STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES P. PAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2002

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and SARASOTA ) COUNTY PUBLIC UTILITIES ) DEPARTMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a duly assigned Hearing Officer, William R. Cave, of the Division of Administrative Hearings held a formal hearing in the above- captioned matter on July 28-30, 1992 in Sarasota, Florida.

APPEARANCES

For Petitioner: Bruce Wheeler Pitzer, Esquire

546 47th Street Sarasota, FL 34234

For Respondent: William A. Dooley, Esquire Sarasota County Nelson, Hesse, Cyril, et al. Public Utilities 2070 Ringling Blvd.

Department Sarasota, FL 33237

Joseph W. Landers, Esquire Landers & Parsons

310 W. College Avenue, 3rd Floor Tallahassee, FL 32301

For Respondent: W. Douglas Beason, Esquire Department of Department of Environmental Environmental Regulation

Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400

STATEMENT OF THE ISSUES

1. Whether Respondent Sarasota County Public Utilities Department (Sarasota County) has provided reasonable assurances pursuant to Rule 17- 555.530(1)(a), Florida Administrative Code, that its proposed water treatment plant will comply with each applicable water quality standard contained in Part III, Chapter 17-550, Florida Administrative Code.

2. Whether Respondent Sarasota County has provided reasonable assurance pursuant to Rule 17-555.530(1)(b), Florida Administrative Code, that its proposed water treatment plant meets adequate engineering design complying with the applicable engineering principles established in Rules 17-555.310 through 17-555.160, Florida Administrative Code.

PRELIMINARY STATEMENT

By proposed agency action of February 20, 1992, the State of Florida, Department of Health and Rehabilitative Services (HRS) through the Sarasota County Public Health Unit (SCPHU), announced its intent to issue a permit DER File No.: Pats #204307 and SCPHU No.: WC #1591-91-036 pursuant to Chapter 403, Florida Statutes and Rule 17-555, Florida Administrative Code. This permit would allow Sarasota County to construct a well field, raw water collection system and a 12 million gallons per day (mgd) electrodialysis reversal water treatment plant with an auxiliary power system to provide potable water for the residents of Sarasota County. After required public notice, the Petitioner, Charles P. Page, on March 10, 1992, filed a petition for an Administrative Proceeding (Hearing) in accordance with Section 120.57, Florida Statutes, with the Florida Department of Environmental Regulation (Department) claiming that his substantial interest would be affected by the proposed agency action.

By letter dated March 26, 1992 the Department transferred the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer and the conduct of a hearing.

On Sarasota County's Motion To Expedite, without objection from Petitioner, this matter was scheduled for hearing on June 16, 1992.

An Order was entered partially granting Sarasota County's Motion in Limine and limiting the issues to matters set forth in paragraphs 1, 2 and 3 of the Notice of Intent to Issue, i.e., whether Sarasota County has provided reasonable assurances pursuant to Rule 17-555.530(1)(a)(b), Florida Administrative Code.

That same order denied Sarasota County's Motion to Dismiss with the understanding that Sarasota County would be allowed to present evidence and re- argue the motion at the final hearing. Having reviewed the evidence presented at the final hearing and argument of counsel Motion To Dismiss is denied.

Subsequent to the issuance of the above order, the Petitioner obtained legal counsel. A Motion For Continuance filed by Petitioner was granted and the hearing was rescheduled to commence on July 28, 1992.

At the hearing, Sarasota County presented the testimony of Charles H. Wigley, Salvatore D'Angelo, Ronald F. Giovannelli and Kent Kaser. Sarasota County's exhibits 1 through 20 were received as evidence in this case.

Petitioner testified in his own behalf and presented the testimony of Kent Kaser, Robert F. Bolesta, Salvatore D'Angelo, Judith Richtar, Norman Nixon, Wyatt S. Bishop and Edward S. Sanders. Petitioner's exhibits 1 through 14, 16,

20 and 21 were received as evidence in this case. The record indicates that Petitioner's original exhibit 14 was withdrawn and Nixon's resume' was given exhibit number 14. The record does not indicate an exhibit numbered 15 for Petitioner. Objection to Petitioner's exhibits 17, 18, 19 as to relevancy was sustained and Petitioner proffered exhibits 17, 18, and 19. After reviewing the record in this regard, the objection to relevancy is sustained. Respondent Florida Department of Environmental Regulation did not offer any witnesses or documentary evidence.

