness to the people of Manatee County requires that the

potential impacts of these discharges be adequately evaluated in

accordance with the Department's groundwater rule, before mining

activities begin.

Thus, for the reasons stated above, I conclude that the

Department's past practices have been inadequate and give notice

that the Department will, in the future, consider groundwater

impacts in permitting of phosphate mining activities.

I fully recognize that this evolution in policy direction

places an additional burden on Estech in that it is being required

to meet standards that have not in the past been applied to similar

operations. In that regard, I would expect the Department staff to


-9-









process any application submitted by Estech with judicious prompt-

ness whether that be a separate groundwater permit application or

in conjunction with any other permit that might be required under

the Department's rules.

7. Miscellaneous Exceptions The parties have filed a

number of other exceptions to the Recommended Order which do not

fall into any of the categories discussed above. To the extent

that those exceptions are inconsistent with this Final Order I

reject them.

ORDER

Accordingly, having considered the Recommended Order, the

record and pleadings in this case, it is hereby

ORDERED that:

1. The hearing officer's findings of fact are adopted

in toto with the following correction. Finding of Fact No. 38

should reflect that a total storage capacity of between 16,682 and

27,149 acre feet will be available after the fourth year of mining,

instead of the fifth year.

2. The hearing officer's Conclusions of Law, as

modified by this order, are adopted.

3. Within thirty (30) days after entry of this order

the Department shall issue the following permits and

certifications, with appropriate conditions:

a. A dam construction permit pursuant to Fla.

Admin. Code Rule 17-9;

b. A dredge and fill permit pursuant to Fla.

Admin. Code Rule 17-4.28;

c. A discharge permit pursuant to Fla. Admin. Code

Rules 17-3 and 17-4, specifying that there will be no discharge to

surface waters of the state; and

d. the state certification for the required NPDES

permit.


-10-









4. Estech shall, prior to beginning operations, apply

for and receive a permit for discharges to groundwater pursuant to

Fla. Admin. Code Rules 17-3 and 17-4.

DONE AND ENTERED this A' day of May, 1982.








VICTORIA J./TSCHINKEL
Secretary

STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL REGULATION
Twin Towers Office Building
2600 Blair Stone Road
Tallahassee, Florida 32301
Telephone: (904) 488-4805


-11-











CERTIFICATE OF SERVICE


I HEREBY CERTIFY that true and correct copies of the

foregoing Final Order have been furnished by United States Mail

to the following this -,2? day of May, 1982.


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
Sarasota, Florida 33577

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

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

Wade Hopping, Esquire
Hopping, Boyd, Green & Sams
Suite 420, Lewis State Bank Bldg.
Tallahassee, Florida 32301

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




MARY F. LARK
General counsel

State of Florida, Department
of Environmental Regulation
Twin Towers Office Building
2600 Blair Stone Road
Tallahassee, Florida 32301
Telephone: (904) 488-9730






S. -


STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS



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, )

Respondent,

and

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

Intervenors.


CASE NO. 80-1486


CASE NO. 81-039


:-A:ATEE COUNTY, FLORIDA,

Petitioner,


and


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

Intervenors,


) CASE NO. 81-040


STATE OF FLORIDA, DEPARTMENT
OF ENVIRONMENTAL REGULATION,

and

ESTECH GENERAL CHEMICALS
CORPORATION,


)

)

) E x h ib t ....: / "
Exhibit No. ______


Respondents.


vs.





* /


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. 81-395

STATE OF FLORIDA, DEPARTMENT )
OF ENVIRONMENTAL REGULATION,
)
Respondent,
)
and
)
SARASOTA COUNTY, FLORIDA;
MANATEE COUNTY, FLORIDA; )
and MANASOTA-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

nrooosed 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 Discharqe 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.

B. 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 SecretarAy vf nEP

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

comply 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 17-5, 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

nine (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

water for residents of Manatee 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,

1381.

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

imooundment area for waste materials generated from the ini-

tial phases of the mining operation, before mine cuts are

available for waste disposal, and it provides one of the


to *




-. .L.-. -







storage areas for large volumes of water which are recirculated

during the mining and beneficiation 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 4

the State of Florida.

7. The initial clay settling area will be located

in the cast 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., ciqhty 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

qoes 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

safety 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

Sfil materials, and prepared surfaces will be scarified and

wott2ed or dried as required to obtain proper compaction.

7illinc operations will be completed prior to the initiation

of any construction activities associated with the ISA.

14. The general earthwork specifications prepared

bv 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,

uermeability, 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 t.o 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











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

clay mix 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 j

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 Chanter 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 was 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

water during the rainy season. There were no channelized









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

maoped 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

thlt, 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

cucstion 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-

itv control measures are employed during construction activities.

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

Ssures.

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

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

River. In 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









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 i

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

3S 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 mine, 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

clavs, 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 two active mining areas, the Duette mine system has a

minimum 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. Estech 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),000 acre feet;and, therefore, there would be no uncontrolled

discharges. 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

Ccde, 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

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

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

laboraory-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

uocn or incorporate the results of the tests described in the

receding 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


* e









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 ..










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 al'l required informa-
tion the Department must either issue
or deny the permit within sixty (60)
day's.



(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) TheDepartment 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

ccom-l with the requirements of Chapter 17-9, Florida Adminis-

trative Code.

4. The evidence clearly shows that Estech's proposed

dam meets all of the applicable criteria set forth in Chapter

17-9, Florida Administrative Code, including the design criteria


0 '., 1







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-

drrds, 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).


23





0 *-


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 4

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. rSince 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 an::rove or deny the permits sought by Estech in its water-

cualitv 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 permit to construct the initial settling area,

subject to the applicable conditions set forth in the initial





* i' p



SNotice 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 /S
day of March, 1982.

Cooies furnished:

(See next page.)




rS.





80-1486, 81-039, 31-040
81-335, 81-995
4
Copies furnished:

E. N. Fay, Jr., Esouire
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, Escuire
:lelson, Hesse, Cyril, Weber,
Smith & Widr.an
2070 Ringling Boulevard
Post Office Box 2524
Sarasota, Florida 33577
9.
Thcmas W. Reese, Esquire
123 Eighth Street North
St. Petersburg, Florida 33701

David M. Levin, Esauire
Alfred W. Clark, Esquire
Department of Environmental
Regulation
Twin Towers Office Building
?2JO Blair Stone Road
Tallahassee, Florida 32301

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

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

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

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


__




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