The Issue Whether Permit No. DO19-101251 issued to Mr. Vail on July 11, 1985 to construct and operate an on-site wastewater treatment and disposal system should be revoked?
Findings Of Fact Mr. Vail is the owner and operator of a business called the St. George Inn and Restaurant (hereinafter referred to as the "Inn"). The Inn is located at the southeast corner of the intersection of Franklin Boulevard and Pine Avenue on St. George Island, Florida. In May of 1984 Mr. Vail spoke with an employee of the Department of Health and Rehabilitative Services about obtaining a permit to construct a septic tank on his property for use by the Inn for the treatment and disposal of wastewater. Mr. Vail was instructed to submit a design of the septic tank for approval. Mr. Vail contracted with McNeill Septic Tank Company for the design and construction of the septic tank. The evidence failed to prove when Mr. Vail applied with the Department of Health and Rehabilitative Services for a permit. As of March, 1985, however, Mr. Vail had not received approval or disapproval of his application from the Department of Health and Rehabilitative Services. Mr. Vail, therefore, went to the Governor's office to seek help in getting a response. Shortly after contacting the Governor's office, the Department of Health and Rehabilitative Services informed Mr. Vail that he needed to obtain a permit from the Department and not from the Department of Health and Rehabilitative Services. On or about March 18, 1985, Mr. Vail filed an Application to Operate/Construct Industrial Wastewater Treatment and Disposal Systems (hereinafter referred to as the "Application"), with the Department. The Application was prepared by Brown and Associates Civil Engineers and Land Surveyors, Inc., Mr. Vail's engineering consultant. The Application was certified by Benjamin E. Brown, Professional Engineer. Mr. Vail signed the Application as "owner" and indicated that he was aware of the contents of the Application. In the Application, "St. George Inn Restaurant" is listed as the "Source Name." Under Part II, A of the Application, the applicant is asked to "[d]escribe the nature and extent of the project." In response to this request, the following answer was given: This project will provide a sewage disposal system for a one hundred and fifty (150) seat restaurant on St. George Island. Sizing of the septic tank system is based on 50 GPD/seat and secondary treatment will be provided by the design proposed. Under Part III, A of the Application, the applicant is asked to provide the following information and the following answers were given: Type of Industry Restaurant . . . . 3. Raw Materials and Chemicals Used Food preparation only. Normal Operation 12 hrs/day 7 days/week . . . . If operation is seasonal, explain This restaurant will be used the most during the summer months which corresponds with ocean/beach recreation & the tourist trade. Nowhere in the Application is it indicated that the permit applied for involved anything other than a restaurant. The Application gives no information from which the Department could have known that the proposed wastewater treatment and disposal system would handle waste from guest rooms or an apartment. In the Application Mr. Vail sought approval of a permit to construct and operate a wastewater treatment and disposal system to serve a 150 seat restaurant. In the Application Mr. Vail sought a permit for a system which was to have a design flow of 7,500 gallons per day based on 50 gallons, per seat, per day water usage. An employee of the Department wrote a memorandum dated May 5, 1985, recommending approval of the Application. The Department determined, however, that the size of the property on which the Inn was to be located was not large enough for the drain field necessary to accommodate a 150 seat restaurant. Therefore, Mr. Brown modified the proposed system and resubmitted application data indicating that a 108 seat restaurant would be constructed. The design flow of the new proposal was 2,160 gallons per day based on 20 gallons per seat per day. Mr. Brown had requested that the Department approve a system based upon the newly submitted design flow. The Department and Mr. Brown both agreed that this design flow was adequate; that it was reasonable to anticipate and provide for the treatment and disposal of a maximum of 2,160 gallons per day design flow. The effect of reducing the design flow and the number of seats was to allow a shortened drain field which could be accommodated by the size of the property the Inn was to be located on. On June 27, 1985, Mr. Vail arranged for a notice to be published in the Apalachicola Times. That notice provided, in pertinent part, the following: State of Florida Department of Environmental Regulation Notice of Proposed Agency Action on Permit Application The department gives notice of its intent to issue a permit to Jack Vail to construct a restaurant and on-site wastewater treatment and disposal system [sic] at Franklin Boulevard and Pine Avenue, St. George Island. The treatment consists of grease trap, septic tank, and sand filter followed by disposal into a drainfield. The project meets applicable standards and will not impair the designated use of the underlying ground water. There is no anticipated impact on surface waters or air quality. . . . . This notice was sent to Mr. Vail by the Department and he made arrangements for it to be published. Nowhere in the notice is it indicated that the system to be approved by the Department is for anything other than a restaurant. On July 11, 1985, less than four months after the Application was filed with the Department, the Department issued Permit Number DO19-101251 (hereinafter referred to as the "Permit"). In the cover letter sent with the Permit the Department indicated that the Permit allowed Mr. Vail "to construct and operate a 2,160 gallon per day, on-site wastewater treatment and disposal system serving St. George Inn Restaurant. . . ." The Department also indicates in the Permit that it is for the "St. George Inn Restaurant." The Permit also provides, in pertinent part, the following with regard to the purpose of the Permit: The above named applicant, hereinafter called Permittee, is hereby authorized to perform the work or operate the facility shown on the application and approved drawing(s), plans, and other documents attached hereto or on file with the department and made a part hereof and specifically described as follows: Construct and operate a 108 seat restaurant with an on-site wastewater treatment and disposal system. Wastewater flows shall be a maximum of 2,160 gallons per day generated by domestic facilities and kitchen wastes . . . Construction shall be in accordance with application dated March 18, 1985 and additional information submitted April 29, 1985, specifications and other supporting documents prepared by Brown and Associates and certified by Benjamin E. Brown, P.E. and submitted to the Department on June 5, June 17, and June 20, 1985. The Permit also contains the following "General Condition" number 2 and "Specific Condition" number 15: . . . . 2. This permit is valid only for the specific processes and operations applied for and indicated in the approved drawings and exhibits. Any unauthorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit may constitute grounds for revocation and enforcement action by the department. . . . . 15. The Department shall be notified and prior approval shall be obtained of any changes or revisions made during construction. . . . . The Permit provides the following with regard to the effect of the conditions of the Permit: The terms, conditions, requirements, limitations, and restrictions set forth herein are "Permit Conditions", and as such are binding upon the permittee and enforceable pursuant to the authority of sections 403.161, 403.727, or 403.859 through 403.861, Florida Statutes. The permittee is hereby placed on notice that the Department will review this permit periodically and may initiate enforcement action for any violation of the "Permit Conditions" by the permittee . . . . During the week after the Permit was issued, Mr. Vail obtained a building permit from Franklin County for the construction of the "inn." In February, 1986, after construction of the Inn had begun, Department inspectors went to the construction site of the Inn. The Permit authorized this inspection and other inspections carried out by the Department. The Department determined that the Inn being constructed by Mr. Vail included a restaurant, an apartment on the third floor of the Inn with two bathrooms, and eight guest rooms on the second floor, each containing a bathroom. This was the first time that the Department knew that Mr. Vail's facility was to include guest rooms and living quarters in addition to containing a 108 seat restaurant. In March of 1986, the Department sent a warning letter to Mr. Vail notifying him of the violation of the General Conditions of his Permit: the use of the approved system for the treatment and disposal of wastewater from the ten bathrooms in the guest rooms and the two bathrooms in the apartment in addition to the 108 seat restaurant. On April 1, 1986, Department personnel met with Mr. Vail and Mr. Brown. The Department reminded Mr. Vail and Mr. Brown that the Permit requested and approved by the Department was for a 108 seat restaurant only. The Department had not authorized a system which was to be used for a 108 seat restaurant and ten additional bathrooms. Pursuant to General Condition 14, the Department informed Mr. Vail that it needed an engineer's evaluation of the ability of the system which had been approved to handle the additional flow which could be expected from the additional ten bathrooms. By letter dated April 1, 1986, the Department memorialized the meeting and indicated that Mr. Vail could operate a 100 seat restaurant and the apartment during the interim. By letter dated May 8, 1986, Mr. Brown asked for additional time to submit the evaluation requested by the Department. The Department approved this request by letter dated May 14, 1986. By letter dated May 16, 1986, Mr. Brown submitted an engineering evaluation which proposed modifications to the approved system to handle the additional ten bathrooms. By letter dated June 13, 1986, the Department indicated that the evaluation was generally acceptable" but requested additional information. In January, 1987, before the additional information was submitted, Mr. Brown died in an airplane accident. No evidence was presented to explain why the information requested by the Department in June of 1986 had not been submitted before January, 1987. In March, 1987, the Department inspected Mr. Vail's facility again. In April, 1987, the Department informed Mr. Vail that the Department would take action to revoke the Permit. Before the Administrative Complaint was issued, the Department requested that certain information be provided on behalf of Mr. Vail by an engineer in an effort to resolve the dispute. Mr. Vail did not, however, obtain the services of an engineer. Instead, Mr. Vail sent the Department information purporting to show the amount of water which had been used at the Inn. That information failed to prove the ability of the system that the Department had approved to handle the maximum wastewater which could be expected from maximum use of the 108 seat restaurant and ten additional bathrooms. At best, the information submitted by Mr. Vail is partial proof that the system is capable of handling the wastewater that has been generated at the Inn for the period of time for which the information relates. No competent substantial proof has been submitted to indicate that the system is capable of handling the maximum wastewater flows which may be experienced or even that the system is adequately handling the current flow. All that has been proved is that there is no apparent problem with the system in handling the current flow. In September, 1987, the Department issued the Administrative Complaint. Pursuant to this Complaint, the Department has sought the revocation of the Permit and prescribed certain orders for corrective action. No application has been submitted by or on behalf of Mr. Vail to the Department to construct and operate a wastewater treatment facility designed to accommodate the sewage flows which may be generated by the Inn as it has been constructed. Although the Department of Health and Rehabilitative Services and other agencies were aware that the Inn includes a restaurant and guest rooms, the Department was never so informed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a Final Order requiring that Mr. Vail comply with all of the corrective orders, except Paragraph 18, contained in the Administrative Complaint. DONE and ORDERED this 11th day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NUMBER 87-4242 The parties have submitted proposed findings of fact. It has been noted below which Proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 Conclusion of law. 2 1. 3 6. 4 10. 5 12 and 13. 6 14. 7 15. 8 18. 9 19. 10 20. 11-12 16. 13 21. 14 23. 15 24. 16 25. 17 26. 18-19 27. 20 28. 21 29 22 Hereby accepted. Mr. Vail's Proposed Findings of Fact 1A 15. Not supported by the weight of the evidence and irrelevant. Hearsay and irrelevant. Although technically true, this is not the issue in this case. The evidence did not prove that the system "can in actuality handle three times the amount permitted." Not supported by the weight of the evidence and irrelevant. 2A Not supported be the weight of the evidence. Exhibit 6 indicates that the Department was aware that the Inn included "hotel rooms" but not the number. Irrelevant. The evidence did not prove that the Department was aware of the scope of the project. Not supported by the weight of the evidence. 3A Irrelevant. Not supported by the weight of the evidence and irrelevant. Even if this were true, the fact remains that the Department was unaware that the Inn included guest rooms or an apartment. Irrelevant. 4A-B Irrelevant. 5A-B Irrelevant. 6A 2-4. B 5. 6 and 11. Not supported by the weight of the evidence. See 12. 13 and 15. Not supported by the weight of the evidence and irrelevant. Not supported by the weight of the evidence. 7A-C Not supported by the weight of the evidence and irrelevant. 8A-D Not supported by the weight of the evidence and irrelevant. 9A-B Not supported by the weight of the evidence and irrelevant. 10-12 Not supported by the weight of the evidence and irrelevant. COPIES FURNISHED: Richard L. Windsor, Esquire State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mr. John Vail St. George Inn Post Office Box 222 St. George Island, Florida 32328 Dale Twachtmann, Secretary State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue There are two issues in these cases: (1) whether Tampa Bay Desal, LLC ("TBD") provided reasonable assurances that its permit application to discharge wastewater from a proposed seawater desalination plant, National Pollutant Discharge Elimination System ("NPDES") Permit Application No. FL0186813- 001-IWIS, meets all applicable state permitting standards for industrial wastewater facilities; and (2) whether Tampa Electric Company, Inc. (TEC) provided reasonable assurances that its proposed modification to an existing industrial wastewater facility permit, NPDES Permit Modification No. FL0000817-003-IWIS, meets all applicable state permitting standards.
