November 11, 1997 1:47PI__ From: Steven A. Medina Fax #: 904.681-71 Page 13 of 24 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS JOSEPH L. CUTTER, Petitioner, ws poattcaseNo.g7-202 D717 OGC CASE NO. 97-1040 BUCKEYE FLORIDA, LP. and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondents. SECOND AMENDED PE: FOR FORMAL ADMINISTRATIVE PROCEEDING Petitioner, Joseph I. Cutter (Petitioner), by und through counsel, petitions for a formal administrative proceeding on State of Florida Department of Environmental Protection's CDEP") notice of recommendation to grant private easement to Buckeye Florida, 1. ("Buckeye"), and states as follows: PRELIMINARY INFORMATION 1, Petitioner's name, address, and telephone number are as follows: Joseph L. Cutter, Rt. 1, Box 1130, Perry, Florida 32347; (850) 584-6513. 2. DEPS facility number or case number that relates 10 the notice of recommendation to grant easement is OGC Case No. 97-1040, 3. The county in which the subject matter or activity is located is Taylor County, Florida. 4. Petitioner received notice of the Department's action from his wife Sharon Cutter on May 31, 1997,November 11, 1997 1:47 From: Steven A. Medina Fax #: 904.681-7" Page 14 of 24 5. Petitioner's substantial interests are affected by DEP's action as follows: Petitioner and his family reside near the Fenholloway Fstuary, Fenholloway River, and adjacent coastal waters of the Gulf of Mexico. ‘The proposed private easement for Buckeye will make possible a pipeline that will do lasting damage to Petitioner and his family. Petitioner and his family use the Fenholloway Estuary, Fenholloway River, and adjacent ‘coastal waters for recreational purposes, and the adjacent coastal waters for fishing purposes. Petitioner and his family would also use the Fenholloway Estuary and Fenholloway River for fishing, if the pollution that has occurred or will oveur fFom the subject pulp mill facility did not render this futile and‘or dangerous. Petitioner and his family have been curtailed in their use of public resources by the pollution from the facility. Petitioner is conoemed that the proposed pipeline made possible by the easement will further render the habitat in the Fenholloway Estuary unproductive as a food source, spawning area, and mursory for fish species, and thereby have a detrimental affect on fishing. Petitioner is concerned that fishing, and recreational uses such as swimming will be adversely impacted due to Buckeye's polluting conditions made possible by the pipeline, which could result in fish kills and other harmful and noxious conditions affecting state submerged lands, including the sediments, the natural resources and scenic beauty. Petitioner is concerned the pollution from the Buckeye facility will result in damage to the overall coological health and productivity of the Fenholloway Estuary and adjacent coastal waters. Petitioner is concerned that because of the pipeline to the Fenholloway Estuary litte or no water will be left in substantial stretches of the Fenholloway River during substantial periods of the year, inhibiting Petitioner and his family from navigation, recreation, and fishing of the Fenholloway River and the groundwater aquifer from recharging. Petitioner is further concemed that sediments within the Fenholloway River,November 11,1997 1:47P1 From: Steven A. Medina Fax 904.681-7! Page 15 of 24 which are reasonably expected to be contaminated with dioxin and other harmful polhutants from the facility, will became exposed to the air, passersby, persons using the river for recreation and fishing, and fish and wildlife, and that such sediments could, after being dried due to exposure to the air, be transported to other areas during storm events. Petitioner is concemed thatthe constniction of the pipeline will deprive him and his family of access to and from Peterson's Landing and further deprive him and his family of public of access to the Gulf of Mexico. Petitioner is concerned about the impact of construction and operation of the pipeline on wildlife, including the Florida manatee, and osprey that nest in the area of Peterson's Landing, STATEMENT OF MATERIAL FACTS DISPUTED BY PETITIONERS 6. Petitioner disputes the contention that the proposed private easement for Buckeye will aid in fulfilling the trust and fiduciary responsibilities of the Board of Trustees of the Internal Improvement Trust Fund, 7. Petitioner disputes the contention that the proposed private casement for Buckeye will insure the maximum benefit and use of sovereignty lands forall the citizens of Florida 8. Petitioner disputes the contention that the proposed private easement for Buckeye will manage, protect and enhance sovereignty lands so that the public may continue to enjoy traditional uses including, but not limited to, navigation, fishing and swimming. 9. Petitioner disputes the contention that the proposed private easement for Buckeye will manage and provide maximum protection for all sovereignty lands, especially those important to public drinking, water supply, shellfish harvesting, public recreation, and fish and wildlife propagation and management.November 11, 1997 1:47P From: Steven A. Medina Fax #: 904.6817 Page 16 of 24 10. Petitioner disputes the contention that the proposed private easement for Buckeye will ensure that all public and private activities on sovereignty land which generate revenues or exclude traditional public uses provide just compensation for such privileges. 