STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1647

) CAST-CRETE CORPORATION OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on January

16 and 17, 1985, in Tampa, Florida. The issue for determination in this proceeding is whether respondent maintains and operates a stationary installation which will reasonably be expected to be a source of pollution and is subject to orders for corrective action.

APPEARANCES

For Petitioner: David K. Thulrman

Assistant General Counsel Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32301

For Respondent: W. DeHart Ayala, Jr.

501 East Jackson Street, Suite 200 Tampa, Florida 33602

INTRODUCTION

By "Notice of Violation and Orders for Corrective Action" filed on April 9, 1984, the petitioner, Department of Environmental Regulation (DER), charged the respondent, Cast-Crete Corporation of Florida Cast-Crete), with violating Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, by operating an industrial wastewater treatment system without a permit and ordered that certain corrective action be taken. The respondent requested an administrative hearing pursuant to Section 120.57(1), Florida Statutes, and the undersigned was designated as the Hearing Officer.

At the hearing, the petitioner presented the testimony of Henry Dominick, an industrial waste permitting engineer; Andrew Berry, a solid waste specialist; and Alexander Pavda, a chemist, all of whom are with the DER's Southwest District Office. Petitioner's Exhibits 3 through 8 were received into evidence.

The respondent presented the testimony of William Kardash, Cast-Crete's Vice-President in charge of manufacturing; Bruce Cowell, a biology professor at

the University of South Florida; and Robert S. Braman, a chemistry professor at the University of South Florida. Respondent's Exhibits 1 through 9 were received into evidence.

Subsequent to the hearing, both parties submitted proposed findings of fact and proposed conclusions of law, which have been thoroughly considered. To the extent that the factual findings proposed by the parties are not incorporated into this Recommended Order, they are rejected as being not supported by competent, substantial evidence adduced at the hearing; irrelevant or immaterial to the issues in dispute; and/or as constituting legal conclusions as opposed to factual findings.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence in the record, as well as the pleadings and joint prehearing stipulation, the following relevant facts are found:

1. Cast-Crete owns and operates a concrete batch plant in Hillsborough County, Florida, and manufactures concrete products such as reinforced beams, lintels, seals and drainage structures on the property. The plant is located on the west side of State Road 579, 3/4 mile north of Interstate 4, Section 28, Township 28 South, Range 20 East.

   
   

2. The concrete products are manufactured in various forms which are laid out over a large portion of Cast-Crete's property. Lubricating oils are utilized to facilitate the removal of the product from the confining forms. During this process some of the lubricating oil is spilled onto the ground. Also, cleaning solutions containing degreasers are utilized to wash the concrete trucks eight to ten times per day. This solution ends up on the ground.

   
   

3. Aggregate limerock (crushed limestone) is used in the concrete formulation process and is stored in large piles on the property. In order to contain the dust, water is sprayed on the aggregate piles 24 hours a day.

   
   

4. The wash water from the continuous process of wetting the aggregate, other waste water and some stormwater is channeled through the property and into a settling pond in the northwest corner of Cast-Crete's property. This pond discharges continuously off the property by way of a concrete flume into a county maintained ditch. Water in the ditch travels in a westerly direction approximately 200 to 300 yards before it passes under Black Dairy Road, where the watercourse deepens and widens. The ditch discharges into a marshy area which drains into Six Mile Creek and other water bodies.

   
   

5. The pond at the northwest corner of Cast-Crete's property is equipped with a metal skimming device to remove oils and greases floating on the surface of the pond. Nevertheless, it is estimated that approximately 100 gallons of oil per year are discharged by Cast-Crete. Oil and grease in the outflow water is occasionally above 5 mg/L. Oil and grease layers have been observed on water at both Black Dairy Road and Six Mile Creek, probably resulting from road run- off.

   
   

6. Approximately 90 percent of the water discharged from the property is a result of the wetting or washdown of the aggregate piles. The excess water which comes from the aggregate piles is laden with dissolved limestone, lime and limestone particles. This limestone dust raises the pH level of the water.

7. Because of the continued wetting of the aggregate, water flows through the settling ponds and off of Cast-Crete's property at a rate of approximately

   4.8 gallons per minute, or 7,200 gallons per day or 2.5 million gallons per year. During a rain event, the flow increases markedly. Except during times of heavy rainfall, water flowing from the respondent's property provides a thin stream of water in the drainage ditch approximately six inches wide and several inches deep.

