STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF BARTOW, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1062

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on July 26 and 27, 1978, in the City Hall Commission Chambers in Bartow, Florida. This cause, a Section 120.57(1), Florida Statutes, proceeding was consolidated for hearing purposes with Case No. 78-1139R, a Section 120.56, Florida Statutes, proceeding. A separate final order in Case No. 78-1139R was entered by the undersigned on September 14, 1978.

APPEARANCES

For Petitioner: William S. Blakeman

Campbell, Dunlap, Coward and Blakeman Post Office Box 916

Lakeland, Florida 33802

For Respondent: Louis F. Hubener

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

ISSUE

The issue presented for determination in this proceeding is whether the City of Bartow is entitled to a renewal of its operating permit to discharge into the Peace River effluent from its sewage treatment plant at the design capacity of 2.75 million gallons per day.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:

1. Petitioner owns and operates a sewage treatment plant located at 2505 East Wabash Avenue in Bartow, which discharges effluent into the Peace River. On April 13, 1977, petitioner applied to respondent for a renewal of its operating permit, with the plant designed to treat and discharge a maximum of

   2.75 million gallons of wastewater per day. By letter dated May 11, 1977,

   respondent notified petitioner of its intent to enter a final order denying the permit application for the reason that petitioner's proposed discharge at design capacity (2.75 mgd) would reduce the quality of the Peace River below its established classification. The respondent was specifically concerned with the deleterious impact which operation of petitioner's plant at design flow would have upon the level of dissolved oxygen in the Peace River. The May 11, 1977, letter also set a wasteload allocation which would have to be met by petitioner's plant in order not to depress the water quality of the Peace River below established levels. The allocations were later revised to provide for secondary treatment with nitrification. As noted above, these allocations were challenged in a Section 120.56, Florida Statutes, proceeding. By final order entered on September 14, 1978, it was held that said wasteload allocations did not constitute a rule within the meaning of Chapter 120 and thus were not subject to an attack of invalidity on the ground that they were not adopted pursuant to the rulemaking requirements of Section 120.54, Florida Statutes.

   
   

2. The Peace River is classified as a Class III water body. This classification contains criteria designed to promote the use of the water for recreational purposes, including swimming, and for the maintenance of a well- balanced fish and wildlife population. Rule 17-3.09, Florida Administrative Code. In Class III waters, the concentration of dissolved oxygen is not to average less than 5 milligrams per liter (mg/l) in a 24 hour period and should never be less than 4 mg/l. Water quality problems exist in the Peace River even where no sewage treatment plants are discharging, and the River does not consistently meet the dissolved oxygen standards for Class III waters. At low flow conditions, the dissolved oxygen content in the River ranges from two to three mg/l up to six to seven mg/l.

   
   

3. Sewage treatment plant effluent contains components known as total Kjeldahl nitrogen (TKN) and biochemical oxygen demand (BOD5). When these components decay they use up free dissolved oxygen, thereby depressing dissolved oxygen levels. In order to maintain the desirable dissolved oxygen (DO) level, it is necessary to control the amount of oxygen demanding substances such as TKN and BOD5 entering the receiving waters. The limitation on the concentration of such effluent components which must be met to assure that water quality standards will not be depressed below the level set for a given classification are known as wasteload allocations.

   
   

4. Wasteload allocations are calculated by the respondent for each sewage treatment plant and industrial discharger which discharge effluent into the surface waters of the state. They are determined by use of a mathematical computer model based upon the physical, biological and chemical characteristics of the receiving body of water. In this case, the water system modeled was a segment of the Peace River extending from approximately 1.4 miles above petitioner's discharge point to approximately 46 miles downstream. The respondent conducted two surveys during low flow conditions in November of 1976. During low flow conditions, tributary input is minimal and nonpoint contributions are almost negligible. Point source contributions such as sewage treatment plants and industrial dischargers have their greatest impact during low flow conditions.

   
   

5. Based upon the model run by respondent, respondent predicted that the operation of petitioner's plant at design capacity (2.75 mgd) would have a significant deleterious impact upon dissolved oxygen during low flow conditions. Specifically, respondent found that petitioner's discharge causes a DO drop of one milligram per liter at a point less than five miles from the petitioner's

   point of discharge and a drop from 2 1/2 mg/l to zero from mile ten through fifteen.

   
   

6. Much of the testimony presented by the petitioner at the hearing was directed to the reliability of the data used by respondent in its model. Petitioner presented evidence tending to illustrate that nonpoint sources in the River's tributaries are the cause of the depressed DO in the Peace River. However, as noted above, the respondent's model utilized low flow conditions wherein such sources are almost nonexistent. The evidence further tends to illustrate that several coefficient values utilized by the respondent in its model resulted in a less restrictive allocation for petitioner. Even on the date of the hearing, Respondent's witnesses were satisfied and confident that there were no technical inaccuracies in the model used to develop the wasteload allocations for petitioner's plant. Petitioner adduced no conclusive evidence that any of the data or assumptions made by the respondent were erroneous.

