STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PINKHAM E. PACETTI, et al., )
)
Petitioners, )
)
vs. ) CASE NO. 84-3810
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION )
and HOMER SMITH, d/b/a HOMER ) SMITH SEAFOOD, )
)
Respondents. )
) PINKHAM E. PACETTI, et al., )
)
Petitioners, )
)
vs. ) CASE NO. 84-3811
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION )
and HOMER SMITH, d/b/a HOME )
SMITH SEAFOOD, )
)
Respondents. )
)
RECOMMENDED ORDER
Notice was provided and a formal hearing was held before Charles C. Adams, Hearing Officer of the Division of Administrative Hearings, to consider the dispute related to the above-styled actions. Hearing dates were August 21, 22, 23, 28, 29, and 30, and September 5 and 6, 1985, at Marineland, Flagler County, Florida. Further sessions of the hearing were held on September 4 and November
4 and 5, 1985, in Tallahassee, Florida. This recommended order is being entered following the receipt and review of proposed recommended orders filed by counsel to the parties. The suggested facts set forth in those proposed recommended orders are distinguished in an appendix to this recommended order.
APPEARANCES
For Petitioners: David S. Dee, Esquire
CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A.
Post Office Drawer 190 Tallahassee, Florida 32301
For Department, Daniel H. Thompson, Esquire
OF ENVIRONMENTAL Department of Environmental Regulation REGULATION: 2600 Blair Stone Road
Tallahassee, Florida 32301
For Respondent, William F. Green, Esquire HOMER SMITH: James S. Alves, Esquire
HOPPING, BOYD, GREEN & SAMS
Post Office Box 6526 Tallahassee, Florida 32314
and
Sylvia Alderman, Esquire SWANN, HADDOCK, COBB & COLE
Eighth Floor, Barnett Bank Building Tallahassee, Florida 32301
ISSUES
The issues set forth in DOAH Case No. 84-3810 concern the question of whether the State of Florida, Department of Environmental Regulation (DER) should issue a permit to Homer Smith d/b/a Homer Smith Seafood (Homer Smith) to construct a wastewater treatment facility which is constituted of a screening mechanism, dissolved air flotation treatment system, sludge drying bed, pumping station and subaqueous pipeline. In the related action, DOAH Case No. 84-3811, the question is raised whether DER should issue a dredge and fill permit to Homer Smith for the installation of the aforementioned pipeline along submerged lands in Trout Creek, Palmo Cove and the St. Johns River.
FINDINGS OF FACT
Introduction and Background
In 1982, Homer Smith, under the name of Homer Smith Seafood, established a calico scallop processing facility in the vicinity of the intersection of State Road 13 and Trout Creek in St. Johns County, Florida.
From that point forward, Smith has owned and operated the processing plant. His plant adjoins Trout Creek, which is a tributary to the St. Johns River. Both Trout Creek and the St. Johns River are tidally influenced waters that are classified as Class III surface waters under Rule 17-3.161, Florida Administrative Code.
The processing undertaken by Smith's operation at Trout Creek contemplates the preparation of the scallops for human consumption. In particular, it involves the purchase of calico scallops from Port Canaveral, Florida, after which the scallops are transported by refrigerated trucks to the processing plant. They are then unloaded into metal hoppers and directed into rotating tumblers which separate out the scallops from sand, mud and other extraneous material. The scallops are placed in a steam tumbler that removes the shells and then passed through a flow tank that washes away sand, grit and shell particles. The scallops are next passed through eviscerators. These eviscerators are long tubes of aluminum with roughened surfaces that pull the viscera off of the scallops. The detached scallops are then sent along a conveyor belt, with scallops in need of further cleaning being picked out and sent to a second eviscerator. The eviscerated scallops are then chilled and packed for marketing. It is the viscera and wastewater associated with this material that is the subject of permitting.
Homer Smith is one of about six automated scallop processing plants located in Florida. Two other plants are within St. Johns County, on the San Sebastian River in St. Augustine, Florida. Three other plants are located in Port Canaveral, Florida.
When Smith commenced his operation of the scallop processing plant in the summer of 1982, he discharged the scallop processing wastewater into an area described as a swamp with an associated canal which connected to Trout Creek.
By the fall of 1982, Smith had been told by representatives of the Department of Environmental Regulation that to operate his facility with the discharge would require a permit(s) from DER. At the time of this discussion, automatic scallop processing was an industry for which appropriate wastewater treatment alternatives had not been specifically identified by the Department of Environmental Regulation or the United States Environmental Protection Agency.
This was and continues to be the case as it relates to the promulgation of technology-based effluent limitations designed for calico scallop processors. This circumstance is unlike the situation for most other industries for which DER has established technology-based effluent limitations. To rectify this situation, Florida Laws 85-231 at Section 403.0861, Florida Statutes, requires DER to promulgate technology-based effluent limitations for calico scallop processors by December 1986. In the interim, consideration of any permits that might be afforded the calico scallop processors by the exercise of DER's regulatory authority must be done on a case-by-case basis, when examining the question of technology-based effluent limitations.
DER sent a warning letter to Smith on April 20, 1983, informing the processor that discarding its wastewater into Trout Creek without a DER permit constituted a violation of state law.
After the warning letter, scallop harvesting declined to the point that by mid-June of 1983 the plant had closed down, and it did not reopen until the middle part of September 1983. Upon the recommencement of operations, DER issued a cease and desist notice and ordered Smith to quit the discharge of wastewater from the facility into Trout Creek. On the topic of the cease and desist, through litigation, Smith has been allowed the right to conduct interim operation of his business which involves direct discharge of wastewater into Trout Creek, pending assessment of wastewater treatment alternatives and pursuit of appropriate DER permits. 1/
When Smith filed for permits on April 10, 1984, he asked for permission to dredge and fill and for construction rights pertaining to industrial wastewater discharge into the St. Johns River. The application of April 10, 1984, involved the installation of a wastewater treatment system and an associated outfall pipeline to transport treated wastewater to the St. Johns River from the plant location. This system would utilize a series of settling tanks and a shell-filter lagoon as the principal wastewater treatment. DER, following evaluation, gave notice in October 1984 of its intent to issue permits related to dredge and fill and the construction of the wastewater treatment facility. In the face of that notification, the present Petitioners offered a timely challenge to the issuance of any DER permits.
In considering treatment alternatives, Homer Smith had employed various consultants and discovered that treatment beyond coarse screening had not been attempted in processing calico scallop wastewater. Those consultants were of the opinion that conventional treatment methods such as clarification, sand filtration, vortex separation, breakpoint chlorination, polymers and spray irrigation were of limited viability due to the inability to remove key constituents within the waste stream or based upon certain operational difficulties that they thought would be experienced in attempting those methods
of treatment. As envisioned by the April 10, 1984, application for permit, interim treatment of the wastewater was provided by the use of a series of settling tanks and a shell-filter lagoon, within which system adjustments were made to the delivery of wastewater treatment.
The April 10, 1984, permit application by Smith did not envision any chemical treatment of the wastewater aside from that which might occur in association with the settling and filtration through the shell-filter lagoon.
Following DER's statement of intent to issue a permit for construction of the wastewater treatment facility as described in the April 10, 1984, application by Smith, DER became concerned about the potential toxicity of calico scallop wastewater, based upon its own studies. As a consequence, Smith amended the application for wastewater treatment facility to include use of chemical coagulation and flotation. This amendment occurred in March 1985, and the wastewater treatment process in that application envisioned the use of an electroflotation wastewater system. In view of toxicity problems experienced with the testing related to the use of an electroflotation wastewater treatment system, this treatment alternative was discarded in favor of a dissolved air flotation (DAF) system. This system was pursuant to an amendment to the application effective May 31, 1985. This amendment of May 1985 was in furtherance of the order of the hearing officer setting a deadline for amendments to the application. DER issued an amended intent to grant permits for the DAF unit and the associated pipeline and that action dates from June 28, 1985. The Petitioners oppose the grant of these permits for the DAF unit and pipeline, and under the auspices of their initial petition have made a timely challenge to the grant of a permit for the installation of the DAF wastewater treatment unit and associated pipeline. It is the DAF unit and pipeline that will be considered in substance in the course of this recommended order.
On July 6, 1984, Smith sought an easement from the State of Florida, Department of Natural Resources (DNR) for the installation of the pipeline. This was necessary in view of the fact that the pipeline would traverse sovereignty lands which were located beneath Trout Creek, Palmo Cove and the St.
Johns River. On December 17, 1984, DNR issued a notice of intent to submit that application to the Board of Trustees of the Internal Improvement Trust Fund with a recommendation of approval. This action was challenged by the Petitioners on January 7, 1985, in a petition for formal hearing challenging the grant of the easement. DOAH Case No. 85-0277 concerns this challenge to grant of an easement. Originally, by action of January 28, 1985, the easement case was consolidated with the present DER permit actions. At the instigation of DNR, the easement case was severed from consideration with the present action. The order of severance was entered on July 31, 1985. The DNR case will be heard on a future date yet to be established. The DNR case was severed because that agency preferred to see test results of treatment efficiencies following the construction of the DAF unit. By contrast, the present DER cases contemplate a decision being reached on the acceptability of the construction of the DAF unit and attendant features, together with the pipeline on the basis of theoretical viability of this entire system. This arrangement would be in phases in which the construction of the upland treatment system would occur within 90 days of the receipt of any construction permit from DER, followed by a second phase within which Smith would construct the pipeline within 60 days of receipt of any other necessary governmental approval, such as the DNR easement approval.
Furthermore, DER would wish to see the results of an integrated treatment system
involving the upland treatment by the DAF unit and its attendant features and the use of the pipeline and the availability of a mixing zone, that is to say the end of pipe discharge, before deciding on the ultimate question of the grant of an operating permit for the wastewater treatment system.
The quandary presented by these arrangements concerns the fact that discharge from the DAF treatment unit would be temporarily introduced into Trout Creek, pending the decision by DNR to grant an easement for the pipeline and the necessary time to install that pipeline. Given the difficult circumstances of these actions, there is raised the question of the propriety of discharging wastewater into Trout Creek pending resolution of the question of whether DNR wishes to grant an easement to place the pipeline over sovereignty submerged lands. This is a perplexing question in view of the fact that DNR requested severance from the present action, thereby promoting further delay in the time between any installation of the upland treatment system and the pipeline. Finally, Trout Creek is an ecosystem which has undergone considerable stress in the past, and it is more susceptible to the influences of pollution than the St. Johns River would be as a point of ultimate discharge from the pipeline. This dilemma is addressed in greater detail in subsequent sections within the recommended order.
Petitioner River Systems Preservation, Inc., is a nonprofit organization comprised of approximately seven hundred persons. The focus of the organization is to protect and enhance the environment of northeast Florida.
The individual Petitioners, Pinkham E. Pacetti, Robert D. Maley, Ruth M. Whitman and others, are members of the corporation who own property or live near the scallop processing plant of Respondent Smith. In addition, Pacetti owns a marina and recreational fishing camp that is located across Trout Creek from Smith's plant. Pacetti's fish camp dates from 1929.
On the occasion of the opportunity for the public to offer their comments about this project, a significant number of persons made presentations at the public hearing on August 29, 1985. Some members of the public favored the project and others were opposed to the grant of any permits. St. Johns County Board of County Commissioners, in the person of Commissioner Sarah Bailey, indicated opposition to the project, together with Bill Basford, President of the Jacksonville City Council. Warren Moody, the vice-chairman of the Jacksonville Waterways Authority spoke in opposition to the project. The Florida Wildlife Federation and the Jacksonville Audubon Society expressed opposition to the project. The officials related the fact of the expenditure of considerable amounts of public tax dollars to improve water quality in the St. Johns River and their concern that those expenditures not be squandered with the advent of some damage to the St. Johns River by allowing the permits in question to be issued. These officials considered the St. Johns River to be a significant resource which they are committed to protecting. The City of Jacksonville, Clay County, Green Cove Springs, the Jacksonville Waterways Authority, the Northeast Florida Regional Planning Council and St. Johns County expressed opposition to the project contemplated by the present permit application, through the adoption of certain resolutions. These broad-based statements of opposition were not spoken to in the course of the hearing by members of any technical staffs to these governmental institutions. Private members of the public, some of whom are affiliated with River Systems Preservation, Inc., expressed concern about water quality violations, harm to fish and other environmental degradations that have been caused by the Homer Smith operation in the past and their belief that these problems will persist if the permits at issue are granted. Those persons who favored the project, in terms of public discussion, primarily centered on the idea that, in the
estimation of those witnesses, fairness demanded that Smith be afforded an opportunity to demonstrate that this proposed system of treatment was sound and the quality of the water being discharged from the Homer Smith plant was not as bothersome as had been portrayed by the persons who opposed the grant of environmental permits.
Industrial Wastewater Construction Permit
Treatment System
Description of Homer Smith's Plant and Its Operation.
The source of water used for the processing of the scallops at the Homer Smith plant is a well which is located on that property. Homer Smith is allowed to withdraw 300,000 gallons of water per day in accordance with a consumptive use permit that has been issued by the St. Johns River Water Management District. To ensure Smith's compliance with this permit, a metering device is located on the well.
Typically, the plant operates an eighteen-hour day, five days a week, using water at a rate of 200 gallons per minute. This would equate to 215,000 gallons per day over an eighteen-hour day. Prior to the imposition of restrictions by the Department of Environmental Regulation through the consent order, this facility had processed as much as 40,000 pounds of scallops each day, for a total of 36,000 gallons each week, at a gross revenue figure of
$225,000 per week.
Characteristics and Frequency of Effluent Discharge
The wastewater generated by the scallop processing that is done at the Homer Smith plant is principally constituted of the well water used to clean the scallops, proteinaceous organic materials, and metals. The metals are introduced into the wastewater stream from the scallop tissue. The wastewater stream also has a certain amount of sand and grit, together with shell fragments. The concentrations of organic materials within the wastewater stream are at high levels. There is also an amount of fecal coliform bacteria and suspended solids. The pollution sources within the wastewater stream include total suspended solids (TSS), biochemical oxygen demand (BOD), nutrients (nitrogen and phosphorus) and the coliform bacteria. In the neighborhood of 30 percent of the BOD in the wastewater is soluble. The balance of the BOD is associated with the suspended solids.
With time the organic materials in the wastewater stream will decompose and with the decomposition present certain organic decomposition products, which would include ammonia, amines and sulfides.
Heavy metals in the wastewater have been in the scallop tissue and are released with the cleaning of the scallops. These metals include cadmium, copper, zinc, iron, manganese, silver and arsenic. The presence of these metals within the tissues of the scallops are there in view of the fact that the scallops are "filter-feeders" which have taken in these elements or metals that naturally occur in the ocean water.