   
   

8. The pH of the wastewater from Cast-Crete's discharge flume is between

   10 and 11 units. During high volume flows, the pH remains at or above 11 units. An increase of one unit of pH in the wastewater means that the wastewater has become 10 times more basic, since pH is measured on a logarithmic scale. The natural background of unaffected streams in the area of and in the same watershed as the Cast-Crete property is less than 8.5 units.

   
   

9. Specific conductance or conductivity is the measure of free ions in the water. Typical conductivity readings from other water bodies in Hillsborough County range between 50 and 330 micromhos per centimeter. The specific conductance of Cast-Crete's wastewater ranges from 898 to 2000 micromhos per centimeter. This is due to the presence of calcium carbonate and calcium hydroxide in the water.

   
   

10. Blue-green algae is the dominant plant species in the ditch between the Cast-Crete discharge flume and the first 150 meters of the ditch. A biological survey of the ditch system indicates that the diversity of species east of Black Dairy Road is low. This is attributable in part to the high pH of the wastewater. The low diversity can also be attributed to the fact that the County maintains the ditch by use of a dragline on an annual basis.

    
    

11. Background samples from a site within one mile to the northwest of the Cast-Crete property were taken. The site (a stream passing under Williams Road) is an appropriate place to take background samples because the water there is unaffected by Cast-Crete's discharge or other man-induced conditions. The pH background sample ranged from 4.6 units to 5.1 units. The specific conductance background samples ranged from 70 to 100 micromhos per centimeter. Samples taken from a site potentially impacted by Cast-Crete's discharge showed a pH level of from 6.35 to 7.37 units and specific conductance of from 592 to 670 micromhos per centimeter.

    
    

12. Cast-Crete discharges water from its concrete plants operation without a permit from the DER.

    
    

    CONCLUSIONS OF LAW

    
    

13. It is unlawful to operate, maintain or construct a stationary installation which will reasonably be expected to be a source of water pollution without an appropriate and currently valid permit issued by the DER. Section 403.087(1), Florida Statutes. An "installation" includes any structure or operation which may emit water contaminants in quantities prohibited by the DER rules. Section 403.031(8), Florida Statutes. "Water" includes all surface waters, except those owned entirely by one person, which are included only in regard to possible discharge on other property or water. Section 403.031(3), Florida Statutes.

    
    

14. The respondent has argued that it is not required to obtain a permit because it is not discharging water contaminants into waters of the state. To support this argument, respondent relies upon the statute (Section 403.817) and

    rules (Rule 17-4.02(17)) pertaining to determinations regarding the landward extent of state waters based upon the presence of delineated dominant plant species. This method for determining the extent of DER's jurisdiction is utilized primarily for delineating the borders of water bodies in dredge and fill cases. It is not a prerequisite to DER's jurisdiction when water being discharged into "surface water" obviously flows into other water bodies. It is concluded that "surface waters" as defined in Section 403.031(3), Florida Statutes, begin where Cast-Crete's wastewater from the discharge flume first hits the ditch, and that the DER has jurisdiction to regulate discharges to the ditch.

    
    

15. The testimony and documentary evidence presented at the hearing clearly demonstrates that Cast-Crete's wastewater violates the water quality standards set forth in Chapter 17-3, Florida Administrative Code.

    
    

16. In pertinent part, Rule 17-3.061(2)(1) provides that

    
    

    pH - shall not vary more than one unit above or below natural background provided that the pH is not lowered to less than 6 units or raised above 8.5 units. If natural background is

    less than 6 units, the pH shall not vary below natural background or vary more than one unit above natural background. If natural background is higher than 8.5 units, the pH shall not vary above natural background or vary more than one unit below background.

    
    

    Here, the pH of natural background is less than 8.5 units and the pH of Cast- Crete's wastewater is greater than 10 units. Thus, the Cast-Crete discharge is a potential source of water pollution with regard to the pH level. Likewise, the criteria for specific conductance set forth in Rule 17-3.061(2)(o) is not met, nor is the criteria regarding oils and greases set forth in Rule 17- 3.061(2)(k) Florida Administrative Code. The specific conductance of Cast- Crete's wastewater is well over 100 percent above background levels, and its wastewater occasionally contains oils and greases in excess of 5 milligrams per liter.

