The Issue Whether the rules promulgated by the Department of Environmental Regulation require the Respondent to employ the services of a state certified water system operator to operate the water systems at the two business locations involved in these proceedings.
Findings Of Fact At all times material to these proceedings, the Respondent was responsible for the operation of two water systems. One water system is located on Highway 92 West, Winter Haven, Polk County. The other water system is located on State Road 37 South, Mulberry, Polk County. The restaurant and bar business operated at the Winter Haven location is known as the Rainbow Club. Customers eat food and drink beverages prepared with water from the on site water system. The system serves at least twenty- five individuals daily, at least sixty days out of the year. The convenience store business operated in Mulberry serves ice tea, juices, and coffee to customers which is prepared with water from the on site water system. The system serves at least twenty-five individuals daily, at least sixty days out of the year. During the recent past, the Respondent retained a certified operator to meet the state requirements. He was not satisfied with the operator for the following reasons: (1) He had to show the man how to chlorinate the water. (2) The operator took the required chlorine samples from water that had not been chlorinated. (3) Visits were not made to the site as scheduled. (4) The pump at one of the establishments was harmed by the certified operator. (5) The expense of four hundred dollars a month for the testing of three sites operated by the Respondent was too much money. The Respondent wants to be able to chlorinate the water and maintain the systems himself. He has professional experience regulating the chemical balance of water in swimming pools. The samples he turned into the lab himself were good. The Respondent also wants to keep the old well next to the convenience store in Mulberry. He disagrees with the Department's request that he abandon the well because he needs it for an adjoining piece of property. This well is used for lawns, not for the convenience store business. The Department is amenable to the Respondent maintaining his own systems if he is certified to do so. The next examination is scheduled for November 1990.
Findings Of Fact Background In 1983, Concerned Citizens of Citrus County, Inc. (Concerned Citizens), an intervenor in this case, filed a petition toe initiate rulemaking for single source reclassification of groundwater under the existing provisions of Rule 17-3.403, Florida Administrative Code (F.A.C.). In this manner, Concerned Citizens sought to have existent potable waters in Pinellas, Hillsborough, Pasco, Hernando, and Citrus Counties classified Class G-I groundwater, and to thereby provide them the most stringent water quality protection accorded groundwaters of the state. At a public meeting in February 1985, the Environmental Regulation Commission (ERC) deferred action on the petition of Concerned Citizens, and directed the Department of Environmental Regulation (Department) to review the existing G-I rule, prepare proposed revisions, and present its recommendations to the ERC. Following the ERC directive, the Department held numerous public meetings and workshops to explore different approaches to groundwater protection. As a consequence, it prepared the proposed revisions to Rules 17-3.021, 17-3.403, 17-3.404, and 17- 4.245, F.A.C., at issue in these proceedings. On October 31, 1986, the Department duly noticed the proposed rules in volume 12, number 44, of the Florida Administrative Weekly. The notice interested parties that a public hearing would be held on December 16, 1986, before the ERC. 1/ On December 16-17, 1986, the ERC held a public hearing at which time it considered the rules recommended by the Department. During the course of this meeting, the ERC approved and adopted the rules with certain changes. These changes were duly noticed in volume 13, number 3, of the Florida Administrative Weekly on January 16, 1987. Petitioners and Intervenors Petitioners, Adam Smith Enterprises, Inc., and Alliance for Rational Groundwater Rules (Case No. 86-4492RP), and Petitioners Aloha Utilities, Inc.; Interphase, Inc.; Phase 1 Homes, Inc.; A.C. & R., Inc.; Tahitian Development, Inc.; Great Cypress Mobile Village, Inc.; and Barrington, Ltd. (Case No. 86- 4705R), filed timely petitions to challenge the validity of the proposed rules, which petitions were consolidated for hearing. Petitions for leave to intervene were granted on behalf of Florida Electric Power Coordinating Group, Inc.; Florida Land Council, Inc.; and Pasco County. These Intervenors' interests were aligned with those of petitioners. Petitions for leave to intervene were a1so granted on behalf of West Coast Regional Water Supply Authority and Concerned Citizens of Citrus County, Inc. These Intervenors' interests were aligned with those of the Department and the ERC. Petitioner, Adam Smith Enterprises, Inc. (Adam Smith), is the owner/developer of a 3,800-acre development of regional impact (DRI) to be known as Trinity Communities. This development, which has been in the acquisition and planning stages for almost 5 years, is currently undergoing DRI review and Adam Smith anticipates that it will receive its development order by September 