Findings Of Fact Parties other than SOBAC Poseidon Resources, LLC wholly owns TBD as one of Poseidon Resources' subsidiaries. Poseidon Resources formed TBD, the successor to S&W Water, LLC, as a special purpose project company to properly staff and finance the desalination project. TBW entered into a 30-year purchase agreement with TBD (then known as S & W Water, LLC) in 1999 to build, own and operate the desalination facility. Poseidon Resources operates as a privately-held company and all stockholders are major corporations. Poseidon Resources opened for business in 1995 and has over $300 million in water processing assets under management. DEP is an agency of the State of Florida. The United States Environmental Protection Agency ("EPA") delegated its NPDES permitting program to the State of Florida and is run by DEP. TEC is an investor-owned electric utility serving Hillsborough, Polk, Pasco, and Pinellas Counties. TEC owns and operates the Big Bend generating station, an electric plant consisting of four coal-fired steam units having a combined capacity of approximately 1800 megawatts. SWFWMD is a water management district in the State of Florida. SWFWMD reviews and acts upon water use permit applications and protects and manages the water and water- related resources within its boundaries. TBW and all of its Member Governments are within the geographical and legal jurisdiction of SWFWMD. Pasco County is a political subdivision of the State of Florida, a member government of TBW, and is located within the jurisdiction of SWFWMD. Pasco County is a major source of the groundwater used by TBW. TBW is a regional public water supply authority. TBW is the sole and exclusive wholesale supplier of potable water for all its member governments of TBW, which are Hillsborough County, Pasco County, Pinellas County, the City of New Port Richey, the City of St. Petersburg, and the City of Tampa. TBW serves approximately 2 million customers. SOBAC SOBAC was incorporated as a Florida not-for-profit corporation in February 2000. The stated mission of SOBAC is to protect the environmental quality of the bays, canals, and waterways of the Tampa Bay area, and to ensure drinking water for SOBAC members in the Tampa Bay area. SOBAC was formed by a group of people residing primarily in the area of Apollo Beach. Apollo Beach is a waterfront residential community that was created by dredge and fill of wetlands, estuary, and bay bottom bordering the "Big Bend" area of Tampa Bay, where the community terminates in a "hammerhead" of fill over what was once a seagrass bed. Across the North Apollo Beach "Embayment," formed by the "hammerhead," is the discharge canal of TEC's Big Bend power plant. A corrugated metal barrier partially separates the embayment from the discharge canal. This discharge canal also will receive TBD's discharge after re-mixing with TEC's discharge. SOBAC initially was formed out of concern for the environment in the Big Bend area of Tampa Bay. However, there is no requirement that SOBAC members live in the Apollo Beach area, or even in the vicinity of Tampa Bay, and SOBAC's geographic area of concern has broadened somewhat beyond the Apollo Beach area. In order to become a member of SOBAC, one need only sign a card. Prospective members are asked to donate $5 on signing up. Most members donate $5 or more. However, the donation is not mandatory. There is no requirement that members attend any meetings, or participate in any SOBAC activities. Section 3.1 of SOBAC's Constitution and Corporate By-Laws makes "active" membership contingent on payment of "the prescribed [annual] dues." Section 3.2 of SOBAC's Constitution and Corporate By- Laws requires SOBAC to establish annual dues, but no annual dues have been paid because no annual dues structure has ever been established. As a result, no annual dues have been "prescribed," and "active" membership does not require payment of annual dues. SOBAC claims to have approximately 1,000 members. These include all those who have ever become members. Approximately 700 live in the Appollo Beach area; approximately 50-75 of these members form the "core" of active members. Approximately 50-100 members live outside the Tampa Bay area; some of these outsiders probably are among the approximately 100 who are members by virtue of SOBAC's reciprocity agreement with another association called "Friends of the River." SOBAC has never surveyed its membership to determine how its members actually use Tampa Bay. However, the evidence was sufficient to prove that a substantial number of its members, especially among those who reside in the Apollo Beach area, enjoy use of the waters and wetlands of the Big Bend area for recreational activities such as boating and fishing. For that reason, if the activities to be permitted by DEP in these proceedings were to cause environmental damage, a substantial number of SOBAC's members would be affected substantially and more than most residents of distant reaches of the Tampa Bay area. Background of Desalination Project In 1998, the predecessor agency to TBW (the West Coast Regional Water Supply Authority), the six Member Governments and SWFWMD entered into an agreement specifically addressing impacts to natural systems through the development of new, non- groundwater sources, and the reduction of permitted groundwater withdrawal capacity from TBW's eleven existing wellfields from the then permitted capacity of 192 million gallons per day (mgd) to 121 mgd by December 31, 2002 (the "Partnership Agreement"). Pursuant to the Partnership Agreement, the existing water use permits for TBW's 11 specified wellfields were consolidated into a single permit under which TBW is the sole permittee. Prior to execution of the Partnership Agreement, the existing permits for these 11 wellfields allowed for cumulative withdrawals totaling approximately 192 mgd. Upon execution of the Partnership Agreement, the consolidated permit immediately reduced allowed withdrawals to no more than 158 mgd and required that wellfield pumping from the 11 wellfields be further reduced to no more than 121 mgd by December 31, 2002, and then to no more than 90 mgd by December 31, 2007. These withdrawal reductions are necessary to reduce the adverse environmental impacts caused by excessive withdrawals from the 11 wellfields, the majority of which are located in Pasco County. In order to replace the reduction of groundwater withdrawals, TBW adopted a Master Water Plan that provides for the development of specified new, alternative sources of potable water. The seawater desalination facility ("Desal Facility") is one of the cornerstone components of the Master Water Plan. This Facility will furnish 25 mgd of new water resources for the Tampa Bay area and must be in service by December 31, 2002, in order to meet the potable water needs of the residents of the Tampa Bay area. In exchange for the groundwater withdrawal reductions, SWFWMD agreed to contribute up to $183 million towards the development of new water sources that are diverse, reliable and cost-effective. SWFWMD has agreed to co-fund up to 90 percent of the capital cost of the Desal Facility. To comply with the terms and conditions of water use permits it has received from SWFWMD for other water withdrawals in the region, TBW must increase the water sources from which it withdraws water for distribution to its Member Governments in a timely manner. The Desal Facility is the essential means by which these permitting requirements can be met. For the past two years, the Tampa Bay area has been experiencing historic low rainfall and drought conditions. The Desal Facility is supported not only by TBW and its Member Governments, but also by SWFWMD since it is a drought-proof source of supply which has the greatest ability of any new water supply source to allow TBW to meet its members' potable water supply needs while also reducing pumpage from the existing 11 wellfields. In addition to its being a drought-proof source of potable water supply, the Facility will also provide diversity and reliability for TBW's sources of supply, and is a source that is easily expandable to provide additional potable supply that may be necessary in the future. Prior to deciding to proceed with a desalination project, TBW conducted four separate studies to look at the potential individual and cumulative impacts of a desalination facility on Tampa Bay and the surrounding areas, and in particular to evaluate the changes in baywide salinity due to the desalination discharge alone and in combination with the river withdrawals occasioned by other projects. Commencing in 1997, TBW conducted a procurement process that culminated in the award in July 1999 of a contract to S & W Water, LLC, now known as Tampa Bay Desal, LLC, to design, build, own, operate, and eventually transfer to TBW a seawater desalination plant to provide potable water to Hillsborough, Pinellas, and Pasco Counties and to the Cities of Tampa and St. Petersburg for 30 years. TBD's Desal Facility is co-located with the Big Bend Power Station owned and operated by TEC on the northeast side of Hillsborough Bay, in Hillsborough County, Florida. By discharging the concentrate from the Desal Facility to the power plant cooling water prior to its discharge to the power plant discharge canal, environmental impacts from the concentrate are minimized, and disturbance of the discharge canal is avoided. The costs avoided by utilizing the existing intake and outflow from the TEC power plant are reflected in the lower cost of the water to Tampa Bay Water, and ultimately its Member Governments. TBW is contractually bound to TBD to purchase all of the potable water that is produced by the Desal Facility for distribution to its Member Governments and to purchase the entire Facility in the future. With the exception of the NPDES permit at issue, TBD has obtained all of the over 20 other permits which are required for the construction and operation of the desalination facility. TBD has already invested approximately $20 million in this project. The total estimated capital cost of the desalination facility is $110 million. TBD has obtained financing of $42 million and expects to acquire permanent financing in the month of October 2001. SWFWMD agreed to subsidize up to 90 percent of the capital cost of the desalination facility payable to TBW over the term of agreement with TBD. TBD is contractually bound to TBW to complete and fully operate the desalination facility by December 2002. TBD Desalination Process Overview of Process In the instant case, desalination is performed through reverse osmosis ("RO"), a mechanical process wherein pretreated water under very high pressure is pressed against a very fine membrane such that only pure water can pass through it. The vast majority of salt molecules and other substance are eliminated from the water. The RO process is not heat or chemical driven. No additional heat load is being added as a result of the desalination discharge, and the desalination plant will actually result in a reduced heat load to the bay. The desalination facility will withdraw approximately 44.5 mgd of raw water from Units 3 and 4 of TEC's Big Bend cooling water system, produce approximately 25 mgd of product water for transmission to the regional water supply system, and discharge approximately 19.5 mgd of clarified backwash and concentrate water equally into each of the power plant cooling water tunnels for dilution and release into the discharge canal. During abnormal power plant operations including times when Units 3 or 4 are not in operation and during the summer months when the normal supply water intake temperature exceeds the operating temperature range of the RO membranes, a portion of the source water will be withdrawn from an auxiliary supply water system. The auxiliary supply water system consists of a supply pump and pipeline that withdraws water from a location downstream of the fine-mesh screens for Units 3 and 4. The total combined bay withdrawal flow for the power plant and the desalination facility cannot exceed 1.40 billion gallons per day ("bgd"). This limitation ensures that entrainment does not exceed the levels previously permitted for the site, and a new entrainment study pursuant to Section 316(b) of the Clean Water Act is not required. Pretreatment Process The desalination intake water is pretreated in a two- stage gravity filtration process with chemical additives. During pretreatment, ferric sulfates will be added to the desalination intake water to coagulate and capture suspended solids, organic material, and metals that exist in the raw water supply. In this first stage of the pretreatment process, the intake water runs through an aerated course sand filter. Aeration enhances the coagulative process and assists in the capture of organics, suspended solids, and metals. Aeration also occurs in stage two, which uses a fine sand filter pretreatment process. The backwash water from stage two recirculates to the stage one treatment process. The pretreated waters exits through a five micron cartridge filtration prior to entering the RO process. The aerated pretreatment filter backwash water from the pretreatment stage one pretreatment will be sent to a discharge sump for initial settling and then to a clarifier and filter press to remove excess water. Approximately 14 wet tons a day which includes organics, suspended solids, and metals that are removed through the coagulative process and captured from the gravity filters are removed off-site to a landfill. The desal concentrate and clarified backwash water will be combined in a discharge sump or wet well prior to entering into a discharge line manifolded to equally distribute the concentrate discharge into all of the available cooling water outflow tunnels or conduits of the power plant discharge. Reverse Osmosis Membrane Treatment The RO desalination process consists of a two-stage pass of the pretreated water through the reverse osmosis membranes. The RO pumps will force the water through the RO membranes at pressures ranging from 600 to 1000 pounds per square inch (psi). As a result of the RO process, approximately 25 mgd of purified water, also known as permeate, will be produced for delivery to TBW. TBD anticipates cleaning its membranes twice per year, perhaps less, due to the high level of pretreatment. Periodic cleaning removes silt and scale from the membrane surface. Dilute solutions of citric acid, sodium hydroxide, sulfuric acid, sodium tripolyphosphate, or sodium dodecyclbenzene compromise the constituents of various cleaning solutions, with the actual cleaning solution used dependent upon the actual performance of the system once it is placed in operation. Once the cleaning cycle is complete, the spent cleaning solution will be purged from the feed tank, membrane vessels, and piping and diverted into a scavenger tank for off- site disposal. Clean product water (permeate) will be fed to the feed tank and pumped into the RO membrane vessels. This process will continue until the pH of the purge water meets the Class III marine water quality criteria. The membranes will be rinsed with brine concentrate and permeate, and the rinse water will be directed to the wet well for discharge, with the concentrate into the TEC cooling water stream. TBD determined the chemical characterization of the membrane cleaning solution discharge. Cleaning solutions are not discharged in detectable concentrations. As further assurance, the permit requires toxicity testing immediately after membrane cleaning. Dilution of Discharge Water Co-locating the desalination facility with TEC's Big Bend power station allows the desalination concentrate to be diluted with TEC's cooling water prior to discharge into Tampa Bay. The point of injection of the desalination discharge will be located approximately 72 feet upstream of the point of discharge to the discharge canal to ensure complete mixing of the desalination concentrate with TEC's cooling water. This provides reasonable assurance that the desalination discharge will be completely mixed within the cooling water conduits. If all four TEC units are in operation and TBD is producing 25 mgd of finished water, the approximate dilution ratio of the desalination concentrate with TEC cooling water is 70:1. Historical TEC data indicates that a dilution ration of greater than 20:1 will occur more than 99.6 percent of the time, and a dilution ration of greater than 28:1 will occur more than 95 percent of the time. The dilution limitations in the proposed permit are more stringent than those required in Rule 62-302.530(18). The permitted dilution ratio complies with Rule 62- 660.400(2)(d) because it takes into account the nature, volume, and frequency of the proposed discharge, including any possible synergistic effects with other pollutants which may be present in the receiving water body. Comparisons of the Antigua, Key West, and Cyprus facilities are not applicable because those desalination facilities lack the initial dilution that will exist at TEC's Big Bend site. The proposed permit requires a 20:1 minimum dilution ratio at any given time, which may occur for no more than 384 hours per calendar year, and with the further limitation that the discharge at the 20:1 minimum dilution ratio shall not exceed 384 hours in any given 60-day period. At all other times, a minimum dilution ratio of 28:1 must be maintained. To ensure proper dilution and system operation, computer instrumentation in the desal facility will interface with TEC to continuously monitor the operations of TEC's four cooling tower condenser units. If any of the pumps shut down, an alarm will sound at the desalination facility and the computer system will automatically shut down the concentrate discharge to that specific condenser unit discharge tunnel. Further, the desalination plant will employ approximately 12 employees, with a minimum of two employees on duty at all times. TEC Permit Modification Big Bend power station has four coal-fired steam electric generating units. The power station is cooled by water that is taken in from Tampa Bay through two intake structures which are located along TEC's intake canal. One intake structure feeds cooling water to electrical power units 1 and 2 and the other feeds units 3 and 4. After flowing through the condensers, the cooling flows are combined into four separate discharge tunnels which outfall into TEC's discharge canal. The intake structure for Units 3 and 4 is equipped with fine-mesh screens and an organismal collection and return system that has been approved for use by DEP. The purpose of TEC's permit modification is to alter the internal piping in the facility to accommodate the desalination plant at the Big Bend site. TEC's permit modification allows for placement of an intake pipe from TEC's cooling water pipes to the desalination plant and a return pipe downstream from the intake pipe for the return of the desalination concentrate to TEC's cooling water discharge tunnels prior to outfall in the discharge canal. TEC's permit modification also allows for the placement of an auxiliary intake line by TBD to take additional water from behind the intake of units 3 and 4 up to TEC's maximum permitted limit of 1.4 billion gallons a day. The TEC proposed permit is conditioned to require TEC to maintain the structural integrity of both the steel sheet pile wall on the discharge canal and the breakwater barrier North of the discharge canal. TEC's permit modification does not request any changes to the operations of the Big Bend Generating Station. SOBAC Issues and Concerns SOBAC raised numerous issues and concerns in its petitions in these cases and in the Pre-Hearing Stipulation. However, some issues were elimination by rulings adverse to SOBAC during prehearing proceedings and final hearing. Based on the evidence SOBAC sought to elicit at final hearing and issues raised in its Proposed Recommended Order, other, earlier SOBAC issues and concerns appear to have been dropped. Remaining are essentially the following: increased salinity due to TBD discharge; alleged decreased dissolved oxygen (DO) from higher salinity; impacts of higher salinity and alleged decreased DO on marine plants and animals; alleged release of metals from sediments due to higher salinity and alleged lower DO, and effects on marine plants and animals; alleged monitoring deficiencies; alleged failure to utilize available technologies to lower salinity and raise DO; alleged deficient financial assurances; and various alleged resulting DEP rule violations. Description of Tampa Bay: Physical Properties The portion of Tampa Bay and Hillsborough Bay near the Big Bend facility is classified a Class III water body. Tampa Bay is a naturally drowned river valley, meaning that a deep channel exists as a result of natural forces. However, the channel has been deepened to 45 feet or greater to allow large ships to navigate the bay. This deepening of the channel increases the water flow of the head of the bay with the open gulf waters and allows this residual circulation to move more new water from the open Gulf of Mexico up into the bay. Ordinarily, circulation moves salt water up Tampa Bay and spreads it out onto the flanks of the bay where it then mixes with the freshwater. To complete this circulation, the water then flows back out towards the mouth of the bay, primarily along its flanks and shallower parts in the upper part of the water column. The water in Tampa Bay tends to flow faster in its deeper parts, both coming in and going out, and relatively slower in the shallow areas. The majority of flow of freshwater inflow occurs at the bay's flanks as can be seen very clearly in the salinity distributions. Mixing and Stratification Since the development of Tampa Bay from the 1880 condition to the 1972 and 1985 conditions, there is more mixing and exchange of water. Due to shoreline fills for development, such as Apollo Beach, there is less water that now comes in the bay than in the predevelopment condition. Tampa Bay is a fairly well mixed system from top to bottom. This