STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF ORLANDO, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1573

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Orlando, Florida, on February 18 and April 1, 1977, before the undersigned hearing officer.

APPEARANCES

For Petitioner: Gretchen R. H. Vose

Assistant City Attorney

16 South Magnolia Avenue Post Office Box 793 Orlando, Florida 32802

For Respondent: Vance W. Kidder

Assistant General Counsel

Department of Environmental Regulation 2562 Executive Circle East

Montgomery Building Tallahassee, Florida 32301

ISSUE PRESENTED

Whether Petitioner should be granted a water pollution operation permit for the Bennett Road Sewage Treatment Facility under Chapter 403, Florida Statutes.

FINDINGS OF FACT

1. Petitioner owns and operates a sewage treatment plant known as the Bennett Road Sewage Treatment Facility in Orlando, Florida. The plant was originally built in the 1950's and its method of treatment has been modified and improved over the years. At the present time, the plant serves about 60 percent of the sewage treatment needs of the city. The sewage is first treated for the removal of biological compounds by means of trickling filters, followed by chemical treatment for removal of BOD, suspended solids, and phosphorus. In the latter process, aluminum sulfate is used, together with a polymer to assist in forming larger particles for more rapid settlement. These processes are followed by final settling, clorination and discharge through an outfall pipe approximately five miles to the Crane Strand Creek and thence to the Little

   Econlockhatchee River (Little Econ) which meets the Big Econlockhatchee River approximately twelve miles downstream and flows into the St. Johns River twenty- seven miles downstream. About 60 percent of the flow from Crane Strand Creek into the Little Econ is derived from the Bennett Road plant and there is no other significant source of pollutants from the remainder of the discharge. (Testimony of Jewett, Matthes, Petitioner's Composite Exhibits 1,2)

   
   

2. In 1973, Respondent's predecessor, the State Department of Air and Water Pollution Control, issued a temporary operation permit to Petitioner, subject to certain conditions, for the Bennett Road plant. The permit was effective until June 1, 1976, "or sooner pursuant to the permittee upgrading his facility to provide 90 percent treatment and obtaining an operation permit in accordance with the rules and regulations of the Department Of Pollution Control." On May 7, 1976, Petitioner submitted an application for an operation permit wherein it was stated that the facility would be abandoned as soon as the Orlando Easterly Regional Facilities were constructed with a new treatment plant to be located in the vicinity of Iron Bridge Road. Respondent's manager of the St. Johns River District advised Petitioner by letter of July 21, 1976, of the Department's intent to deny the application for an operating permit. The reasons given were that (1) available data was insufficient to show sustained secondary treatment as defined in Chapter 403, Florida Statutes, and Chapter 17- 3, Florida Administrative Code; and (2) the facility's discharge caused violation of Section 17-3.09(3), F.A.C. The latter provision establishes one of the criteria for classification of Class III waters and provides generally that the concentration of dissolved oxygen in all such surface waters shall not average less than 5 mg/l in a twenty-four hour period and never less than 4 mg/l. Class III waters are designated in Rule 17-3.09 as "Recreation - propagation and management of fish and wildlife." In its above-mentioned letter, Respondent suggested that the Petitioner apply for a temporary operation permit. Petitioner chose to request an administrative hearing on the proposed denial and did so by petition filed herein on August 5, 1976.

   
   

3. At the commencement of the hearing, the parties orally stipulated that Petitioner has been meeting the statutory and regulatory requirements as to secondary treatment so as to warrant withdrawal of Respondent's objection to granting the permit on that ground. The parties also agreed that the only matter remaining in issue is the question of whether Petitioner's discharge violates water quality criteria. (Petitioner's Exhibits 6,7)

   
   