11. Petitioner disputes the contention that the proposed private easement for Buckeye will aid in the implementation of the State Lands Management Plan. 12. Petitioner disputes the contention that the proposed private easement for Buckeye will not be contrary to the public interest. 13. Petitioner disputes the contention that the proposed private easement for Buckeye will be in the public interest. 14, Petitioner disputes the contentions that any demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of the Proposed action would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action, or that the demonstrable environmental, social, and economic costs of the proposed action do not exceed any demonstrable environmental, social, and economic benefits which would accrue to the public at lange as a result of the proposed action, particularly when the ultimate project and purpose to be served by the proposed private easement is considered. 15. Petitioner disputes the contention that the proposed private easement for Buckeye contains such terms, conditions, or restrictions as necessary to protect and manage sovereignty lands, 16. Petitioner disputes the contention that the proposed private easement for Buckeye will require equitable compensation from Buckeye.November 11, 1997 1:47 PI_ From: Steven A. Medina Fax #: 04-681. Page 17 of 24 17. Petitioner disputes the contentions that Buckeye will not enjoy the generation of revenues, monies or profits as a result of the proposed private easement, and that the ‘general public will not be limited or preempted in their uses as a result of the proposed private easement, 18. Petitioner disputes the contentions that the proposed activities on sovereign lands are water dependent activities, or that the Board should make an exception for Buckeye to allow a non-water dependent activity 19. Petitioner disputes the contention that the proposed private easement for Buckeye will allow all sovereignty lands to be used as single use lands managed primarily for the maintenance of essentially natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming. 20. Petitioncr disputes the contention that the proposed private easement for Buckeye will involve compatible secondary purposes and uses which will not detract from or intorfore with the primary purpose of sovereignty lands, 21. Petitioner disputes the contention that the proposed private easement for Buckeye will not result in significant adverse impacts to sovereignty lands and associated resources while reasonable alternatives are available to eliminate or minimize adverse impacts and while adequate mitigation is not proposed. 22. Petitioner disputes the contentions that the proposed private easement for Buckeye will be designed to minimize or eliminate adverse impacts on fish and wildlife habitat and to give adequate attention and consideration to endangered and threatened speci habitat,November 11, 1997 1:47 PI From: Steven A. Medina Fax #: 904.681.7 Page 18 of 24 23. Petitioner disputes the contention that the application for the proposed private casement for Buckeye hus a statement evidencing that the casement sought is in the public interest Petitioner disputes the contention that the proposed private easement for Buckeye should be granted upon the proposed terms and conditions, including the proposed single payment of $300 for an 80-year private easement. 25. Petitioner disputes the contention that the proposed single $300 foe for the proposed 80-year private easement for Buckeye adequately considers the extent to which the easement is exclusionary, i, the degree to which the proposed easement precludes, in whole or in part, traditional or future public uses of the easement area and other submerged land. 26. Petitioner disputes the contention that the proposed single $300 foe for the proposed 80-year private easement for Buckeye adequately considers the enhanced property ‘value of profit be gained by Buckeye if the proposed easement is approved. STATEMENT OF FACTS THAT PETITIONER CONTENDS WARRANT REVERSAL OR MODIFICATION OF DEP'S ACTION 27. The proposed private easement for Buckeye will make possible a pipeline discharge that will do lasting damage to sovercign submerged lands, the environment, natural resources, and people of this state who use, or absent Buckeye's discharge could use, the Fenholloway Estuary and adjacent coastal waters. 28. With the pipeline made possible by the proposed easement, the Fenholloway Fstuary and adjacent coastal waters will suffer a lasting loss of use for fishing, swimming, and recreational purposes. ‘The habitat in the Fenholloway Estuary will be rendered unproductive 4s. food souree, spawning area, and nursery for fish species, and this will have a detrimentalNovember 11, 1997 1:47 Pi _ From: Steven A. Medina Fax #: 904.681-7 Page 19 of 24 affect on fishing, Fish kills and other harmful and noxious conditions affecting the natural resources and scenic beauty will be facilitated. The continuing pollution fiom the Buckeye facility will result in damage to the overall ecological health and productivity of the Fenholloway Estuary and adjacent voastal waters. 