is because the action of the tides basically acts like a big mix master. The bay is fairly shallow, less than four meters in depth on average. The tidal velocities can be as strong as two knots or about a meter per second. When the strong velocity pushes through shallow water, there is extensive overturning, where the bottom water is churned to the top and gets mixed very efficiently. That is very well seen in the observations during dry periods. Over 100 points in Tampa Bay were measured for temperature and salinity top, middle and bottom, and showed that they were very uniform throughout the bay. During periods of large volumes of freshwater input into Tampa Bay, freshwater is pumping into the bay faster than the tidal mixing can mix it from top to bottom. Therefore, in parts of Tampa Bay significant stratification is seen during many times in the wet season. During those times when rainfall is not as prevalent, tidal mixing once again dominates and the bay returns to a more well mixed system. The average tidal fluctuation for Tampa Bay is a range of two to three feet. Salinity As the tide in Tampa Bay comes in, it brings saltier water from the mouth of the bay toward the head of the bay, causing salinities to rise. As the tide recedes, bringing out fresher water from farther up the bay, salinities decrease. Over an individual tidal cycle, particularly during the wet season, a four or five part per thousand ("ppt") change in salinity will occur between a rising tide and a falling tide. During the dry season, tidal flushing is not as significant to salinity levels because not much difference exists in salinity from the head of the bay to the mouth of the bay. Even during the dry season, there is a one to two ppt change over a six to twelve-hour period in any given day. During the dry periods in 1990, salinities elevated up to about 33 ppt, with very little stratification. During the rainy periods, in June and July, salinities dropped rather drastically. In some areas, salinity dropped as low as to 20 to 22 ppt. However, in spite of these drastic seasonal differences, significant variation in salinity occurs as a result of tidal exchange. The Big Bend area is split by the dividing line between Hillsborough Bay and what has been classified Middle Tampa Bay. The salinity for Hillsborough Bay from 1974 through June 2001 at the surface ranges from 0.4 ppt to 38.2 ppt. The middle portion of the same water column contained a range from 2.5 ppt to 39.2 ppt, and the bottom portion showed a range from 3.9 ppt to 37.2 ppt. The average salinities during this time frame were as follows: top 24.2 ppt, middle 24.3 ppt and bottom 25.3 ppt. In the portion of Tampa Bay called Middle Tampa Bay, the surface level salinity ranged from 6.8 ppt to 38.2 ppt. At middle depth, salinities ranged from 7.4 ppt to 38.8 ppt. The bottom level salinities ranged from 11.9 ppt to 39.6 ppt. This is a large range of salinities. Tampa Bay near the Big Bend Area In the area near the Big Bend facility, the Mote Marine Laboratory survey data reflects that the salinity during May and June 2000 reached 33.4 ppt. Further, Mote Marine Laboratory data showed that the North Apollo Embayment area salinities were well mixed vertically throughout the system. The total volume of water exchanged into the North Apollo Embayment and associated canals during a mean tide is approximately 35 percent of the total volume of all water contained in that area. This tidal exchange occurs twice per day. The double diffusion process does not create high salinity in the bottom of the water column in the North Apollo Embayment. The double diffusion process, without any external influence, would lead to both surface and bottom layers of the water column reaching salinity equilibrium. Further, the turbulent mixing that occurs due to tidal processes and wind- induced mixing dominates over the double diffusion process. The Mote Marine Laboratory study conducted between May and early June 2000 did not detect any significant salinity stratification in the area near the Big Bend facility. Vertical stratification of salinity does occur but typically only during the periods of significant freshwater inflow and not in extreme drought or dry conditions. None of the Mote Marine Laboratory data detected any pockets of high salinity water or significant density stratification in the North Apollo Embayment. Estuarine Characteristics Tampa Bay is an estuary. Estuaries are semi-enclosed bodies of saltwater that receive freshwater runoff from drainage or riverine inflow, which measurably dilutes the salinity levels in the estuary. As a result, salinity levels in estuaries typically are highly variable, ranging from 0 ppt where rivers flow into estuaries, to as high as 40 ppt under conditions of low freshwater input or at estuarine mouths where they connect to the sea. There are naturally occurring dissolved oxygen levels below 4.0 mg/l in parts of Tampa Bay, including at Hillsborough County Environmental Protection Commission ("EPC") monitoring stations 9, 80, and 81, which are the closest stations to the proposed discharge. Dissolved oxygen in the bay decreases at night because photosynthesis ceases and respiration exceeds production. Other environmental parameters are also highly variable in estuaries. Therefore, the organisms that inhabit estuaries have adapted to tolerate these highly variable conditions. Estuarine organisms have adaptive means for tolerating changing salinity levels, either by conforming their internal salinity levels to the ambient salinity levels, or by actively regulating their internal salinity levels by intake or excretion of salt. Organisms that are adapted to tolerate a wide range of salinities within the estuary are termed euryhaline organisms. Essentially all of the common organisms in estuaries, including the Tampa Bay estuary, are euryhaline organisms, and therefore are capable of tolerating and living in a wide range of salinities and salinity changes that occur due to tidal, meteorological, and other natural forces in the estuarine environment. Extensive baseline biological studies performed on Tampa Bay reveal that the most common species in the Tampa Bay estuary tolerate salinity levels ranging from 5 ppt to 40 ppt. Seagrasses Five species of seagrass inhabit Tampa Bay. Seagrasses are photosynthetic underwater flowering plants that are typically limited in occurrence and distribution by the water clarity. This limits the depth at which seagrasses can grow. In Tampa Bay, seagrasses are limited to the fringes of the Bay, and are largely limited to depths of approximately three feet, although they can live in depths of up to six feet in clearer parts of the Bay. Seagrasses are very sensitive to increases in nutrients, like nitrogen and phosphorus. These nutrients encourage algae growth, resulting in competitive stress in seagrasses. Due to poor water quality caused by sewage discharge, dredging and filling, and other activities in the Bay, seagrass distribution in Tampa Bay decreased from an historic coverage of approximately 80,000 acres in 1950 to approximately 20,000 acres by 1982. Improvements in water quality, largely due to sewage treatment improvements, have allowed seagrasses to naturally recolonize to approximately 27,000 acres coverage, as of 1994. Wave energy affects seagrass distribution. Seagrasses cannot colonize and survive in areas subject to significant wave energy. For example, the portion of Tampa Bay dredged and filled to create the Apollo Beach "hammerhead" area was once comprised of a broad shallow-water shelf that diminished wave energy, allowing dense seagrass flats to cover the shelf area. Destruction of the broad shallow-water shelf with fill to create the Apollo Beach hammerhead has converted the area to a high wave energy system that is unsuitable for seagrass colonization and growth. Consequently, the only seagrasses inhabiting the Big Bend area are found approximately one kilometer north of the Big Bend power plant, in an area known as "The Kitchen," and approximately one kilometer south of the Apollo Beach hammerhead area. Additionally, there are ephemeral patches of seagrass inhabiting some limited areas of the North Apollo Embayment. Seagrasses are adapted to tolerate a wide range of salinities. They have specialized cells that enable them to deal with salt stress and with broad ranges of and fluctuations in salinity. These adaptations enable them to survive and thrive in estuarine environments. Of the seagrass species that live in Tampa Bay, one species, Ruppia maritima (widgeon grass), occurs in salinity ranges from zero to 40 ppt. Manatee grass, Syringodium filiforme, is most productive in salinities between 5 ppt and 45 ppt. The other three species, Halodule wrightii (shoal grass), Halophila engelmannii (star grass), and Thalassia testudinum (turtle grass), tolerate salinity ranges from approximately 5 ppt to 60 ppt. Seagrasses better tolerate higher salinity levels than lower salinity levels. Lower salinity levels are usually indicative of increased stream and land freshwater runoff, which usually is accompanied by increased turbidity and lower water clarity. Four of the five seagrass species that inhabit Tampa Bay typically reproduce asexually by producing rhizomes, rather than by flowering and producing seeds. It is not completely clear why seagrasses in Tampa Bay reproduce asexually rather than by flowering and seed production. However, recent research indicates that climatic temperature is the controlling factor for flower and seed production. In South Florida, where the climate is warmer, seagrasses reproduce by flowering and seed production. In Tampa Bay, the lower winter temperatures appear to be the limiting factor with respect to successful flower and seed production in seagrasses. Recent studies by the University of South Florida ("USF") marine laboratory indicate that naturally occurring fungal diseases may also limit successful flowering and seed production in seagrasses in Tampa Bay. Since most seagrass species that live in Tampa Bay tolerate and thrive in salinities of up to 60 ppt, the higher salinity levels in the estuary do not appear to adversely affect the ability of seagrasses to reproduce. In fact, the lower salinity levels, below 5 ppt, stress seagrasses and are more likely to adversely affect reproduction than do higher salinity levels. Mangroves Three major species of mangrove inhabit the Tampa Bay area: the red mangrove, black mangrove, and white mangrove. Mangroves inhabit the intertidal area, so they are subjected to daily tidal flooding and drying. Consequently, they must tolerate a wide range of variability in salinity levels and in water availability. Most mangroves tolerate soil salinity levels up to 60 ppt, close to twice the salinity of Tampa Bay. Mangrove mortality due to salinity does not occur until soil levels approach and exceed 70 ppt salinity. Mangroves are also adaptable to, and inhabit, freshwater environments. Phytoplankton and Zooplankton Plankton are life stages or forms of larger organisms, or organisms that have no ability for major locomotion, so they spend their entire life spans floating and drifting with the currents. Plankton are extremely productive in that they reproduce in very large numbers within very short life spans. Holoplankton are planktonic organisms that spend their entire lives in planktonic form. Examples include diatoms, which are a type of phytoplankton, and copepods, which are a type of zooplankton. Meroplankton are "temporary" plankton that drift with the currents in juvenile or larval stages, then either settle out of the water column and metamorphose into an attached form (such as barnacles) or metamorphose into mobile life forms (such as crabs, shrimp, and fish species). Phytoplankton are planktonic plant species and life forms. Zooplankton are planktonic animal species and life forms. Zooplankton feed on phytoplankton. There are approximately 300 species of phytoplankton, and numerous species and forms of zooplankton, found in Tampa Bay. Most phytoplanktonic and zooplanktonic species inhabiting Tampa Bay are euryhaline species capable of tolerating the wide range of salinity levels and abrupt salinity changes that occur naturally in the estuarine system. Most phytoplanktonic and zooplanktonic species and life forms in Tampa Bay tolerate salinity levels ranging from zero to 40 ppt. They appear to be more tolerant of the higher end than the lower end of this salinity range. Manatee The manatee is the only endangered or threatened species identified by the Florida Natural Areas Inventory as inhabiting the area where the desalination plant is proposed to be located. Manatees congregate at the Big Bend Power Station during colder months because they are attracted to the power plant's warmer water discharge. Manatees are considered to be estuarine species, but they have very broad salinity tolerance ranges. They migrate into and out of freshwater springs, through estuaries, into the Gulf of Mexico, and down to the Ten Thousand Islands, where hypersaline conditions frequently exist. Manatees routinely expose themselves to and tolerate salinities ranging from zero to more than 40 ppt. Fish The fish populations in Tampa Bay are comprised of a large number of marine euryhaline species. Due to their ability to osmoregulate their internal salinity levels, these fish species can inhabit salinity ranges from 5 ppt to as high as 40 ppt. Extremely extensive monitoring and sampling programs are currently being conducted in Tampa Bay and specifically in the vicinity of the Big Bend Power Station. The Hillsborough County EPC, SWFWMD, TBW, the United States Geological Survey ("USGS"), the Florida Marine Research Institute, USF, and Mote Marine Laboratory conduct separate biological monitoring programs that sample and monitor numerous biological parameters, including invertebrate infaunal and epifaunal species composition, abundance, and distribution; zooplankton and phytoplankton species composition, abundance, and distribution; emergent and submerged vegetation species composition, abundance, and distribution; and fish species composition, abundance, and distribution. These monitoring programs, which collect and analyze biological data from many areas in the Tampa Bay estuarine system, extensively monitor numerous biological parameters in the Big Bend area. Testing and Modeling Pilot Plant Although DEP's rules do not require the use of a pilot plant to demonstrate reasonable assurances, TBD installed a desalination pilot plant at the Big Bend site in November 1999. The pilot plant matched the hydraulics and configuration of the full-scale facility on a 1/1000 scale. The pilot plant used water from the Big Bend power plant discharge as its source water. The purpose of the pilot plant was to confirm design requirements for the desalination facility and to provide samples of intake water, filtered water, pretreated water, concentrate, and finished water to use for chemical characterization and analysis. Using a pilot plant is superior to using data from engineering projections or data from a different desalination facility because the pilot plant provides data specific to the Big Bend site. Data from the pilot plant were used to establish various effluent and other limits in the permit. Chemical Characterization Intake water, filtered water, pretreated water, concentrate, and finished water from the pilot plant were analyzed for over 350 parameters chosen by DEP to determine chemical characterizations and water quality. The pilot plant operation provides extensive chemical characterization of intake and discharge water composition and mass loading. This information was key in providing accurate information on the chemical composition and mass loading of the desalination discharge concentrate. With this accurate information on the components in the discharge water, DEP was provided more than sufficient reasonable assurance on the potential effect of the chemical components of the discharge. TBD tested the pilot plant discharge water for copper, nickel, other heavy metals, and those chemical constituents specified on the DEP chemical characterization form. The chemical characterization tested for concentrations of constituents based on a 12.8 to 1 dilution ratio, and even at that dilution ratio, did not exceed any of the state water quality parameters. However, to provide additional assurance that there will not be an exceedance of state water quality standards, the permit requires a minimum 20 to 1 dilution ratio. Dissolved Oxygen Saturation Testing Temperature and salinity affect the saturation point of dissolved oxygen ("DO") which is lowest when temperature and salinity are highest. DO saturation charts, which are typically used to determine DO saturation points, are not applicable because those charts do not contain the saturation point of DO at a temperature of 109 degrees Fahrenheit and a salinity of 79 ppt, which represents the worst case conditions for the proposed desalination facility. Bench-scale testing was performed on the undiluted desalination discharge from the pilot plant by heating discharge concentrate samples to 109 degrees Fahrenheit and aerating the samples until the DO stabilized and reached saturation point. The pilot plant bench-scale testing determined that the saturation point of DO in the worst case desalination concentrate using a temperature of 109 degrees Fahrenheit and salinity of 79 ppt was 5.7 mg/l. Toxicity Testing TBD conducted acute toxicity testing using a worst case scenario assuming a diluted effluent of one part desalination concentrate to 12.8 parts of power plant cooling water. Acute toxicity testing evidenced no mortalities, showing that the proposed discharge will not be a source of acute toxicity. TBD conducted chronic toxicity testing on raw concentrate from the pilot plant using a worst case scenario diluted effluent of one part desalination concentrate to 12.8 parts of power plant cooling water. The No Observed Effect Concentration (NOEC) for raw concentrate was determined to be 100 percent and the NOEC for diluted effluent was determined to be greater than 100 percent. The evidence did not explain these concepts, but it was clear from the tests that the proposed discharge will not be a source of chronic toxicity. TBD conducted its acute and chronic toxicity testing using protocols reviewed and approved by DEP. TBD's toxicity testing was also consistent with accepted EPA standards. Assessment of Potential Environmental Impacts TBD prepared an Assessment of Potential Environmental Impacts and Appendices ("Assessment") to analyze the potential biological impacts of the desalination plant discharge into the Tampa Bay estuary. The Assessment examined numerous physical parameters to determine the baseline environmental conditions in the portion of Tampa Bay proximate to the proposed desalination plant site. Among the physical parameters examined in determining the baseline environmental conditions were: salinity; sediment size and composition; metal content in sediments; and numerous water quality parameters such as transparency, biochemical oxygen demand, pesticides, dissolved metals, and pH. Consistency with SWIM Plan As part of the permitting process, TBD was required to demonstrate consistency of the proposed desalination discharge with the SWFWMD's Surface Water Improvement and Management (SWIM) plan, pursuant to Rule 62-4.242. TBD submitted an extensive SWIM consistency analysis, which is sufficient to meet the consistency requirement. Water Quality Based Effluent Limitation Level II Study TBD performed a Water Quality Based Effluent Limitation (WQBEL) Level II study pursuant to Rule Chapter 62- 650 for the purpose of determining the effect of the desalination plant discharge on salinity levels in the vicinity of the desalination plant discharge. TBD had the Danish Hydrologic Institute ("DHI") use the data collected through the WQBEL Level II study in its near-field model of the Big Bend area. See Findings 105-117, infra. DEP also used the data and the DHI model results to establish the salinity and chloride effluent limitations in the permit. The USF Far-Field Model The far-field model was prepared utilizing the Princeton model code. The Princeton model is well recognized and is generally accepted in the scientific community. The goals of the TBD far-field model performed through USF by Dr. Luther and his team were to evaluate the change in bay-wide salinity due to the desalination plant discharge, both alone and in combination with changes in salinity due to enhanced surface water system withdrawals under new consumptive water use permits issued to TBW by SWFWMD to provide other, additional sources of needed potable water supply. The primary goal was to provide DEP with the best science possible of the potential real effects of this desalination discharge into Tampa Bay. The modeling system of Tampa Bay utilized in this analysis was developed beginning in 1989. Dr. Luther and his team have continued to make refinements to the model over the last 12 years. Dr. Luther took the modeling system he had developed over the years for Tampa Bay and did three primary model scenarios. The baseline case reproduced the observed conditions during the 1990 and 1991 years--a very dry period in 1990 and a fairly wet period for 1991--as accurately as possible with all the boundary conditions estimated from observations. This was to capture an entire range of conditions in Tampa Bay. The baseline was then compared with validation data and other observations to ensure it was approximating reality. The second simulated scenario included the same effects as the baseline with the added effect of the desalination intake and discharge at the Big Bend facility. The third case approximated cumulative effects from the TBW enhanced surface water system river withdrawals according to the proposed permit withdrawal schedules. For each test case, it was assumed that only two of the four cooling units at the TEC Big Bend plant were in operation for an entire two-year period, a