4. Petitioner began consideration of the need to replace or expand the Bennett Road plant about 1968. These plans have reached a stage where the Petitioner is now in the process of purchasing land and concluding a planning study required under federal law to construct a regional facility to service the eastern part of Orlando and a few of the northerly communities, including some in Seminole County. Such regionalization of sewage treatment facilities is encouraged by the federal government which provides 75 percent of the funding necessary for construction under Public Law 92-500 . It is anticipated that the proposed facility will be completed in 1980 at which time the Bennett Road plant will cease operations. The regional facility is to be located at Iron Bridge Road and its discharge would flow into the Little Econ several miles downstream of the present Bennett Road discharge. (Testimony of Matthes, Schneider, Petitioner's Composite Exhibit 2)

   
   

5. Operation permits have been granted from 1971 to 1976 to a number of sewage treatment plants that will tie-in to the proposed regional facility. These permits were issued even though the discharge of most of the plants did not meet water quality standards. However, practically no secondary treatment

   plant can meet water quality standards in Central Florida without an extensive mathematical "modeling." These calculations made by Respondent are formulated from surveys of the body of water in question and result in what is termed "a waste load allocation." This term deals with a treatment standard that is computed to ascertain the assimilative capacity of a receiving body of water to take in pollutants from a particular source in order that water quality standards in terms of dissolved oxygen levels may be maintained. The waste load allocation is the standard which the treatment from the source must perform before it can be discharged. None of the above-mentioned plants nor the Bennett Road plant had been provided an assigned waste load allocation at the time of Respondent's adverse action on Petitioner's application. Neither had it been a past requirement of Respondent to require information concerning dissolved oxygen from an applicant in order to issue an operation permit. However, a preliminary survey of the Little Econ had been completed by Respondent by February 1976, and from this, a mathematical model was later computed based on chemical analysis of water samples taken from designated areas in that body of water.

   
   

6. In the aforesaid permits that were granted, a clause provided that the plants would have to work with the City of Orlando in resolving discharge problems and cooperate in the achievement of a regional system. Although water quality criteria had not changed in recent years, they had not been enforced because Respondent had had insufficient background water data. At the time Petitioner's permit application was recommended for denial, the primary basis therefor was the fact that the Bennett Road plant had not then reached 90 percent treatment capability over a sustained period. The question of water quality was incidental in view of the fact that that office did not then have the final determination of water quality as evidenced by the intensive survey of the Little Econ and the final math modeling. (Testimony of Jewett, Davenport; Petitioner's Exhibit 4)

   
   

7. By interoffice memorandums from the Respondent's Director of the Division of Environmental Permitting to district and subdistrict managers, dated January 28 and April 13, 1976, Subject: Temporary Operating Permits, the said managers were instructed that no operating permits should be issued for any source not achieving secondary treatment of its wastes or not meeting water quality standards. In such cases, only temporary operating permits were to be issued. Further, it was stated in the April 13 memorandum that enforcement action would be initiated against municipal facilities if they were either not achieving 90 percent removal Of BOD and suspended solids or not meeting water quality requirements, and had either (1) not applied for a federal grant, (2) was not following up to ensure receipt of the grant, or (3) had received a federal grant but was not expeditiously accomplishing the grant requirements.

   It was stipulated at the hearing that the memorandums had not been promulgated as rules by Respondent under Chapter 120, F.S. (Respondent's Exhibits 1, 2, Stipulation)

   
   

8. Although the Little Econ is a highly degraded body of water, upstream of the Bennett Road discharge point it has a dissolved oxygen level of over 6 mg/l. After mixture with the Bennett Road discharge, the level drops to about 2 1/2 mg/l. Based upon the intensive survey taken by the Respondent in 1976, it was determined that water quality violations existed below the Bennett Road plant's discharge point but not above that point. It was further determined that the Bennett Road facility was contributing about 89 percent of the oxygen demanding substances in the system. In fact, the dissolved oxygen levels downstream from the Bennett Road discharge reached as low as one milligram per liter at several points. They ranged from that level up to approximately four