The permit application contemplates an average of five days a week of operation for eighteen hours a day. Notwithstanding the fact that in the past the Homer Smith Seafood operation had processed scallops seven day week, twenty-
four hours per day, Smith does not desire to operate more than five and a half days a week in the future. That is perceived to mean five eighteen-hour days and a twelve-hour day on the sixth day. The treatment system contemplated here is for a flow volume of around 200 gallons per minute during normal operation. The system can operate as high as 300 gallons per minute. That latter figure approaches the design capabilities of the treatment system proposed.
Wastewater is discharged only when scallops are being processed. There is basically 1:1 ratio between the volume of well water used to process the scallops and the amount of wastewater discharged.
Proposed Treatment System and Alternatives
As already stated, there is no specific industry standard set forth in the DER rules which would describe technology-based standards for the treatment of calico scallop wastewater. In those instances where the agency is confronted with an industry for which technology-based standards have not been established, DER examines the question of whether that effluent is amenable to biological treatment as contemplated in Rule 17-6.300(1)(n)1., Florida Administrative Code, as an alternative. Biological treatment is a treatment form normally associated with domestic waste and the imposition of this treatment technique is in furtherance of achieving a secondary treatment standard found in Chapter 17-6, Florida Administrative Code, which results in 20 mg/L of BOD and TSS, or 90 percent removal of those constituents, whichever is the greater performance in removal efficiency. In the absence of specific standards related to the calico scallop industry, and in the face of the interpretation of its rules in which DER calls for an examination of the possibility of biological treatment as an alternative to treatment specifically described for a given industry, it was incumbent upon this Applicant to examine the viability of biological treatment of the scallop wastewater product.
The Applicant has considered biological treatment as an alternative and rejected that treatment form, in that Smith's consultants believe the wastewater is not amenable to biological treatment. By contrast, Petitioners' consultants believe that biological treatment should be the principal focus in treating the scallop wastewater and contend that biological treatment is a more viable choice when contrasted with the option chosen by the Applicant. If this waste is not amenable to biological treatment, Rule 17-6.300(1)(n)1., Florida Administrative Code, envisions an acceptable or minimum level of secondary treatment shall be determined on a case-by-case basis. In the instance where biological treatment is not a reasonable choice, the Applicant is expected to achieve treatment results which are comparable to those arrived at in treating domestic waste by the use of biological treatment techniques. On this occasion, DER had not established what they believe to be a comparable degree of treatment for calico scallop waste, assuming the unavailability of biological treatment. The present case is a matter of first impression. As a result, the idea of a comparable degree of treatment shall be defined in this hearing process, assuming the inefficacy of biological treatment. In that event, DER must be assured that the proposed treatment plan has an efficiency that rivals the success which biological treatment promotes with domestic waste, taking into account the quality of the effluent prior to treatment, available technology, other permitting criteria and the ambient conditions where the waste stream is being discharged.
In arguing in favor of biological treatment, Petitioners pose the possibility of an integrated system in which primary settling tanks or clarifiers would be used together with a biological treatment step, which is
referred to as a trickling filter, followed by final settling by the use of tanks or clarifiers in an effort to achieve BOD concentrations in the range of
200 mg/L to 400 mg/L. In this connection, the dissolved air flotation system is seen in the role of alternative to the initial stage of settling of the constituents within the wastewater stream. It is not regarded as the principal means of treatment of the waste.
The trickling filter system as a biological treatment medium involves the use of a bacterial culture for the purpose of consuming the oxygen-demanding constituents, BOD. The trickling filter technique, if a viable choice, has the ability to remove 70 to 75 percent of BOD and TSS.
Petitioners suggest further treatment of the waste beyond primary and final settling and trickling filter can be afforded by involving activated sludge, which according to their experts would end up with a biological oxygen demand in the 20 mg/L range.
Although the constituents of the Smith plant's waste are of a highly organic nature, and, at first blush a candidate for biological treatment by use of the trickling filter, the problem with this form of treatment has to do with the intermittent flow in the Smith operation. This intermittent flow is caused by the fact that the plant does not operate throughout the year. The plant operations are seasonal, depending on calico scallop harvesting which does not occur on a routine basis. Therefore, the problem is presented of trying to keep the biological treatment system "alive" and operating at levels of efficiency which can be expected to maintain the percentage of removal of BOD and TSS that a healthy system can deliver.
The bacteria colonies which are vital to the success of the biological treatment system must be fed on a continuous basis to maintain balance in the population of the colony. This would be a difficult undertaking with the Smith operation, given the interruptions in operations which could lead to the decline in the bacterial population and a poorer quality of treatment once the operations were resumed. This finding takes into account the fact that the colony can survive for a week or two by simply recirculating water over the filter. Obviously, in order to maintain necessary efficiencies within this biological treatment, the bacteria must do more than survive. The further suggestion that has been offered that the bacteria could be sustained for longer periods of time by feeding them seafood waste or dog food are not found to achieve the level of efficiency in the operation that would be necessary in posing biological treatment as an alternative. Again, it is more of an intervening measure designed to assure the survival of bacteria pending the continuation of the operations of the plant, as contrasted with a system which is continual and taking into account the uniformity of the waste product more efficient.
Another problem with feeding the bacteria when the plant is not operating is that of disposing of the waste produced when this auxiliary feeding is occurring.
Just as importantly, biological treatment is questionable given the long retention times necessary for that process and the build-up of toxic levels or concentrations of ammonia. The Applicant had employed an aerated lagoon in attempting to treat the waste and experienced problems with ammonia build up. Although this system did not call for the degree of treatment of the waste prior to the introduction into the lagoon that is contemplated by the present proposal of the Applicant, it does point to the fact of the problems with ammonia in the
biological treatment system. Dr. Grantham, a witness whose testimony was presented by the Petitioner, conceded the difficulty of removing ammonia from the trickling filter.
Moreover, the biological treatment system is not especially efficient in removing metals and phosphorus from the wastewater. Alternative treatment would be necessary to gain better efficiency in removals of those constituents. The trickling filter is expected to gain 50 percent metals removal, which is inadequate given the concentrations of heavy metals found in the scallop wastewater. Phosphorus could be removed after treatment by the trickling filter by the use of lime or alum.
Assuming optimum conditions in the use of biological treatment after primary and final settling, thereby arriving at a BOD level of 200 mg/L, it would then be necessary to make further treatment by the use of activated sludge to see 20 mg/L BOD. The problem with activated sludge is related to the fact that this form of treatment is particularly sensitive to interruptions in flow, which are to be expected in this wastewater treatment setting.
On balance, biological treatment does not present a viable choice in treating scallop waste. That leaves for consideration the question of whether the Applicant's proposal would afford a comparable degree of treatment to that expected in the use of biological treatment of domestic waste.
The manufacturer of the dissolved air flotation unit or DAF system proposed, known as the Krofta "Supracell," offers another piece of equipment known as the "Sandcell" which in addition to the provision for dissolved air flotation provides sand filtration. The Sandcell might arrive at BOD levels of
400 mg/L. However, the testimony of the witness Lawrence K. Wang, who is intimately familiar with the Krofta products, in responding to questions about the use of the Sandcell system and suggestion that the system would arrive at
400 mg/L BOD responded "could be." This answer does not verify improvement through the contribution of sand filtration. For that reason inclusion of a Sandcell for filtration of BOD is not suggested in this fact finding and the system as proposed must be sufficient in its own right.
Having realized the need to provide greater treatment than screening or filtering the waste stream, the Applicant attempted to design a treatment system using flotation technology together with chemical precipitation and coagulation.
At first the Applicant examined the possibility of the use of electroflotation (EF). This involved the collection of wastewater in a retention tank and the generation of an electric current to create a series of bubbles to float insoluble flocs. Those flocs are caused by the use of ferric chloride, sodium hydroxide and various polymers which are added to the waste stream. The flocs are then pushed to the top of the chamber by the air bubbles, and this particulate matter is skimmed off by the use of a paddle.
Pilot testing was done of the electroflotation technology and showed promising results, so promising that a full-scale electroflotation unit was installed and tested. The full-scale electroflotation showed reasonable removal of BOD, TSS, nutrients, coliform and trace metals. This technique was discarded, however, when bioassay testing of the treated effluent was not successful. In examining the explanation for the failure, the experts of the Applicant were of the opinion that certain chemical reactions were occurring as a result of the passage of the electrical current through the wastewater stream.
When this problem with acute toxicity could not be overcome through a series of adjustments to the process, the Applicant decided to test another form of flotation, which is referred to as dissolved air flotation (DAF). This system employs the use of chemicals to create insoluble flocs. Unlike the electroflotation unit, though, it does not utilize electrical currents to create the air bubbles employed in the flotation. The dissolved air flotation thereby avoids problems of toxicity which might be attributed to the passage of electrical current through the water column.
The present system as proposed by the Applicant has a number of components. The first component of treatment involves the passage of raw wastewater through a mechanical screening device, which is designed to remove a certain number of particulates by catching those materials on the screen. That material is then removed from the plant and disposed of off site. The balance of the wastewater after this first stage of treatment passes into a sump area and from there into a primary mix/ aeration tank. This water is then chemically treated to facilitate the formation of insoluble flocs. The chemically treated wastewater then enters a premanufactured Krofta Supracell 15 DAF unit which is designed to form bubbles by the use of pressurized air, with those bubbles floating the waste materials within the floc to the surface. Again, this method does not use electrolysis. The floated solid materials are then skimmed from the surface and directed to a holding tank and subsequently pumped to sludge drying beds. Some of the treated wastewater is recycled through the DAF unit after pressurization and in furtherance of forming the necessary bubbles for the DAF unit. The balance of the water is directed to a force main lift station. This water would then be transported through the eight-inch PVC pipe some 13,000 feet into the main channel of the St. Johns River where it is distributed through a five port diffuser.
The screening mechanism spoken of had been installed in mid-December 1984 and has been used since that time to filter the wastewater. The screening mechanism is in substitution of settling tanks and shell pits. The shell pits which had been used before presented problems with odors as well as the ammonia build up which has been addressed in a prior paragraph. The removal efficiency of the screening mechanism is 30 percent of particulates associated with pollution parameters, as example BOD, total Kjeldahl nitrogen, total phosphorus and TSS. The frequency of the transport of these screened materials to the off site disposal is four to six times a day and the screen is decontaminated at the end of each day when the operations are closed. The application contemplates the same operating procedures of disposal and maintenance with the advent of any construction permit.
The primary mix/aeration tank aerates the wastewater and through that process and the retention time contemplated, equalizes the flow regime and promotes a more balanced concentration of waste materials prior to the introduction of that wastewater for chemical coagulation and flotation. This step in the treatment process enhances the treatment efficiency.
Some question was raised by the Petitioners on the size of the primary mix-aeration tank as to whether that tank was sufficient to equalize the flow, and conversely, the impacts of having too much retention time built into that tank, which would promote the build-up of toxic concentrations of ammonia in the wastewater. The retention time within the sump and the primary mix-aeration tank approximates one and one-half hours. The retention time and size of the primary mix-aeration tank are found to be acceptable. This design appropriately addresses concerns about the build-up of decomposition products and toxicity, to include ammonia.
The sludge which collects in the primary mix-aeration tank will be pumped back to the sump pit by return flow. The sump pit itself will be pumped out in the fashion of cleaning a septic tank on the basis of once a week. The sump pit also receives the return flow of leachate from the sludge drying bed.
Once equalization of flow is achieved in the primary mix-aeration tank, that wastewater is then treated by the use of alum, sodium aluminate and polymers. The purpose of this treatment is to convert soluble and insoluble organic matter such as TSS and BOD, trace elements and phosphorus into insoluble flocs that can be removed by flotation. These combinations of chemicals and dosage rates have been tested in electroflotation and dissolved air flotation bench and pilot scales for use associated with this project and a list of appropriate chemicals and ranges of dosage rates has been determined. It will be necessary for these chemicals and general dosages to be adjusted in the full- scale operation under terms of the construction permit. This facet of the treatment process must be closely monitored.
Once the wastewater stream has received the chemical treatment, it is introduced into the Krofta Supracell 15 DAF unit. This unit is 15 feet in diameter, and within this cylinder bubbles are generated by pressurizing some of the chemically treated wastewater and potentially clean tap water. The use of clean tap water promotes dilution of the wastewater stream as well as greater efficiency in the production of the bubbles. Chemically treated wastewater is brought into the cylinder through the back of a revolving arm that moves around a center column of the DAF unit at the speed of the effluent flow. The purpose of this mechanical arrangement is to eliminate horizontal water velocity, to protect the integrity of the flocs that are being formed by the use of the chemicals. Those flocs float to the surface in a few minutes' time, given the normal turbulence and shallow depth of the DAF unit. This limited retention time also avoids ammonia build up. The floating material is then scooped and poured into a stationary center section and is discharged by gravity to the sludge holding tank. Wiper blades which are attached to the revolving arm scrape the bottom and sides of the tank and discharge any settled sludge to a built-in sump in the DAF unit. These materials which are settled in the bottom of the DAF cylinder are transported through the sludge holding tank and eventually placed in the sludge drying beds. The treated wastewater is removed by an extraction pipe associated with the center section of the DAF unit. It is then discharged.
The use of clean tap water from the well and the ability to recycle the waste stream can promote greater treatment efficiency in terms of removal of undesirable constituents of the waste stream and the reduction of concentrations of those materials.
As a measurement, approximately 8 percent of the wastewater flow will be removed as sludge. This sludge is sufficiently aerated to be reduced in volume by about one-half over a period of ten to thirty minutes in the sludge holding tank. It is then sent to the sludge drying beds. The sludge drying beds are designed to accommodate 30,000 gallons of sludge. They are 60 feet long, 25 feet wide and 4 feet deep. Those drying beds are of greater size than is necessary to accommodate the volume of sludge. The sludge drying beds have a sand and gravel bottom. The water drains from the sludge as leachate and returns to the sump pit in the treatment system at a rate of five to ten gallons a minute. Some concern has been expressed that the "gelatinous" nature of the sludge will make it very difficult to dewater or dry. This opinion is held by experts of the Petitioners, notwithstanding the fact that polymers are used in
the treatment process. One expert in particular did not believe that the sludge would adequately dry. Having Considered the evidence, the opinion that the sludge will not dry sufficiently is rejected. Nonetheless, it is incumbent upon the Applicant to monitor drying conditions of the sludge very carefully and, if need be, to add some chemical such as calcium hydroxide to enhance the drying capacity of the sludge material. It is anticipated that the sludge will be removed once a day and this arrangement should be adhered to. With adequate drying, the sludge material can be removed with the use of shovels, rakes and a front-end loader as proposed by the Applicant. With frequent removal and adequate drying, problems with odors can be overcome, and problems with ammonia build up and the generation of unreasonable levels of bacteria can be avoided.
