STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANASOTA—88, INC., )

)

Petitioner, )

)

vs. } CASE NO. 85-2731

) MANATEE COUNTY and STATE OF ) FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

The final hearing in this case was held in Bradenton, on January 20 and 21, 1986. The parties asked for and received until March 17, 1986, in which to file proposed recommended orders and other post-hearing papers.

APPEARANCES

For Petitioner: Thomas W. Reese, Esquire

123 Eighth Street North

St. Petersburg, Florida 33701

For Respondent Richard M. Goldstein, Esquire Manatee County: Suite 3250, One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

Michael D. Hunt; Esquire Public Utilities Department 4501 66th Street West Bradenton, Florida 33507

Department of Anthony Cleveland, Esquire Environmental Douglas M. Wyckoff, Esquire Regulation: Twin Towers Office Building

2600 Blairstone Road

Tallahassee, Florida 32301

The issue is whether Respondent, Department of Environmental Regulation (Department) should grant the application of Respondent, Manatee County (County), for a permit to construct a deep injection well in Manatee County to be tested for possible use for disposal of secondarily treated waste or effluent. As a result of prehearing and hearing procedures, the parties stipulated or conceded that the County has given reasonable assurances that its proposed project complies with almost all Department statutes and rules. The remaining factual issues are: (1) whether the injection zone for the proposed project contains waters classified G-IV, as required: (2) whether the effluent to be injected when the proposed project is operational will be confined to the injection zone (3) whether injection of the effluent will degrade water quality in the overlying aquifer: (4) whether the construction of an exploratory well should precede the granting of the permit for construction of a deep injection well: (5) whether the County should be required to filter effluent injected into the test well and (6) whether the County has the financial responsibility to properly plug the well if necessary.1

EVIDENTIARY MATTERS

At final hearing; County Exhibits 1-A, 1-B, 2 through 5, 6A, 6B, 6C, and 7 through 22, were offered and received in evidence. Petitioner's Exhibits 3A and 3B also were offered and received in evidence.

At the final hearing, Manasota-88 introduced evidence of what would be considered out of court statements by Department employee Richard Duerling and representatives of the Environmental Protection Agency who Manasota-88 asserts refused to recognize subpoenas and did not testify at the final hearing. This evidence is hearsay and would not be admissible in a civil action. Therefore, the evidence cannot be used independently to support a Finding Of Fact. Nor does the evidence supplement or explain other non-hearsay evidence. Therefore; the evidence concerning the statements by Duerling and the EPA representatives is inadmissible and should not be considered.

See Section 120.58 (l)(a); Florida Statutes (1985).

FINDINGS OF FACT

1. The Application

   
   

   1. Respondent; Manatee County (County), has applied to Respondent; Department of Environmental Regulation (Department),

      for a permit to construct a deep injection well in Manatee County. On July 9; 1985; the Department issued a Notice of Intent to issue the permit with certain conditions.

      
      

   2. In 1983, the County updated its Federal 201 Facilities Plant for treatment and disposal of waste to take into consideration both growth that had taken place in the southwest part of the county and the needs of the rest of the unincorporated area of the county. It was determined to expand the southwest treatment plant as part of the amendments. As before, the County planned to dispose of effluent from the southwest treatment plant by land application to agricultural lands and public golf courses.

      
      

   3. However; the Environmental Protection Agency requires a twenty year guarantee that effluent can be disposed of in the manner proposed in the 201 plan. The County could not make such a twenty year guarantee for the land application system because it only has a ten-year lease with the Manatee Fruit Company allowing-application on its agricultural fields. The additional cost to purchase or lease land to enable the County to make a twenty year guarantee made land use plus a back-up deep injection well the most cost effective alternative. The County included such a well in its amended 201 Plan.