worst-case scenario expected to occur less than four percent of the time in any given year. The model included data on water levels, temperature, and salinity throughout Tampa Bay. In addition, it takes into account wind blowing across the surface of Tampa Bay, rainfall, freshwater inflow from rivers, and other surface water and groundwater sources. The model was calibrated and validated against actual data to verify simulation of reality as closely as possible. The model was calibrated and validated utilizing Hillsborough County EPC and Tampa Oceanographic Project ("TOP") salinity data. Physical Oceanographic Real Time System ("PORTS") and TOP data on current flow velocity and water levels were utilized to calibrate and validate water levels and current. The acoustic doppler current profilers used in the model study are able to measure the speed at which the water is traveling and the direction at various levels above the bottom within the water column. The TBD far-field model very accurately reproduces the observed tidal residual velocities observed with the acoustic doppler current profilers. The far-field model reflects any stratification that would occur during the model simulations. The far-field model simulates recirculation that occurs between the discharge and intake water. Recirculation is small due to the model's use of the actual bathymetry of Tampa Bay. There are significant shoals and other features that separate the water from the discharge and the intake canal that preclude significant recirculation most of the time. After submitting the far-field model report to DEP, further study was performed on the far-field model that calculated residence time for Tampa Bay. One study dealt with "residence" or "flushing" time. The concept of "residence time" is not well-defined; put another way, there are many different accepted ways of defining it. It may be defined in a simplified manner as the time it takes a patch of dye to flush out of the bay. However, for purposes of the studies performed on the far-field model, theoretical "particles" in model grids were tracked, and "residence time" was defined as the time it would take for the number of particles initially in a grid cell to decrease to 34 percent of the initial number. Using this approach and definition, residence time in the vicinity of the Big Bend facility on the south side where the discharge canal is located was less than 30 days. Immediately offshore of the area of the discharge, the residence time reduced to less than 15 days. The study indicated that the area of the Big Bend facility has a relatively low residence time. In the model's baseline run (for the desalination plant impacts only), maximum differences in salinity occurred during the month of April 1991. Throughout the two-year time period, the maximum concentration of salinities did not increase from this point, and in fact decreased. The maximum average value for salinity difference is 1.3 ppt at the grid cell located directly at the mouth of the TEC Big Bend discharge canal. More than two grid boxes away in any direction and the value falls to less than 0.5 ppt increase in salinity. The maximum salinity of any given day for the far- field model was in the range of 2.1 to 2.2 ppt, which compares favorably with the DHI near-field model which showed an increase of 2.5 ppt. The salinity changes caused by the cumulative effects scenario are smaller than the natural variability during the wetter months in Hillsborough Bay in cells immediately adjacent to the concentrate discharge. Increases in salinity will occur in the vicinity of the discharge canal but will be very localized and small relative to the natural variability in salinity observed in Tampa Bay. At a distance of more than a few hundred meters from the mouth of the discharge canal, it would be difficult (if not impossible) to determine statistically that there would be any increase in salinity from the desalination concentrate discharge. Over the two years modeled, there is no trend of increasing salinity. No long-term accumulation of salt is evidenced within the model. Further, no physical mechanism exists within the real world that would allow for such a long- term accumulation of salinity in Tampa Bay. Dr. Blumberg's independent work verified the conclusions in the far-field model constructed by USF. Dr. Blumberg's estimated flushing times are consistent with those found in the far-field model. DHI Near-Field Model The TBD near-field model was prepared by DHI. DHI prepared a three-dimensional near-field model to describe the potential salinity impacts from the discharge of the proposed desalination plant. The DHI model is a state-of-the-art model whose physics are well documented. By model standards, the DHI near-field model is a high resolution model. The DHI model essentially "nests" within TBD's far-field model. The near-field area includes those areas that would be directly influenced by the combined power and desalination discharges, the North Apollo Embayment and the residential canal system adjacent to the discharge canal. The near-field model was designed to determine whether or not the desalination plant would cause continuous increases in salinity and to predict any increase in salinity in the North Apollo Embayment and the associated canal system. In addition, DHI evaluated the potential for saline recirculation between the discharge and the intake via short circuiting due to overtopping of the existing break water. In order to construct the near-field model, existing data on bathymetry, wind sources, meteorology and other parameters were examined and analyzed. In addition, the information from an intensive data collection effort by Mote Marine Laboratories on current velocities, temperatures, and salinities was incorporated into the model. TBD conducted bathymetric surveys in the residential canal areas, the North Apollo Embayment, and the area between the discharge canal and the intake canal. The model has a vertical structure of six grids and reflects vertical stratification that would occur in the system being modeled. The vertical grids in the model can detect a thermal plume one meter in depth (the size of the thermal plume from TEC's discharge). Information about the TEC thermal plume was incorporated into the model and utilized to calibrate the model's predictive capabilities. The model took into account interactions between the temperature plume and the salinity plume. The model predictions matched the measured temperature plume created by the TEC discharges quite well. The near-field model conservatively assumed a scenario in which only the two TEC units with the smallest total through-flow of 691.2 million gallons a day cooling water were active. DHI then assumed production of a maximum 29 mgd in product water. A salinity level of 32.3 ppt at the intake was utilized in the simulation. The model assumed a conservative wind condition which results in less mixing and dispersion of the plume. Further, wind direction tended to be from the southwest or west during the simulation, which tends to push the plume against the TEC break water which tends to reinforce recirculation. SOBAC witness Dr. Parsons agreed that these simulations for April and May 2000 constituted extreme conditions. DHI ran its model for a total time period of six weeks. The "warm up" for the simulation took place from April 15 to May 7, followed by the "calibration" simulation from May 8 to May 22. An additional validation sequence was run from May 25 to June 8. The production run was defined as the three weeks from May 8 to May 29, 2000. The intensity of the calculations performed in the near-field model due to its high spacial resolution and numeric restrictions make it computationally demanding. The calibration runs took approximately a week to 10 days to run on a state-of-the-art computer. From a computational standpoint, it is not practical to run the near-field model for a two-year time period. The model shows good agreement between its water levels and current velocity to observed data. The model reflects the recirculation of the discharge water that would occur in the system. The maximum salinity for the extreme case scenario in the near-field model is an increase in salinity of 2.5 ppt. With three condensers running, under the modeling scenario comparing the base condition to the desal discharge, there is a maximum difference of only 2.0 ppt. Further, there is no indication of any continuous build up of salinity in the near- field area due to the desalination plant discharge. DHI performed many sensitivity runs on the model, including one which examined rainfall conditions. The results of a two-inch rainfall analysis show that rainfall profoundly freshens the water in the near-field area. Since the modeling was done in a time period of extreme drought, with no freshwater inputs, the ambient or background salinity trended up over the time frame of May through June. As with any estuary, if freshwater inflow is removed, the estuary will get saltier until freshening occurs. Even with the model simulation period extended an additional 10 days beyond that reflected in TBD Ex. 1-O, the model results did not show any increase of salinity differences caused by the desal facility above 2.5 ppt. Based on data from field collections, the operation of the desal plant under worst case conditions did not exceed the assimilative capacity of the near-field environment. A 10 percent salinity change (3.23 ppt) was not reached in any grid cell. The Blumberg Study The "Environmental Impact Assessment for a Seawater Desalination Facility Proposed for Co-Location with the Tampa Electric Company Big Bend Power Generation Facility Located on Tampa Bay, Florida" authored by Norman Blake and Alan F. Blumberg ("Blumberg Study") is a hydrodynamic model study combined with an analysis of potential biological effects. The Blumberg Study was performed at the request of and presented to the Board of County Commissioners of Hillsborough County, Florida. Dr. Blumberg's model used 1998 and 1999 as its baseline, which consisted of an extremely wet year followed by an extremely dry year. The model assumed a scenario of two cooling units in operation pumping 656 mgd of discharge flow. The results of the Blumberg Study are very similar to the results of TBD's far-field model. In addition, the model ran for a 9-year period without any sign of ongoing build-up of salinity. After the two-year model run, the second year ran for an additional 7 simulated years for total model simulation period of 9 years. The Blumberg Study found salinity only increased by 1.4 ppt in the North Apollo Beach Embayment. In fact, the Blumberg Study showed no salinity build-up after the second year of the 7-year portion of the model simulation. The Blumberg Study found that the flushing time for the area near the Big Bend facility ranges from 4 to 10 days. The Blumberg Study applied a formula to predict potential DO saturation level changes. The analysis concluded a small change to DO saturation assuming full saturation on average of 7 mg/l. The Blumberg Study predicted that the desalination discharge would not lower actual DO levels below 5 mg/l. The Blumberg Study concluded that the marine ecology will not be affected by the desalination facility operation. Older Two-Dimensional Models of Tampa Bay Significant strides have been made in hydrodynamic modeling over the last 10 years, with the standard changing from two-dimensional models to three-dimensional models. Three-dimensional models provide more complete results than two-dimensional models. In the late 1970's through the late 1980's, modeling was constrained by the computing limitations of the time and could not examine the difference in water layers in a bay and potentials for currents going in different directions or speeds in different layers of the bay, as now done by state-of-the-art three-dimensional models. A two-dimensional model cannot accurately represent the tidal residual circulation in an estuary such as Tampa Bay, because it omits some of the critical physical forces that drive this type of flow. As the acoustic doppler current profiler showed, water flows in the top of the water column in one direction and flows in the bottom of the water column in a different direction. A two-dimensional model would average these flows over the entire vertical water column. In doing so, it would show much slower residual flow (and, therefore, longer residence time and a longer time to flush the system). SOBAC offered the testimony of Dr. Carl Goodwin, a civil engineer with the USGS. Dr. Goodwin provided testimony on two-dimensional model studies he did for the USGS in the late 1980's to assess the effects of dredging the shipping channel in Tampa Bay. Dr. Goodwin's studies, contained in SOBAC Exs. 69 and 70, suggested the existence of "gyres" in Tampa Bay. But no "gyres" have been observed, and it now appears that these gyres actually do not exist but are two- dimensional modeling artifacts, as shown by state-of-the-art three-dimensional modeling of Tampa Bay. In an earlier version of Dr. Luther's Tampa Bay model, an experiment was performed running the model in a vertically average mode to mimic the two-dimensional model. In this mode, the model was able to reproduce the "gyres" that Dr. Goodwin observed in his two- dimensional model. When the physical equations that related to pressure forces (baroclines) were reactivated in the three- dimensional model, the "gyres" disappeared. In addition, this experiment showed that the two- dimensional model simulation showed residence times an order of magnitude longer as compared to the full three-dimensional simulation. This means that residence time would be 10 times longer in the two-dimensional model than in the three- dimensional model, which takes into account baroclinic forces. Subsequent to the publication of his modeling studies (SOBAC Exs. 69 and 70), Dr. Goodwin found that it would take approximately 110 days for water to travel from the mouth of the Hillsborough Bay to the mouth of Tampa Bay in 1985. This calculation by Dr. Goodwin was not subjected to peer review or the USGS process. However, dividing the 110-day time period with correction factor of 10 discussed above, Dr. Goodwin's corrected estimate would predict an 11-day period for transport of water from Hillsborough Bay to the mouth of Tampa Bay--similar to the Blumberg Study and far-field model results. Opinions of Other SOBAC Experts Besides Dr. Goodwin, SOBAC also elicited some general opinions regarding the combined thermal and salinity plume from Dr. Mike Champ, called as an expert in the areas of environmental biology and chemistry, and from Dr. Wayne Isphording, called as an expert in sedimentology and geochemistry. In part, Dr. Champ based his opinion on a misunderstanding that Tampa Bay is not well-mixed or well- circulated at the location of the Big Bend power plant. In this respect, Dr. Champ's testimony was contrary to all the evidence. Even the "gyres" suggested by Dr. Goodwin's two- dimensional model studies would suggest a great deal of mixing in Middle Tampa Bay in the vicinity of the Big Bend plant. To the extent that the opinions of Dr. Champ and Dr. Isphording differed from the modeling results, they are rejected as being far less persuasive than the expert opinions of the modelers called by TBD, who spent far more time and effort studying the issue. Compliance with Dissolved Oxygen Standard Oxygen is a gas which can dissolve in water to some degree. There are two measurements of DO in water: saturation point and actual level. The saturation point of DO in water equates to the maximum amount of DO that water will hold. The actual level of DO is a measurement of the oxygen in the water. Since the saturation point is the maximum amount of DO that water will hold in equilibrium, the actual level of DO in water is typically equal to or lower than the saturation point. Desalination will affect the saturation point of DO to the extent that it increases salinity. Increased salinity decreases the saturation point of DO because it lowers the potential for water to hold oxygen. But desalination would not affect the actual level of DO in the water if the saturation point remains above the actual level of DO in the water. TBD determined that in the worst case scenario using undiluted desalination discharge, the lowest possible saturation point of DO would be 5.7 mg/l. If the actual level of DO is above 5.7 mg/l, desalination may lower that actual level of DO to 5.7 mg/l. If the actual level of DO is below 5.7 mg/l, desalination will not lower the DO. Since TBD will aerate the water in the pretreatment process, if the actual level of DO is below 5.7 mg/l, the actual level of DO in the discharge water will be increased. The permit DEP proposes to issue to TBD requires that DO at the point of discharge from the RO plant meet the following: that instantaneous DO readings not depress the intake DO when intake DO is at or below 4.0 mg/l, and that they be greater than or equal to 4.0 mg/l when intake DO is greater than 4.0 mg/l; that 24-hour average readings not depress the 24-hour average intake DO when the 24-hour average intake DO is at or below 5.0 mg/l, and that they be greater than or equal to 5.0 mg/l when the 24-hour average intake DO is greater than 5.0 mg/l. The evidentiary basis for SOBAC's argument that the proposed permit's DO limitation allowed violations of state water quality standards was the testimony of Dr. Champ. But it was evident from his testimony that Dr. Champ was not even aware of the effluent limitations until they were pointed out to him at final hearing. Nonetheless, and although Dr. Champ barely had time to read the DO limitations, Dr. Champ immediately opined that the proposed DO limitations virtually invited water quality violations. He dismissed the permit language out-of-hand as being "loosey-goosey," "fuzzy-wuzzy," and "weasel-like." Actually, there is no conflict between the proposed permit's DO limitations and the water quality standards and water quality criteria in DEP's rules. Other witnesses, particularly Tim Parker of DEP, properly compared the language in the permit with DEP's rules containing water quality standards and water quality criteria. Mr. Parker pointed out that the rules must be read in harmony with each other. Rule 62-302.530(31) contains DO water quality criteria and requires that the "actual DO shall not average less than 5.0 in a 24 hour period and shall never be less than 4.0." Rule 62-302.300(15), a water quality standard, states: Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. Waters having a water quality below the criteria established for them shall be protected and enhanced. However, the Department shall not strive to abate natural conditions. Mr. Parker testified that the "natural conditions" referred to in Rule 62-302.300(15) are those found in the intake water to the desalination facility. TBD will not violate either the water quality criteria or the water quality standard for DO. If the actual level of DO in the intake water is less than 5.0 mg/l, TBD will not decrease the actual level of DO in the water below 5.0 mg/l because the actual level of DO is below the worst case saturation point of 5.7 mg/l. The water quality standard in Rule 62-302.300(15) does not prohibit discharges having DO levels below 4.0 mg/l when that discharge does not cause or contribute to existing DO violations. TBD will not cause or contribute to existing DO violations because if the level of DO in the intake water which is the natural condition is less than 4.0 mg/l, TBD will not decrease the actual level of DO in the water. To the contrary, the desalination process will increase the actual level of DO whenever it is below 5.0 mg/l. TBD has provided reasonable assurance that the proposed desalination discharge will not violate the DO water quality standards and criteria in Rules 62-302.530(31) and 62- 302.300(15) because the desalination process will not decrease the actual level of DO below 5.0 mg/l. SOBAC argued that DO levels will drop between intake and discharge as a result of desalination. Some of this argument was based on the testimony of Dr. Mike Champ, one of SOBAC's expert witnesses. But Dr. Champ's testimony on this point (and several others) is rejected as being far less persuasive than the testimony of the expert witnesses for TBD and the other parties. See Finding 196, infra. SOBAC's argument apparently also was based on a fundamental misapprehension of the results of the Blumberg Study, which SOBAC cited as additional support for its argument that desalination will decrease DO at the discharge point. The Blumberg Study only spoke to desalination's effect on DO saturation concentrations, not to its effect on actual DO levels. (In addition, contrary to SOBAC's assertions, the Blumberg Study did not model DO saturation concentrations but only inferred them.) pH The pilot plant measured and analyzed the potential for pH changes in the desalination process and demonstrated that the desalination process reduced pH by no more than a tenth of a pH unit. pH ranges in natural seawater from top to bottom change over one full pH unit; a tenth of a pH unit change would be well within the natural variation of the system. TBD has provided reasonable assurances that the proposed desalination discharge will not violate Rule 62- 302.530(52)(c), which requires that pH shall not vary more than one unit above or below natural background of coastal waters, provided that the pH is not lowered to less than 6.5 units or raised above 8.5 units. Limitations for pH in the permit ensure compliance with Rule 62-302.530(52)(c) at the point of discharge to waters of the state. Temperature Nothing in the desalination process adds heat to the discharged water. To the contrary, the desalination process may dissipate heat due to the interface of the intake water with the air surface in the pretreatment process. Further, the effect of removing 25 mgd of heated cooling water as desal product water reduces the heat load coming out of