Should problems with odors, ammonia and bacteria occur, it would be necessary for the Applicant to purge the drying beds, to include the sand and gravel which had been invested with the sludge materials that had caused the problems.
Although Smith has not tested the drying bed leachate as to specific nature, the treatment process can be expected to deal with problems of any build-up of ammonia concentrations, fecal coliform bacteria and other organic decomposition products. This pertains to the ability to remove these offending substances from the site in terms of removal of the residual solids and the ability to treat those parameters within the leachate as the wastewater is cycled through the system.
The treated wastewater will be transported to a pumping station by gravity flow and then pumped via the pipeline to the proposed point of discharge in the main channel of the St. Johns River. This pipeline is constituted of fabricated sections of pipe 20 feet in length, connected with bell and spigot joints, rubber gaskets and solvent welding. The treated wastewater is released into the river through a five point diffuser which has three-quarter inch openings angled at ten degrees from the horizontal bottom. The pipeline is anchored with prefilled 80-pound concrete bags attached with polypropelene straps which are placed at 8-foot intervals. These are placed to keep the pipe from floating. The diffuser is supported by four piles driven into the river bottom and surrounded by a series of concrete bags. The purpose of this arrangement is to hold the diffuser in place and to protect it against potential damage from anchors or other possible impact. The Applicant acquiesces in the choice to have the pipeline tested for leaks once a month in the period June through September and every other month during other parts of the year. If leaks are found, the Applicant would be responsible for repairing those leaks.
As stated before, it is necessary for the Applicant to receive permission from the State of Florida to be granted an easement before the pipe can be installed. Prior to that permission being granted, the treated wastewater would be placed in Trout Creek, which is adjacent to the processing plant.
Predicted End of Pipeline Quality of the Effluent
In trying to predict the quality of effluent at the end of the pipeline, bench scale and pilot scale testing was done related to the DAF technology. This testing was done related to screened wastewater that was collected from the plant in April 1985.
In this connection two series of DAF bench scale tests were performed. They related to samples collected on April 18 and 19, 1985, which were packed in ice and shipped directly to a research laboratory in Lenox, Massachusetts, where they were treated with chemicals and a laboratory size DAF unit. The
concentration of the wastewater parameters were measured and recorded before and after treatment, and the results of those tests are set forth in the Applicant's Exhibit A-4(B)(3), at Table 2-1.
The pilot scale testing that was done in this case related to a 4-foot diameter DAF unit which had been installed at the Homer Smith plant. This testing occurred in April 1985. The basis of the testing was samples taken on April 15 and 19, 1985. Again, wastewater parameters were measured before and after treatment and the results are set forth in Applicant's Exhibit A-4(B)(3), at Table 2-1.
When the initial testing was done with the DAF, results for total coliform bacteria uniformly fell below a range of 35 organisms/100 ml. Subsequent pilot tests yielded higher bacterial counts which would indicate that there was a build-up of bacteria within the DAF unit. This verifies the need to require that the DAF unit contemplated by the application be routinely cleaned or sanitized to avoid the build-up problem.
TSS in the pilot unit effluent was reduced to 40 mg/L and lower. The capacity for metals removal in the pilot scale testing was good pertaining to copper and zinc. The ability to remove cadmium showed a result of 0.013 and
0.015 mg/L.
The best performance in the pilot scale testing related to BOD removal showed a value of 510 mg/L. It should be noted that the bench scale testing and pilot scale testing were in the face of significant variations in the amount of BOD presented by the screened wastewater. This identifies the need to pay close attention to the removal efficiency of the system related to the BOD parameter in order to achieve consistent levels of BOD following treatment.
The system under review is referred to as full-scale treatment. This treatment can be expected to exceed the levels achieved in the DAF bench and pilot scale testing because: (a) As a general proposition, treatment efficiency improves as the scale of machinery increases from bench to pilot to full-scale;
(b) The bench and pilot scale tests were run without the benefit of the primary mix-aeration tank and the benefits derived from that part of the treatment apparatus, that is to say, uniformity of the flow and better dispersion of the constituents of the wastewater stream, prior to chemical treatment; (c) The pilot DAF unit used exclusively recycled wastewater to undergo pressurization for the creation of the air bubbles. In the course of the hearing it was established that approximately 50 gallons per minute of clean tap water could be brought in to the treatment process resulting in the formation of more bubbles and the facilitation of up to 10 percent greater treatment efficiency based upon that change. The other contribution made by the use of clean tap water was the possibility of as much as a 20 percent dilution of the wastewater stream, in terms of concentration of constituents within the wastewater stream; (d) In a full-scale operation, the opportunity is presented to routinely adjust the chemical dosages as well as select among a range of chemicals in order to achieve the greatest treatment efficiency; (e) In employing routine sanitization of the DAF unit by use of a mild chlorine compound, the tendency to accumulate coliform bacteria can be overcome. Removal of this adverse influence improves the water quality.
In traveling through the pipeline, the transit time is in the range of two to three hours. At a normal rate of 250 gallons per minute of discharge, the transit time in the pipeline is 2.25 hours. Given the constituents of the wastewater, bacterial populations can be expected and could conceivably consume
sufficient amounts of oxygen to affect the dissolved oxygen levels within the wastewater as it exits the pipe at the diffuser ports. In addition, there is some possibility of ammonia build up within the pipeline. To avoid the build up of bacteria at harmful levels, sanitation of the DAF unit must be accomplished. In addition, the pipeline itself should be flushed with clean water at the close of operations each day and treated with small amounts of chlorine to address bacteria which may form within the pipeline. This avoids the increasing concentrations of ammonia and protects against lowered dissolved oxygen concentrations and the possibility of increased levels of toxic substances in the effluent which might be attributable to the proliferation of bacteria and the build-up of ammonia during the transport through the pipeline. Taking into the account the nature of this wastewater and the velocity associated with the transport and the sanitization of the pipeline, sedimentation associated with organic solids or other materials will not present a problem.
The pollution parameters associated with the treated effluent at the point of discharge from the pipeline can be expected to meet Class III orders, excepting unionized ammonia, specific conductance, copper, cadmium, pH and zinc. In order to achieve satisfactory compliance with regulatory requirements related to those parameters, the Applicant has requested a two-meter mixing zone. The purpose of that mixing zone would be to afford an opportunity for dispersion and mixing in the ambient water before imposition of water quality standards. The implications of that mixing zone are discussed in a subsequent section to the fact finding within the Recommended Order. In effect use of the mixing zone will promote compliance with standards pertaining to the subject parameters.
Petitioners point out the fact that the Applicant has based its assumptions on the results of treatment on the availability of four sets of data which were obtained from DAF effluent--two sets of data coming from the bench tests and two sets of data from the pilot plant. Further, there is an indication of the variation in quality of the effluent from one test to the next and the need to employ different dosage rates of chemicals in the face of those variations. The full-scale system utilizes a number of techniques to gain some uniformity in the quality of the effluent prior to chemical treatment and thereby some uniformity in the amount of chemicals necessary to treat the effluent. This overall system can then be expected to produce treated wastewater that is basically uniform in its constituents.
Petitioners point out the limited amount of data in the testing related to BOD. There were, in fact, only two data points: one related to the bench system and one related to the pilot system pertaining to BOD, both of these the product of different chemical dosages for treatment. Again, the system that is at issue in this proceeding can be expected to arrive at a more consistent level of BOD than is depicted in the results pertaining to bench scale and pilot scale testing. In fact, those results were not remarkably disparate in that the bench sale test produced 560 mg/L and the pilot scale test produced 510 mg/L. While the data related to BOD is limited, it still gives sufficient insight as to the probability of successful full-scale treatment and the test data is found to be a reliable indication of success in achieving the goal of 510 mg/L BOD.
Contrary to the Petitioners' perceptions, the treatment efficiency is improved with the system that is under review. Petitioners believe that the bench and pilot scale testing not only is unrepresentative of the full-size DAF system, they also believe that the full-size system represents a lesser quality of treatment. In this regard reference is made to features which would adversely affect the treatment efficiencies. The first of those pertains to
leachate which drains from beneath the sludge drying beds and is recirculated to the existing sump pit and added to the waste stream. Sludge which sits in the drying bed does decompose and causes biochemical reactions to occur, as Petitioners suggest. Moreover, no specific testing has been done of the leachate to ascertain the ammonia concentrations, pH or other chemical characteristics. Nonetheless, given the intention to clean out the residual matter within the sump pit frequently, and the flexibility to make that cleanup more routinely, and the fact that this amount of leachate is comparatively small in its ratio to wastewater which is being sent through the system for treatment, the leachate is not found to be an unmanageable problem. Nor is the sludge a problem. Likewise, the amounts of heavy metals within the leachate can be accommodated.
Concerns expressed by the Petitioners related to the organic materials in the primary mix-aeration tank that is being returned to the sump pit can also be dealt with by the evacuation of the materials in the bottom of the sump pit. This can be achieved more frequently than on a weekly basis if that becomes necessary, and in doing so avoid problems with concentrations of ammonia, bacteria, amines, sulfides and general organic decomposition products. These materials which are returned to the treatment process as wastewater reintroduced into the primary mix-aeration tank can be adequately addressed in the subsequent treatment that occurs by reaeration, the use of the chemicals and DAF flotation.
The retention inherent in the sump pit, primary mix-aeration tank and sludge drying bed has a potential to cause problems with ammonia build-up; however, the problems can be satisfactorily addressed, as well as potential problems with other toxic substances in the effluent, by routinely taking the residual material in the sump pit and sludge drying bed out of the treatment system.
While the specific chemicals and precise dosage rates to be used with a full-size DAF system remain open, the basic concept of chemical treatment has been identified sufficiently. The precaution that is necessary is to make certain that close monitoring is made of the results of changes in the chemicals and dosage rates. Likewise, special attention should be paid to the implications of adjustments in the pH of the effluent to make certain that compliance is achieved with the Class III water criterion related to changes in pH above background. Adjustments can be made without violating Class III water standards related to pH.
In testing that was done pertaining to the electroflotation effluent, a number of other chemicals were observed, to include trimethylamine, dimethyl sulfide, chloroform and other hydrocarbons. There is some indication of the presence of dichleoroethane, ethylbenezene and other aromatics. The possibility exists that these substances may also be products within the DAF effluent. In that event, the critical question would be whether they have any adverse effect in the sense of influences on the ability of the effluent to pass bioassays and the ability of the effluent to comply with standards related to other parameters such as dissolved oxygen, BOD, and TSS. The routine testing which is called for by the draft permit, which is deemed to be appropriate, would create a satisfactory impression of the materials set forth in the paragraph in the sense of the implications of their presence and allow any necessary adjustments in treatment.
While the effluent produced in the testing on the part of the Applicant is different, it is representative, and the treated effluent which will be produced in the full-scale system will be of a better quality and present less adverse impacts than shown in the past testing.
Petitioners question whether the Applicant has given a conservative portrayal in analyzing the effluent. In particular, it is urged that the Applicant claimed to be vying for use of the bench scale testing as a conservative depiction of the results of treatment. In this connection, the impression given in the hearing was that of ascendancy in treatment efficiency beyond the use of bench scale, pilot scale and ending in full-scale treatment. As pointed out by Petitioners, in making his case the Applicant has used results of bench and pilot scale testing. As example, use was made of the results of testing in the pilot scale in describing the removal effioiencies related to cadmium, whereas in the measurements of nitrogen concentrations the bench scale result was better than that of the pilot testing and was utilized. The real question is whether the overall testing has given some reasonable indication of success in full-scale treatment. To that end, use of results from either the bench scale or pilot scale testing is appropriate, and those results point to success in the full-scale operation.
The system that is proposed is designed to address fluctuations in flow and concentrations in the effluent, given the primary mix-aeration tank contribution and the ability to recycle flow within the DAF unit, with the use of clean tap water. This will allow the Applicant to deal with the remarkable differences in BOD that were seen in the test period, ranging from 900 to 3000 mg/L.
COD data as well as BOD data is limited but is found to be an ample depiction of potential treatment efficiencies related to that former parameter.
In addition to the aforementioned references to changes in chemicals in the treatment process, Petitioners characterize the use of clean tap water in the recycle flow as being "unsubstantiated speculation." While the use of tap water was discussed in a theoretical vein, that discussion is found to be an accurate assessment of the value of the contribution of clean tap water to the treatment system.
Impacts on St. Johns River
Ambient Water Quality and Conditions
The St. Johns River and the area of the proposed discharge is a riverine estuary. It has a freshwater source flowing from the south and a tidal ocean boundary to the north. The confluence of freshwater flow and tidal influences causes the water movement within this area to be oscillatory. That is to say that at different times the water will flow downstream, to the north, and upstream, to the south. There are occasions in which the net flow over a given tidal cycle will be zero; however, the water is always moving. Conductivity and chloride data indicate that the freshwater flow is the dominant flow compared to tidal influences. The extrapolation of available flow data indicates that there is a net downstream flow of fresh water averaging approximately 6,000 CFS. The St. Johns River at the point of discharge is over one and a half miles wide and relatively shallow with maximum depth in the range
of 3 to 3.5 meters. Given the fact of the width and depth in this segment of the river, and the imposition of wind conditions and tidal influence, the water is well mixed and flushed. There is no stratification in this portion of the river.
The Applicant looked into the question of current bearing and velocity in depths between two to fourteen feet in the water column. Eleven sampling stations were utilized in arriving at information about current bearing. This observation was over an eleven-nautical-mile stretch of the main channel of the St. Johns River. These stations are depicted on Applicant's Exhibit 38. In this portion of the river the current at all measured depth was flowing up and down the main channel. Within these sections there is no indication of a pronounced subsurface water movement toward the east and west banks of the river. Current velocities within the three stations closest to the POD averaged in the range of 0.5 feet per second and velocities in the other stations found within the main channel were within that range of movement. By contrast current velocities within the embayment areas along the east bank of the river were substantially weaker.
DER conducted two studies using tracing dyes poured into the St. Johns River at the approximate point of discharge and monitored the course of dispersement of that dye. During this observation the dye was constantly replenished while being carried on the currents. While the dye remained within the area of the main channel, it stayed on the east side of the river as it moved down river on the outgoing tide in the direction of Smith's Point and the Shands Bridge. As the tide was slowing before the change of tide, the dye drifted for approximately two hours in the immediate vicinity of the point of discharge. The DER dye study was a fairly gross measurement of the direction of water movement within the river beyond the point of discharge. It tended to confirm that the water flow was basically up and down river, depending on whether the tide is incoming or outgoing. The studies were not sufficiently refined to speak with any certainty on the possibility that some part of the flow regime would move toward the east or west bank of the river. Nonetheless, in examining the nature of the shallow embayment areas along the banks of the St. Johns River, they are not seen to be subject to the basic flow regime that is occurring in the main channel during tide events. The bathymetry in this area is such that if the main flow regime was having some influence on the embayment areas, the depths within those embayments would be more similar to the depths found in the main channel of the river.