      
      

   4. The County plans to continue to use land application as long as it is available. However; even with current land application capacity; land application and existing storage facilities will not enable the county to handle all of the effluent produced during rainy weather. The County estimates that this shortage of capacity will exist on an average of 27 days per year on which approximately 4 million gallons per day (MOD) would be disposed of by deep well injection. After the first several years of operation, it is expected that the rate of injection on these days during the rainy season will increase to approximately six MGD.

      
      

   5. Effluent from the County's southwest treatment plant is secondarily treated. It has the capability of controlling pH and being disinfected. The plant also can be modified to add a filtration system to filter suspended matter and viruses if necessary.

      
      

   6. The site of the proposed deep injection well is the Cortez Peninsula in Manatee County. The proposed site is virtually the westernmost point of land in Manatee County other than the barrier islands off the coast.

      
      

   7. Under the construction permit for which the County has applied, the County would first construct a monitor well on the same construction pad as, and approximately 70 feet away from, the deep injection well.

      
      

   8. The County does not propose to construct an exploratory well at the proposed site. The County previously constructed an exploratory well approximately three and a half miles east of the proposed site at the County's southwest treatment plant. That exploratory well will also be used to monitor background water in the aquifer above the confining formation above the proposed injection zone.

      
      

   9. The purpose of the proposed deep injection well is for testing preliminary to an application for a permit to operate the deep injection well to dispose of secondarily treated wastewater or effluent. During construction of the proposed well, water quality; geophysical and hydrological tests will be conducted. The results of the tests will be presented to the Technical Advisory Committee (TAC). Based on the tests results, the TAC will either approve or disapprove testing the well with fresh water. These tests will yield additional information concerning the transmissivity of the injection zone and pressure build-ups. The results of these additional tests will again be presented to the TAC. Based upon the results of the tests, the TAC will either approve or disapprove further testing under operating conditions; i.e., using secondarily treated wastewater or effluent. This last testing period probably will last between three and six months. (The representations of the County and the Department in this Finding Of Fact are not specified in the draft permit which the Department noticed intent to issue.)

      
      

2. Manasota-88

   
   

   1. Petitioner, Manasota-88; Inc.; opposes the granting of the County's application.

      
      

   2. Manasota-88 is properly and currently incorporated under the laws of the State of Florida and took proper corporate action to commence its petition in this case.

      
      

   3. Manasota-88 is a citizen with standing to petition in opposition to the granting of the County's application.

      
      

3. The Injection Zone

1. The proposed well will be approximately 1700 feet deep. At that depth; the injection zone will consist of the Avon Park limestone formation which begins approximately 1000 feet deep. The proposed injection zone consists of brown, finely crystalline, massive dolomite with well developed solution cavities and fractures. Above the injection zone lies the Ocala limestone formation; the confining bed; which occurs at depths of approximately between 1000 and 700 feet. The Ocala limestone confining bed consists of friable or chalky limestone or calcareous clay. Above the confining bed is the Suwannee limestone formation, which occurs at depths of approximately 700 to 425 or 350 feet. Like the Avon Park limestone formation, the Suwannee limestone formation is an aquifer however, unlike the Avon Park limestone formation, Suwannee limestone formation is used as a source of water in Manatee County, primarily for agricultural irrigation purposes.

   
   

2. Like the exploratory well, the monitor well will monitor water occurring at the bottom of the Suwannee limestone formation aquifer. This will enable both the monitor well and the exploratory well to observe water quality at those locations.

   
   

   D Water Quality In The Injection Zone

   
   

3. The water quality at the top of the injection zone at the exploratory well; following pumping and sampling, stabilized at about 14,000 milligrams per liter total dissolved solids (TDS). The water quality in the rest of the injection zone at the exploratory well ranged from 15,290 TDS to 37,700 TDS.