the TEC plant cooling water discharge by that same 25 mgd. Temperature readings taken as part of the pilot plant study confirm a slight decrease in temperature across the desalination process. Metals The pretreatment process employed by TBD will result in a reduction in metals in the treated water. Ferric sulfate is added to the intake water upstream of the sand filters in the pretreatment process to precipitate metals into solid material which can be captured by the sand filters. Adding ferric sulfate in the pretreatment process results in a net reduction in the total mass load of metals in the discharge water. Initial calculations in the permit application that 104 pounds of ferric sulfate were being discharged in the desalination concentrate were based on using 20 mg/l of ferric sulfate and a conservative estimate of 95 percent settling of solids, with 5 percent of the ferric sulfate being discharged in the desalination concentrate. Further testing through the pilot plant revealed that coagulation optimizes at 9 to 14 mg/l of ferric sulfate with 97.5 percent of the solids settling, resulting in only 2.5 percent (52 pounds) of the ferric sulfate being discharged per day. The desal facility discharge of iron is minute in comparison to naturally occurring metals within the surface water flowing into Tampa Bay from the Hillsborough and Alafia Rivers. Increases in iron due to ferric sulfate addition are predicted to result in a diluted discharge in which the iron level is still below Class III marine surface water limitation of 0.30 mg/l. Even SOBAC witness Dr. Isphording confirmed that there are no concerns caused by metals that TBD is adding during the process. Discharge Effect on Metal Absorption/Desorption Dr. Isphording limited his concerns to the reaction of higher salinity, DO, and redox to the sediments already contained within the area beyond the discharge point. Dr. Isphording admits that he cannot quantify what the potential release of heavy metals would be due to these factors. Absorption of metals occurs when an organic or clay particle attracts to its surface a metal. Biota do not obtain metals if the metal is held in sand or silt size particles. Biota, be they plant or animal, in most cases obtain the metals they receive from tiny particles that are suspended in the water called microparticulate material. Microparticulate material is generally referred to as colloidal phase. Typically, this phase is on the order of a tenth of a micron in size. Biota obtain metals only if they are present at clay- size particles. Only 10 percent of the quantity of metals that are theoretically available to the biota in a given environment is actually absorbed in tissues. Salinity Has Little Effect on Metals Salinity does not exert a controlling influence on absorption/desorption reactions except at very low salinities. If the salinity is zero, which is essentially a pure freshwater environment, and the salinity level then rises 3 ppt, there would be profound changes in the metal loads, for example, where rivers meet estuaries or seawater. When salinity levels in the water are on the order of 25 ppt, small salinity perturbations such as 2.5 ppt will have a very small effect on absorption/desorption reactions. In fact, the influence can be either positive or negative, but in general they are going to be quite small. Potential releases or gains of metal from salinity changes of 2.5 ppt, at the area of the discharge canal, would be difficult to predict, and it is uncertain whether the change would be positive or negative. pH Will Have Virtually No Effect on Metals Although SOBAC witness Dr. Isphording knew of no change to pH caused by the desalination process, he testified to the alleged effect of lowered pH on the metal in the sediments and water column. Only large pH differences can have a significant influence on absorption or desorption of metals. Any effect on absorption from a decrease in pH on the order of a tenth of a pH unit will be hidden within the natural variations of the estuarine system. See Finding 140, supra. Effect of Lower Oxygen Levels on Metals Redox is basically an oxidation-reduction phenomenon. In order for the low levels of oxygen to have a reducing effect resulting in a release of metals from sediments, virtually all of the oxygen would have to be removed from the water. Basically, the environment would have to reach anoxic conditions. Even then, some metals such as copper would remain within the sediments. In an oxygen-buffered system, redox perturbations will not significantly or measurably mobilize metals. Sediments can be oxidizing in the upper part and then generally become more reducing at depth. The area near the desal discharge does not have organic-rich deep sediment. Proposed Discharge Effect on Bioavailability of Metals The proposed desalination plant's discharge will not increase the bioavailability on metals above that of natural variations and any changes would be hard to discern or measure. Nor will there be any appreciable accumulation of metals in sediments in the receiving water resulting from the proposed desalination discharge. DEP has not established any sediment quality standard and monitoring of sediments is not a NPDES requirement. The desalination plant does not result in violations of Class III marine surface water criteria and standards. No Synergistic Effects Caused by Discharge There are no synergistic effects from the proposed discharge wherein the combination of two elements such as temperature and salinity together would create a new effect. Instead, pH, redox, salinity, and temperature may have small, immeasurable effects that may offset each other. No Adverse Impacts to Biota Comprehensive species lists of phytoplankton, zooplankton, benthic macroinvertebrates, fish, aquatic flora (including seagrasses and mangrove species), and threatened or endangered species inhabiting the area were prepared based on extensive review of applicable scientific literature on Tampa Bay. The salinity tolerance ranges of these species were determined through extensive review of information on salinity ranges associated with species capture, laboratory studies, review of studies addressing species types and salinity tolerances in hypersaline estuaries, and species salinity tolerances determined for other desalination projects. When background salinity is above 10 ppt, changes in salinity of a few ppt have no effect on most organisms. Lower salinities are more detrimental than high salinities to most marine organisms, as long as the upper limit does not exceed a value of approximately 40 ppt salinity. Most planktonic species and life forms can tolerate salinities of up to 40 ppt. Mangrove and seagrass species living in the area can tolerate salinity levels as high as 60 ppt. Benthic macroinvertebrates in the area routinely experience, tolerate and survive in salinity levels ranging from approximately 6 ppt to over 39 ppt under natural environmental conditions. Fish species in the area routinely experience and tolerate salinity levels as high as 39 to 40 ppt under natural environmental conditions. Estuaries serve as fish nurseries because fish species lay their eggs in estuaries, and the larval and juvenile life stages live and mature in estuaries. Due to extreme range of conditions that naturally occur in estuaries, fish reproductive strategies have adapted to enable fish eggs and larval and juvenile life stages to tolerate the wide range of natural conditions, including ranges in salinity levels, that are endemic to estuaries. Egg, larval, and juvenile fish stages may be better able to tolerate extreme range of salinities than adults life stages. A 2.5 ppt increase in salinity and the permitted maximum increase of 10 percent above the intake chloride level is within the range of tolerance and variability that seagrasses, mangrove species, benthic macroinvertebrates, biota, fishes, manatees, zooplanktonic and phytoplanktonic species, and other organisms and life forms living in Tampa Bay routinely encounter and tolerate in the natural environment. A 2.5 ppt increase in salinity with the maximum permitted salinity discharge limit of 35.8 ppt of salinity and the permitted maximum increase of 10 percent above the intake chloride level will not adversely affect the survival or propagation of seagrasses, mangroves, benthic macroinvertebrates, biota, zooplankton, phytoplankton, fish, fish eggs, or juvenile life stages of fish species, or other organisms or life forms in Tampa Bay, and specifically the portion of Tampa Bay in the vicinity of the desalination plant discharge. The Shannon-Weiner Index, which is a biological integrity index codified at Rule 62-302.530(11), requires that the index for benthic macroinvertebrates not be reduced to less than 75 percent of established background levels. Since there will be no adverse impacts to benthic macroinvertebrates due to the desalination discharge and since the level of salinity increases anticipated will tend to benefit benthic macroinvertebrates population, TBD has met the criterion in Rule 62-302.530(11). The Mote Marine Laboratory data showed that Tampa Bay experienced a 2.0 ppt change in salinity over the course of one month. No fish kill or observable die-offs of species were observed or reported from this natural occurrence of elevated salinity. The desalination discharge will (1) not adversely affect the conservation of fish and wildlife, including endangered species, or their habitats, (2) not adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge, (3) not violate any Class III marine water quality standards, and (4) maintain water quality for the propagation or wildlife, fish, and other aquatic life. The desalination discharge meets the antidegradation standards and policy set forth in Rules 62-4.242 and 62- 302.300. Discharge Disposal Options Analyzed As part of the permitting process, TBD demonstrated that the use of land application of the discharge, other discharge locations, or reuse of the discharge was not economically and technologically reasonable, pursuant to Rule 62-4.242. TBD submitted a sufficient analysis of these options as part of its Antidegradation Analysis. (TBD Ex. 1G; TBD Ex. 200, Fact Sheet, p. 16). Further Protection in the Permit The permit review of the desalination permit application is one of the most thorough ever conducted by DEP. The proposed permit has conditions which create and provide a wide margin of environmental protection. The permit sets effluent limitations of various constituents which are reasonably expected to be in the desal facility discharge and provides for monitoring programs to ensure compliance with those effluent limitations. The monitoring requirements of the proposed permit exceed the monitoring requirement imposed on other facilities in the Tampa Bay area. Effluent Limitations DEP established effluent limitations using the Class III marine state water quality standards, data provided from the pilot plant regarding the chemical characterization, the modeling conducted by DHI and the University of South Florida, and the water quality data collection by Mote Marine Laboratory in connection with the establishment of the WQBEL. The effluent limitations contained in the permit are consistent with DEP rules. The proposed permit restricts TBD to the lesser of either the chloride limit of 10 percent above intake or the salinity limit of 35.8 ppt. There is no state water quality standard for salinity. The permit limit for chlorides complies with Rule 62- 302.530(18). The permit's additional requirement of a minimum dilution ratio has the effect of limiting chlorides to 7 percent above intake for 384 hours per year and 5 percent above intake for the remainder of the year and thus provides extraordinary assurance that the state water quality standard for chlorides will be met. Dr. Champ was SOBAC's primary witness in support of its argument that the proposed permit allows a discharge with excessive salinity. But it was apparent from his testimony that Dr. Champ misinterpreted the permit limitations for salinity. See Finding 196, infra. Dr. Champ conceded that the chloride limit of 10 percent above intake was appropriate but focused on the 35.8 ppt maximum, as if it overrode the chloride limitation. As found, the opposite is true. TBD will be limited to 10 percent above intake for chlorides even if the result is salinity far less than the daily maximum of 35.8 ppt. Dr. Champ also had concerns about comparing the discharge to intake chloride levels as not being representative of "normal background." He argued (as does SOBAC) for comparing discharge to chloride levels somewhere else in Middle Tampa Bay, nearby but far enough away to insure no influence from the discharge. But the modeling evidence provided reasonable assurance that there will not be a great deal of recirculation of discharge to intake and that the recirculation expected will not cause salinity to build-up continuously over time. The modeling evidence is accepted as far more persuasive than Dr. Champ's testimony. See Finding 196, infra. The only metals for which effluent limitations were established in the permit are copper, nickel, and iron because these were the only metals determined to be close to the state water quality standard levels by the pilot plant studies. The actual levels of such metals in the desalination discharge will be less than those in the pilot plant testing because the dilution ratio (12.8 to 1) used in the pilot testing is much higher than the minimum dilution ratio required by the permit (20 to 1). The permit effluent limitations for copper, nickel, and iron are based on, and comply with, DEP Rules 62- 302.500(2)(d) and 62-302.530(24), (39) and (45). The permit effluent limitations for Gross Alpha are based on and comply with the requirements in Rule 62- 302.530(58). Biological treatment of the desalination plant discharge concentrate is not required because it consists of seawater. Monitoring for Effluent Limitations DEP is able to separately determine TEC's compliance with its permit from TBD's compliance with the effluent limitations in the proposed desalination permit because of how the facility is designed and the monitoring is constructed. Monitoring requirements in the proposed permit were determined with reference to the probability of desal facility discharge exceeding specific water quality standards. DEP rules do not require monitoring for each and every constituent detected above background concentrations, only those which would probably exceed state water quality standards. The permit requires monitoring of effluent limitations at the intake to and discharge from the desalination facility and the calculation of the diluted effluent levels in the co-mingled discharge water. In order to calculate the effluent components in the diluted discharge water, continuous monitoring is performed on the TEC cooling water discharge rate of flow. Parameters of DO, conductivity, salinity, chlorides, copper, iron, nickel, radium, gross alpha, and effluent toxicity are measured at both intake and discharge pursuant to proposed permit. Monitoring of Intake Monitoring of the intake will be located, after interception off TEC Units 3 and 4, prior to entering the desalination plant. Using a sampling location of the intake to the desalination facility prior to filtering or chemical addition for background samples is consistent with the definition of "background" in DEP Rule 62-302.200(3). EPC Stations 11, 80, 81, 13, and 14 are not proper locations for background samples because salinity varies with tides and depth and those stations are too distant from the actual intake point. EPC station 9 is not a good location because it is closer to the discharge than the permit sample point. Monitoring of Discharge Monitoring of the discharge will take place in the wet well prior to discharge into TEC's cooling water discharge tunnels. This monitoring location is in compliance with Rule 62-620.620(2)(i) which provides for monitoring of effluent limitations in internal waste streams. Monitoring of the desal facility discharge concentrate in each of the four cooling water discharge tunnels is impractical due to the high volume of dilution and addition of four potential discharge locations. Once the desal facility concentrate is diluted by the TEC cooling water discharge, it is much more difficult to obtain accurate water quality testing for constituents at such minute levels. Monitoring of the Combined Discharge Concentrations Calculations determine the mixing ratios of the desalination concentrate with TEC's cooling water. Using the flow data from TEC, the calculations will accurately determine the water quality of the co-mingled discharge water. Compliance with Permit Effluent Limitations The proposed permit requires TBD to monitor constituents for which there are effluent limitations on either a daily, weekly or monthly basis, depending on the constituent. The frequency of monitoring for each constituent is based on comparing the expected levels of the constituent to the water quality standard and analyzing the probability of the desal facility discharge exceeding that standard. The monitoring provides additional assurances beyond the pilot plant studies, testing and modeling that no water quality standard will be violated. Continuous monitoring is not necessary to successfully monitor discharges. Monthly measurements are sufficient to determine compliance even for a daily permit level because the chemical characterization studies provide reasonable assurances that the desalination concentrate will not exceed the effluent limitations. Monthly monitoring provides further checks and balances to assure that the desalination discharge is in conformance with the effluent limitations and DEP rules. The EPA only requires that monitoring occur at least once a year. Conductivity provides a direct correlation to salinity and chlorides. Measuring conductivity provides salinity and chloride levels by basis of calculations and is typically used as a surrogate for monitoring chloride and salinity continuously. Salinity and chloride cannot themselves be measured continuously because they are measured by lab tests. The permit requires conductivity to be monitored continuously, not because DEP believed the desalination discharge would be near the chloride limitation, but rather to be extremely conservative. The permit conditions treat an exceedance of salinity or chlorides based on conductivity readings to be a violation of the permit effluent limitations for salinity and chlorides. TBD provided reasonable assurance to DEP that the proposed desalination discharge would not violate the DO water quality standards and criteria in Rules 62-302.530(31) and 62- 302.300(15). The permit condition requiring monitoring of DO provides verification that desal facility discharge will meet the DO water quality standards. Even SOBAC's witness Dr. Champ admitted that a continuous measurement for DO is not as valuable as random weekly samples. External Monitoring Programs The proposed permit requires TBD to develop and submit to DEP a Biological Monitoring Program to monitor seagrasses, benthic macroninvertebrates and fish populations to be consistent with existing Tampa Bay monitoring programs. This program will provide an effective means of monitoring the potential impacts of the desalination discharge. The proposed permit also requires TBD to implement a Water Quality Monitoring Program for three monitoring stations located proximal to the intake, the discharge and the North Apollo Beach Embayment which will monitor conductivity, salinity, DO and temperature continuously. These monitoring programs will provide additional ambient data to DEP. If the data indicate an exceedance or reasonable potential for an exceedance of water quality standards, DEP may reopen the permit in accordance with the reopener clause contained in the permit. These monitoring programs go beyond the requirements in DEP rules. Additionally, DEP does independent monitoring of NPDES discharges without notice and on a purposely unpredictable basis. Proof of Financial Responsibility Rule 62-620.301(6) addresses when DEP may require a permit applicant to submit proof of financial responsibility to guarantee compliance with Chapter 403, Florida Statutes. TBD's compliance history was taken into consideration during the permitting process. Adequate financial assurance were provided in the permit application. (TBD Ex. 1I). Further, the permit conditions added by the settlement agreement (TBD Ex. 470) provide for additional financial assurance beyond those that can be required by the NPDES program and DEP rules. Additional Comment on SOBAC's Evidence As already indicated, SOBAC elicited the testimony of several expert witnesses at final hearing to support its contentions. But none of SOBAC's experts spent a great deal of time studying TBD's desal project, especially compared to witnesses for the other parties. Mostly, SOBAC experts expressed general scientific principles that were not directly tied to specifics of the desal project or were very general expressions of concern. Often, SOBAC's experts were not familiar with all the efforts of experts offered by the other parties to address those very concerns. Except for Dr. Champ, no SOBAC expert opined that the proposed permits would result in violations of DEP statutes and rules. Some SOBAC experts expressed opinions that only would be relevant if there were insufficient assurances in proposed permits that DEP statutes and rules would not be violated. Statistical evidence presented was not particularly relevant. Dr. Goodwin As previously mentioned, Dr. Carl Goodwin was willing to provide testimony on work he did for the USGS, but he gave no expert opinions on the permits which are the subject of these proceedings. As also previously discussed, his two- dimensional model studies were constrained by computational limitations. Even so, his studies indicated that flushing in Tampa Bay was becoming more rapid in recent years. In addition, even if the "gyres" suggested by