Petitioners have employed a number of dye and drogue measurements to try to give a more accurate depiction of the influence of flow within the main channel upon the dispersion of effluent upon discharge and the possibility of those pollutants reaching the embayment areas. While there is no dispute over the fact that Trout Creek is a tributary to the St. Johns River with some tidal influences being shown in that Creek and there is no dispute that water from the St. Johns River flows in and out of Palmo Cove and Trout Creek, there does not appear to be a significant flow of water from the St. John River into the cove and creek from the main channel, in particular from the area of the point of discharge. One of the witnesses of the Petitioners, Sandy Young, did a dye procedure in which a plume was allowed to develop over a distance of approximately 1,000 feet. Although some slight lateral variation was shown in the dye plume, it did not identify a basic flow pattern toward the embayment areas on the east side of the river. The DER dye study was over a distance of some eight thousand feet and also showed some minor lateral variation. Both of
these dye studies tend to show a basic flow pattern within the main channel. The dye study run by the Petitioners' witness White gave the same basic depiction as seen in the studies by DER and Young and did not identify a flow pattern out of the main channel toward the embayment areas.
In the drogue studies run by Young three Chlorox bottles were filled to 95 percent of volume with water and released at the point of discharge. They were followed for a period of five hours. They moved initially with the outgoing tide toward Jack Wright Island and then when the tide slowed, the drogues slowed. When the tide changed with the incoming tide, the drogues moved toward the center of Palmo Cove. The drogue studies by Young do tend to indicate that some water was exchanged from the main channel at the point of discharge and the embayment areas. It is not a very exact measurement as it only deals with the surface area of the water column, given the wind and wave conditions existing on that occasion. It is in no way representative of the flow direction of the rest of the water column. Therefore, although it may tend to identify that some of the pollutants leaving the point of discharge may find their way to Palmo Cove, it does not establish that quantity of that pollution dispersion and the significance of that dispersion. Based upon this evidence it cannot be seen to be so revealing that the assumptions made by the applicant in trying to identify the dispersion characteristics of the effluent at point of discharge are negated based upon the results of the drogue study. The drogue study which Young did and the observation of the movement from Smith's Point to Little Florence Cove are no more compelling than the dye studies done at the point of discharge.
When the Petitioners suggest that there is some influence by centrifugal force pushing the water to the outside of the curve toward the eastern bank, they are correct. However, the contention by the Petitioners that the incoming and outgoing tides sweep to the eastern shoreline of the St. Johns River moving toward Pacetti Point, Palmo Cove, Florence Cove and Smith Point is not accepted. Again, the general flow regime is up and down the main channel of the river and not primarily to the eastern bank. Finally, the fact that the Tetratech data produced for the benefit of the Applicant showing the flow pattern within the overall water column, which indicated that the general direction is the same at the top or bottom of the water column, did not tend to identify the fact that pollutants throughout the water column will be dispersed into the embayment areas from the point of discharge. The data collected in the main channel seem to establish that the water was flowing up and down the channel at depths below the surface. The question becomes whether the amount of pollutants that are being brought into the embayment areas is in such concentrations that they tend to cause problems along the shoreline, especially as it pertains to dissolved oxygen levels. From the facts presented, this outcome is not expected.
Levels of dissolved oxygen in the St. Johns River can vary in the natural condition as much as 2 to 3 mg daily. These variations are influenced by algal activity and are not uncommon in Florida waters.
Dissolved oxygen is essential to aquatic life. Optimum levels of dissolved oxygen for the fish population of the river are in the neighborhood of
6 to 8 mg/L. DER has established a minimum DO standard of 5 mg/L for Class III waters such as Trout Creek, Palmo Cove and the St. Johns River. This standard is designed to achieve uniform compliance throughout water column at whatever time the measurement may be made. DER, by the employment of this rule, is attempting to deal with those instances in which, in view of the dissolved oxygen level, aquatic organisms are placed under greater stress. The lowest DO
concentration expected is normally seen in the summer in July, August and September. DO concentrations in the water column are expected to be highest at the surface area and lowest near the bottom. Measurements near the bottom are significant in this instance because the discharge will occur approximately one foot off the bottom of the river.
The Applicant took DO measurements of the area in question during the spring of 1984 over a period of three days. These measurements were taken at a time when a better quality of dissolved oxygen might be expected as contrasted with circumstances in the summer. With the amount of wind involved impressive levels of reaeration were also occurring. These measurements showed that in all stations DO levels were at least 5.0 mg/L at all depths. A study by Applicant's consultant Environmental Science Engineering related to a diurnal event for dissolved oxygen was taken approximately one kilometer downstream from the point of discharge in August 1985 and did not reveal any measurements below 5.0 mg/L. The river was choppy on that day and this would improve the quality of dissolved oxygen. Historical data by DER related to water quality at Picolata, which is south of the POD in the St. Johns River, reveals average DO levels of approximately 6 mg/L. Historical water quality data collected by the Florida Game and Freshwater Fish Commission near Green Cove Springs, which is several kilometers north of the point of discharge, indicated average DO levels in compliance with water quality standards. Diurnal data from near Green Cove Springs did not show any history of DO values below the state standards. There is other historical data, however, which indicates that DO concentrations in the general vicinity of the point of discharge do go below 5.0 mg/L. Game and Freshwater Fish Commission data indicate that the readings below 5.0 mg/L could occur as much as 10 percent of the time. This relates to the study done at Green Cove Springs. There does not appear to be any particular pattern to these events of low DO violations other than the expectation of their occurring in the summer months, occurring more frequently in the lower depths of the water column and in areas which are shallow with limited flow. The summer circumstance is one in which there is a possibility of very heavy rainfall followed by hot weather with overcast skies and no wind, and the DO values go down in that set of conditions. The DO values are, in addition to being lower near the bottom of the water column, likely to be lowest in the evening or early morning hours and persist in length of time from eight to ten hours.
Some of the Florida Game and Freshwater Fish Commission data from Green Cove Springs depicted some DO concentrations as low as 1.8 mg/L at the bottom and 2.1 mg/L at the surface. The low readings that were taken at Green Cove Springs occurred in September 1979 after Hurricane David had created unusual conditions in the upper St. Johns River as to effects on DO. The same report indicated DO concentrations at eleven stations in the lower St. Johns River in July and September 1982 were in the range to 4.0 to 4.5 mg/L respectively. This particular data is not particularly valuable in view of the location of those stations.
There are occasions when the DO concentration at the point of discharge could go below 5 mg/L and could be as low as 2 mg/L on the bottom, but this is not a routine occurrence and would not persist.
The Petitioners' consultant Young had taken certain dissolved oxygen readings at the point of discharge in April 1985 and found compliance with the 5 mg/L standard. At other times he and the consultant white measured substandard dissolved oxygen concentrations at the point of discharge. On July 20, 1985, white collected water samples at the surface and at two feet above the bottom and determined that the readings were 4 mg at the surface and 3 mg near the
bottom. On August 10, 1985, Young measured DO concentrations of 4 mg/L near the bottom. On August 30, 1985, Young measured DO values of 4 mg/L at the point of discharge. Young had also measured DO concentrations at Green Cove Springs on August 10, 1985, and discovered readings as low as .5 mg/L and ranging up to 3.8 mg/L. A downstream measurement away from the point of discharge in the main channel made on August 10, 1985, by Young showed a dissolved oxygen reading of 4 mg/L. In these August measurements Young had discovered a number of readings that were in compliance with the 5 mg/L requirement. Again on September 5, 1985, Young made a measurement of dissolved oxygen near the bottom of the water column at the point of discharge which was 5.3 mg/L. Young's measurements of dissolved oxygen at the surface and in the intermediate depth, typically were above 5 mg/L. Bottom readings taken by Young in the main channel of the river and to some extent in the embayment areas were extracted from the soft detrital materials, the place of intersection of the river bottom and the water column.
DO levels in these anoxic materials would tend to give lower dissolved oxygen readings and, to the extent that this anoxic material remains in the test probe while taking measurements toward the surface, would have an influence on the readings, making them appear lower than would be the case if the anoxic sediments were not present in the test device. These effects were not so dramatic as to cause the rejection of the data collected by this witness.
Some explanation for lower DO readings at the point of discharge can be attributable to the fact that the anoxic material associated with high benthic oxygen demand on the bottom reduces the dissolved oxygen in the water column.
Although Rangia clams were present at the point of discharge and they are capable of living in an environment of low salinity and low DO, they are likewise able to live in higher ranges of DO and their presence cannot be regarded as meaning that the dissolved oxygen levels are consistently below 5 mg/L.
Petitioners' consultant White opined that there would be a very frequent violation of DO standards at the point of discharge, approaching 25 percent of the time. Considering the facts on the subject of dissolved oxygen in that area, this opinion is rejected, as is the opinion that DO concentrations will go below DER standards most of the time in July, August, and September.
Young believes that a more involved study of worst case conditions would reveal DO violations throughout the column in the center of the river. The data that was presented was ample to demonstrate that violations would not be that widespread. Nor is the opinion of the consultant Parks on the subject
of DO violations, to the effect that they will occur on many occasions accepted.
In the Palmo Cove area it is not unusual to see some DO readings below the 5 mg/L standards. The E.S.E. group found substandard DO conditions in Palmo Cove at sampling Station 1 in September and October 1984 and some instances in April and May 1985. DO concentrations were found in the range of .4 and .6 mg/L in August 15 and 30, 1984, respectively, with DO concentrations of 1.8 and 2.1 mg/L reported on October 4 and October 29, 1984, respectively. DO violations in four out of eight checking periods between April 25 and May 24, 1985, were shown in the Palmo Cove area. Measurements taken by the consultant white showed 3 mg/L at the surface and 2 mg/L at the bottom on July 28, 1985. The consultant Young also made a measurement of 3.2 mg/L of dissolved oxygen on August 10, 1985, in a mid-depth reading in the Palmo Cove area. On September 5, 1985, he found a DO reading of 4.0 mg/L.
At those places along the eastern shoreline of the St. Johns River and the relative vicinity of Florence Cove, Jack Wright Island, Little Florence Cove and Colee Cove, low dissolved oxygen readings were found, that is below 5 mg/L. These coves can be expected to have substandard readings frequently during the summer period, based upon measurements taken by the consultant Young.
In the conduct of the drogue study related to the Chlorox bottle, the consultant Young in tracking the path of those bottles, found a couple of locations in the path of the drogue which were in the range 2.8 to 4.2 mg/L and
2.0 to 4.6 mg/L.
The influences of the discharge will not reduce DO in the embayments. The ambient conditions for BOD in the area where the discharge is contemplated is relatively low and there is no thermal or saline stratification even in the summer months.
Nutrient concentrations in this part of the St. Johns River are as indicated within the Applicants Exhibit A-4(B)(3) and at present are at such levels as to promote a healthy fish community. There is algae production that can be sufficient in some areas within this section to cause algae blooms. Algae blooms are not found to be a routine occurrence.
Algae blooms reflect higher levels of nitrogen and phosphorus. The consultants Young and White have seen algae blooms in the St. Johns River away from the general area of concern, both upstream and downstream. Should those algae blooms occur, they would promote significant rises and falls in DO concentrations. In Palmo Cove and the St. Johns River, supersaturated DO concentrations have been detected and they are indications of high rates of primary algal productivity. The circumstance of supersaturated conditions, related to dissolved oxygen, can be the by-product of an algal bloom.
The concentrations of nitrogen range from an average of 1.42 to a maximum of 2.54 mg/L. Nitrogen concentrations of 1.4 mg to 1.5 mg/L are optimally advantageous for fish production. Significant increases above those levels would cause the decline of the fish population.
Total phosphorus concentrations in the ambient waters are high. Concentrations in excess of 0.1 mg/L of total phosphorus are regarded as a indication of eutrophication and the average concentration here is measured as
0.3 mg/L with a maximum ambient concentration found at 0.52 milligrams per liter.
There is significant algal growth in the inshore areas and an indication of some eutrophication in the grass beds. The dominant species of algae found in that vicinity are blue-green, which are seen as being nuisance species.
The grass beds along the shoreline are basically healthy. On the other hand, some of the public witnesses identified the fact that grass beds and other vegetation have died with the advent of discharge from the Applicant's plant into Trout Creek. This was under a system in which little or no treatment was afforded the effluent. One other public witness indicated that his dock in the Florence Cove area had been covered with a slimy material and algae during the past two years.
Significant grass beds are found along Jack Wright Island and in other areas along the eastern shoreline of the river. These grass beds are important
as fish habitat to include nursery areas, areas for various juvenile species of fish and other organisms. Some of these grass beds are showing signs of environmental stress, and nutrient loading can contribute to that stress. Some of the grass beds are covered with higher amounts of algae, duckweed and periphyton than are desirable. The duckweed had floated into these areas from other locations and can be expected to move away. The presence of algae is an indication of nutrient loading. The presence of duckweed is not a product of nutrient loading in the sense of the production of the duckweed at the site where they were found along the shoreline.
The area in question between Pacetti Point and Shands Bridge serves as a nursery in a sense of providing habitat for juvenile species of fish and other organisms. The grass beds along the shoreline provide habitat for feeding and breeding related to juvenile organisms, to include such species as bass and shrimp. Juvenile catfish are found within the deeper portions of the river as well as croaker and other marine species. There is a high number of juvenile blue crabs in this area of the river and this is a commercial resource. Shrimp are taken by recreational fisherman in the area of the North Shore Pacetti Point. Clam beds are also present near the point of discharge.
Juvenile and adult manatee have been seen in the St. Johns River and in the area near Jack Wright Island. Manatee have also been observed in Trout Creek at a time before the operation of the Applicant's plant and at times following the cessation of operations in June 1985.
During the course of the operation of the Applicant's plant, when raw effluent was discharged into Trout Creek, fish kills were observed. Those events had not been seen prior to the operation of the plant. Indications are that fish were killed in the creek due to the use by the Applicant of fly bait, which made its way into the water.
Dispersion Modeling of Water Quality Impact
In order to gain some impression of the influences caused by the dispersion of the pollutants within the effluent, the Applicant through its expert employed several modeling techniques. DER was made aware of this modeling as it developed.
A far-field model was used to calculate what the long-term or steady state impacts of the treated effluent would be on the ambient water quality. In trying to identify the influence of the discharge, measurement of metals were taken based upon an assessment of long term increases. BOD, which breaks down and consumes oxygen over time, was examined in the sense of the long term effects as to DO deficits. In essence these projections were superimposed over the ambient condition to gain an impression of the adjusted ambient values, taking into account the influence of the discharge.