    
    

17. Violations of the standards for pH, specific conductance and oils and greases constitute pollution. Rule 17-3.061(2), Florida Administrative Code. Therefore, it must be concluded that Cast-Crete maintains and operates a stationary installation which is reasonably expected to be a source of pollution, and must apply for and obtain an appropriate and currently valid permit from the DER.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered requiring respondent to submit a complete application for an industrial wastewater permit within thirty (30) days, and that, if it fails to do so, it cease discharging wastewater from its property until such time as an appropriately valid permit is issued by the DER.

Respectfully submitted and entered this 3rd day of May, 1985, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1985.

COPIES FURNISHED:

David K. Thulman Assistant General Counsel

Department of Environmental Regulation

Twin Towers Office Building Blairstone Road Tallahassee, FL 32301

W. DeHart Ayala, Jr.

501 E. Jackson Street Suite 200

Tampa, FL 33602

Victoria Tschinkel Secretary

Department of Environmental Regulation

Twin Towers Office Building 2600 Blairstone Road

Tallahassee, FL 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

DEPARTMENT OF ENVIRONMENTAL REGULATION, STATE OF FLORIDA,

Petitioner,

vs. CASE NO. 84-1647

CAST-CRETE CORPORATION OF FLORIDA

Respondent.

/

FINAL ORDER

On May 3, 1985, the Division of Administrative Hearings' hearing officer in the above-styled case submitted her Recommended Order to me for final agency action. A copy of that Order is attached as Exhibit A. Pursuant to Section 120.57(1)(b)8., Florida Statutes, and Florida Administrative Code Rule 17-

103.200 all parties to the proceeding were allowed ten days in which to file exceptions to the Recommended Order. Respondent Cast-Crete Corporation of Florida ("Cast-Crete") filed timely exceptions, a copy of which are attached as Exhibit B. Complainant Department of Environmental Regulation (the "Department") filed a Response to those exceptions.

BACKGROUND

The Department served a Notice of Violation on Cast-Crete in April of 1984, alleging that Cast-Crete had constructed and was operating an industrial wastewater treatment system without a permit. Cast-Crete argued that the Department has no jurisdiction to require a permit because Cast-Crete does not discharge to waters of the state. The hearing officer concluded that the ditch to which Cast-Crete discharges is waters as defined in section 403.031(3), Florida Statutes (1983) and recommended that Cast-Crete be-required to obtain a permit or cease operations.

RULINGS ON EXCEPTIONS

1. Cast-Crete's first exception is to the finding of fact that aggregate piles at the site are sprayed with water primarily to control dust. The record supports a modification of this finding to reflect the fact that the spraying is being conducted primarily to saturate the rock. Accordingly, the Recommended Order will be so modified. I would note, however, that this modification in no way affects the outcome of the case.

   
   

2. Cast-Crete's second exception is also to a factual finding. In ruling on this exception and the remaining exceptions I take notice of the standard of review set forth in Section 120.57(1)(b)9., Florida Statutes. Under that

   provision, I may not reject the hearing officer's findings of fact unless, after a review of the complete record, I determine that there is no competent substantial evidence to support the hearing officer's findings.

   
   

   In this case there is testimony in the record, apparently accepted by the hearing officer, to support the finding that the dominant plant species in the ditch is blue-green algae. Thus the second exception is rejected.

   
   

3. The third exception requests that I make eight additional findings of fact. Each of those requests will be dealt with separately.

   
   

   1. Cast-Crete first requests that I find that its discharge constitutes the sole source of water in the ditch except in times of heavy rainfall. This request is rejected as irrelevant and immaterial as it makes no difference where the water in the ditch comes from.

      
      

   2. Next Cast-Crete requests a finding that "state waters" begin 50 yards east of Black Dairy Road and not at the point of discharge. This statement actually constitutes a legal conclusion and is directly contrary to the hearing officer's conclusion that the ditch is waters as defined in Section 403.031(3), Florida Statutes (1983). That section provides:

      
      

      (3) "Waters" shall include, but not be limited to rivers, lakes, streams, springs, impoundments, and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface or underground. Waters owned entirely by one person other than the state are included only in regard to possible discharge on other property or water. Underground waters include, but are not limited to all underground waters passing through pores of rock or soils or flowing through in channels, whether manmade or natural.

      
      

      This definition of waters is extremely broad and includes surface waters in artificial waterbodies such as ditches. The fact that Cast-Crete is the primary source of flow in the ditch is irrelevant to the issue of whether the Department has jurisdiction over the discharge. Thus this request for an additional finding of fact is rejected as it is contrary to the law and not supported by any evidence.