   
   

4. Generally, water quality improves as one moves up, south and east within the aquifer. As a result, there is an approximate interface within the aquifer at which water quality equals 10,000 TDS. This saltwater interface or wedge at the top of the Avon Park aquifer is approximately four miles east of the exploratory well. The interface is a dynamic interface which moves with stress or recharge the aquifer. It may, for example, move in a band during the wet season and dry season. If the recharge is great into the zone somewhat further out to the east, the interface may move to the west. In a drought period, the zone is stressed to the west, and it may move to the east as a function of recharge and discharge. But in any event, the inter-face at the top of the injection zone is east of the exploratory well. Apparently contrary evidence suggesting that water quality improves as one moves west is limited to the

   Suwannee limestone aquifer, which is used for irrigation purposes. Discharge of water from the Suwannee aquifer for irrigation creates hydrauli gradients which can cause artificial water quality findings. The Avon Park aquifer is unaffected by irrigation or any other use of the aquifer.

   
   

5. Since the proposed test injection well is located approximately two and a half miles west of the exploratory well; water quality throughout the proposed injection zone can be expected to be greater than 10,000 TDS.

   
   

6. If, contrary to the greater weight of the evidence presented at the final hearing in this case, water quality at the proposed injection zone is less than 10,000 TDS, that fact would be revealed during the construction of the test deep injection well and during the various tests to be conducted after construction. There is no environmental reason to construct another exploratory well at the proposed site instead of the test injection well. Water quality tests would be just as accurate as, if not more accurate than; with an exploratory well. The practical use of an exploratory well is that the smaller (six inch versus twenty-four inch casing) exploratory well costs approximately one tenth the cost of a test injection well; allowing an applicant to reduce the potential losses in the event the well proves unsuitable. Based upon the findings at the exploratory site; there is not even an economic reason for digging another exploratory well at the new proposed site.

   
   

   1. Confinement In The Injection Zone

      
      

7. The proposed confining zone is the Ocala limestone formation which occurs from approximately 700-1000 feet deep and consists of friable or chalky limestone or calcareous clay.

   
   

8. The Ocala limestone has very low permeability, particularly vertical permeability; and would act as a proper confining zone. The permeability of the Ocala limestone is on the order of 3000 to 5000 times lower than that of the injection zone.

   
   

9. In additional to permeability, the rate and manner of injection into the injection zone affects the ability of the confining zone to confine the injectant. It is easier for a confining zone to do so if the injection occurs periodically rather than continuously. When water is injected periodically, the pressure associated with buoyancy is dissipated rather quickly, decreasing pressure build-up.

   
   

10. Although 15 million gallons per day (MOD) is the operational capacity of the well, the average rate of injection to be used by the county will be approximately 6 MGD. The 6 MGD average will not be reached during the first several years of operation. At the beginning of operations, the rate of injections will be approximately between 3 and 4 MGD.

    
    

11. Aquifer pressure also is affected by the transmissive qualities of the injection zone. Based upon tests run at the exploratory well, it is estimated that the injection zone at the exploratory well can transmit between 500,000 and 1 million gallons per day per foot. Those estimates were made in part by adjusting actual transmissivity figures of between 100,000 and 150,000 gallons per day per foot for friction loss in the six- inch exploratory well which would not be experienced in a

    twenty-four inch test injection well.

    
    

12. Based upon the geology of the area; it can be expected that the transmissivity of the proposed injection zone will approximate the transmissivity of the injection zone at the exploratory well.

    
    

13. Again, if, contrary to the greater weight of the evidence presented at the final hearing of this case, transmissivity of the proposed injection zone is significantly lower than 500,000 to 1 million gallons per day per foot, the actual transmissivity of the proposed injection zone will be indicated by tests run during construction of the test infection well and during tests run after construction. Since the test injection well will be able to run tests under operational conditions; transmissivity values from the test well will be more accurate than any similar tests that could be run at another exploratory well at the proposed site. There also will be no need to estimate an adjustment for friction loss. Again, there is no environmental reason to construct an exploratory well instead of a test well at the proposed site.

    
    

14. Using a constant injection rate of 6 MGD and a transmissivity value of 500 thousand gallons per day per foot, the travel time through the confining zone would be approximately 130 years. Using a transmissivity value of one million gallons per day per foot, the travel time through the confining zone would be approximately 225 years.