The Applicant also ran a plume model which was designed to calculate spreading and dispersion of the treated effluent within the zone of initial dilution or mixing zone at the point of discharge. This model responds to the discharge configuration. Through the use of computer calculations, it was established that a five-point diffuser with port openings of 0.75 inches in diameter angled upward at ten degrees would result in an effluent dilution ratio of 28.5:1 within two meters of the point of discharge. The calculated impacts of the plume model were superimposed upon the adjusted ambient water quality conditions set forth in the far-field model in order to determine net impact upon the receiving waters within the mixing zone.
A third model was used, referred to as the lateral diffusivity model. This model is designed to calculate the six-hour or short term water quality impacts of the treated effluent when it moves from the zone of initial dilution during flood and ebb tide conditions. By estimating dispersion rate, this model predicts what dilution would occur in the path of the effluent plume. These impacts were then superimposed upon the adjusted ambient water quality conditions to determine the total impact in the path of the plume.
The modeling work by the Applicant's consultant is a reasonable depiction of the predicted impacts of the pollution on the ambient conditions. The calculations used in the far-field model assumed a freshwater flow of 2,000 CFS. This assumption in the far-field model satisfactorily addresses worst case flow conditions related to seven-day, 10-year low flow. The temperature utilized in depicting ambient water was 30 degrees centigrade when employed in the far-field and lateral diffusivity models. This corresponds to warm weather conditions, which are more profound in describing effects on water quality. The far-field and lateral diffusivity models assumed that the treated effluent discharged from the pipeline would have a BOD concentration of 665 mg/L. This is contrasted with the maximum concentration allowed by the draft permit, which is 510 mg/L, which is the expected amount of BOD. This tends to depict the impacts of the discharge more conservatively. The model assumes the BOD loading of 2,720 kg per week, equating to an average discharge concentration of 665 mg/L if the plant operates five days a week on an eighteen-hour day. The reaeration rate and NBOD and CBOD decay rates used in the far field and lateral diffusivity models are acceptable. Likewise, the longitudinal dispersion coefficient that was used in the far-field model is acceptable. The standard modeling methodology in this process calls for an assumption of a 1.33 growth rate of the plume in the lateral diffusivity model. The Applicant's consultant decided to use a lower constant diffusivity growth rate. As a consequence, less lateral spreading is depicted. With less lateral spreading, less dilution is shown, and the impacts predicted by the model are exaggerated. One of the parameters of the plume model has to do with river flow which causes some turbulence and also brings about dilution. In this instance the plume model calculations assume stagnant conditions which is a more conservative assessment.
As the Petitioners have suggested, the modeling to explain the impacts of dispersion of the pollutants is not designed to give precise calculations of the DO deficit at each point in the river along the eastern shoreline. It is indeed an estimate. The estimate on this occasion is reasonable.
Although DER performs mathematical analysis of dispersion of proposed discharge in some cases, it did not do so on this occasion. Nonetheless DER was satisfied with the present choice for modeling the dispersion characteristics of the discharge. Although the models utilized were not subject to exact calibration by measurement of the dispersion at the site, the information gained by the Applicant prior to the imposition of the modeling techniques was sufficient to develop the models and to give a theoretical verification of the expected impacts from the discharge.
The Applicant's belief that the maximum DO deficit caused by the discharge will not exceed 0.1 mg/L is accepted. The dissolved oxygen level in the effluent at the point of discharge will be above 5 mg/L. The Applicant's choice of reaeration rates, CBOD decay rates, NBOD decay rates, discharge rate from the pipeline, hours of operation, average reversing current speed, net non- tidal flow, non-tidal velocity, time lag before NBOD decay, maximum tidal
velocity, and other variables and assumptions within the models were acceptable choices. Although the possibility exists of an occasional 5 1/2 day operation in which 10 additional hours of operation are added, this would not be so significant as to set aside the predictions as to the pollutant dispersion. The Applicant's consultant who modeled the dispersion rates did not conduct dye studies to verify or calibrate the actual dispersion in the river. One of the dye studies indicated a lateral spreading rate which was less than that predicted by the model. Notwithstanding this revelation, the overall techniques used by the Applicant in predicting lateral spreading rate are sound and do not present a risk of a greater DO deficit than was predicted based upon incorrect assumptions as to lateral spreading rates.
The Applicant's consultant's use of 2,000 CFS as the net non-tidal low flow was a more convincing estimate than the field data collected by the United States Geological Service, given the paucity of information about the flow conditions within the St. Johns River.
The Applicant's choices in describing maximum tidal velocities and average velocity are accepted.
The critique of the modeling efforts done by the Applicant that was made by Petitioners' consultant, Dr. Parks, in which he concludes that the DO deficit is considerably greater than 0.1 mg/L is not accepted.
Comparison of Predicted Impacts of Discharge with Statutory and Regulatory Criteria
Inside the Mixing Zone
Applicant's assumptions about the increase in nutrient concentrations in the St. Johns caused by the discharge are accepted. This is based on the assumption of a nitrogen value of 52 mg/L which was achieved in bench scale testing of the effluent and which can be achieved in the full scale operation.
As the effluent is discharged from the diffuser within the mixing zone, there will be some turbidity problems in that the bottom near the point of discharge. The soft silt there is easily resuspended. When the discharge is concluded, the material will settle back to the bottom. There will be further resuspension when the operation commences again and there is a discharge. The transport of these suspended materials is limited in that the water velocity associated with the discharge is quickly dissipated. This phenomenon will not cause adverse environmental impacts.
The mixing zone does not include an area approved by the State of Florida, Department of Natural Resources for shellfish harvesting; it does not exceed the presumptive maximum size set forth in Rule 17-4.244, Florida Administrative Code. Nor does it include an existing drinking water supply intake or any other existing supply intake that would be significantly impaired by the proposed mixing zone. The water in this area is of sufficient depth that it will not support grass beds that are associated with a principal nursery area, such as pond weed, midgeon grass, manatee grass, turtle grass or eel grass which are used to support nursery activities. These grasses are normally found inshore.
Although juvenile fish are found throughout this reach of the St. Johns River, and for that matter in the entire lower eighty miles of the St. Johns River, the mixing zone is not of such dimensions that it will preempt the
health of juvenile fish. Most of the freshwater fish in this system use the littoral areas for reproduction. Marine and estuarine species do not reproduce in the St. Johns River. There is some reproduction that is occurring with some species, such as catfish. Given the size of the mixing zone, no significant adverse effects will occur with the established community of organisms in this portion of the river. The mixing zone will not otherwise impair designated uses of the St. Johns River.
The treated effluent will not create a nuisance condition or violate any other DER standards that apply within the mixing zone. With the advent of the full scale facility, maximum, average and chronic toxicity criteria can be reasonably expected to be met at the point of discharge, within the mixing zone and at the boundary of the mixing zone. As described before, the effects of sediment transport upon discharge are localized.
The proposal for a mixing zone takes into account Rule 17-4.244, Florida Administrative Code, in the sense of addressing present and future sources of pollutants and the combined effects with other pollutants or substances which may be present in the ambient waters.
One of the concerns which DER has about wastewater is the effect which that pollutant has on organisms within the environment. To gain an impression of that influence, testing is required to establish whether the wastewater is acutely toxic. The testing is known as bioassay assessment.
While this assessment is normally done after the grant of a construction permit, when confronted with uncertainty about the quality of the effluent, some testing is beneficial prior to the grant of a construction permit. This is especially true given DER's experiences in dealing with raw effluent of several of the scallop processors, to include Homer Smith, which showed that the raw effluent was acutely toxic.
This acute toxicity testing is done by placing test organisms into aquaria containing the effluent and measuring survival of those species over time. Results are described in terms of a measurement of the concentration of the effluent at which 50 percent of the organisms are killed during a prescribed test period. In static testing the organisms are simply exposed to the effluent for the requisite period of time. By contrast, a static renewal test calls for the effluent to be replaced with another sample of the effluent at various intervals within the test period. Finally, a flow through bioassay test calls for a continuous stream of fresh effluent to be introduced in prescribed concentrations over the duration of the test.
A bioassay assessment in the static condition was performed related to DAF pilot scale effluent that was collected on April 19, 1985. In this instance Daphnia magna were used as test organisms and demonstrated a survival rate of greater than 50 percent in a 100 percent concentration of effluent over a period of 96 hours in the setting of static and static renewal tests. That survival rate was also shown in lesser concentrations of effluent as well.
The April 19, 1985, sample was also used in testing the response of Pimephales promelas. These test organisms did not survive either in the static or static renewal tests. While an hypothesis has been made that acute toxicity was experienced in this test organism attributable to build-ups of ammonia, which is greater with this type of organism than with the Daphnia, due to larger
biomass which allows for a greater number of ammonia generating bacteria to be presented in the test aquaria and the fact that the Pimethales excrete more ammonia, these differences do not definitely explain why the Daphnia survived and the Pimephales did not.
In the series of static renewal bioassays performed on the wastewater that was collected at the plant on April 29, 1985, and shipped to Lenox, Massachusetts, for bench scale treatment, the test organisms of both types failed to survive for 96 hours. It was discovered that during the course of the test period, levels of ammonia rose rapidly.
Trace metals in the treated effluent are principally in the form of stable species, as opposed to free ions. These constituents standing alone are not likely to have caused the mortality in the test organisms.
The effect of decomposition of the organic constituents in the waste stream is the most likely explanation of why the bioassays of pilot and bench scale treated effluent did not lead to a satisfactory result. Unionized ammonia, a by-product of organic decomposition, is found to be a principle player in the explanation of why the treated effluent was acutely toxic to the test organisms. The exact cause of toxicity has not been precisely identified. Given the complex nature of the effluent, other potentially toxic substances such as sulfides, amines, and other organic compounds could have contributed to the demise of the test organisms. Moreover, toxicity can increase with combinations of chemicals acting in a synergistic fashion, making their combined effects more devastating than the effect of any single substance.
Having in mind the fact that ammonia is a major problem in the survival of test organisms subjected to a bioassay, the question becomes one of what may be done to remove ammonia. The production of ammonia in wastewater would depend upon the presence of bacteria. The proposed DAF system removes substantial numbers of bacteria, thereby limiting the possibility of ammonia build-up, if bacteria are not allowed to recolonize in some part of the system prior to discharge. As discussed before, reduction of bacterial activity can be achieved within the proposed treatment system. This is unlike the experience with the bench scale and pilot scale testing that was done on the effluent in which a substantial amount of time transpired before subjecting the test organisms to the effluent and in which a substantial amount of time transpired while the test organisms were being subjected to static and static renewal procedures with the same effluent. The time intervals contributed to the build- up of toxic levels of ammonia in the effluent. The system which is proposed in this instance can avoid the problem of time as it relates to the build-up of levels of ammonia. To further reduce the influence of retention of the waste product, flow through bioassay testing would be the most appropriate measurement of the survivability of the test organism in that it would be responding to real case conditions pertaining to the quality of effluent and its potential toxicity.
Under these circumstances, it is reasonable to believe that in a flow through bioassay test of the full scale treatment system, the test organisms could survive. This determination is reached given the reduction in retention time compared to the bench and pilot scale testing, which reduces ammonia, with further ability to reduce ammonia by frequent removal of residual materials from the sludge drying bed and sump pit and taking into account basic improvements in treatment efficiency associated with the full scale system. In addition, the pH of the effluent can be regulated to avoid toxicity in the ammonia which is associated with inappropriate balance within the pH.
While a 96-hour LC-50 cannot be calculated with the results of bench scale and pilot scale testing, a reasonable possibility exists for the establishment of that measurement with the advent of a flow through bioassay.
There is sufficient similarity between the effluent in the pilot and bench scale testing and the expected effluent in the full-size system for the bioassay testing that was done in those limited systems to give a meaningful indication of the probability that the Applicant can pass a flow through bioassay.
Applicant can be reasonably expected to produce an effluent in the mixing zone which will not exceed the 96 hour LC-50 for acute toxicity.
As with the circumstance of ammonia, pH can be controlled within the system to address the implications of changes in pH as it pertains to other pollutants in the wastewater.
Ammonia production can be influenced by the amount of alkalinity in the effluent and the receiving waters. Alkalinity has not been measured thus far. Alkalinity could be established for the effluent and receiving waters and dealt with if it was suspected as being an explanation of problems with the build up of ammonia which might exceed DER standards.
The discharge from the Applicant's plant will not cause long-term problems with low DO, high nutrients, algal imbalances, and chronic toxicity.
Outside the Mixing Zone
Those constituents within the waste stream, to include those for which a mixing zone was sought, will comply with applicable water quality standards at the boundary of the mixing zone.
The dissolved oxygen deficit at its maximum can be expected to be in the neighborhood of 0.1 mg/L and will be exerted somewhere in the range between
1 and 2.5 km downstream of the point of discharge across the width of the plume in worst case conditions. This deficit is not of a dimension which is easily detectable. The implications of that deficit are difficult to perceive in terms of tangible environmental consequences.
While a deficit in the range of 0.1 mg/L has some relevance in the DER permitting decision, that deficit as it is dispersed is not expected to cause or contribute to violations of water quality standards in the main channel of the river or in the inshore and embayment areas. While it is true that there are periodic fluctuations of dissolved oxygen below 5 mg/L, DER, as a matter of present policy and professional judgment believes that in this system which evidences characteristics of a clean well-flushed, unstratified water body occasional readings of low DO are not regarded as an indication of violation of water quality standards. This speaks to the main channel area of the river where the only quantifiable influence is expected. The facts presented in this case support the soundness of this policy choice.
Petitioners presented the testimony of former officials within DER, namely Parks and Young, who stated that dissolved oxygen standards of 5 mg/L are applied at all times and at all places. They felt that the DER policy was to the effect that permits would not be granted for discharge in any circumstance where the DO concentrations are substandard in the ambient waters, regardless of
the amount of decrease or deficit that would be promoted. Parks spoke of the availability of site specific alternative criteria, variances, exceptions or exemptions from the terms of the water quality rule. Having considered these remarks, the present DER policy of allowing the permit to be granted in the instance where occasional violations of ambient water quality standards related to 5 mg/L occur, in the face of the small deficit which is involved in this case, is the better choice. Further, it is a choice that is not so inconsistent with prior practices as to be arbitrary in nature. Finally, DER's position that it would be unadvisable to require a request for site specific alternative criteria, variances, exceptions or exemptions in circumstances such as this case is accepted, when taking into account the problems which would be presented to the agency in administering the permit program, should each Applicant who is confronted with occasional violations below standards for dissolved oxygen have to seek extraordinary relief.
While the facts do identify that some pollutants can reach the embayment areas on the eastern shore, the facts do not depict a circumstance in which the amount and quality of that effluent will be such that it will cause or contribute to dissolved oxygen violations in those areas. The water quality in the embayment areas is lower than that in the main area of the river due to inadequate flushing. The areas inshore do not interact with the main channel in a way that would take advantage of the faster moving currents found in the main channel as this interaction might promote a better quality of water. In view of the situation in the embayment areas, the Applicant, on advice of his consultants, moved the proposed location of the discharge into the main channel away from the areas which were under greater stress in terms of dissolved oxygen values and in doing so avoided damage to these areas.