Certain testimony of Norman Nixon, Wyatt S. Bishop and Edward S. Sanders was proffered after an objection based on relevancy was sustained. After reviewing the record in regards to this testimony, the objection to relevancy is sustained.

A transcript of this proceeding was filed with the Division of Administrative Hearings on August 14, 1992. The parties timely filed their Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

STIPULATED FACTS

1. Sarasota County Utilities Department is a department established by Sarasota County, a political subdivision of the State of Florida and operates a public utility department which is charged with meeting, among other things, potable water needs of the residents of Sarasota County.

   
   

2. At all times pertinent to the issues herein, HRS was responsible for receiving applications and issuing permits for the construction of water treatment plants and the accompanying well field.

   
   

3. Petitioner, Charles P. Page, is a resident of Sarasota County and resides at 259 Glen Oak Road, Venice, Florida.

   
   

4. Sarasota County filed an Application for a Water Treatment Plant Construction Permit with HRS seeking to construct a well water collection system and a 12 mgd - electrodialysis treatment plant having an auxiliary power system to provide power for the well field and water treatment plant.

   
   

5. Sarasota County has previously obtained a water use permit from the Southwest Florida Water Management District (SWFWMD) #208836.00, restricting Sarasota County to feed water for the water treatment plant to 7,303,000.00 gallons average daily withdrawal and 9,625,000.00 gallons peak monthly withdrawal.

   
   

6. Sarasota County has received permits for the eleven (11) production wells from HRS.

   
   

7. It was the duty of HRS to review the plans and specifications and all supporting documentation to assure that they address and meet every requirement listed in Rule 17-555, Florida Administrative Code, for the issuance of a construction permit.

   
   

   BACKGROUND

   
   

8. Sarasota County has historically purchased its potable water from Manatee County and the City of Sarasota.

   
   

9. Several years ago the County began investigating water supplies and treatment processes which it could implement to service their existing and future customers. The Carlton Reserve (sometimes referred to as Ringling

   MacArthur Tract) was purchased to utilize the ground waters and surface waters identified as potential well water supplies.

   
   

10. The consulting firm of Dames & Moore was retained by the County to be the overall project manager and they subcontracted certain portions of the project to Boyle Engineering Corporation.

    
    

11. Several studies were completed by various consulting firms allowing potentially viable treatment processes including:

1. Reverse osmosis (RO);

2. Electrodialysis reversal (EDR); and

3. Ion exchange (IE).

These preliminary determinations were made on the basis of the initial well water quality analysis of the Carlton Reserve ground waters.

1. In January, 1989, planning and construction of a pilot scale treatment facility for RO and IE, with and without pre-treatment softening, were initiated.

   
   

2. An EDR pilot plant was operating at Sarasota County's Sorrento Shores site treating untreated well water of lower quality than that found at the Carlton Reserve.

   
   

3. The pilot scale facilities were operated over a continuous thirty (30) day period. Operational data were collected and water quality data on key constituents were collected and monitored daily. Samples of the feed waters, reject waters and treated waters from the three (3) processes were tested for primary and secondary drinking water standards by an independent laboratory.

   
   

4. The three processes provided overall treatment capabilities sufficient to meet the County's finished water goals.

   
   

5. Boyle Engineering recommended that an evaluation of the three (3) primary alternatives be conducted. It was clear that all of the processes could meet the requirements. The analysis went into non-cost factors, such as efficiency and better use of the water that could improve overall operations.

   In May, 1989 the Board of County Commissioners accepted the recommendation for the treatment process known as EDR.

   
   

6. Preparation of the final plans and specifications has been a several year process through the preliminary design report to the final plans and permits.

   
   

7. The Department's Underground Injection Control Section has regulatory responsibility for issuing permits for the underground injection of the EDR reject.

   
   

8. During the period from October 23, 1991 until the Notice of Intent to Issue, Sarasota County's Application to Construct a Public Drinking Water System along with all relevant supplemental material submitted in support of the application and introduced as evidence in this proceeding were reviewed by Robert Bolesta, Engineer II, HRS, under the supervision of Ken Kaser, the HRS engineer responsible pursuant to Section 403.862, Florida Statutes.

9. Based upon its review of Sarasota County's application and all relevant supplemental material submitted in support of the application, HRS determined that reasonable assurances had been given by Sarasota County that the plant as designed will comply with Rule 17-555.530(1)(a)(b), Florida Administrative Code. The SCPHU's Director and Health Officer issued the Notice of Intent to Issue on February 20, 1992.