      
      

   3. and d. Cast-Crete's next two requests for an additional finding of fact must also be rejected since they are dependent on my concluding that the ditch at the point of discharge is not state waters.

      
      

      1. Cast-Crete's requests a "finding" that specific conductance does not indicate the chemical content of water and thus does not constitute pollution. Section 403.031(2), Florida Statutes, defines "pollution" as:

         
         

         the presence in the. . .waters of the state of any substances, contaminants,. . .or man-made or man-induced alteration of the chemical, physical, biological, or radiological integrity of. . .waters in qualities or at levels which are or may be potentially harmful

         or injurious to human health or welfare, animal or plant life or property, or unreasonably interfere with the enjoyment of

         life or property, including outdoor recreation.

         
         

         The Department has established a water quality standard for specific conductance at a level to protect the waters of the state. A violation of that standard constitutes pollution within the broad definition quoted above.

         
         

      2. Cast-Crete requests that a number of findings of fact be made regarding the quality of its effluent and the neutralization process occurring naturally. Those findings are rejected as being irrelevant and immaterial to the issue in this case - whether a permit should be required for Cast-Crete's discharge.

         
         

      3. With respect to the water quality standard for oils and greases, there is competent substantial evidence in the record to support a finding that Cast- Crete's discharge causes or contributes to a violation of that standard.

         
         

      4. Finally, Cast-Crete requests a finding that its discharge does not adversely affect aquatic organisms or plant life in waters of the state. I find no basis in the record for such a finding and, thus, reject this request.

      
      

4. In addition to the exceptions to findings of facts, Cast-Crete has filed four exceptions to the hearing officer's conclusions of law. First, the company excepts to the hearing officer's conclusion that it discharges into waters of the state. This exception argues that the Department's jurisdiction over waters is limited by Section 403.817, Florida Statutes. This argument misconceives the regulatory scheme established by Chapter 403. Section 403.087 provides that the Department shall require permits for stationary installations which may be a source of water pollution. "Waters" of the state are defined in Section 403.031(3), Florida Statutes (1983) as amended by Section 403.031(12), Florida Statutes (1984 Supp.). Section 403.817 does not limit those waters which are within the Department's jurisdiction. Instead, it provides a method, once it is determined that a water of the state exists, of delineating the landward boundary of that water.

   
   

   In this case, the ditch into which Cast-Crete discharges was found by the hearing officer to be a water of the state. Thus the existence or non-existence of vegetation in that ditch is irrelevant.

   
   

5. In its next exception, Cast-Crete argues that the hearing officer erred in failing to conclude that the definition of pollution in Rule 17-3.021(19) applies in this case. That Rule definition is identical to the statutory definition quoted above. I find no inconsistency between that definition of pollution and the statement in Rule 17-3.061(2) that violation of the listed water quality criteria shall constitute pollution. In interpreting the statutory definition, the Department has adopted by rule specific criteria for a number of pollutants based on their expected impacts on water quality. It is a reasonable construction of the statute that exceedances of those levels will cause pollution.

   
   

6. Cast-Crete's next exception seems to argue that the Department bears the burden in any enforcement case to establish a violation of the criteria contained in Florida Administrative Code rule 17-3.051. In fact, the requirements of Rule 17-3.051 and Rule 17-3.061 are independent of each other. The Department did not allege and was not required to prove a violation of Rule 17-3.051.

7. Cast-Crete next alleges that the hearing officer failed to conclude that the facility could reasonably be expected to be a source of pollution. In fact, the hearing officer did make that conclusion at page 6 of the Recommended Order.

   
   

8. Cast-Crete's final exception must also be rejected since I have already upheld the hearing officer's conclusions that Cast-Crete is causing water quality violations in waters of the state.

Accordingly, having considered the record and pleadings below, it is ORDERED that,

1. The hearing officer's findings of fact and conclusions of law are adopted as modified herein.

   
   

2. Within thirty days of entry of this final order, Cast-Crete shall apply for an industrial wastewater permit or shall cease discharging wastewater from its facility to waters of the state.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32301; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.

DONE AND ENTERED this 8th day of August, 1985.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

VICTORIA J. TSCHINKEL

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

(904) 488-4805

FILING AND ACKNOWLEDGMENT

FILED, on this date, pursuant to 120.52(9), Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.

Sharon Y. Clark 08/09/85 Clerk Date

Docket for Case No: 84-001647

Orders for Case No: 84-001647