The current velocities in the area east of the main channel are weak. There is a substantial distance from the point of discharge to the inshore areas. As the effluent moves toward the inshore or nearshore areas it will become so diluted it will not have an adverse influence on dissolved oxygen.
Not only the distances involved, but also the fact that water flowing near the surface is well aerated contributes to the dilution of the effluent as it approaches the shore.
Although it has been shown that some stress in the grasses along the eastern shoreline has occurred and the existence of blue-green algae has been shown, together with indications of undesirable algal production, the nutrients which are part of the effluent at the point of discharge are not expected to cause an imbalance in the natural populations of flora and fauna or create nuisance conditions or violations of transparency standards. The nitrogen increase could cause an increase in algal production in the order of one percent, which is inconsequential.
The treated effluent will not adversely effect biological integrity of the St. Johns River. The benthic microinvertebrate community in this part of the river is fairly low density due to the fluctuations in salinity levels and predation by fish and blue crabs and given the nature of this substrate which is unstable with low levels of dissolved oxygen. The organisms that are predominant have a tolerance to siltation and fluctuations in dissolved oxygen. The treated effluent will not adversely effect the microinvertebrate community.
Petitioners point out the fact that when DO concentrations decrease below optimum levels, fish and other organisms suffer. The fish reduce their movement, feeding and reproduction and they are less disease resistant. They are placed in a position of having to leave the area or risk death if the
impacts of the decrease in dissolved oxygen are severe. The influence of the effluent at the point of discharge in this project is not expected to have significant impact on fish and other organisms within these topics of concern expressed in the paragraph.
Even though the dissolved oxygen deficit extends in amounts below 0.1 mg/L as far as 2.1 km upstream and 4.5 km downstream and within a wide breadth of the center portion of the river, those deficits will not be significant to the water quality.
The BOD associated with the discharge, allowing for mixing will not depress dissolved oxygen levels below DER standards of 5 mg/L.
The combination of BOD and nutrient discharge will not cause an imbalance of algal production in the river, nor will it contribute to the dominance of nuisance algal species.
The BOD nutrient loading associated with the discharge into the St. Johns will not promote significant ecological impacts on the St. Johns River, to include the possibility of more frequent and severe algae blooms, increase in benthic oxygen demand, risk of increase eutrophication, destruction of grass beds or decline in the fishery.
With the advent of discharge in the St. Johns DO fluctuations in the river will not be greater nor will there be an occurrence of a swing from substandard dissolved oxygen levels to supersaturated dissolved oxygen.
While the discharge from the Applicant's plant contains pollutants such as cadmium, zinc, arsenic, copper and organic decomposition products, the treatment provided the wastewater is expected to overcome any acute toxicity associated with these materials individually or in combination. Chronic toxicity is not expected related to these materials. The effects of these materials are not expected to cause physiological and behavioral responses which are abnormal in organisms such as reduced locomotion and reproduction or increase susceptibility to diseases to include ulceration and increased mortality. Treatment contemplated and provision of a mixing zone will allow compliance with the standards related to cadmium.
Reference has been made to a development known as St. Johns Harbor which is in the vicinity of the proposed discharge and can be expected to promote some pollution in Palmo Cove and the St. Johns River. Although St. Johns Harbor development is proceeding through stages of permit review, it does not appear that it has reached a place in which exact information about its implications as a pollution source can be set out.
In discussing the St. Johns Harbor Development, Petitioners emphasized that this eventuality and other matters which deal with cumulative impact have not been satisfactorily addressed. There is no indication than any other substantial development or activity other that St. Johns Harbor is contemplated in this area associated with the permit review at hand. St. Johns Harbor eventually hopes to develop 3000 residential units. It has received the approval of the Northeast Florida Regional Planning Council for the initial phase of development. It has been reviewed by the Florida Fresh Water Game and Fish Commission. The developers are proceeding with the project to include the sale of lots. Nonetheless, that development has not reached the phase where its implications would form the basis of a denial of this project based upon the theory of cumulative impact. While Petitioners contend that stormwater runoff
from the St. Johns Harbor project will be a problem, assuming an inadequacy in the design which that developer employs to deal with that matter, this eventuality is not expected based on a review on the facts presented.
Reference is made to the Ulcer Disease Syndrome which fish in the St. Johns have suffered from. The principal area in which this event has occurred is north of the area expected to be influenced by this discharge. Nonetheless, diseased fish have been found in Palmo Cove. This Ulcer Disease Syndrome is caused by heavy metals and hydrocarbons, and these materials act in league. The advent of additional heavy metals and other pollutants, such as those being discharged from the Applicant's plant could cause further deterioration in the condition of fish suffering from Ulcer Disease Syndrome. Having considered the facts, this outcome is not expected.
Ambient levels of 18 other pertinent pollution constituents in the vicinity of the point of discharge were ascertained by the Applicant's consultants on the basis of field observations and historical United States Geological Survey and Florida Game and Fresh Water Fish Commission data. This formed a basis of an assessment of average and worst case values. This information indicates compliance with those parameters for purposes of water quality standards at the point of discharge.
Implementation of Construction Permit
Permit Conditions
Applicant's Exhibit A-10 is a copy of the DER intent to issue the construction permit. It sets forth seventeen specific permit conditions, and these conditions should be imposed in the permit. The following are additional conditions that should be set forth in the construction permit:
The operation and maintenance manual required by original Condition 10 shall provide that the DAF treatment system be cleaned regularly with a mild chlorine solution and that the wastewater from this maintenance be placed in a vehicle and carried off the premises for disposal at an appropriate location. This wastewater from the cleanup shall not be discharged from the plant into state waters.
The operation and maintenance manual shall provide that a dosage level of chlorine to
clean the pipeline that will result in comp- liance with all water quality standards at the end of the pipeline be added to a fraction of fresh water used to flush the system at the cessation of discharges each day. DER must approve this dosage amount before it becomes part of the operation and maintenance manual.
The operation and maintenance manual shall set forth a regular schedule for pumping the accumulated sludge or solid materials from
the sump pit.
The operation and maintenance manual shall provide that as much as 50 gallons per minute
of fresh tapwater may be added to recycled
wastewater for pressurization. Any discharge created with this addition may not exceed 250 gallons per minute. Any discharge created above 200 gallons per minute shall be consti- tuted only of tap water.
Two machine scallop processing operations at the plant will be limited to an average of
18 hours per day and no more than 90 hours in a week.
Monitoring in Trout Creek shall continue as specified in paragraph 17(E) of the Consent
Order as long as discharges into Trout Creek continue.
On each occasion when the DAF treatment system is in operation, the Applicant shall have a fully trained operator on site.
The terms of the construction permit shall expire on December 31, 1986.
The constructed pipeline shall be leak tested once a month from June to September and every other month during other months
of the year.
If a leak in the pipeline is detected it shall be repaired within 20 days and retested for leaks within 15 days thereafter.
The carrying out of any leak testing and repairs shall hereunder shall be certified
by a professional engineer.
Pre-pipeline Operations
Petitioners have pointed out the fact that when two or more pollutants are present, as in the instance of the effluent discharged by the Applicant's plant, those pollutants tend to act in a synergistio manner. That can exacerbate the circumstance where you find low dissolved oxygen. This is particularly a matter of concern when discussing Trout Creek. This is unlike the impacts of the discharge into the St. Johns River which are not expected to exceed standards or promote adverse effects. The implications of operation within Trout Creek to allow necessary permit review by DER and the State of Florida, Department of Natural Resources can be overcome once the discharge is withdrawn from Trout Creek and may be addressed by DER more immediately if the dissolved air flotation unit, after a reasonable period of adjustment, does not perform in the fashion that it appears to be capable of.
In the instance of discharge into Trout Creek, the material discharged tends to remain in that area for a relatively long period in that the creek is small and has very little flow and poor flushing characteristics. DO levels will be depressed, the presence of a deficit in dissolved oxygen caused by the discharge from the DAF unit would increase the probability of fish kills when contrasted with a circumstance where there is no further deficit of dissolved oxygen. Given the explanation of why a fish kill occurred based upon the past use of fly bait by the Applicant and the fact that there is no indication of fly bait in the present plans, a fish kill in Trout Creek in the time of interim discharged does not seem probable.
With the advent of discharge into Trout Creek, the possibility is enhanced for algae blooms and increased eutrophication. There would also be
some accumulation of toxic substances. Additionally, there would be some influence on juvenile fish which are more sensitive to pollutants and the possibility exists that it could reach levels that are lethal to bass larvae and juvenile sports fish. The creek would lose some of its viability as a nursery and some fish would leave the creek. These events are not irreversible and can be reasonably remedied with the cessation of discharge into the creek.
Moreover, as in the instance with the problem with fish kills, if some set of circumstances attributable to the discharge were to occur in such dimensions as to cause long term impacts in Trout Creek, DER could take action against the construction permit.
Dissolved oxygen in Trout Creek can be below the 5 mg/L standard. Data of the E.S.E. group showed that at Highway 13 bridge, approximately fifty yards from the plant in December 1984 and January 1985, values were as low as
0.1 and 0.2 mg/L, and readings could be frequently below 2 mg/L at Highway 13. In April through June 1985, periodic surface dissolved oxygen concentrations were in the range of 3 mg/L and as low as 2.4 mg/L. DO concentrations generally found at the bottom of Trout Creek could be as little or lower than 1 mg/L at times. In July 24, 1985, at the time when the plant had not been operating for approximately a month, the DO concentrations were 2.9 mg/L at mid-depth and 0.8 mg at the bottom.
Within Trout Creek in the area of the Pacetti marina, Consultant White measured DO concentrations in the range 1-3 mg/L. On August 10, 1985, six weeks after operations had stopped at the Smith facility, DO concentrations were found to be 3 mg at the surface, less at mid-depth and 0 near the bottom.
Computer modeling was not done to ascertain the impacts of a discharge directly into Trout Creek from the DAF unit. The modeling done by the Petitioner's consultant, Parks, using some of the concepts considered in the Applicant's modeling for the St. Johns River is inapplicable to the circumstances in Trout Creek.
Trout Creek has also served as a nursing ground for reproduction and habitat for young fish. During the course of the operations by the Applicant in the discharge of essentially untreated effluent, the beds of bass and sun fish have not been seen within the creek. Water quality improves with the DAF unit and sediment loading by heavy metals decreases.
Trout Creek is a stressed system at present. It has low levels of dissolved oxygen, high nutrient concentrations and the presence of heavy metals in undesirable amounts. The low numbers of pytoplankton species give some indication of a highly stressed ecosystem.
The present officials of DER, Palmer, Owen and Fox, expressed their concerns about dissolved oxygen in those instances where there would be a decrease in ambient DO concentrations. This has particular importance in discussing the problems associated with the discharge into Trout Creek, as opposed to the point of discharge contemplated in the St. Johns River, which risk is minimized given the characteristics of that area and the higher readings of ambient dissolved oxygen in that water, as contrasted with low readings within Trout Creek. A literal interpretation of the position of the agency officials would lead to the conclusion suggested by the Petitioners that no discharge should be allowed into Trout Creek, even on an interim basis.
However, such a position would be inherently unfair considering the fact that some discharge would occur into the creek before the installation of the pipeline, whether based upon simultaneous permit review by DER and the State of
Florida, Department of Natural Resources in the easement case or sequential review as is contemplated in this instance. Admittedly, the amount of time involved in the discharge into Trout Creek increases in view of the severance of the easement case from the present proceedings. This circumstance occurred in view of the desire on the part of the DNR to see the actual treatment efficiencies involved with the dissolved air flotation unit as opposed to the theoretical possibilities of that equipment. In the present situation, it would be a reasonable policy choice for DER to allow an interim discharge into Trout Creek pending the opportunity for DNR to monitor the quality of the effluent produced by the DAF unit and make a decision about the easement, thus allowing installation of the pipeline if the easement is granted. This arrangement contemplates that DER should closely monitor the quality of the effluent produced by the DAF unit, to make certain, after the Applicant has been given the opportunity to make necessary adjustments to that unit, that the Applicant is not allowed to continue to discharge into Trout Creek following this period of adjustment, when it is shown that the Applicant's equipment is not performing as expected. In any event, the discharge of effluent into Trout Creek will continue over a limited period of time and the system can be expected to quickly return to its healthier state after the removal of the discharge from Trout Creek. This has occurred in the past when the operations of the plant ceased and occurred at a time when the wastewater was of a more damaging quality than contemplated by that associated with the DAF unit. In summary, it would be a reasonable policy choice to allow the interim discharge into Trout Creek on this occasion.
Dredge and Fill Permit
Characteristics of Pipeline Corridor
The pipeline corridor encompasses portions of Trout Creek, Palmo Cove and the St. Johns River. The bottom sediments where the pipeline is to be installed are constituted of soft, and sometimes extremely soft, flocculent silt. Although these sediments are easily resuspended, dispersement of these sediments will only occur while the pipeline is being installed.
In placing the pipeline, it is the intention of the Applicant to simply allow the pipe to sink into the sediment. The soft substrate is several feet deep in some places within the proposed corridor. Nonetheless, the pipe is expected to stabilize as it sinks into the material. There are places within the corridor where a crusty material may be found on the surface of or just beneath the substrate. These are locations where jetting or mechanical excavation may be necessary. Jetting may also be necessary along the approximately 155 foot stretch of the corridor that crosses the State of Florida, Department of Transportation right-of-way. This requirement would occur in view of the fact that the Department of Transportation mandates that the pipeline be at a minimum of 30 inches below the creek bottom. In those instances where jetting or other mechanical excavation might be utilized, silt screens would be used to control the short term turbidity. In the areas within the pipeline corridor where tree trunks and branches have been found, these obstructions can be removed without incident.
Taking into account the nature of the substrate, at the location where the diffuser will be placed at the end of the pipeline, special attention will be given to that installation to avoid having the diffuser settle into the soft silty material. Given the fact that the silty material is several feet deep and the related fact that the Applicant has not done specific testing of the depth, density and compressibility of this silty material, careful attention
should be given to anchoring the diffuser and making certain that the exhaust ports within that device are correctly positioned. The need for this close attention is borne out by the fact that a test pipe which was placed in the silty material settled approximately two and a half feet within several weeks. The matter of the security of the diffuser is also critical, given the fact that the diffuser will be located within one foot of the bottom. Through proper installation, the Applicant can avoid having the diffuser settle into the silty material over time. The installation techniques satisfactorily address the potential problems.