29. Moreover, because of the pipeline 10 the Fenholloway Estuary, little or no water will be lef substantial stretches of the Fenhotloway River during substantial periods of the year, inhibiting the public from navigation, recreation, and fishing of the Fenholloway River and the groundwater aquifer from recharging Further sediments within the Fenholloway River, which are reasonably expected to be contaminated with dioxin and other hharmfil pollutants, will become exposed to the air, passersby, persons using the river for recreation and fishing, and fish and wildlife, and such sediments could, after being dried duc ‘tp exposure to the air, be transported to other areas during storm events 30. _Inaddition, the construction of the pipeline will deprive the public of access to and from Peterson's Landing and further deprive the public of access to the Gulf ef Mexico. 31. Further, the construction and operation of the pipeline will adversely impact wildlife, including the Florida manatee, and osprey that nest in the area of Peterson's Landing, 32. Unlike as intendod under Florida Administrative Code Rule 18-21.001(1), the proposed private easement for Buckeye will not aid in fulfilling the trust and fiduciary responsibilities of the Board of Trustees of the Infernal Improvement Trust Fund. Unlike as intended under Florida Administrative Code Rule 18-21.001(2), the proposed private easement for Buckeye will not insure the maximum benefit and use of sovereignty lands for all the citizens of Florida. Unlike as intended under Florida Administrative Code Rule 18- 21.001), the proposed private easement for Buckeye will not manage, protect and enhanceNovember 11, 1997 1:47Ph__ From: Steven A. Medina Fax #: 904.681-7 Page 20 of 24 sovereignty lands so that the public may continue to enjoy traditional uses including, but not limited to, navigation, fishing and swimming. Unlike as intended under Florida Administrative Code Rule 18-21.601(4), the proposed private easement for Buckeye will not manage and provide maximum protection for all sovereignty lands, especially those important to public drinking water supply, shellfish harvesting, public recreation, and fish and wildlife propagation and management, Unlike as intended under Florida Administrative Code Rule 18-21,001(5), the proposed private easement for Buckeye will not ensure that all public and Private activities on sovereignty land which generate revenues or exclude traditional public uses provide just compensation for such privileges. Unlike as intended under Florida Administrative Code Rule 18-21.001(6), the proposed private easement for Buckeye will not sid in the implementation of the State Lands Management Plan, 33. In violation of Florida Administrative Code Rule 18-21.010(1Xe) the application for the proposed private easement for Buckeye does not have a statement evidencing that the easement sought is in the public interest. Rather, in violation of Florida Administrative Code Rule 18-21.004(1(a), the proposed private easement for Buckeye would be contrary to the public interest. 34. The proposed private easement for Buckeye would pethaps be in the private interest of Buckeye and its customer Proctor and Gamble, not in the public interest of all the citizens of Florida, Any demonstrable environmental, social, and economic benefits which ‘would acerue fo the public at large as a result of the proposed action would not clearly exceed all demonstrable environmental, social, and economic costs of the proposed action. In fact, the demonstrable environmental, social, and eoonomie costs of the proposed action fo theNovember 11, 1997 1:47 PN From: Steven A. Medina —_Fax #: 904.681-7¢ Page 24 of 24 public at large would exceed any demonstrable environmental, social, and economic benefits which would acerue to the public at large as a result of the proposed action. 35. Inder the public interest definition in Florida Administrative Code Rule 18 21,003(40), the Board must consider not only the environmental, social, and economic costs in the area of the proposed easement but also the ultimate project and purpose to be served by the easement, The ultimate project and purpose to be served by the casement is Buckeye's privately-owned pulp mill facility and its proposod pipeline conveyance of pollution to the Fenholloway Estuary and thereafter into Apalachee Bay within the Gulf of Mexico. Overall, when the ultimate project and purpose to be served by the proposed private casement is ‘considered, the proposed private easement for Buckeye is not in the public interest and, in fact, contrary to the public interest. 36. The easement would foster and encourage a harmfil industrial polluter in the transferring of its pollution from one dumping site in the Fenholloway River to another—with, the new dumping site being in the middle of an estuary of tremendous natural productivity and only 1.7 miles from the Gulf. The easement would not force Buckeye to do what would truly be in the public interest: effectively cleaning up its processes, minimizing the quantity and potentially harmfil constituents of any discharge, discharging, if at all, in the least harmful ‘way, and ensuring that residual sediment contamination reasonably expected to exist within the Fenholloway River is appropriately remediated. 