his two-dimensional studies actually existed, they would tend to promote mixing in Tampa Bay in area of the Big Bend power plant. Dr. Champ Dr. Champ's first opinion was that 35.8 ppt is too high a salinity limit and would result in "oceanic" conditions. He attempted to compare this result to results of diversion of substantial amounts of freshwater inputs to the Black Sea for agricultural purposes--a totally different situation not suitable for comparison to Tampa Bay. Initially, Dr. Champ suggested a limitation of a 10 percent increase above "background" or "ambient" conditions; it was apparent that initially Dr. Champ was not cognizant of the 10 percent over intake chloride limitation in the proposed permit. When he was made aware of the chloride limit, he misinterpreted the two limits, saying that TBD would not be limited to the lower of the two. When it was suggested that he might have misinterpreted the two salinity limits, Dr. Champ testified that chlorides should be compared to a "natural" or "environmental" control site somewhere nearby but outside the influence of the combined TEC/TBD discharge; he said it was a "farce" to compare chlorides to a control site "inside the plant." In so doing, he seemed not to recognize the purpose of the comparison made in the proposed permit--to isolate and identify the impacts of TBD's desal process. In addition, dismissing without much consideration the contrary results of extensive and sophisticated modeling, Dr. Champ opined off- handedly that DO would decrease due to higher salinity that would recirculate and build-up over time. In part, Dr. Champ based this opinion on his misunderstanding that Tampa Bay is not well-mixed or well-circulated at the location of the Big Bend power plant. This was contrary to all the evidence; even if the "gyres" predicted by Dr. Goodwin's two-dimensional model existed, they would suggest a great deal of mixing in Middle Tampa Bay in the vicinity of the Big Bend plant. Dr. Champ next misinterpreted the DO limits in the proposed permit. See Finding 133, supra. Dr. Champ then predicted a decrease in species diversity as a result of higher salinity and lower DO. (To the contrary, salinity increases in the amounts predicted by the far greater weight of the evidence probably would result in somewhat of an increase in species diversity.) Ultimately, Dr. Champ testified that consequences to marine organisms would be dire, even if salinity increased only by 2.5 ppt, because a "salinity barrier" would form across Middle Tampa Bay in contrast to more gradual natural changes in salinity. The far greater weight of the evidence was to the contrary. Dr. Champ made several suggestions to avoid the calamitous results he predicted: require use of a cooling tower to reduce the temperature of the combined TEC/TBD discharge; collect the desal brine concentrate and barge it to the Gulf of Mexico; require intake and discharge pipes extending into the shipping channel in Middle Tampa Bay. But Dr. Champ did not study or give a great deal of thought to implementation of these suggestions. Besides, the other parties proved that these measures were not needed for reasonable assurances. In an attempt to buttress his opinion testimony, Dr. Champ also testified (along with SOBAC's President, B.J. Lower) that the TEC intake canal is virtually devoid of life and that biodiversity in the discharge canal is very low. This testimony was conclusively refuted by the rebuttal testimony of Charles Courtney, who made a site visit after SOBAC's testimony and described in detail a significant number of healthy species in the intake canal, including oyster communities, xanthid crabs, porcellanid crabs, snook, anemones, bivalves, polychaete, and mangroves with seedlings. Of the one and one- half pounds of oysters that Mr. Courtney sampled, he estimated that approximately fifty percent of those oysters were living, which represents a very healthy community. Mr. Courtney further noted that some of the crabs were carrying eggs, which indicates an active life cycle for those species. As to the TEC permit modification, Dr. Champ testified that it was “in-house stuff” which would not affect the environment outside the TEC plant. No other SOBAC witness addressed the TEC permit modification. Dr. Isphording SOBAC called Dr. Wayne Isphording as an expert in sedimentology and geochemistry. Dr. Isphording expressed no concern that the desal process would add metals to Tampa Bay. Essentially, he gave opinion testimony concerning general principles of sedimentology and geochemistry. He testified that heavy metals bound in sediments are released naturally with increases in salinity, but that salinity levels would have to be extreme to result in the release of abnormal quantities of such metals. He admitted that he had performed no studies of sediments in Tampa Bay and declined to offer specific opinions that metals in fact would be released as a result of predicted salinity increases. Dr. Isphording admitted that he knew of no condition in the proposed Desal Facility permit which would cause or allow a violation of state water quality standards. He was aware of no statute or rule requiring more monitoring and testing than is required in the proposed permit. Dr. Parsons SOBAC offered the testimony of Dr. Arthur Rost Parsons, an assistant professor of oceanography at the Naval Postgraduate School, in an attempt to raise questions regarding the near-field and far-field modeling which were provided by TBD to DEP during the course of the permitting process. However, not only had Dr. Parsons not done any modeling in Tampa Bay himself, he was not provided numerous reports and clarifications relating to the studies he was called to critique. He only reviewed an interim report dated November 1, 2000, regarding the near-field model. Dr. Parsons testified that the DHI model used for the near-field study was an excellent shallow water model. He found nothing scientifically wrong with it and testified that the "physics and the model itself is . . . well–documented." Dr. Parsons also did not contradict the results of the DHI model. Instead, he noted that the modeling task was difficult and complex, he described some of the model's limitations, and he testified to things that could have been done to increase his confidence in the model results. One of Dr. Parson's suggestions was to run the model longer. But the evidence was that, due to the model's complexity and high computational demands, it would have been extremely expensive to run the model for longer periods of time. Another of Dr. Parson's suggestions was to use salinity data would be to use the information that the model itself generated with regard to salinity distributions instead of a homogeneous set of salinity data. Dr. Parsons was concerned that use of homogeneous salinity data would not reflect the effect of "double diffusion" of heat and salinity, which would result in sinking of the combined heat. But engineer Andrew Driscoll testified in rebuttal that the effects of "double diffusion" would cease once equilibrium was reached and would not result in a hypersaline plum sinking to the bottom. In addition, he testified that turbulent mixing from tide and wind would dominate over the effect of "double diffusion" at the molecular level so as to thoroughly mix the water, especially in the shallow North Apollo Beach Embayment. Dr. Parsons also suggested that the model be run for rainy season conditions to see if the effects of vertical stratification would increase. But even if vertical stratification increased as a result of rain, salinity also would be expected to decrease. The scenario modeled was "worst case." Dr. Parsons also suggested the use of a range of temperatures for the combined heat/salinity plume instead of an average temperature. However, he conceded that it was not inappropriate to use average temperature. Instead, he would have liked to have seen the model run for a range of temperatures to see if the model was sensitive to temperature differences so as to increase his confidence in the results. Dr. Parson's testimony focused on the near-field model. His only comment on the far-field model was that he thought it should have used the out-puts from the near-field model (as the near-field used the outputs). Scott Herber SOBAC offered no direct testimony on the impact of the Desal Facility discharge on seagrasses in Tampa Bay. The testimony of Steve Herber, a doctoral student at the Florida Institute of Technology, related to the vulnerability of seagrasses, in general, to changes in salinity. However, Mr. Herber had no specific knowledge of the seagrasses present in Tampa Bay and had not performed or reviewed any scientific studies upon which his opinion could be based. He reached no conclusions about the specific permits at issue in this proceeding, nor about the effect of the Desal Facility on seagrasses in Tampa Bay. In contrast to Mr. Herber, the testimony of TBD's expert, Robin Lewis, and SWFWMD's expert, Dr. David Tomasko, provided detailed information about the seagrasses located in Tampa Bay. Both have studied seagrasses in Tampa Bay for many years and have been involved in mapping seagrass distribution in a variety of bays and estuaries along the west coast of Florida. Dr. Tomasko criticized witnesses for SOBAC who attempted to draw conclusions about Tampa Bay based on studies of other bays and estuaries because each bay has unique characteristics that cannot be extrapolated from studies of other bays. Dr. Tomasko and Lewis testified that seagrasses in Tampa Bay are becoming more abundant, that dissolved oxygen levels are increasing, and that water clarity in Tampa Bay is also improving. Dr. Mishra Dr. Satya Mishra was called by SOBAC as an expert in statistics. He is not an expert in the discrete field of environmental statistics. He has never been involved in the development of a biological monitoring program and could not provide an opinion regarding what would be an adequate sample size for this permit. He essentially expressed the general opinions that for purposes of predictive statistical analysis: random sampling is preferred; statistical reliability increases with the number of samples; and 95 percent reliability is acceptable. Dr. Mishra performed no statistical analysis in this case and could not conclude that the sampling provided in the proposed permit would not be random. Ron Chandler Ron Chandler, a marketing representative for Yellow Springs Instrument Corporation (YSI), simply testified for SOBAC regarding the availability of certain types of continuous monitoring devices. He did not offer any opinions regarding whether or not reasonable assurance required continuous monitoring of any specific parameter or any monitoring different from or in addition to what is proposed in TBD's proposed permit. John Yoho SOBAC called John Yoho as a financial and insurance expert to criticize the terms of an agreement by TBD, TBW, and DEP to settle Hillsborough County's request for an administrative hearing (DOAH Case No. 01-1950). This agreement is contained in TBD Ex. 470. But Yoho admitted that he had no knowledge regarding what is required to obtain an NPDES permit in terms of financial assurances. He also indicated that none of his testimony should be understood as relating in any way to financial assurances required for such a permit to be issued. Alleged Improper Purpose The evidence did not prove that SOBAC participated in DOAH Case No. 01-2720 for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of TEC's permit modification applications. To the contrary, the evidence was that SOBAC participated in this proceeding in an attempt to raise justifiable issues arising from the peculiarities of the relationship of TEC's permit modification application to TBD's permit application. Although SOBAC suffered adverse legal rulings that prevented it from pursuing many of the issues it sought to have adjudicated on TEC's permit modification application, it continued to pursue issues as to the TBD permit application which, if successful, could require action to be taken on property controlled by TEC and, arguably, could require further modification of TEC's permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order: (1) issuing the proposed permit number FL0186813-001-IWIS, as set forth in TBD Ex. 203 with the addition of the two permit conditions specified in TBD Ex. 470; (2) issuing proposed permit modification number FL0000817-003-IWIS, as set forth in TBD Ex. 225; and (3) denying TEC's request for attorney's fees and costs from SOBAC under Section 120.595(1). Jurisdiction is reserved to enter an order on TBD's Motion for Sanctions filed on August 13, 2001, regarding SOBAC expert Ralph Huddleston. DONE AND ENTERED this 17th day of October, 2001, in Tallahassee, Leon County, Florida. __________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2001. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 William S. Bilenky, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604 Ralf G. Brookes, Esquire Morgan & Hendrick 1217 East Cape Coral Parkway Suite 107 Cape Coral, Florida 33904-9604 Donald D. Conn, General Counsel Tampa Bay Water 2535 Landmark Drive, Suite 211 Clearwater, Florida 33761-3930 Lawrence N. Curtin, Esquire Holland & Knight, LLP 315 South Calhoun Street, Suite 600 Post Office Box 810 Tallahassee, Florida 32302-0810 Douglas P. Manson, Esquire Carey, O'Malley, Whitaker & Manson, P.A. 712 South Oregon Avenue Tampa, Florida 33606-2543 E. A. Seth Mills, Jr., Esquire Fowler, White, Gillen, Boggs, Villareal & Banker, P.A. 501 East Kennedy Boulevard, Suite 1700 Post Office Box 1438 Tampa, Florida 33601-1438 Joseph D. Richards, Esquire Pasco County Attorney's Office 7530 Little Road, Suite 340 New Port Richey, Florida 34654-5598 Cathy M. Sellers, Esquire Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. 118 North Gadsden Street Tallahassee, Florida 32301-1508 Linda Loomis Shelley, Esquire Fowler, White, Gillen, Boggs, Villareal & Banker, P.A. Post Office Box 11240 Tallahassee, Florida 32302 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
The Issue The issues in this case are whether Petitioner was responsible for maintaining a sanitary nuisance on his property by piping sewage onto the ground from the septic system and by ignoring the need to repair a failed septic system; and whether the Department of Health properly issued a citation to Petitioner for violation of Sections 386.041(1)(a) and (b).
Findings Of Fact In November, 1995, a Department of Health, Volusia County Health Department employee, Sherry Rodriguez, was performing a sanitary survey of the water system at 479 Maytown Road, Osteen, Florida, when she observed sewage on the ground. The property in questions consists of a large, two-story house which contains rental units. The house is provided water by a well on the property and sewage is handled by an onsite septic system. On November 6, 1995, Ms. Rodriguez issued a Notice of Violation for the sanitary nuisance which stated that the violation must be corrected by November 20, 1995. The septic system was not repaired by November 20, 1995. Ms. Rodriguez subsequently issued a Notice of Intended Action (NIA), giving Petitioner a deadline of December 5, 1995, to repair his system. When Ms. Rodriguez went to the property to serve the NIA, she observed PVC pipe on the ground, with one end at the septic tank and the other at the read of the property. Sewage was on the ground at the end of the pipe. Ms. Rodriguez took photographs of the pipe before she departed. Agency employee, Britt Williams, visited Petitioner's property on November 1, 1996, and observed sewage on the ground. Mr. Williams issued a follow-up NIA to Petitioner on January 30, 1997, which required Petitioner to repair the septic system by February 3, 1997. Petitioner did not obtain a repair permit to correct the violations, therefore, Mr. Williams issued a citation for the violations of sewage on the ground and having an improperly maintained septic system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered affirming the civil penalty against Petitioner and requiring Petitioner to repair his septic system. DONE AND ENTERED this 8th day of April, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998. COPIES FURNISHED: John Gee 1245 Gee Whiz Lane Osteen, Florida 32764 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 Tallahassee, Florida 32399-0700
The Issue This case presents two questions for consideration. The first question concerns the Petitioners' contention that the grant of the permit at issue must be considered contemporaneously with the matters of file in the application made by the Respondent, The Deltona Corporation, with the Respondent, State of Florida, Department of Environmental Regulation, File No. 64-24208, pending before the Department. From the point of view of the Petitioners, should this contemporaneous review process be afforded, then the current permit would not be granted due to the alleged deficiencies associated with the application, File No. 64-24208. The second question to be answered in this case concerns the dispute between the Respondents on the issue of water quality monitoring as a condition to granting the permit sought herein. The Respondent Department would have the applicant monitor in six lakes in the area of the project and the applicant would restrict its monitoring activity to three lakes in the project area. The Petitioners support the Department in its position on the monitoring question. 1/
Findings Of Fact The Respondent, The Deltona Corporation, has made application with the Respondent, State of Florida, Department of Environmental Regulation, to effect drainage system improvements to a land locked conveyance network which consists of the enlargement and regrading 990 lineal feet of existing channel cross- section and the installation of additional culverts and control structures at road crossings. The project also involves repairs and replacement of a damaged culvert. The work would be accomplished by land based equipment transported to the work site by existing overland routes. The excavated sand fill would be placed on upland property owned by The Deltona Corporation. The details of the project and data related to the geographical area may be found in the Joint Exhibit I admitted into evidence. The date of the application for permit is December 12, 1979. On January 25, 1980, the Department of Environmental Regulation sent out a notice of the pending review by the Department of the permit application. After receipt of that notice, attorney for the Petitioners, on February 12, 1980, wrote to the Department expressing the objection to the project made by property owners in the area of the project site, together with a list of those owners found in an attached Petition of owners' names and addresses. A copy of this letter and attached Petition may be found as Joint Exhibit No. VII admitted into evidence. Subsequent to the receipt of the statement of objections, the Department issued a construction permit dated April 30, 1980, subject to conditions. A copy of this permit may be found as Joint Exhibit No. VIII admitted into evidence. The Petitioners, through their counsel, then filed a formal petition dated May 6, 1980, which was the vehicle utilized in establishing the details of this dispute and was the basis for the Department Secretary forwarding the case to the Division of Administrative Hearings for consideration by a hearing officer in keeping with the provisions of Section 120.57, Florida Statutes. The hearing was conducted on October 16, 1980, and the Petitioners' position was more specifically defined in the course of that hearing and the claim as described in the issue statement of this order constitutes the substance of the Petitioners' position. 2/ Joint Exhibit No. I; petitioners' Exhibit No. 1 and Respondent Deltona's Exhibits 1, 2 and 4 constitute sketches and aerial photographs of the general project area. Joint Exhibit No. 1 identifies the work area with more particularity. Respondent's Exhibit No. 2 indicates the desired flow pattern of the water through the various lake systems and indicates whether the flow is by gravity flow or pump flow. This drawing depicts the proposed channels and structural improvements that would be involved. The Department has indicated that all the regulatory concerns which it has about the project associated with Permit No. 64-26478-4E, the permit in question, have been adequately addressed, subject to the conditions set forth in the permit document. Joint Exhibit Nos. V and VI; Respondent Deltona's Exhibit Nos. 5, 6 and 7; and the Petitioners Exhibit No. 2 are exhibits pertaining to water quality concerns, to include sample results. The testing and other information provided indicates that the project as contemplaced, would meat the regulatory parameters set forth in Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. The Department in expressing its concern that continued water quality monitoring be conducted has indicated that it feels that future periodic monitoring should be done in Jenkins Pond, Lake Big, Lake Diana, McGarity Lake, Sidney Lake and Lake Mitnik. The Respondent Deltona would only conduct this monitoring in the first three lakes named. By looking at the Respondent Deltona's Exhibit No. 2, it could be seen that all of the aforementioned lakes would be in the same basic flow pattern. Of the system of lakes, the area around McGarity Lake is the most highly developed and and has the greatest potential for causing unacceptable pollution. That pollution could be carried through the other lakes within the system as described in view of the potential of the system, if the project is built, to convey a greater volume of water at a higher rate of flow. A more expansive water quality monitoring system within six lakes as opposed to three lakes would increase the opportunity to discover potential hazards from pollutant at an earlier data. This is particularly so by using lakes such as McGarity Lake where there is a higher level of developmental build-out.