   
   

   REASONABLE ASSURANCES STIPULATED

   
   

10. The parties in compliance with the Prehearing Order entered into a Prehearing Stipulation and agreed that the following portions of Rules 17-

    555.310 through 17-555.360, Florida Administrative Code, were either not applicable or that Sarasota County has provided reasonable assurances.

    
    

    1. Rule 17-555.312, Florida Administrative Code

    
    

    b. Rule 17-555.315(1)(2)(a)(c)(d)(e)(f)(g)(h)(3)(4)(5), Florida

    Administrative Code.

    
    

    c. Rule 17-555.320(1)(2)(4) through (9), Florida Administrative Code.

    
    

    d. Rules 17-555.322, 17-555.325, 17-555.330, 17-555.335, 17-555.340, 17-

    555.345, 17-555.350, 17-555.355, and 17-555.360, Florida Administrative Code.

    
    

    REASONABLE ASSURANCES NOT STIPULATED

    
    

    Rule 17-555.310, Florida Administrative Code

    
    

11. Sarasota County conducted feasibility studies to look at alternate water sources and the Carlton Reserve water was selected taking into consideration the standards in Rule 17-555.310 Florida Administrative Code and those imposed by the SWFWMD.

    
    

12. The wells are properly installed and grouted to avoid vertical contamination from one aquifer to another.

    
    

13. The plant is in a non-earthquake zone.

    
    

14. The floor pads for the plant operational activities will be located above the one hundred year flood plain.

    
    

15. The plant site is properly protected from fire by fire alarm systems and sensors which have all received permit approval and the site will have fire hydrants.

    
    

16. All of the factors listed in Rule 17-555.310, Florida Administrative Code, were taken into account in the design for the Sarasota County Water Treatment Plant.

    
    

    Rule 17-555.315(2)(b), Florida Administrative Code

    
    

17. Eleven (11) production wells were drilled in accordance with technical specifications approved by HRS.

    
    

18. These wells were drilled as pilot wells, pump tests were performed, data obtained and the wells were subsequently converted and permitted as production wells.

19. The casing materials and grouting requirements of Rule 17- 555.315(2)(b), Florida Administrative Code, have been met as indicated by Sarasota County's exhibit 19.

    
    

    Rule 17.555.320(3), Florida Administrative Code

    
    

20. The Environmental Protection Agency has contracted with the National Sanitation Foundation to establish criteria for additives and coatings and linings used in water treatment plants. The specifications for this plant require the use of products that have been certified by the National Sanitation Foundation and their standards 60 and 61. These requirements also require that the pipe bear the stamp of approval and that products selected meet this requirement. Likewise, any chemicals that would be added must likewise comply with the requirements.

    
    

21. Respondent has given reasonable assurance that no aspects of the proposed design and proposed completed construction are likely to have the potential to create an imminent and substantial danger to health.

    
    

    Water Quality Standards

    Part III of Chapter 17-550, Florida Administrative Code

    
    

22. A process evaluation and testing program was conducted for Sarasota County by Boyle Engineering Corporation and submitted in May, 1989. This report summarized the raw water source and raw water quality at the Carlton Reserve. Based upon those parameters, alternative treatment techniques were studied and the results of pilot scale testing were presented. With the results of the pilot scale testing, a full scale plant process design was made together with an evaluation of the alternatives. The recommendations by Boyle Engineering Corporation was that the EDR system be selected for this facility.

    
    

23. The purpose of the study was to insure that the sulfate, Total Dissolved Solids (TDS) and Total Hardness (TH) levels of the raw water obtained from the Carlton Reserve could be reduced to meet the primary and secondary drinking water standards promulgated by the Environmental Protection Agency (EPA) and adopted by the State of Florida in Rule 17-550, Florida Administrative Code.

    
    

24. The EDR product qualities are determined by the number of stages in the unit. In order to achieve a product quality of 250 mg/1 TDS or better from the average Carlton Reserve well water, a four stage system will be required. The entire well water feed volume must be treated. At 85% recovery, the following results should be obtained:

    
    

    Feed Water Permeate (Drinking)

    (mg/1) (mg/1)

    
    

    Calcium, as Ca	176	25
    Magnesium, as Mg	87	14
    Total Hardness, as CaCO3	795	120
    Sulfate, as SO4	632	88
    TDS	1200	180

    
    

25. Treatment of the raw water from the Carlton Reserve in the EDR process will consist of:

    1. PH adjustment and aeration to remove H2S and CO2;

       
       

    2. Dual Media Filtration;

       
       

    3. Cartridge Filtration;

       
       

    4. Addition of Acid and Scale Inhibitor;

       
       

    5. EDR process; and

       
       

    6. Disinfection and Stabilization.

    
    

26. The existence of Trihalometane (THM) precursors in the raw water was confirmed by independent laboratory analyses. Although each of the primary processes exhibits some THM precursor rejection, none of the three processes lowered finished water Trihalomethane Formation Potential (THMFP) levels below the current standard of 100 mg/1. Accordingly, chloramine disinfection will be utilized to meet the existing standards.