    
    

15. As previously mentioned; the proposed Well actually is intended to be used periodically; not constantly. With this

    type of use; the travel time through the confining zone would extend many hundreds of years.

    
    

16. The effect of variations in the actual injection rate from the proposed injection rate can be controlled during operational permitting.

    
    

17. The Ocala limestone extends westward into the Gulf of Mexico about 100 to 150 miles.

    
    

18. Fluid injected at the proposed injection zone would travel a predominantly westward direction; consistent with the regional hydraulic gradient in the injection zone.

    
    

19. If the effluent travels through the confining zone during the 130 or more years; it would be filtered by the fine grain limestone which would remove all the suspended matter and; over that period of time, the biodegradation of the effluent would render it virtually inert.

    
    

20. Under the conditions and pressures under which Manatee County proposes to operate the deep injection well, none of the injected fluid would come through the confining zone and there would be no salinity changes above the confining zone attributable to the injection well. No aquifer or any part of an aquifer which is or may be used as an underground source of drinking water will be affected by the proposed injection of treated effluent.

    
    

    1. No Need For Filtration

       
       

21. Filtration of effluent being injected into the proposed deep well does not require filtration for removal of viruses. The suspended matter to which viruses attach themselves will be filtered out of the effluent by the rock matrix and particles of the injection zone and especially the confining zone.

    
    

22. Filtration also probably will not be necessary for operational efficiency of the proposed well. The transmissivity of the injection zone is high enough for the proposed well to be expected to operate at less than 70 pounds per square inch (psi) pressures; well below the approximate confining zone fracture pressure of 1000 psi. Because of the transmissivity of the injection zone, it is not anticipated that filtration will be necessary.

23. In any event, the need for filtration is an operational concern which can be governed in operation permit procedures in light of the better information which will be obtained as a result of testing during and after construction of the proposed well.

    
    

24. If pressure build-ups do occur as a result of unexpected plugging of the well, the problem can be eliminated by more frequent (and costly) maintenance cleaning of the well or by adding a filtration system.

    
    

    1. Financial Responsibility

    
    

25. The cost to plug the proposed well if, for some reason, it could not be operated ranges between $10,000 and

    $100;000.$10;000 would cover the cost of pumping cement down the well; the simplest plugging technique. It would cost about

    $100,000 to set up a complete rig. The rig system would be the better system for plugging the well.

    
    

26. The County has approximately 3.5 to 4.5 million dollars of-uncommitted reserves which could be used to pump the well; if necessary. In addition; the County has money in contingency funds as part of its overall 201 Facility Plan construction program. The County has sufficient funds available on a day-to-day basis to pay for plugging the well.

    
    

27. The Department does not usually require a county government to post a performance bond as financial assurance of its ability to plug an abandoned well; at least where the county government's financial resources approximate those of Manatee County. The Department's rationale for this policy is that a county government is a subunit of the state government.

    
    

28. The County maintains financial responsibility and resources to close, plug and abandon the proposed well if necessary without posting a performance bond. But the draft permit which the Department noticed intent to issue does not require the County to certify continued maintenance of this financial ability.

CONCLUSIONS OF LAW

1. Governing Law And Burden Of Proof

   1. Permitting construction of a deep injection test well is governed by the provisions of Chapter 17-28; Florida Administrative Code.

      
      

   2. The County's proposed well is defined as a Class I well under Rule 17-28.13(1)(a); Florida Administrative Code.

      
      

   3. Under Rule 17-28.133; Florida Administrative Code, a permit for construction of a Class I test/injection well is separate from an operation permit and; under subparagraph (l)(b), "does not obligate the permitting authority to authorize operation of the well, unless the well qualifies for an operation permit."