The Issue The issue in this case is whether Respondent Laniger Enterprises of America, Inc. (Laniger), is liable to Petitioner Department of Environmental Protection (Department) for penalties and costs for the violations alleged in the Department's Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (NOV).
Findings Of Fact The Parties The Department is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of Chapter 403, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62. Laniger is a Florida corporation that owns and operates the WWTP that is the subject of this case, located at 1662 Northeast Dixie Highway, Jensen Beach, Martin County, Florida. The WWTP is referred to in the Department permit documents as the Beacon 21 WWTP. The WWTP Laniger acquired the WWTP in 1988 in a foreclosure action. At that time, the WWTP was in a "dilapidated" condition and was operating under a consent order with the Department. After acquiring the WWTP, Laniger brought it into compliance with the Department's requirements. Laniger's WWTP is commonly referred to as a "package plant."3 The WWTP's treatment processes are extended aeration, chlorination, and effluent disposal to percolation ponds. The WWTP does not have a direct discharge to surface water. It was permitted to treat 99,000 gallons per day (gpd) of wastewater. Its average daily flow during the past year was about 56,000 gallons. The east side of the WWTP site is adjacent to Warner Creek. On the north side of the WWTP site, an earthen berm separates the WWTP's percolation ponds from a drainage ditch that connects to Warner Creek. Warner Creek is a tributary to the St. Lucie River. The St. Lucie River is part of the Indian River Lagoon System. The Indian River Lagoon Act In 1989, the St. Johns River Water Management District and the South Florida Water Management District jointly produced a Surface Water Improvement and Management (SWIM) Plan for the Indian River Lagoon System ("the lagoon system"). For the purpose of the planning effort, the lagoon system was defined as composed of Mosquito Lagoon, Indian River Lagoon, and Banana River Lagoon. It extends from Ponce de Leon Inlet in Volusia County to Jupiter Inlet in Palm Beach County, a distance of 155 miles. The SWIM Plan identified high levels of nutrients as a major problem affecting the water quality of the lagoon system. Domestic wastewater was identified as the major source of the nutrients. The SWIM Plan designated 12 problem areas within the lagoon system and targeted these areas for "research, restoration and conservation projects under the SWIM programs." Department Exhibit 2 at 11-13. Neither Warner Creek nor the St. Lucie River area near Laniger's WWTP is within any of the 12 problem areas identified in the SWIM Plan. With regard to package plants, the SWIM Plan stated: There are numerous, privately operated, "package" domestic WWTPs which discharge indirectly or directly to the lagoon. These facilities are a continual threat to water quality because of intermittent treatment process failure, seepage to the lagoon from effluent containment areas, or overflow to the lagoon during storm events. Additionally, because of the large number of "package" plants and the lack of enforcement staff, these facilities are not inspected or monitored as regularly as they should be. Where possible, such plants should be phased out and replaced with centralized sewage collection and treatment facilities. Department Exhibit 2, at 64. In 1990, the Legislature passed the Indian River Lagoon Act, Chapter 90-262, Laws of Florida. Section 1 of the Act defined the Indian River Lagoon System as including the same water bodies as described in the SWIM Plan, and their tributaries. Section 4 of the Act provided: Before July 1, 1991, the Department of Environmental Regulation shall identify areas served by package sewage treatment plants which are considered a threat to the water quality of the Indian River Lagoon System. In response to this legislative directive, the Department issued a report in July 1991, entitled "Indian River Lagoon System: Water Quality Threats from Package Wastewater Treatment Plants." The 1991 report found 322 package plants operating within the lagoon system and identified 155 plants as threats to water quality. The 1991 report described the criteria the Department used to determine which package plants were threats: Facilities that have direct discharges to the system were considered threats. Facilities with percolation ponds, absorption fields, or other sub-surface disposal; systems located within 100 feet of the shoreline or within 100 feet of any canal or drainage ditch that discharges or may discharge to the lagoon system during wet periods were considered threats. * * * Facilities with percolation ponds, absorption fields, or other sub-surface disposal systems located more than 100 feet from surface water bodies in the system were evaluated case-by-case based on [operating history, inspection reports, level of treatment, and facility reliability]. Laniger's package plant was listed in the 1991 report as a threat to the water quality of the lagoon system because it was within 100 feet of Warner Creek and the drainage ditch that connects to Warner Creek. The Department notified Laniger that its WWTP was listed as a threat to the water quality of the lagoon system soon after the 1991 report was issued. The Department's 1991 report concluded that the solution for package plants threats was to replace them with centralized sewage collection and treatment facilities. To date, over 90 of the package plants identified in the Department's 1991 report as threats to the water quality of the lagoon system have been connected to centralized sewage collection and treatment systems. The 1999 Permit and Administrative Order On August 26, 1999, the Department issued Domestic Wastewater Facility Permit No. FLA013879 to Laniger for the operation of its WWTP. Attached to and incorporated into Laniger's 1999 permit was Administrative Order No. AO 99-008- DW43SED. The administrative order indicates it was issued pursuant to Section 403.088(2)(f), Florida Statutes. That statute pertains to discharges that "will not meet permit conditions or applicable statutes and rules" and requires that the permit for such a discharge be accompanied by an order establishing a schedule for achieving compliance. The administrative order contains a finding that the Beacon 21 WWTP is a threat to the water quality of the lagoon system and that the WWTP "has not provided reasonable assurance . . . that operation of the facility will not cause pollution in contravention of chapter 403, F.S., and Chapter [sic] 62-610.850 of the Florida Administrative Code." The cited rule provides that "land application projects shall not cause or contribute to violations of water quality standards in surface waters." Most of the parties' evidence and argument was directed to the following requirements of the administrative order: Beacon 21 WWTP shall connect to the centralized wastewater collection and treatment within 150 days of its availability and properly abandoned facility [sic] or provide reasonable assurance in accordance with Chapter 62-620.320(1) of the Florida Administrative Code that continued operation of the wastewater facility is not a threat to the water quality of the Indian River Lagoon System and will not cause pollution in contravention of chapter 403, F.S. and Chapter 62-610.850 of the Florida Administrative Code. * * * (3) Beacon 21 WWTP shall provide this office with semi annual reports outlining progress toward compliance with the time frames specified in paragraph 1 of this section, beginning on the issuance date of permit number FLA013879-002-DW3P. The administrative order contained a "Notice of Rights" which informed Laniger of the procedures that had to be followed to challenge the administrative order. Laniger did not challenge the administrative order. As a result of an unrelated enforcement action taken by the Department against Martin County, and in lieu of a monetary penalty, Martin County agreed to extend a force main from its centralized sewage collection and treatment facility so that the Laniger WWTP could be connected. The extension of the force main was completed in April 2003. The force main was not extended to the boundary of the Laniger WWTP site. The force main terminates approximately 150 feet north of the Laniger WWTP site and is separated from the WWTP site by a railroad. Correspondence Regarding Compliance Issues On August 21, 2001, following an inspection of the Laniger WWTP, the Department sent Laniger a letter that identified some deficiencies, one of which was Laniger's failure to submit the semi-annual progress reports required by the administrative order. Reginald Burge, president of Laniger and owner of the WWTP, responded by letter to William Thiel of the Department, stating that, "All reports were sent to the West Palm Beach office. Copies are attached." Mr. Thiel testified that the progress reports were not attached to Laniger's letter and he informed Laniger that the reports were not attached. Mr. Burge testified that he subsequently hand-delivered the reports. At the hearing, it was disclosed that Laniger believed its semi-annual groundwater monitoring reports satisfied the requirement for progress reports and it was the monitoring reports that Mr. Burge was referring to in his correspondence and which he hand-delivered to the Department. Laniger's position in this regard, however, was not made clear in its correspondence to the Department and the Department apparently never understood Laniger's position until after issuance of the NOV. On April 10, 2003, the Department notified Laniger by letter that a centralized wastewater collection and treatment system "is now available for the connection of Beacon 21." In the notification letter, the Department reminded Laniger of the requirement of the administrative order to connect within 150 days of availability. On May 9, 2003, the Department received a response from Laniger's attorney, stating that the administrative order allowed Laniger, as an alternative to connecting to the centralized wastewater collection and treatment system, to provide reasonable assurance that the WWTP was not a threat to the water quality of the lagoon system, and Laniger had provided such reasonable assurance. It was also stated in the letter from Laniger's attorney that "due to the location of Martin County's wastewater facilities, such facilities are not available as that term is defined in the [administrative] Order."4 On May 29, 2003, the Department replied, pointing out that the administrative order had found that reasonable assurance was not provided at the time of the issuance of the permit in 1999, and Laniger had made no "improvements or upgrades to the facility." The Department also reiterated that the progress reports had not been submitted. On September 29, 2003, the Department issued a formal Warning Letter to Laniger for failure to connect to the Martin County force main and for not providing reasonable assurance that the WWTP will not cause pollution in contravention of Chapter 403, Florida Statutes. The progress reports were not mentioned in the Warning Letter. The Department took no further formal action until it issued the NOV in August 2005. Count I: Failure to Timely File for Permit Renewal and Operating Without a Permit Count I of the NOV alleges that Laniger failed to submit its permit renewal application at least 180 days prior to the expiration of the 1999 permit, failed to obtain renewal of its permit, and is operating the WWTP without a valid permit. The date that was 180 days before the expiration of the 1999 permit was on or about February 27, 2004. Laniger did not submit its permit renewal application until February 15, 2005. In an "enforcement meeting" between Laniger and the Department following the issuance of the warning letter in September 2003, the Department told Laniger that it would not renew Laniger's WWTP permit. It was not established in the record whether this enforcement meeting took place before or after February 27, 2004. When Laniger filed its permit renewal application in February 2005, the Department offered to send the application back so Laniger would not "waste" the filing fee, because the Department knew it was not going to approve the application. Laniger requested that the Department to act on the permit application, and the Department denied the application on April 6, 2005. The Department's Notice of Permit Denial stated that the permit was denied because Laniger had not connected to the available centralized wastewater collection and treatment system nor provided reasonable assurance that the WWTP "is not impacting water quality within the Indian River Lagoon System." Laniger filed a petition challenging the permit denial and that petition is the subject of DOAH Case 05-1599, which was consolidated for hearing with this enforcement case. Laniger's permit expired on August 25, 2004. Laniger has operated the plant continuously since the permit expired. Count II: Failure to Submit Progress Reports Count II of the NOV alleges that Laniger failed to comply with the requirement of the administrative order to provide the Department with semi-annual reports of Laniger's progress toward connecting to a centralized sewage collection and treatment facility or providing reasonable assurances that continued operation of the WWTP would not be a threat to the water quality of the lagoon system. Laniger maintains that its groundwater monitoring reports satisfied the requirement for the semi-annual progress reports because they showed that the WWTP was meeting applicable water quality standards. The requirement for groundwater monitoring reports was set forth in a separate section of Laniger's permit from the requirement to provide the semi-annual progress reports. The monitoring reports were for the purpose of demonstrating whether the WWTP was violating drinking water quality standards in the groundwater beneath the WWTP site. They served a different purpose than the progress reports, which were to describe steps taken by Laniger to connect to a centralized sewage collection and treatment facility. Laniger's submittal of the groundwater monitoring reports did not satisfy the requirement for submitting semi-annual progress reports. There was testimony presented by the Department to suggest that it believed the semi-annual progress reports were also applicable to Laniger's demonstration of reasonable assurances that the WWTP was not a threat to the water quality of the lagoon system. However, the progress reports were for the express purpose of "outlining progress toward compliance with the time frames specified in paragraph 1." (emphasis added) The only time frame mentioned in paragraph 1 of the administrative order is connection to an available centralized wastewater collection and treatment facility "within 150 days of its availability." There is no reasonable construction of the wording of this condition that would require Laniger to submit semi-annual progress reports related to reasonable assurances that the WWTP is not a threat to the water quality of the lagoon system. Count III: Department Costs In Count III of the NOV, the Department demands $1,000.00 for its reasonable costs incurred in this case. Laniger did not dispute the Department's costs.
The Issue The ultimate issue to be resolved in this proceeding is whether the Department should issue a permit allowing the construction of a wastewater treatment and disposal system as requested in the modified application filed by Thomas E. Wasdin. The applicant and the Department contend that reasonable assurances have been given that the proposed facility will not result in violations of any of the Department's rules or regulations. The Petitioner contends that the proposed facility is located too near to existing shallow water drinking wells and that the facility otherwise fails to comport with the Department's rules and regulations.
Findings Of Fact Petitioner is the president of Beach Woods of Brevard County, Inc. The corporation is the developer of "Beach Woods," a 376-unit planned unit development located in Melbourne Beach, Brevard County, Florida. One hundred eighty of the units have already been developed. Existing regional sewage treatment facilities operated by Brevard County are not adequate to accommodate the total number of units that the applicant proposes to develop. It appears that 24 more hookups are all that the existing facilities will tolerate. Beyond that number, a sewer moratorium is in effect, and unless the applicant can make some other arrangement for disposing of sewage, the development cannot be completed. The county has approved the planned unit development. In order to meet sewage treatment needs of the proposed development, the applicant is proposing to construct a "package sewage treatment plant" to accommodate waste that exceeds quantities that can be handled by existing regional facilities. Once the regional facilities are upgraded so that the development's sewage treatment needs can be accommodated, the applicant proposes to disassemble the package plant and utilize the regional facilities. The proposed plant would be a 50,000 gallons per day contact stabilization sewage treatment plant. Initially, it would be operated as a 5,000 to 15,000 gallons per day aeration plant. Once loads reach 18,000 gallons per day, it would become a contact stabilization plant. The Present collection and transmission system for sewage that exists at Beach Woods includes an 8-Inch collection station from which sewage flows to an existing lift station that pumps effluent via 6-inch pipes to the regional plant. When the proposed plant is completed, a computerized system would be set up to send effluent to the new plants when the limits that the regional plant can accommodate are met. Once the regional plant is upgraded to sufficient capacity, the bypass to the proposed plant would be eliminated, and all units would then be connected to the original collection system. The proposed treatment plant is based upon proven technology that has been in existence for more than 50 years. The plant should operate reliably, and proper consideration has been given to odor, noise, lighting, and aerosol drift. In close proximity to the plant, it is likely that there would occasionally be a "earthy smell" that would be noticeable, but not objectionable. Outside of the immediate proximity, no odor would be noticeable. Large fans would be operated in connection with the plant, and some noise would result. It does not, however, appear that the noise would be excessive or bothersome, even in the immediate vicinity of the plant. The plant would be lighted by street lights and would not result in any more excessive lights than normal street lights. The plant is not of the sort that aerosol drift is a likely problem. Adequate considerations have been given to providing emergency power to the plant in the event of a power outage. The plant could sit for at least 20 hours without power before any emergency would exist. If there was a power outage in excess of that period, emergency power sources are available. Consideration has been given to the 100-year flood plain. The plant has been placed at an elevation that keeps it outside of the 100-year flood plain. The land application system proposed by the applicant would utilize drain fields that would be alternately rested. Groundwater flows from the area of the proposed drain fields are in a southwesterly direction toward the Indian River. The Indian River in the location of the proposed facility is a "Class III surface water." Groundwater in the area of the proposed facility might be classified as either "G-I" or "G-II." Reasonable assurance has been given that the proposed sewage treatment plant would not operate in such a manner as to degrade surface or ground waters to the extent that any of the Department's specific water quality parameters set out in Chapter 17, Florida Administrative Code, would be violated. The proposed sewage treatment plant comports with local requirements and has been approved by Brevard County. The Allans Subdivision is a residential development that is located directly to the north of the Beach Woods development. Petitioner utilizes a shallow water well as a source of drinking water. The proposed land application site of the sewage treatment plant is located within 500 feet of the Petitioner's well. There are at least two other shallow water wells that serve as drinking water sources located within 500 feet of the proposed land application site. The applicant indicated a willingness to move the proposed facility so that no part of it would be located within 500 feet of the shallow drinking water wells. The evidence establishes that the plant could be moved to accomplish that. No specific plan, however was presented. Potential factual issues could exist respecting appropriate buffer zones for any relocation of the facility, even a minor relocation. The applicant is proposing to develop areas within 100 feet of the proposed facility. The applicant does not, however, propose to locate any public eating, drinking, or bathing facilities within 100 feet of the proposed plant or land application area. No map was presented during the course of proceedings before the Department of Environmental Regulation that preceded the formal administrative hearing or during the hearing itself to establish present and anticipated land uses within one mile of the boundaries of the proposed facility. The facility of such a size that it could not inhibit any conceivable present or proposed future land uses except within 500 feet of the proposed facility. Evidence was offered at the hearing from which it could be concluded that the Department has, in the past, issued permits for sewage treatment plants located within 500 feet of existing shallow drinking water wells. The testimony was that this has occurred despite a requirement in the Department's rules that there be a 500-foot buffer zone between any such plant and a shallow drinking water supply. No specific evidence was presented as to why the Department has allowed such a breach of its rules or why it should be allowed in this proceeding.