    
    

27. Chloramine disinfection is currently provided on the water obtained from Manatee County.

    
    

28. Subsequent to the process evaluation and testing program Boyle Engineering prepared a preliminary design report.

    
    

29. The purpose of the preliminary design report was to further define the scope of the project before continuing with final design and preparation of construction documents. The water treatment process components were designed based on the raw water quality which was obtained in the "As-Built Design Report, Phase 1 Upper Floridan Aquifer Wellfield" provided by Dames & Moore in 1988.

    
    

30. The process components were designed to produce potable water that will be in compliance with the Florida Department of Environmental Regulation and EPA primary and secondary drinking water standards.

    
    

31. The concentration of the constituents in the raw water was calculated based on the maximum day production rate from the wellfield (14.1 mgd) which requires a combination of wells that would produce the worst possible water quality.

    
    

32. Sarasota County's contract with Ionics, Incorporated (Ionics) (Sarasota County's exhibit 13) requires that Sarasota County provide feed water of a minimum standard conforming to the maximum day demand with the poorest raw water quality as provided in the Preliminary Design Report (Sarasota County exhibit 14) at page 1-5 and 1-6.

    
    

33. The water treatment process will consist of pre-treatment, EDR and post treatment designed to meet the water quality standards.

    
    

34. Sarasota County, based upon the process evaluation and testing program, preliminary design report and the known raw water quality, entered into an agreement with Ionics to purchase the material necessary for the construction of an EDR system. As part of the agreement, and conditioned upon Sarasota County's providing feed water within the parameters as listed, Ionics agreed that the EDR system shall be warranted for a period of ten (10) years for the

    production of potable water capable of meeting the primary and secondary drinking water standards.

    
    

35. There is competent, substantial evidence to establish facts to show that the Sarasota Water Treatment Plant as designed will meet the water quality standards contained in Part III of Chapter 17-550, Florida Administrative Code.

    
    

    PERMIT CONDITIONS

    
    

36. The Notice of Intent To Issue a permit has a list of specific conditions attached to it that are checked with XX indicating that these specific conditions are required. The third specific condition on page one of the list of specific conditions that is required provides as follows:

    
    

    Construction of the Electro Dialysis Water Treatment Plant covered by this permit shall not begin prior to issuance of an Industrial Waste Permit for EDR concentrate discharge facilities.

    
    

37. The first specific condition on page two of the list of specific conditions that is required provides as follows:

    
    

    The concentrrate discharge facility or facilities shall be permitted, ready for operation and able to accept the water treatment plant concentrate discharge.

    
    

38. The term "Industrial Waste Permit" referred to in first specific condition quoted above was first used when it was thought that Sarasota County might request a permit for discharging the EDR concentrate into the surface waters. However, since discharging into the surface waters does not appear to be a viable alternative, Sarasota County is considering injecting the EDR concentrate (reject) underground. Therefore, the requirement for an Industrial Waste Permit in that specific condition should now require a construction/testing underground injection well permit which would allow the underground injection of the EDR reject from the completed plant for a period of time in order to determine if an operating underground injection well permit should be issued for the EDR reject.

    
    

39. The second specific condition listed above means that the conditions as stated shall be met before the water treatment plant will be allowed to operate.

    
    

    SARASOTA COUNTY'S MOTION FOR ATTORNEYS FEES

    Section 120.59(6), Florida Statutes

    
    

40. Since there can be no determination of a "prevailing party" or "non- prevailing party" until the Final Order is entered, no finding of fact will be made as to the prevailing or non-prevailing party.

    
    

41. Although Petitioner's main thrust of his case was directed toward the "best available technology", "economic reasonableness" and the "reject" from the EDR process which were issues determined by the undersigned not to be relevant to this proceeding, there is insufficient competent, substantial evidence to establish facts to show that either Petitioner or Sarasota County participated

    in this proceeding for an "improper purpose" as that term is defined in Section 120.59(6)(e), Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

42. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

43. Sarasota County Public Health Unit, a Division of the State of Florida, Department of Health and Rehabilitative Services is the authorized agency to review, evaluate and approve or disapprove each application for construction of a public water treatment system pursuant to Section 403.862, Florida Statutes, and the Interagency Agreement between the State of Florida Department of Environmental Regulation and the State of Florida Department of Health and Rehabilitative Services.