      
      

   4. Rules 17-28.22(6) and 17-28.26; Florida Administrative Code, authorizes the Department to require periodic data reports and progress reports during construction and authorized testing of a Class I test/injection well, including pump tests and water quality analyses. The Department is authorized to request that the applicant provide direct distribution of the reports to the Technical Advisory Committee (TAC). Submission of a Final Report also is required.

      
      

   5. The Technical Advisory Committee (TAC) is a group of professionals knowledgeable in underground injection control requirements; geology; groundwater hydrology; well-drilling, geophysical logging; and pollution control; assembled for the purposes of advising the Department on underground injection projects; as defined by Rule 17-28.12(55); Florida Administrative Code. According to Rule 17-28.11(1)(b); Florida Administrative Code, the TAC is normally composed of representatives from the Department's district and Tallahassee offices; the appropriate water management district; the United States Geological Survey; and the United States Environmental Protection Agency. The TAC is chaired by a representative of the Department who is responsibility for forwarding the TAC recommendations to the permitting authority.

      
      

   6. Under Rule 17-28.34; Florida Administrative Code, which governs application for Class I injection well operation permits; the application must include the data included in the periodic data reports and progress reports and Final Report on construction and testing. It also must include the recommendation of the TAC.

      
      

   7. It is clear from the foregoing rule provisions that a permit for construction of a Class I test/injection well is to

      be differentiated from and is preliminary to an operating permit for the well. An applicant must prove entitlement to the permit for which it applies. Florida Department of Transportation v.

      J.W.C. Company, Inc.; 396 So. 2d 778 (Fla. 1st DCA 1981). But in this case, Manatee County need only prove entitlement to a permit to construct a Class I test/injection well, not entitlement to a permit to operate the well in a particular manner. It also is clear; both from the above rule provisions and from the Findings Of Fact, that there is a limit to the certainty with which an applicant is able to prove entitlement to a construction permit since more detailed and accurate data is not available until after construction.

      
      

2. Contested Permitting Criteria

   
   

   1. Requirements for a permit to construct a Class I test/injection well are found in Rules 17-28.13; 17-28.21, and 17-28.22, Florida Administrative Code. However, in this case; the parties stipulated that Manatee County has met many of the elements of entitlement to a construction permit. The County's credible and credited evidence proving some other elements of entitlement was not seriously contested and no contrary evidence of equivalent quality was presented by Manasota-88. The issues raised by the Amended Petition to Intervene and Request for Formal Hearing and the evidence presented at the final hearing are limited.

      
      

   2. Rule 17-28.12(25); Florida Administrative Code, defines an exploratory well as a "cased well drilled in an area which there is limited hydrologic and geologic data; to obtain sufficient data to determine the feasibility of injection." In this case; data collected at the exploratory well three and a half miles east of the proposed well; together with the other available data; was sufficient to determine the feasibility of injection. Therefore; no additional exploratory well at the proposed site is necessary or desirable.

   
   

   10. Under Rules 17-28.13(1)(a) and (2) and 17-28.21(1) (a) and (2)(a); Florida Administrative Code, the County's proposed project is permittable only if the injection zone is confined and has a total dissolved solids (TDS) content greater than 10,000 milligrams per liter. As reflected in the Findings Of Fact; the County has given reasonable assurances, at least for purposes of a test/injection well construction permit, that the injection zone meets this requirement.

   1. Rule 17-28.21(1)(a), Florida Administrative Code; also provides in part: "An assessment of the lateral position which total dissolved solids exceeds 10,000 mg/1 in the injection zone waters shall also be provided." In this case; Manatee County provided an adequate assessment of the position of the interface. This is reflected in the Findings of Fact.