Findings Of Fact Respondent, Lois Green, is a resident of Florida and owns the property known as the Nichols Post Office located on Highway 676 in Nichols, Polk County, Florida. There is one employee stationed at the post office and members of the public use the post office for U.S. mail purposes. On October 11, 1990, Petitioner advised Respondent that the source of water that she used to supply the post office building did not comply with the requirements of the Florida Administrative Code. Thereafter, on September 23, 1991, Petitioner issued an Administrative Complaint to Respondent, advising of Petitioner's notice of intent to assess a fine of $100.00 per day until the corrections were made or for 30 days, whichever occurred first. At the hearing, Petitioner orally amended paragraph 4 of the Administrative Complaint to change the reference "December 22, 1989" to "October 4, 1990." Following service of the Administrative Complaint on Respondent and for 30 days thereafter, the water source for the post office building was a well located behind the post office on Respondent's property. In approximately December of 1991, Respondent disconnected the well which was presently serving the post office and connected to another well located adjacent to the property which supplied a residential home. The well which provided water to the post office was originally drilled as an irrigation well. The well head was located approximately 50 ft. to the closest septic tank and restroom pipe outlets. That well had no raw sample taps or a pressure tank with an inlet or outlet. Additionally, there was no surface protection pad nor were quarterly bacteriological samples taken to measure the water quality samples. Finally, the well was not approved by Petitioner prior to placing it into use by Respondent. Sometime subsequent to 30 days after Petitioner issued the Administrative Complaint to Respondent, Respondent abandoned the well without notifying the Petitioner and connected to a residential well which also contravenes the setback requirements contained in Chapter 17, Florida Administrative Code. Specifically, that well is approximately 30 ft. from the on-site sewage disposal system (septic tank) and is in violation of Rule 17- 555.302, Florida Administrative Code, formerly Rule 17-22.615(2), Florida Administrative Code. Petitioner's agent, Mark Fallah, during times material, was employed in Petitioner's Code Enforcement Section and was charged with investigating the problems surrounding Respondent's supply of water to the Nichols Post Office. Throughout the course of employee Fallah's involvement with the investigation of this matter, there have been several proposals and counter-proposals which have been exchanged by and between Petitioner and Respondent. Petitioner's agent Fallah attempted to see if a variance could be obtained whereby Respondent could continue to use the then existing well despite the fact, however, that it was in violation of the setback requirements. Additionally, Fallah attempted to get Respondent to make certain minor changes and modifications to the existing well which were not successful. Throughout the course of the parties negotiations in an effort to resolve this matter, there has been certain concessions made by both sides; however, the well which supplies the post office is a water system which is noncompliant with applicable statutory and rule requirements. Petitioner, through its employee Fallah, checked with a local well drilling company, Dunham Well Drilling Company, to obtain an estimate for a well. That company gave an estimate of approximately $2,000.00 to $3,500.00 to install a water supply system to the post office which would comply with Petitioner's requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the total amount of $3,000.00 of which amount $2,500.00 shall be suspended pending Respondent's initiation of a plan to construct and install a water well system to provide the Nichols Post Office which complies with Petitioner's requirements enunciated in Chapters 403 and 381, Florida Statutes and Rule Chapter 17, Florida Administrative Code. In the event that Respondent fails to initiate a plan of correction and complete the installation of the well within sixty (60) days of the date of Petitioner's entry of its Final Order, then Petitioner shall be authorized to impose the full administrative penalty of $3,000.00 without further administrative proceedings. Respondent shall submit to Petitioner the five hundred dollar ($500.00) administrative fine within thirty (30) days from the entry of Petitioner's Final Order. DONE and ENTERED this 22 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of April, 1992. COPIES FURNISHED: Raymond R. Deckert, Esquire Asst District Legal Counsel HRS District VI Legal Office 4000 W Dr Martin Luther King Jr Blvd Tampa, Fl 33614 Mygnon Evans, Esquire 5600 US Highway 98 N Lakeland, Fl 33809 Richard S. Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700 John Slye, Esquire General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700
The Issue Did Respondents violate the provisions of Rules 62-550.518(3), 62-555.320(4)(8), 62-560.410(2)(c), 62555.350(2), and 62-555.345, Florida Administrative Code, as alleged in the Notice of Violation and Orders for Corrective Action, Case Nos. 96-653PW2442B and 96- 653PW2442C dated June 9, 1997?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department, through the Polk County Health Department, under the authority of an Interagency Agreement with the Department of Environmental Protection, was the agency of the State of Florida charged with the responsibility for inspecting and clearing Public Water Systems in Polk County Florida under Section 403.121, Florida Statutes. SDS Properties Investors Group, Inc. (SDS) is a Florida corporation authorized to do business as Budget Motel. SDS is owned by Shaikh. Sanitary surveys are conducted by the Department every three years and include the inspection of Public Water Systems (PWS) . On January 26, 1996, the Department conducted a routine sanitary survey of Budget Motel (Budget) located at 1418 Highway 17 South, Lake Wales, Florida, which should have included Budget's public water system, PWS 6532442. However, Polk County's inspector, Henry Tagioff, was shown a well, by a Budget employee, that was located on the adjacent property owned by Smokey's Mobile Home Park (Smokey's) and not a part of Budget's water system. Tagioff was not aware that the well he inspected was owned by Smokey's and not on Budget's property. During the inspection, Tagioff noted several violations and advised the Budget employee that Tagioff needed to discuss these violations with Shaikh. On January 29, 1996, Tagioff and Lee Forgey, another Polk County employee, met with Shaikh to discuss the violations noted by Tagioff on January 26, 1996. During this meeting, Shaikh, Tagioff, and Forgey discussed the violations previously found by Tagioff on January 26, 1996, concerning the well on Smokey's property. At no time during this meeting did Shaikh advise Tagioff or Forgey that neither he nor Budget own the well under discussion. The record is not clear, but sometime between January and May 1996, Budget's well had collapsed and was not useable. Subsequent to Budget's well collapsing, Shaikh contracted with George Dunham, after obtaining Smokey's permission, to connect Budget's water system (PWS6532442) to Smokey's well. At the time of connecting Budget's water system to Smokey's well, Dunham advised Shaikh that this was only a temporary solution and gave Shaikh a proposal for a new well since Budget's old well could not be repaired. On May 2, 1996, Tagioff made a reinspection of Budget's water system and found that Budget's well had collapsed and was inoperable, and that Budget had connected to Smokey's well to furnish water to the motel and its guests. Tagioff advised Shaikh that Budget would need a new well since its old well was inoperable and the connection to Smokey's well was only temporary. On May 21, 1996, Mark Fallah, a Polk County employee, conducted a site inspection and prepared a report for use in connection with Budget's application with Southwest Florida Water Management District (SWFWMD) for a new well permit. In connection with Fallah's site inspection and report, the Department advised Shaikh by letter dated May 21, 1996, of certain things concerning the new well that had to be completed prior to placing the well into public use. The letter provides in pertinent part as follows: Upon completion of the drilling and the verification of the grouting procedure by the Water Management District, the following items, as required by Chapters 62-555 and 62550 of the Florida Administrative Code, are to be completed prior to this water system being placed into public use. * * * 2. A continuous chlorination unit that is electrically interlocked with the well pump circuit. * * * A flow measuring device is required on all Non-Community Water Systems. A copy of the well completion report must be furnished to this office by the well driller within thirty (30) days after the well installation. Bacteriological clearance of the well must be performed by submitting twenty (20) consecutive water samples for analysis to an HRS certified laboratory. A maximum of two (2) samples per day taken at least six hours apart may be collected. Additional samples may be required until twenty (20) consecutive satisfactory samples are received. * * * After the well and plant construction is completed, contact our office for an inspection so that written clearance can be issued. It is prohibited for any Public water system to be placed into use without clearance being issued from this department. (Emphasis Furnished). SWFWMD approved Budget's new well application and issued Budget Permit No. 579811.01 for drilling a new well. However, upon completion of the new well, there were certain conditions that had to be met as indicated in the letter from the Department dated May 21, 1996. On May 31, 1996, and July 10, 1996, Fallah inspected Budget's new water system for compliance and, on both occasions, found that Budget had failed to install the chlorination unit, the flow meter, and had not submitted a well completion report or bacteriological samples. On July 15, 1996, the Department issued a Warning Notice to Shaikh advising him that the system could not be used until approved by the Department. For enforcement purposes, the file was transferred to Lewis Taylor, enforcement officer for drinking water systems for Polk County. On November 14, 1996, Taylor conducted an inspection of Budget's water system and reported that: (1) Budget's well had been placed into service without approval from the Department; (2) there was no chlorinator in operation; (3) there was no flow meter; (4) the Department had not received any bacteriological samples since November 1995; (5) there was no certified operator servicing the motel's water system; and (6) Budget had not provided public notice to its customers of its failure to monitor its drinking water. A second Warning Notice was issued by the Department and furnished to Shaikh on November 22, 19-96, which in substance advised Shaikh that Budget was in violation of Rules 62-550 and 62- 555, Florida Administrative Code, for its: (1) failure to obtain the Department's clearance before placing its new well in service; (2) failure to provide quarterly bacteriological samples; (3) failure to maintain proper chlorine residual in the water system; failure to provide a flow meter in the water system; (5) failure to provide public notification to its customers that its water system had failed to comply with Rule 62-550, Florida Administrative Code; and (6) failure to provide the Department with verification of Budget retaining a certified operator to oversee the operation and maintenance of its water system. On March 3, 1997, Tagioff and John GoPaul, US Environmental Agency, inspected Budget's water system and found that: (1) there was no chlorine residual in the system; (2) the chlorination unit located at the motel was not in use; (3) there was no flow meter within the system; (4) no quarterly bacteriological samples had been furnished to the Department; and the well had not been cleared for use by the Department. Based on the testimony of Lewis Taylor which I find credible, the Department has expended the following in the inspection of Budget's water system: (1) 20.25 hours of professional time at a rate of $30.00 per hour for a total of $607.50; (2) three hours of clerical time at a rate of $15.00 per hour for a total of $45.00; and (3) $27.00 in travel costs and postage. The total amount expended in the inspection of this water system by the Department was $679.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding Respondents guilty of the violations as charged and requiring Respondents to comply with the Orders for Corrective Action as set out in the Notice of Violation and Orders of Corrective Action in Case Nos. 96-653PW2442B and 96-653PW2442C. It is further recommended that Respondents be required to pay the costs and expenses of investigating the violations and prosecuting this matter in the amount of $679.50. DONE AND ENTERED this 27th day of May, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700 Roland Reis, Esquire Department of Health Polk County Health Department 1290 Golfview Avenue, 4th Floor Bartow, Florida 33830-6740 Habib U. Shaikh 4014 Billingsgate Road Orlando, Florida 32839-7515 SDS Properties Investors Group, Inc. d/b/a Budget Motel 1418 Highway 17 South Lake Wales, Florida 33853
Findings Of Fact Petitioner owns a rectangular plot approximately 300 feet (north to south) by 1,300 feet (east to west). The property is within the City of Longwood and is zoned light industrial. The land is undeveloped except for a laminated cabinet factory and warehouse owned by Petitioner. The proposed development includes construction of a paved right-of-way sixty feet wide through the center of the parcel. Entry and exit would be from the east with a cul de sac on the west end. The property would be divided into twenty lots, each facing this street. Petitioner contemplates sale of these lots to light industrial users. A tributary of Soldiers Creek which flows into Lake Jessup and ultimately the St. John's River, separates the eastern one third of the property from the remainder of the parcel. This stream is typically one to three feet deep, with very slow movement. Water in the stream bed becomes virtually stagnant during the dry season. The on-site survey conducted by Respondent's environmental specialist established that the ordinary or mean height water line follows the 52 foot contour, creating a stream bed about 400 feet wide across Petitioner's property. The development proposal calls for filling most of this area, retaining a stream channel one hundred feet wide. Petitioner intends to install four 38" x 60" oval culvert pipes at the stream crossing of the proposed roadway. To control runoff from rain showers, Petitioner plans to construct swells on each side of the roadway and drainage troughs and catch basins are intended to retain runoff pollution. However, during peak rainfall periods, these devices will not prevent direct discharge into the watercourse. Petitioner has not conducted any tests to determine the impact of his proposed project on water quality other than percolation tests associated with the use of septic tanks. The stream is heavily forested with mature hardwood trees. The undergrowth includes buttonbush, royal fern, primrose willow and water tupelo. Clumps of pickerel weed are scattered throughout the stream. The stream bottom consists of one to two feet of leaf litter and accumulated organic muck over firm sand. Respondent's dip net sampling produced numerous least killifish, which are indicative of good water quality. Forested streams and bayheads such as this are natural storage and treatment areas for upland runoff, and tend to reduce the peak runoff discharge to lakes and rivers from rainfall. This, in turn, reduces sedimentation rates and the resultant siltation of downstream waterbodies. The proposed project would eliminate approximately one acre of stream bottom and continuous submerged transitional zone lands. Urban runoff can contain significant amounts of pollutants including nutrients, heavy metals, dissolved solids, organic wastes, and fecal bacteria. In industrial situations, such as that proposed here, concentrations of oils, greases, heavy metals, toxic chemicals, and phenolic compounds from tire wear, paving and use of other petroleum products are anticipated. The discharge of these contaminants would be harmful to the plant and animal life in Soldiers Creek and the subject tributary. The proposed project would not only reduce existing vegetation which serves as a sediment trap and natural nutrient filter, but would create an impervious (paved) surface which would accelerate runoff and would, itself, be a source of pollution. Water quality would be further reduced by the introduction of fill material and the canalization of the stream, which would increase its rate of flow. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding under Section 120.57(1), Florida Statutes. The parties stipulated to Respondent's permitting authority over the proposed fill project. Specifically, Respondent has permitting jurisdiction below the 52 foot contour line which defines the stream bed. See Sections 17-4.02(17), 17-4.02(19) and 17-4.28, F.A.C. Subsections 17-4.28(1) and 17-4.28(3) F.A.C., require Petitioner to establish reasonable assurance that the short term and long term effects of the filling activity will not result in violation of the water quality criteria, standard, requirement and provisions of Chapter 17-3, F.A.C. Petitioner's stream, Soldiers Creek and Lake Jessup are surface waters within the Class III designation of Section 17-3.081, F.A.C. Sections 17-3.061 and 17-3.121, F.A.C., provide the applicable water quality standards and criteria which Petitioner must provide reasonable assurance of meeting. The standards and criteria limit the amount of various chemicals, nutrients, oils and greases which may be introduced as a result of the proposed activity. The evidence adduced herein established that the proposed project would promote substantial changes in these surface waters, degrading their existing quality. These changes would occur through the introduction of oils, greases and other undesirable chemicals and compounds. Further, Petitioner has conducted no specific testing which would establish reasonable assurance that the water quality standards would be met. Petitioner contends that denial of the permit would amount to inverse condemnation or unconstitutional taking of his property without just compensation. Such a determination is beyond scope of this administrative proceeding.
Recommendation From the foregoing, it is RECOMMENDED that the State of Florida Department of Environmental Regulation enter a final order denying the petition of Jack Cruickshank for a fill permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of February, 1981. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1981. COPIES FURNISHED: Charles G. Stephens, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 William W. Carpenter, Esquire 830 East Highway 434 Longwood, Florida 32750