   and one-half milligrams per liter throughout the entire 27 miles of the system. The foregoing was the conclusion of Respondent's environmental specialist based on field data taken on August 30, 1976, at a time of the day when the dissolved oxygen levels would be at their highest. However, the drop in dissolved oxygen level to an even greater extent at certain points occurs in Respondent's mathematical model prediction that does not take into account any discharge from the Bennett Road plant. In fact, in such a "no discharge" situation, Respondent's prediction is that the dissolved oxygen level at points immediately following several control structures in the waters will produce an even greater drop than with the Bennett Road discharge taken into consideration. Although the control structures do not affect the actual oxygen demand on the system, they do increase the residence time of the water and permit substances to settle out. However, when the water flows over the dam, it creates reaeration that increases the oxygen level again. Therefore, although the control structures aggravate the problem, the Bennett Road discharge is in turn further aggravating the situation because some of the pollutants continue downstream. Part of the problem is due to the effect of deposits already on the bottom of the system and it is unknown to what extent they would be eliminated if the Bennett Road facility were taken out of the system.

   
   

9. Although it is not anticipated that there would be a great rise in dissolved oxygen levels if the Bennett Road plant discharge were to be discontinued, Respondent's experts are of the opinion that there would be a definite increase in dissolved oxygen levels overall. Further, the field data and model predictions were based on high flow conditions but the 89 percent figure for pollutants from the Bennett Road facility was based on a low flow condition where it would be of more significance. Although the field data showed that at no point in the 27 mile course did the dissolved oxygen level of the water reach state standards of 5.0 milligrams per liter dissolved oxygen for Class III waters, the model prediction with no discharge from the Bennett Road facility shows that the dissolved oxygen level still would not meet state standards under high flow conditions. Under low flow conditions, though, the dissolved oxygen level without discharge from the Bennett Road plant would reach the state standards roughly halfway down the system. High flow conditions are more representative of an average of dissolved oxygen level during the year than under low flow conditions. The Bennett Road plant contributes approximately 60 percent of the total water flow reaching the St. Johns River. Even if the plant were to achieve advanced waste treatment standards, it still would not meet water quality standards. No evidence was presented as to the possibility of Petitioner using alternative methods of waste disposal, such as deep well injection, land irrigation, or the use of lakes and ponds. In fact, no discharge from the Bennett Road plant could be such as to raise the entire stream to meet the state requirement of 5.0 milligram per liter dissolved oxygen. (Testimony of Sawicki, Davenport, Armstrong, Horvath, Brown, Petitioner's Composite Exhibit 2, Respondent's Exhibit 3)

   
   

10. An interoffice memorandum of Respondent's Grants section, dated October 28, 1976, pointed out that enforcement action had been shown to be a "great motivator in the area of bringing awareness to governmental agencies of their responsibilities in the field of pollution abatement." The memorandum sought compliance investigations of the various governmental entities within the area where the proposed regional sewage treatment system for East Orlando was to be undertaken, with recommendations that enforcement action be taken in the case of any violations of state standards. The memorandum further stated that enforcement action was already underway against the City of Orlando. The author of the memorandum denied that it was an attempt to force Respondent to proceed

    more vigorously with the regional system. (Testimony of Schneider, Petitioner's Exhibit 5)

    
    

11. The Orange County Pollution Control Board requires variances from its rule that no treated effluent shall be discharged into the surface waters of the county. The Bennett Road plant operates under such a variance and at the present time is meeting county standards for sewage treatment. On May 19, 1976, the Orange County Assistant Pollution Control Director advised Respondent that the Bennett Road plant was meeting current state performance requirements and recommended approval of the operation permit. Although the county maintains records of the Little Econ River at various points, it has not used a mathematical model to determine whether the Bennett Road plant causes water quality violations. (Testimony of Sawicki, Petitioner's Exhibit 3)

    
    

    CONCLUSIONS OF LAW

    
    

12. Petitioner seeks a water pollution operation permit for its Bennett Road sewage treatment plant. Such a permit is issued pursuant to Section 403.088, Florida Statutes, as implemented by Rule 17-4.24, Florida Administrative Code. The operation permit was sought at a time when a temporary operation permit for the plant was about to expire. The sole question for consideration in determining whether the permit should be issued is whether or not discharge from Petitioner's plant into receiving waters is in conformance with water quality requirements under the law.