      
      

   2. Rule 17.28-21(1)(a); Florida Administrative Code, also requires an applicant to demonstrate that the injection zone "is suitable for waste injection without endangering the underground sources of drinking water or modifying the ambient water quality of other aquifers overlying the injection zone." To repeat; the County proved confinement of the injection zone sufficiently to entitle it to a construction permit. For the same reason, the County adequately proved; for purposes of a construction permit; that injection of waste down its proposed well would not endanger underground sources of drinking water or modify the ambient water quality of other aquifers underlying the injection zone. More detailed and valuable data relating to the question of confinement will be obtained during construction and testing. From this data; the TAC and the Department will be in a better position to evaluate with more certainty that the injection zone is confined at particular operational variables before testing with effluent or actual operations are authorized.

   3. Rule 17-28.27(9);Florida Administrative Code, provides in pertinent part:

      
      

      "The permit shall require the permittee to maintain financial responsibility and resources, in the form of performance bonds or other equivalent form of financial assurance approved by the Department, to close, plug, and abandon the underground injection operation in a manner prescribed by the Department."

      
      

      The evidence proved that Manatee County has the financial responsibility and resources to close; plug and abandon the proposed well if necessary. The County's financial resources and its status as a subunit of state government is the equivalent of a performance bond so long as the County represents that it will maintain at least $150,000 of its reserves uncommitted and available for use to close; plug and abandon the proposed well if necessary.

      
      

3. No Need For Filtration

   
   

   1. Under Rule 17-3.403(1); Florida Administrative Code; Class G-IV ground waters are classified as: "Non-potable water use; ground water in confined aquifers which has a total dissolved solids content of 10,000 mg/1 or greater."

      
      

   2. Rule 17-3.406; Florida Administrative Code requires the Department to specify applicable standards for discharges to Class G-IV groundwater on a case-by-case basis. Based on the evidence of this case; there is no valid reason to require; as part of the construction permit; that the County's proposed well have a method for filtering the proposed effluent. The proposed well can be adapted for filtration if necessary. Because transmission through the injection and confining zone will effectively filter the effluent of all suspended solids and viruses, there is no separate environmental reason to require filtration. Whether lack of filtration will raise operating pressures high enough to interfere with the function of the confining zone; can be better determined after construction and testing. If the further testing indicates a need for filtration, filtration can then be required by the Department.

      
      

4. Future Points Of Entry

1. A legal question arises whether the Department's subsequent decisions--whether to allow testing with freshwater; whether to allow testing with effluent; and whether to require filtration--based upon additional information obtained during construction and testing would create another point of entry for Manasota-88 to initiate administrative proceedings. This is not a question that need be decided in this proceeding.

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is

RECOMMENDED that Respondent; Department of Environmental Regulation; enter a final order granting the application of Respondent; Manatee County for a permit to construct a Class I deep injection/test well in Manatee County and issuing a permit as previously drafted; with all specific and general conditions; plus additional conditions: (1) that no testing of the completed well will be done without prior Department approval, upon recommendation of the Technical Advisory Committee: (2) that no testing of the completed well with waste water be done before completion of testing with freshwater: and (3) that Manatee County be required to certify that it will continue to maintain at least $150,000 of its reserves uncommitted and available for use in closing, plugging, and abandoning the well if necessary.

DONE and ORDERED this 5th day of May, 1986, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1986.

ENDNOTE

1/ Manasota-88 attempted to raise for the first time at final hearing the contention that, if approved, construction of the proposed well should employ the open circulation method. This issue was not timely raised and should not be considered. In any event, the County provided reasonable assurances assuming a closed circulation construction method, and Manasota-88 did not prove that open circulation is necessary or even preferable.

COPIES FURNISHED:

Thomas W. Reese, Esq.

123 Eighth Street North St. Petersburg, FL 33701

Richard M. Goldstein, Esq. Suite 3250, One Biscayne Tower Two South Biscayne Boulevard Miami, FL 33131

Michael D. Hunt, Esq. Public Utilities Department 4501 66th Street West Bradenton, FL 33507

C. Anthony Cleveland, Esq. Douglas M. Wyckoff, Esq. Twin Towers Office Bldg. 2600 Blairstone Road Tallahassee, FL 32301

Docket for Case No: 85-002731

Orders for Case No: 85-002731