   
   

7. The petitioner's plant presently discharges about 1.44 million gallons of wastewater per day. This meant that Bartow is presently operating at approximately 50 percent of its capacity. On a monthly average, petitioner's treatment level is well in excess of ninety percent. Five years from now, in 1983, petitioner projects that its flow will approximate 1.7 million gallons per day. It is predicted that petitioner will not reach its design capacity of 2.75 million gallons per day for twenty years. As, noted above, the respondent's model predicted dissolved oxygen violations based upon the design capacity of

   2.75 mgd, for which the petitioner applied. The respondent ran no intermediate low alternatives to predict how close to design capacity the petitioner could come before a violation occurred. Nor did respondent find present DO violations directly attributable to petitioner's discharge.

   
   

8. In order to meet the wasteload allocations calculated by the respondent, it will be necessary for petitioner to make capital expenditures approximating $1,676,400.00. This figure is for a discharge of about 1.9 mgd. Such an expenditure would result in an increase to consumers of about 50 percent per month. The least expensive means of disposing of effluent would be for petitioner to recycle it to area phosphate mining companies, and not to discharge into the Peace River at all.

   
   

   CONCLUSIONS OF LAW

   
   

9. Any person intending to discharge wastes into any waters of the state must apply to the respondent Department of Environmental Regulation for an operation permit. If the Department finds that the proposed discharge will reduce the quality of receiving waters below the classification established for them, it must deny the application and refuse to issue the permit. Florida Statutes, s 403.088(3). No person, without written authorization from the respondent, may discharge into state waters any waste which, by itself or in combination with the wastes of other sources, reduces the quality of the receiving waters below their established classification. Florida Statute, s 403.088(1); F.A.C. Ch. 17-424(2).

   
   

10. An operating permit may be issued by the Department only if the applicant affirmatively provides, with reasonable assurance, that its proposed activity will not discharge, emit or cause pollution in contravention of the Department's standards, rules or regulations. F.A.C. Ch. 17-4.07(1). Thus, it is the applicant's burden to fully illustrate and establish eligibility for the desired permit.

11. The Department's rules establish water quality standards which are the criteria for pollution. One of these criteria is when the dissolved oxygen concentration exceeds the limitations specifically designated for the particular class of water. F.A.C. Ch. 17-3.05(2)(e). The receiving body of water in this case, the Peace River, is a Class III water and requires an average concentration of DO of not less than 5 mg/l in a 24 hour period and never less than 4 mg/l. F.A.C. Ch. 17-3.09(3).

    
    

12. The evidence in this case clearly shows that petitioner's discharge, when operating at full, design capacity (2.75 mgd), would violate the state's water quality standard by depressing the level of dissolved oxygen below that established for Class III waters. Indeed, the respondent's model predicts a depression of dissolved oxygen all the way to zero for an approximate five mile distance along the Peace River as a direct result of petitioner's sewage treatment plant discharge when operating at design capacity. This constitutes a significant reduction in water quality and violates the Department's standards. While the Peace River does not meet the DO standards for Class III waters from directly above the City of Bartow for a distance of some twenty miles downstream, the DO drop caused by petitioner's discharge is significant and will further reduce the water quality of the River and drive the DO level down to zero for a considerable distance. It is the public policy of the state to protect, maintain and improve the quality of the state's water bodies. Florida Statutes, s 403.021(2).

    
    

13. The applicant has failed to carry its burden to illustrate that its proposed activity -- discharge of its effluent at full capacity -- would not cause pollution in contravention of the Department's rules. It clearly appearing that the proposed discharge of 2.75 million gallons of waste water per day will, in combination with other sources, reduce the quality of the Peace River below the classification established for it, the respondent was required to deny the permit application.

    
    

14. Inasmuch as the evidence establishes that the applicant is presently operating at approximately 1.4 mgd, will only reach 1.7 mgd by the year 1983 and will not reach design capacity for twenty years, the applicant should be permitted to submit a revised application with these facts clearly substantiated therein.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is recommended that the application of the petitioner to discharge effluent into the Peace River at design capacity (2.75 million gallons per day) be denied. It is further recommended that petitioner submit to the respondent a revised application which clearly indicates the amount of discharge expected for the permit period, and that respondent review said application anew.

Respectfully submitted and entered this 4th day of October, 1978, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

William S. Blakeman Campbell, Dunlap, Coward and

Blakeman

Post Office Box 916 Lakeland, Florida 33802

Louis F. Hubener

Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32301

Mr. Jay W. Landers Secretary, Department of

Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 77-001062

Orders for Case No: 77-001062