Projected Impacts
(1) Environmental
The icthyological and macroinvertebrate communities within the pipeline corridor have been examined by the Applicant in the person of his consultants. It was found that there are a variety of freshwater fishes within Trout Creek, such as large-mouth bass and sun fish, and a moderate density of macroinvertebrates. The St. Johns River proper is dominated by estuarine and marine aquatic organisms. Infaunal macroinvertebrate densities in the area of the pipeline corridor in the St. Johns River are not high. In placing the pipeline, the effects on aquatic and benthic communities within the corridor or upon water quality do not pose a threat to those communities or to water quality. During the installation of the pipeline, some disturbance of the benthic organisms can be expected; however, those organisms will be able to recolonize quickly. The mere presence of the pipeline is not expected to cause long-term impacts on biological resources or water quality.
(b) Navigation
In the area of the intended placement of the pipeline related to Trout Creek, boating clubs utilize that vicinity for purposes of anchorage. Those clubs have as many as twenty to thirty boats whose size varies from twenty to fifty-five feet in length. Some of those boats carry anchors which can weigh forty-five pounds or more. Typically, in anchoring one of these craft, the anchor rope is tied down and the engines reversed to set the anchor. Although testimony was given to the effect that the anchors being set might puncture the pipeline, given the explanation about the placement of the pipeline and the nature of the pipe itself, problems with puncturing the pipeline as it might interfere with navigation or environmental concerns such as turbidity plumes due to a puncture of the pipeline are not expected. Nor are the activities associated with retrieval of the anchors via the use of electric winches or hoists seen to be a problem in the sense of snagging the pipeline and rupturing the pipeline when the anchors are brought aboard the vessels. In summary, the pipeline will not be an interference to navigation in the sense of boat anchorage or other aspects of navigation associated with boating. Moreover, the Applicant is willing to indicate the location of the pipeline on navigational charts to assist boaters in avoiding potential problems with anchorage. This is a desirable arrangement and should be done.
Comparison of Projected Impacts with Statutory and Regulatory Criteria
The dredge and fill activities associated with the pipeline are not expected to cause long-term or short-term adverse impact on biological resources or water quality, or are they expected to interfere with the conservation of natural resources or marine productivity or interfere with navigation to such an
extent to be contrary to public interest. The placement of the pipeline will not promote unacceptable interference with fish and other natural resources or destroy clam beds or grass flats, such as would be contrary to the public interest.
Permit Conditions
Appropriate permit conditions are as follows:
Installation of the pipeline shall be conducted within Trout Creek only during weekdays.
Pipeline installation activities within Trout Creek shall not block navigation.
The pipeline shall be constructed within
60 days following the receipt of all necessary approval, to include the grant of an easement by the State of Florida, Department of Natural Resources for the placement of the pipeline over submerged sovereignty lands.
All conditions set forth in the DER draft permit. See Applicant's Exhibit A-57.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.
Petitioners in this cause have demonstrated their standing to challenge the intent of the Department of Environmental Regulation to grant a construction permit for a wastewater treatment facility and a dredge and fill permit related to the placement of the pipeline.
Ruling on the admissibility of the Petitioners' Exhibit 29 which is the deposition of Dr. George Grantham was reserved pending the opportunity for the parties to submit written argument on the admissibility of that exhibit through written memoranda. Having considered those arguments and the text of the exhibit, Petitioners' Exhibit 29 is admitted.
In the prehearing stipulation of the parties, agreement was expressed as to the ability to use responses to some requests for admissions propounded by both the Petitioners and the Respondent Homer Smith. That stipulation also indicated those instances in which the parties objected to the use of responses to the requests for admissions based upon the argument that some of these requests for admissions were not relevant to the facts in dispute. In accordance with the opportunity afforded to the parties to submit written memoranda on the question of the relevance of certain of the requests for admissions, the Petitioners and Respondent Homer Smith have offered that argument. Having reviewed the requests for admissions and the responses to those requests, and in view of the argument offered through the memoranda, those requests for admissions and responses which the parties in the course of their memoranda have indicated their desire to have available as a basis for fact finding are found to be relevant. It is those admissions and those admissions agreed to, in terms of relevance, that are deemed part of the record and available for fact finding. In preparing this recommended order, the use of responses to requests for admissions by the parties in the preparation of
proposed recommended orders has been examined and utilized in some instances.
On occasions where the responses to admissions were offered in the proposed fact finding and rejected in this recommended order, comment on that rejection is set forth in the Appendix to the Recommended Order.
Respondent Smith, in argument, has suggested certain errata pertaining to the transcript. No indication has been given as to the agreement by the other parties to this rendition. Therefore, his corrections are not substituted in the transcript. As trier of fact, the Hearing Officer must operate upon an examination of the transcript and exhibits and a recollection of the facts as presented.
The Homer Smith Seafood plant operation involves the construction and operation of a stationary installation which is reasonably expected to be a source of water pollution as defined in Section 403.087(1), Florida Statutes. Therefore, DER has jurisdiction to require the Respondent Homer Smith to obtain necessary environmental permits as a condition to his doing business.
DER has jurisdiction over Trout Creek, the St. Johns River and the embayment areas which have been described in the fact finding, under provision of Section 403.061(10), Florida Statutes, and Rule 17-3.081, Florida Administrative Code. These water bodies are Class III waters.
Under the authority of Section 403.087, Florida Statutes, Homer Smith must obtain an industrial waste treatment construction permit and a dredge and fill permit. The industrial waste permit is related to the construction of the integrated treatment system to include the upland portion of the treatment system and the outfall pipeline. The dredge and fill permit pertains to the installation of the pipeline, which installation is dredging and filling in waters of the state. In addition, the Applicant must satisfy the requirements of Section 253.124, Florida Statutes, and Rules 17-4.28 and 17-4.29, Florida Administrative Code. See Section 403.913(6), Florida Statutes.
The dredging and filling activities proposed by the Applicant would involve the traverse of sovereignty lands owned by the state of Florida. In order to install the pipeline, it is necessary for the Applicant to obtain an easement. Consideration of that matter is the subject of DOAH Case No. 85-0277.
In examining the question of entitlement to necessary permits, DER looks to the general question of whether this installation will abate or prevent pollution to the degree necessary to comply with the standards and rules promulgated by DER. See Section 403.087(4), Florida Statutes. To this end, Rule 17-4.07(1), Florida Administrative Code, states:
A permit may be issued to the Applicant upon such conditions as the Department may direct, only if the Applicant affirmatively provides the Department with reasonable assurance based on plans, test results and other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards or rules.
The Applicants for construction permits are additionally required to comply with Rule 17-4.21(1)(c), Florida Administrative Code, which indicates:
An engineering report covering plant description and operations, types and quantities of all waste material generated whether liquid, gaseous or solid, and proposed waste control facilities, the treatment objectives and design criteria on which the control facilities are based, and other information deemed relevant. Design criteria shall be based on the results of laboratory and pilot-plant scale studies whenever such studies are warranted. The design efficiencies of the proposed waste treatment facilities and the quantities and types of pollutants in the treated effluents or emissions shall be indicated. Work of this nature shall be subject to the requirements of Chapter 471, F.S. Where confidential records are involved, the Secretary is authorized to limit full disclosure after personal discussion with the Applicant.
The Applicant must demonstrate his entitlement to the necessary permits by a preponderance of the evidence. See Rule 17-103.130, Florida Administrative Code. The Applicant has met this burden as it pertains to the grant of the requested construction permit and dredge and fill permit.
The construction permit is issued for a limited period of time, which would allow the construction of the facility and for the operation and testing to determine compliance with the provisions of Chapter 403, Florida Statutes, and the associated rules and regulations of the Department. See Rule 17- 4.21(3), Florida Administrative Code. In the interim period envisioned by the construction permit, the Department may require the Applicant to monitor treatment efficiency and to report the results of that testing. This opportunity establishes the basis for the Department to consider the question of the propriety of allowing the Applicant to operate the installation on a routine basis. This regular operation would be under the terms of an operating permit as envisioned by Section 403.088(2)(b), Florida Statutes, and Rules 17-4.24, Florida Administrative Code. When considering the question of the grant of an operating permit, DER has the opportunity to impose more stringent effluent limitations and to require changes in the design of the plant, in an effort to ensure compliance with applicable water quality standards.
The Applicant must also comply with the provisions of Chapter 17-6, Florida Administrative Code, related to the construction of wastewater treatment facilities. This chapter envisions that discharges into waters of the state must comply with technology-based effluent limitations, as well as water
quality-based effluent limitations. The concept of technology-based effluent limitations is the Department's effort at ensuring a minimum waste treatment based upon available treatment technology. Moreover, these minimum treatment requirements may be set at levels more stringent than that necessary to comply with the water quality standards as identified in other DER rules. See Rule 17- 6.030(62), Florida Administrative Code. The water-quality based effluent limitations may also be more stringent than a technology-based effluent
limitation. See Rule 17.6.30(86), Florida Administrative Code. The overall effect of the use of technology-based effluent limitations and water-quality based effluent limitations is to ensure that the water quality in the receiving body of water is protected.
In addressing the matter of technology-based effluent limitations, Rule 17-6.300, Florida Administrative Code, contains a list of stated limitations involving a variety of industrial waste. There is no specific limitation which has been established for calico scallop processing waste. Nonetheless, this waste product is industrial in nature, as opposed to a domestic type of waste, and in addressing the matter of technology-based effluent limitations for this waste water, reference is made to Rule 17- 6.300(1)(n)1. Florida Administrative Code, which states:
All sources of industrial waste reasonably expected to be sources of water pollution which are not contained in the classes or categories of sources contained in paragraph (1)(e) above, shall, as a minimum level of treatment, provide secondary waste treatment as required by Section 403.085, Florida Statutes. Such secondary treatment shall be applied against the total untreated waste produced by a given plant. For the purposes of this subsection, "secondary treatment" shall be equivalent to "secondary treatment", as defined in Part I Section 17-6.060(1)(a), F.A.C., and applicable to domestic waste (sewage) plants. A comparable degree of treatment for industrial waste not amenable to biological treatment will be determined and applied through the issuance of department permits.
Reference within this rule to "secondary treatment" as set forth in Rule 17-6.060(1)(a), Florida Administrative Code, means treatment designed to achieve an effluent containing no more than 20 mg/L BOD and 20 mg/L TSS or 90 percent removal of each of these pollutants from the influent, whichever performance is more impressive. The use of biological treatment systems in addressing domestic waste can promote compliance with this requirement. As established in the fact finding, the calico scallop waste is not amenable to biological treatment, and the question of compliance with the rule related to technology-based effluent limitations must be decided in each individual case, looking to an outcome in which a comparable degree of alternative treatment is given to that industrial waste when contrasted with the use of biological treatment. The idea of comparability on this occasion envisions the possibility that the quality of treatment may not arrive at 20 mg/L BOD and 20 mg/L TSS or
90 percent removal, when taking into account the available technology for treatment. In this instance, that quality of treatment cannot be achieved and is not mandated. Taking into account the available technology, the Applicant has shown compliance with Rule 17- 6.300(1)(n) and 1., Florida Administrative Code.
In the absence of specific technology-based effluent limitations, the Department must examine water-quality based standards in gaining a more comprehensive impression of the advisability of granting the requested permits. Rule 17-6.400(2), Florida Administrative Code, sets out:
Effluent limitations based upon water quality standards and the provisions of
Section 17-4.244, FAC, shall be determined by application of accepted scientific methods.
It is recognized that models and other scientific methods of predicting the concentrations of pollutants result in estimated values of concentrations. Such estimates shall be acceptable for the purpose of determining effluent limitations provided that the most reliable and complete data reasonably available to the department have been applied. Accepted scientific methods shall be based upon, but not limited to, a consideration of the following
The condition of the receiving body of water including present and future flow conditions and present and future sources of pollutants; and
The nature, volume, and frequency of the proposed discharge of waste, including any possible synergistic effects with other pollutants or substances which may be present in the receiving body of water.
The scientific methods which the Applicant has employed in pursuing the permits in ques- tion comply with this rule.
Section 403.061(11), Florida Statutes, allows for the grant of a mixing zone in which the water quality can be degraded so as to allow an Applicant to gain compliance with water quality standards beyond that area, assuming the Applicant complies with requirements set forth in Rule 17-3.051(1), Florida Administrative Code. This idea of mixing zone is carried forward in Rule 17-4.244, Florida Administrative Code. In considering the question of the grant of a mixing zone to an Applicant, examination is made of the condition of the receiving body, nature of the discharge, and cumulative effect of allowing this mixing zone, together with other mixing zones in the vicinity. In examining the question of compliance with minimum standards for water quality as envisioned by Rule 17-3.051, Florida Administrative Code, subsection (4) to Rule 17-2.244, Administrative Code, speaks in terms of the fact that the maximum concentration of waste in the mixing zone may not exceed an amount lethal to 50 percent of the test organisms in 96 hours, referring to what is known as the 96- hour LC-50. This is related to scientific assessment of the survivability of species which are significant to the indigenous aquatic community. As identified in the course of the hearing, there is no specific requirement by the Department to demonstrate compliance with this acute toxicity standard as a condition of obtaining a construction permit. In view of the fact that the constituents of wastewater are normally well known, the use of a bioassay to test acute toxicity is typically used to ensure compliance with permit conditions, as contrasted with the idea of determining whether the waste is acutely toxic. In this situation, little is known about the waste product created by the scallop processing, and, given the fact of indications that the waste is acutely toxic, the rules at issue would allow the DER to require the Applicant to demonstrate an ability to comply with the standards related to acute toxicity. In the absence of the Applicant's demonstrated compliance with this standard prior to the issuance of the construction permit, reasonable
assurances must be given that the Applicant can pass acute toxicity tests during the pendency of the construction permit. Reasonable assurance has been given that the Applicant can pass an acute toxicity test during the pendency of the construction permit. In effect, there is a reasonable scientific probability of success in passing the acute toxicity examination.
The Applicant, in addition to complying with the minimum criteria set forth in Rule 17-3.051, Florida Administrative Code, must also comply with the general water quality criteria set forth in Chapter 17-6, Florida Administrative Code, and the specific requirements for water quality related to Class III water bodies as set forth in Rule 17-3.121, Florida Administrative Code, for those areas outside the permitted mixing zone. The Applicant has complied with applicable standards related to water quality.