    
    

44. The standards for evaluating and either granting or denying a water treatment plant are set out in Rule 17-555.530, Florida Administrative Code, promulgated in accordance with Section 403.861(9), Florida Statutes, and in pertinent part providing as follows:

    
    

    1. The Department shall evaluate each application for a public water supply permit for:

       1. Compliance with each applicable water quality standard in Part III of Chapter 17-550, F.A.C.

       2. Adequate engineering design complying with acceptable engineering principles as established in Rules 17-555.310 through 17-555.360, F.A.C.

       
       

45. As the applicant for the permit, Sarasota County has the burden to establish facts to demonstrate its entitlement to the permit by a preponderance of the evidence. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778, 787 (1 DCA Fla. 1981). Sarasota County having made a preliminary showing of entitlement to the permit, the burden was upon the Petitioner to go forward with the evidence to show that the facts relied upon by Sarasota County fall short of carrying the "reasonable assurances" burden cast upon Sarasota County. J.W.C. Company, at 789. The Petitioner has failed to carry his burden in this regard.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, accordingly,

RECOMMENDED:

That a final order be entered issuing permit No. PATS No. 204307 & WC No. 1591-91-036 to Respondent Sarasota County, as set forth in the Notice of Intent To Issue dated February 20, 1992, provided that the grant of the subject permit shall include the general and specific conditions in the Intent To Issue with the further recommendation that the third required specific condition found on page 1 of the Specific Conditions be modified as follows:

Construction of the electrodialysis reversal water treatment plant covered by this permit shall not begin prior to the issuance of a permit as required by State of Florida Department of Environmental Regulation for the EDR concentrate discharge facility.

DONE and ENTERED this 21st day of October, 1992, at Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1992.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2002

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by the parties in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 22(47); 23(48); 24(19-20) 29(49); 38(5); 39(19); 42-43(19,20); and 51(49).

2. Proposed finding(s) of fact 2,3,5,6,7,11,14,15,16,18, 19,20,21,25,26,30,31,35,40,45,46,47,49,and 50 are neither material nor relevant to this proceeding or the conclusion reached in the Recommended Order.

1. Proposed finding(s) of fact 4,8,9,10,12,13,17,27,28,and 41 are rejected as not being supported by competent substantial evidence in the record.

   
   

2. Proposed finding(s) of fact 32,33,34,36,37, and 48 are unnecessary.

   
   

3. Proposed finding of fact 44 is rejected as not being the "opinion" of the Hearing Officer. The transcript will show that the Hearing Officer was only restating the testimony of Judith Richtar. But see Finding of Fact 49.

Rulings on Proposed Findings of Fact Submitted by the Respondent Sarasota County

1. The following proposed findings of fact are adopted in substance as modified if the Recommended Order. The number in parenthesis is the Finding(s)

   of Fact which so adopts the proposed finding(s) of fact: 1 - 20(1) - 20, respectively); 21(27); 22 - 26(22 - 26, respectively); 27(28); 28(29); 29(31);

   and 30 - 44(32 - 46, respectively).

   
   

2. For proposed findings of fact 45 through 65 see Findings of Fact 51 and

   52.

   
   

3. Proposed findings of fact 66 through 68 are unnecessary.

Rulings on Proposed Findings of Fact Submitted by the Respondent Department of Environmental Regulation

The Respondent Department of Environmental Regulation adopted Sarasota

County's proposed findings of fact 1 through 44, 63 and 64, and 66 with modification. Therefore, the rulings on the Department's proposed findings of fact would be the same as the previous rulings on Sarasota County's proposed findings of fact adopted by the Department.

COPIES FURNISHED:

Bruce Wheeler Pitzer, Esquire

546 47th Street Sarasota, FL 34234

William A. Dooley, Esquire Nelson, Hesse, Cyril, et al. 2070 Ringling Blvd.

Sarasota, FL 33237

Joseph W. Landers, Esquire Landers & Parsons

310 W. College Avenue, 3rd Floor Tallahassee, FL 32301

W. Douglas Beason, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

Carol Browner, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

Daniel H. Thompson, General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-002002

Orders for Case No: 92-002002