    
    

13. Section 403.088(1) provides in part as follows:

    
    

    "403.088 Water pollution operation permits; temporary permits; conditions.

    1. No person, without written authorization of the department, shall discharge into waters within the state any waste which, by itself or in combination with the wastes of other sources, reduces the quality of the receiving waters below the classification established for them

       (3)(a) Any person intending to discharge wastes into any waters of the state shall make application to the department for an operation permit. . .

       (c) If the department finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them, it shall deny the application and refuse to issue a permit. If the department finds that the proposed discharge will not reduce the quality of the receiving waters below the classification established for them, it may issue an operation permit if it finds that such degradation is necessary or desirable under federal standards

       and under circumstances which are clearly in the public interest (Emphasis supplied)

       
       

14. Subsection 403.061(12), F. S., authorizes the Respondent to classify the waters of the state according to present and future most beneficial uses, and subsection (13) provides for the establishment of ambient water quality standards for the state as a whole or for any part thereof. These

    classifications and standards are set forth in Chapter 17-3, F.A.C. The receiving waters in question, i.e., the Little Econlockhatchee River, are Class III waters. Rule 17-3.05(2)(e) provides that one of the criteria for pollution of receiving waters by wastes is when the dissolved oxygen concentration in the surface waters exceeds the limitations specifically designated for a particular class of waters.

    
    

15. Rule 17-3.09 sets the criteria for classification of Class III waters which are designed to be used for recreational purposes and propagation and management of fish and wildlife. As to dissolved oxygen, the rule provides in paragraph (3) that the concentration in all surface waters shall not average less than 5 mg/l in a 24 hour period and never less than 4 mg/l. It also provides that where background information indicates prior existence under unpolluted conditions of lower values, lower limits may be utilized after approval by the regulatory authority. Rule 17-3.05 (4) also authorizes Respondent to make exceptions to established pollutant limitations upon presentation of good and sufficient evidence in cases where waters of the state, due to natural causes, may not fall within desired or prescribed limitations.

    
    

16. It is of course incumbent upon the Petitioner to establish eligibility for the desired permit. Rule 17-4.07 requires the applicant to provide Respondent with "reasonable assurances" that its proposed activity - in this case, continued operation of the sewage treatment plant - will not cause pollution in contravention of law. Further, Rule 17-4.24 specifically requires Respondent to deny the application if it finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them. This rule must be read in conjunction with the basic statute, Section 403.088(1), which prohibits discharge of waste into waters which, by itself or in combination with wastes of other sources, reduces the quality of the receiving waters below the established classification. The facts of this case show that the water system in question does not reach the dissolved oxygen levels required of Class III waters. Although this condition may result partly from natural causes, expert testimony established that the Bennett Road facility contributes approximately 89 percent of the oxygen demanding substances in the water system. Further, under low flow conditions without the Bennett Road discharge, Respondents experts predict that the system would meet state standards at about the halfway point of the 27 mile system. It was recognized, however, that the system would not meet such standards under high flow conditions even without the Bennett Road discharge. This evidence, coupled with the graphic showing that the dissolved oxygen level in the water system dropped drastically from over 6 mg/l upstream from the Bennett Road plant to about 2 1/2 mg/l near the Bennett Road point of discharge into the receiving waters, clearly shows Respondent's violation of the state's water quality standards. Although further sags in oxygen levels are caused by control structures downstream, these are only temporary conditions and the system regains higher levels as it proceeds further downstream.