The Applicant is not in a position of having to improve the ambient water quality. See Section 403.061(7), Florida Statutes. On the other hand, if the ambient water quality standards of the receiving body of water related to parameters is not within the limits set for those parameters, and the discharge would tend to further degrade that water quality, DER may only authorize discharges into those waters based upon a request for special relief. Those alternatives include (1) a site specific alternative criteria petition pursuant to Rule 17-3.031, Florida Administrative Code; (2) a petition for exemption from water quality criteria pursuant to Rule 17.4.243, Florida Administrative Code;
a petition for reclassification pursuant to Rule 17-3.081(6), Florida Administrative Code; or (4) a petition for variance pursuant to Rule 17-103.100, Florida Administrative Code. Notwithstanding this basic premise of the need to seek special relief in those instances where water quality was below standards and the contemplated discharge will further degrade that water quality, in dealing with the subject of dissolved oxygen it is not inappropriate for the Department to look at average values in determining ambient background conditions for the select water body. This does not relieve the Department of the necessity to look at the specific conditions within the site where the influence of the discharge is expected in deciding whether it would be appropriate to require that the Applicant seek special relief from the normal permit requirements or whether it would be acceptable to grant a permit and not require special relief. Admittedly there is some subjectivity in this determination, which can also be described as discretion. Even though there is some risk presented for abuse of the exercise of this discretion, it is necessary if the Department is to have some semblance of order in its permitting process. In Florida, practically every water body in which discharges are being placed has problems with the dissolved oxygen parameter. If the Department took the point of view that special relief was necessary in each case where a permit was sought, it would promote havoc in the fulfillment of the duties of DER. As a consequence, it is a reasonable policy choice for the Department to grant the normal permits in those instances where ambient dissolved oxygen conditions are occasionally below standard, unrelated to any contributing pollution source, and the proposed activity would offer no meaningful contribution to these violations of the dissolved oxygen standard. This is the circumstance in this case, and it is appropriate for the Department to find that the Applicant has complied with the dissolved oxygen standard and that conclusion is made. In this application the quality of dissolved oxygen within the waste stream is above ambient conditions and the amount of deficit caused by the discharge is de minimis, being less than 0.1 mg/L. The ambient levels of dissolved oxygen in the main channel of the St. Johns River at the point of discharge are typically above the dissolved oxygen standards. Violations of these standards are not routine.
They are more frequently found at the bottom of the water body and are only seen during part of the diurnal cycle in the summer months. The places where the
greatest deficit in dissolved oxygen occurs would be in embayment areas which are not going to be sufficiently influenced by the discharge in the main channel to bring about problems with dissolved oxygen.
DER also looks at the cumulative impact of the further contribution of the discharge from the Applicant's plant when considered with other discharges that are not occurring or are reasonably likely to occur in the affected area. This examination does not take into account activities which are speculative in nature. In discussing the matter of cumulative impact, reference was made to a residential development in the area. Having considered that testimony, and in view of the facts found, there is no basis for denying this permit based upon the theory of cumulative impact.
This hearing was a de novo process and as such allows for certain modifications to the application, so long as they are not so dramatic as to constitute a violation of due process in examining the rights of other parties. On this occasion, the modifications to the permit application which were discussed in the hearing are not substantial and are not such that the other parties to this action were denied due process in addressing those changes.
The applicant has provided necessary reasonable assurances because:
Homer Smith has provided a thorough account of plant operations, the constituents contained in the wastewater, the operation and design of the wastewater treatment system, and on the basis of laboratory and pilot plant scale tests, the constituent removals that can be reasonably expected from the wastewater system. Homer Smith has affirmatively demonstrated through engineering reports, treatment objectives, pilot tests, and design efficiencies that the treatment efficiency will be substantially better under full-scale operations, and that the end of pipeline pollution concentrations will be in accordance with or lower than the effluent limitations set forth in the DER draft permit. The detail set forth in the permit application and the evidence at the hearing in support of it show that Homer Smith has carried his burden of showing that he has presented the necessary information required by Section 403.087, Florida Statutes, and Rules 17-4.07 and 17-4.21, Florida Administrative Code.
Homer Smith has demonstrated that he can comply with the applicable effluent limitations set forth in Chapter 17-6, Florida Administrative Code. Given that no specific technology-based effluent limitations have been established for the calico scallop processing industry, and that Homer Smith's effluent is not amenable to biological treatment so as to require compliance with the secondary treatment standards set forth in Rule 17-6.060, Florida Administrative Code, the Department must instead look at the characteristics and site specific impacts of treated waste on water quality affected by the discharge, including allowance for any zone of mixing. Chapter 17-6, Florida Administrative Code, does not require Homer Smith to meet the "20/20" treatment standard, but only such levels, given current knowledge as to what treatment technologies may be available, that will ensure compliance with water quality standards in those areas affected by the discharges.
Homer Smith has provided reasonable assurances that water quality standards will be met outside the two meter mixing zone requested in its permit. The only parameters of concern for which Petitioners have offered evidence of potential violations outside the mixing zone are dissolved oxygen and nutrients. The dissolved oxygen concern is adequately addressed by Homer Smith through his modeling work as discussed below. Regarding nutrients, the standard for Class
III waters is that nutrient concentrations shall not "be altered so as to cause an imbalance in natural populations of aquatic flora or fauna." Rule 17- 3.121(19), Florida Administrative Code. Homer Smith has provided reasonable assurances through biological surveys of the potentially impacted area and modeling of the fate of the discharge that no such imbalance will occur. Also as further discussed below, no probative evidence exists to indicate that nutrient imbalances could occur as the result of cumulative impacts. Within the mixing zone, the only water quality issue of concern is the acute toxicity standard as expressed in 17-4.244(4), Florida Administrative Code. The standard for establishing reasonable assurances for acute toxicity in a construction permit, as opposed to an operating permit, must necessarily be different, in that reliable testing for acute toxicity can only be accomplished once the full scale plant is in operation. It is permissible to have a different standard of review for construction as opposed to operating permits because of lack of operational data. The reason here for this different standard stems from evidence showing that the newness of Homer Smith's treatment technology precludes a determination of toxicity based upon previous industry tests, that full-scale operation is required to obtain the treatment efficiencies necessary to achieve a representative sample, and that the highly labile nature of the waste involved necessitates use of a flow through bioassay to exclude toxicities caused by build-up in stagnant waste in obtaining a fair representation of the waste. Homer Smith's laboratory bioassay tests have shown that under appropriate operating conditions by use of a flow through bioassay, a reasonable scientific probability exists that Homer Smith will be able to demonstrate compliance with standards pertaining to toxicity. This reasonable scientific probability, is sufficient to establish that Homer Smith has met the reasonable assurances test with regard to toxicity.
Homer Smith has adequately characterized the ambient water quality and flow conditions in the area on the St. Johns River reasonably likely to be affected by the discharge. In so doing, Homer Smith has taken into account worse case conditions, as required by Department policy in determining ambient water quality. While insufficient data exists in the area affected by the proposed discharge to establish the 10-year, 7-day low flow condition normally used by the Department as a factor in determining worse case, Homer Smith's use of conservative assumptions adequately takes such conditions into account.
In conjunction with characterization of the waste, the ambient water quality and the flow, the water quality modeling work performed by Homer Smith's consultants is sufficient to provide reasonable assurances that water quality standards will be met both within and outside the proposed mixing zone, entitling Homer Smith to a construction permit without the necessity of seeking additional relief. The modeling adequately demonstrates that even under worse case conditions the maximum dissolved oxygen deficit exerted by the effluent would be .096 mg/L; that substantially all of the plume would remain within the main channel of the St. Johns River, which is well-mixed and well-aerated; and that any movement of plume remnants into embayment areas would be minor, would accompany well-aerated waters, and would exert a dissolved oxygen deficit of substantially less than .096 mg/L if any. Given that ambient dissolved oxygen levels in the areas most reasonably likely to be affected by this maximum deficit usually substantially exceed 5 mg/L and rarely go below 5 mg/L; that diurnal fluctuations on the St. Johns River are 20 and 30 times greater than the maximum deficit and are indications of a thriving biological community; that impacts of the discharge on embayment areas that do not meet standards are virtually nonexistent; that the wastewater at the proposed point of discharge will itself exceed water quality standards for dissolved oxygen; and that no cumulative impacts are anticipated to contribute to any water quality
violations; the impact of Homer Smith's effluent upon ambient water quality is negligible, and not grounds for either denial of the permit or requirement for alternative relief. It is reasonable and consistent with Department policy for the Department to apply its rules in this manner. To create additional administrative burdens in cases such as these would result in substantial additional costs to the applicant and the agency with no environmental benefits to show for the efforts.
There has been no showing that other discharges will be added to this area of the St. Johns River in a manner that may combine with Smith's effluent to create a measurable and quantifiably significant impact. The only evidence presented by Petitioners as to increased discharges into the St. Johns River comes from testimony regarding the potential building of a large scale development in the vicinity, coupled with concern that if the Department does not properly regulate stormwater discharges from the facility, water quality conditions will deteriorate. To base a showing of cumulative impacts upon the anticipated failure of the Department to enforce its rules in the future is too speculative to warrant a conclusion that cumulative impacts will occur.
Homer Smith has provided reasonable assurances that he is entitled to a dredge and fill permit. The short and long term effects of the dredge and fill activity will not result in violation of state water quality standards.
The dredging and filling activities associated with the laying of the pipeline comply with the water quality mandates of Section 403.087, Florida Statutes, and are not significant on the subject of biological resources or water quality.
The dredge and fill activity will not interfere with the conservation of fish, marine or wildlife or other natural resources so as to be contrary to the public interest standard set forth in Section 253.124(2), Florida Statutes, nor will the activity result in the destruction of oyster beds, clam beds, or marine productivity to such an extent as to be contrary to the public interest. The project will not create a navigational hazard, be a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters so as to be contrary to the public interest. Anchoring problems raise the question of whether the industrial waste treatment system has structural integrity sufficient to avoid being broken by anchors, thus causing the system to fail to operate as it is designed. The evidence shows that the likelihood of such breakage is sufficiently remote that the structural integrity of the treatment system will not be affected.
The Department has provided reasonable and appropriate conditions part of its draft construction permit to ensure that Homer Smith's facility can operate during the construction phase in compliance with applicable Department rules, and Homer Smith has provided reasonable assurances it can comply with those conditions, as further supplemented in the fact finding. In determining such compliance, this case presents a unique factual situation. Construction permits are designed to allow the facility being constructed to operate for a limited period of time to monitor treatment efficiency and test compliance to ensure that the facility will ultimately be entitled to an operation permit. As indicated by the testimony, there are times during the construction period phase when a facility may operate out of compliance simply because start-up or shakedown operations are necessary before optimum compliance is reached. The construction permit period is designed to resolve those problems prior to implementation of the operating permit, at which time such periods of noncompliance would constitute violations actionable through enforcement proceedings. What makes this case unusual is that the language of the construction permit allows for a construction phase that could result in a potential period of continuing violation even after the Dissolved Air Flotation
(DAF) treatment efficiencies are maximized, because testing of the machinery could occur while discharge continues to Trout Creek, where the discharge cannot meet water quality standards under any treatment configuration, prior to construction of the outfall pipeline to the St. Johns River, where the evidence shows that water quality standards can be met. The reasons for this potentially two-phased construction permit are as follows: The Department of Natural Resources has indicated that it does not want to recommend to the Board of Trustees of the Internal Improvement Trust Fund whether to grant an easement until it sees the treatment results of the DAF unit. If Homer Smith were required by the DER to put in the pipeline prior to operation of the DAF to show those results, Homer Smith would be caught in a veritable catch-22 between two governmental entities, both of whom could wait for an answer from the other before allowing Homer Smith to demonstrate that his machinery works. The catch- 22, in itself, is certainly not legally impermissible. The Department has, however, previously recognized that some interim violations of its rules may be acceptable in exceptional circumstances in the interest of equity, provided ultimate compliance will be attained. See Reedy Creek v. DER, 7 FALR 2986 (1985). Here, equitable considerations should apply in allowing Homer Smith to discharge on an interim basis for testing in Trout Creek during the course of the construction permit, provided the pipeline is ultimately installed, because following extensive litigation, Homer Smith has been allowed to discharge into Trout Creek considerably less-treated waste until July 1, 1986, and interim installation of the DAF system will substantially improve the quality of the existing discharge into Trout Creek; the treatment system is novel and needs testing to reach optimum efficiency, and the above-noted bureaucratic interplay should not prevent it; a complete understanding of whether the waste is acutely toxic cannot be achieved until the plant is operational, and in the unlikely event toxicity problems cannot be solved Homer Smith will not have had to go through the burden of laying 13,000 feet of pipeline that cannot be used; the Department is under a mandate pursuant to Chapter 85-231, Laws of Florida, (codified at Section 403.0861, Florida Statutes) to develop technology-based treatment standards for the calico scallop industry, and the extensive testing here provides a promising opportunity to develop data to establish standards for an industry that now has none; sufficient conditions subsequent in the construction permit to ensure compliance before an operating permit can be issued; and, enough is known about the constituents in the waste and the background conditions of Trout Creek to be sure that no irreversible harm will occur if the discharge occurs through the DAF unit for the short period contemplated in the construction permit. Given these unique circumstances and the equities associated with them, the Department is within its discretion to allow this potentially two-phased approach in this construction permit.
The construction permit shall expire on December 31, 1986. Should it be necessary for the applicant to operate further under the terms of that permit, a specific request should be made to DER to grant that extension.
Based upon a consideration of the facts found and the conclusions of law reached, it is
RECOMMENDED
That Homer Smith be granted a construction permit and dredge and fill permit, upon conditions identified within the draft permits or letters of intent to grant and based upon the additional conditions which have been described in the fact finding.
DONE AND ENTERED this 28th day of February 1986, at Tallahassee, Florida.
CHARLES C. ADAMS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 28th day of February 1986.
ENDNOTE
1/ Under the terms of the most recent consent order which is the Second Amended Consent Order of May 30, 1984, pending the outcome of the DER permit cases, Smith is allowed to ,operate only one of the two scallop processing machine lines at a time. He may only operate during week days, five operational days a week, for no more than eighteen hours per day. The operations must be maintained under a daily log describing the operations. Terms of this agreement also entail the payment of $500 per day up to an amount of $30,000 for purposes of restoring the ecosystem at Trout Creek, as needed, assuming permission to install a treatment system and pipeline were given. This arrangement was somewhat modified by action of the Circuit Court which amended the consent order by forbidding Smith to use pesticides and limiting scallop processing during summer months to no more than twelve hours per day. The terms of the consent order expire on July 1, 1986.
COPIES FURNISHED:
David S. Dee, Esquire,
CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A.
P. O. Drawer 190 Tallahassee, Florida 32301
Daniel H. Thompson, Esquire
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
William F. Green, Esquire James S. Alves, Esquire HOPPING, BOYD, GREEN & SAMS
P. O. Box 6526 Tallahassee, Florida 32314
Sylvia Alderman, Esquire SWANN, HADDOCK, COBB & COLE
Eighth Floor, Barnett Bank Building Tallahassee, Florida 32301
Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32301
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 contact 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.
| Issue Date | Proceedings |
|---|---|
| Feb. 28, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 28, 1986 | Recommended Order | Recommended grant of a construction permit for wastewater treatment facility related to Scallop Processing. |