37. The proposed private easement for Buckeye does not contain such terms, conditions, or restrictions as necessary to protect and manage sovereignty lands, in violation of Florida Administrative Code Rule 18-21,004(1}b).November 11, 1997 1:47PI From: Steven'A. Medina Fax #: 904.681-7: Page 22 of 24 38. The proposed private easement is corporate welfare for Buckeye and will not require equitable compensation ftom Buckeye, in violation of Florida Administrative Code Rule 18-21.004(1(¢). Buckeye should pay fair market value for any state sovereignty lands it ‘wishes 10 pollute, not freeload on the backs of the general public, Buckeye will enjoy the generation of revenues, monies and profits as a result of the proposed private easement. ‘Meanwhile, the general public will be limited or preempted in their uses of state sovereignty lands as a result ofthe proposed private easement, 39. In violation of Plorida Administrative Code Rule 18-21.004(1X4), the proposed activities on sovervign lands are not water dependent activities as defined in Florida, Administrative Code Rule 18-21.003(56), nor should the Board make an exception for Buckeye to allow a non-water dependent activity. Buckeye can and should design a project, that will deal with Buckeye’s pollution without obtaining direct access for disposal to the Fenholloway Estuary. Any lands directly receiving Buckeye's pollution should do so in a ‘manner that reasonably prevents harm from releases to state sovereign submerged lands and to the general public. 40. In violation of Florida Administrative Code Rule 18-21.004(2Xa), the proposed private easement for Buckeye will allow sovereignty lands fo be used other than as single use lands managed primarily for the maintenance of essentially natural conditions, propagation of fish and wildlife, and traditional reercational uses such as fishing, boating, and swimming. The proposed private easement for Buckeye will not involve compatible secondary purposes and uses, but rather purposes and uses that will detract from or interfere with the primary purpose of sovereignty lands, 10November 11, 1997 4:47 Ph From: Steven A. Medina Fax #: 904.681-71 Page 23 of 24 41. In violation of Florida Administrative Code Rule 18-21.004(2Xb), the proposed private easement for Buckeye will result in significant adverse impacts to sovereignty lands and associated resources while reasonable allematives are available to climinate or minimize adverse impacts and while adequate mitigation is not proposed 42. In violation of Florida Administrative Code Rule 18-21.0042xi), the proposed private easement for Buckeye will not be designed to minimize or eliminate adverse impacts on fish and wildlife habitat and to give adequate attention and consideration to ‘endangered and threatened species habitat, The Florida manatee, which is already so egregiously in jeopardy, will be harmed by Buckeye’s pipeline, as will other fauna, including osprey that nest in the area of Peterson's Landing, 43. A proposed private easement for Buckeye, assuming one should be granted at all, should not be granted upon DEP's proposed terms and conditions, including the proposed single payment of $300 for an 80-year private easement, ‘The Board should exercise its must ‘and fiduciary authority to demand terms and conditions under Florida Administrative Code Rule 18-21.010(2), including payments for any easement, that protect the public's rights and property 44, In violation of Florida Administrative Code Rule 18-21.011(2Xb)1, the proposed single $300 fee for the proposed 80-year private easement for Buckeye does not adequately consider the extent fo which the casement is exclusionary, ic. the degree to which the proposed easement precludes, in whole or in part, traditional or future public uses of the easement area and other submerged land. 45. Further, in violation of Florida Administrative Code Rule 18-21.011(2Xb)2, the proposed single $300 fee forthe proposed 80-year private casoment for Buckeye does not uNovember 11, 1997 1:47Ph From: Steven A. Medina Fax #: 904-681-7E Page 24 of 24 adequately consider the enhanced property value or profit to be gained by Buckeye if the proposed easement is approved. STATEMENT OF WHICH RULES OR STATUTES PETITIONERS CONTEND REQUIRE REVERSAL OR MODIFICATION OF DEP'S PROPOSED ACTION 46. The following rules or statutes require reversal or modification of DEP's action: Florida Administrative Code Chapter 18-21, inchiding the rules cited above, and Chapter 253, Florida Statutes, STATEMENT OF RELIEF SOUGHT BY PETITIONERS 47. Petitioner requests that the proposed private easement to Buckeye be denied, and that, ifany private casement is nonetheless approved for Ruckeye, that it only be approved upon such terms and conditions that protect the public and obiain full compensation for what the public has lost and Buckeye has gained. DATED this 11th day of November, 1997. 1 HEREBY CERTIFY that a copy of the foregoing was fumished by facsimile and USS, Mail to Lynette L. Ciardulli, 3900 Commonwealth Blvd, MS #35, Tallahassee, FL. 32399.3000; and Terry Cole and Patricia A. Renovitch, P.O, Box 6507, Tallahassee, FL 32314-6507 on this 11th day of November, 1997. STEVEN A. MEDINA, P.A. isi STEVENA MEDINA Fla, Bar No. 370622 P.O, Box 4378 Tallahassee, Flovida 32315-4378 (904) 681-7825, Attomey for Petitioner Joseph I. Cutter 12