    
    

17. Petitioner points to the fact that permits have been granted in the past to other plants in the area even though they were not meeting water quality standards. It further maintains that Respondent's denial of the application was prompted by a desire to compel Petitioner to accelerate its construction of a regional sewage treatment facility. Although Respondent conceded that it had not previously enforced water quality standards in all respects due to insufficient data, this fact cannot serve to condone violations that have been established. Further, the question of Respondent's motivation in denying the application is of no consequence if, in fact, as here, water quality violations are present. Additionally, Petitioner's attack on certain of Respondent's

    memorandums relating to issuance of temporary rather than regular permits if treatment or water quality standards are not met cannot prevail. Even those documents are considered "rules" which were not duly promulgated, this proceeding does not encompass such a rule challenge and further, adequate authority for Respondent's actions exist under statute and current rules in the Florida Administrative Code.

    
    

18. It is therefore concluded that Petitioner has failed to provide Respondent with reasonable assurances that continued operation of the Bennett Road sewage treatment plant will not cause pollution in contravention of water quality standards established for Class III waters. On the contrary, it is determined that the discharge from Petitioner's plant does, in combination with the wastes from other sources, reduce the quality of the receiving waters below Class III with respect to dissolved oxygen levels.

    
    

19. Although Petitioner's Bennett Road plant does not meet water quality standards for issuance of a water pollution operation permit, under Section 403.088(4), Petitioner may apply for a temporary operation permit.

RECOMMENDATION

That the application of Petitioner City of Orlando, Florida for a water pollution operation permit for the Bennett Road sewage treatment facility be denied.

DONE and ENTERED this 25th day of May, 1977, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Vance W. Kidder, Esquire Assistant General Counsel

Department of Environmental Regulation 2562 Executive Circle East

Montgomery Building Tallahassee, Florida

Gretchen R. H. Vose, Esquire Assistant City Attorney

16 South Magnolia Avenue Post Office Box 793 Orlando, Florida 32802

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

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

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

CITY OF ORLANDO, FLORIDA,

Petitioner,

vs. CASE NO. 76-1573

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondent.

/

FINAL ORDER

By the Department:

On May 25, 1977, the duly appointed hearing officer in the above styled cause entered his Recommended Order and on May 27, 1977, served his Recommended Order on the Petitioner and the Respondent. The Recommended Order consisted of his Findings of Fact, Conclusions of Law and Recommended Order, a copy of which is attached hereto as Exhibit "A".

Pursuant to Section 17-1.26(2), Florida Administrative Code, and Section 120.57(1)(a)(8), Florida Statutes, the parties were allowed fifteen (15) days in which to present written exceptions to the Recommended Order. The Petitioner submitted exceptions. The Recommended Order thereafter came before me, as head of the Department, for final agency action on this matter. After consideration of the entire record, the exhibits, pleadings, Recommended Order, and exceptions, it is, therefore,

ORDERED, that the Hearing Officer's Findings of Fact, Conclusions of Law and Recommended Order are hereby adopted, but with the following clarifications in Paragraph 4, Page 4 of the Recommended Order. The discussion on wasteload allocations is supplemented to the extent that the wasteload allocation process is a method of calculating the numerical criteria for discharge components. The numerical criteria for the discharge components so derived may be used in designing waste treatment plants to comply with water quality standards. The application for an operation permit is, therefore, denied. Petitioner must apply for a temporary operation permit for Petitioner's Bennett Road sewage treatment plant.

DONE and ENTERED this 8 day of July, 1977, in Tallahassee, Florida.

JOSEPH W. LANDERS, JR.

Secretary

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

COPIES FURNISHED:

Vance W. Kidder Gretchen R. Vose John Bottcher James Brindell Alex Senkevich Banks B. Vest, Jr. Thomas C. Oldham

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Final Order has been furnished by United States mail to GRETCHEN R. H. VOSE, Assistant City Attorney,

16 South Magnolia Avenue, Post Office Box 793, Orlando, Florida 32802, this 5th of June, 1977.

VANCE W. KIDDER

Assistant General Counsel

Docket for Case No: 76-001573

Orders for Case No: 76-001573