1987. The Trinity Communities development is located predominately in Pasco County, with just over 250 acres of its lands located in Pinellas County. These properties are predominately open pasture land, and are bordered on the north, east and west by roads and on the south by Hillsborough and Pinellas Counties. As proposed, the Trinity Communities development will include 1100 acres of parks, golf courses, and other open areas. The remaining lands will be developed to accommodate 9500 dwelling units, as well as industrial and commercial uses to service the community, over a 20-year period. At today's market value, the property represents an investment of approximately 28 million dollars. Abutting the Trinity Communities development is the Eldridge-Wilde Well Field. This well field is covered by consumptive use permits issued by the Southwest Florida Water Management District (SWFWMD), and contains major public community drinking water supply wells as defined by the rules at issue in this proceeding. Of these wells, 5 are located within 9.63 feet and 181.5 feet of the proposed development's property line, and 5 are located with 204.72 fee and 297.5 feet of its property line. Petitioner, Alliance for Rational Groundwater Rules (Alliance), is an association of landowners who united to educate themselves about the proposed rules. The proof failed, however, to establish whether Alliance had ever elected any officers or directors, or the magnitude of its membership. Consequently, the proof failed to establish that a substantial number of its members, although not necessarily a majority, were substantially affected by the proposed rules, and that the relief requested by it was of a type appropriate for it to receive on behalf of its members. Petitioner, Aloha Utilities, Inc. (Aloha Utilities), is a utility certified by the Florida Public Service Commission to provide water and sewer service to two separate service areas in southern Pasco County. Currently, Aloha Utilities operates an 850,000 gallon per day (gpd) sewage treatment facility (Aloha Gardens) and a 1.2 million gpd sewage treatment plant (Seven Springs). It also operates 10-11 producing wells, at least 7 of which are permitted by SWFWMD to withdraw at least 100,000 gpd. One of these wells is located approximately 1/4-1/2 mile from an Aloha Utility sewage treatment plant. At least 3 of Aloha Utilities' wells which are permitted to withdraw 100,000 gpd or more, will service or are servicing the Riverside projects and Aloha Gardens Unit Number 12 project discussed infra. Consequently, the proof establishes that Aloha Utilities operates a major public community drinking water supply system as defined by the subject rules. The Aloha Gardens facility is under a Department order to expand its effluent disposal capacity. To satisfy the Department's order and the need for increased disposal capacity, Aloha Utilities commenced condemnation proceedings 8-12 months ago to secure the needed property. While the condemnation proceeding is not yet completed, Aloha Utilities has already expended considerable sums for engineering studies and attorney's fees in its efforts to acquire the property. That property is located approximately 1/2 mile from an existing well that is permitted for an average daily flow of at least 100,000 gpd. The effluent disposal capacity of the Seven Springs facility is also being expanded to meet existing and future demand. In April 1987, Aloha Utilities acquired a 27-28 acre parcel of land immediately adjacent to its existing facility. Upon these lands, Aloha Utilities proposes to construct percolation ponds, a rapid rate land application effluent disposal process. As sited, these ponds would be located 1/2 to 3/4 of a mile from a well permitted for an average daily flow of 100,000 gallons or more. 2/ Petitioners, Interphase, Inc., Phase 1 Homes, Inc., and Tahitian Development, Inc., are corporations with common management which are developing three separate but geographically proximate projects in Pasco County. These projects will be, or are, serviced by Aloha Utilities. Interphase, Inc., is the owner/developer of a 100- acre tract known as Riverside Village Unit Number Four. This property is currently being developed to include 57 acres dedicated to single family use and 43 acres dedicated to multifamily use, and will require the installation of stormwater facilities and underground sewage transportation facilities. Two wells of Aloha Utilities that are permitted for an average daily flow of 100,000 gallons or more are located 1/2 mile and 1/3 mile, respectively, from this development. Interphase, Inc., is also the owner of a 17-acre parcel of vacant land in Pasco County that is zoned commercial. This property is located within 400 feet of Aloha Utilities' Seven Springs sewer treatment plant, and its development will require the installation of underground sewage transportation facilities. Phase 1 Homes, Inc., is the owner/developer of a project known as Riverside Village Townhouses. This project is fully developed and is currently serviced by Aloha Utilities. Located within 1/2 mile of the development are two wells of Aloha Utilities that are permitted for an average daily flow of 100,000 gallons or more. Tahitian Development, Inc., is the owner/developer of a 40-acre tract known as Riverside Villas. Twenty of these acres have been developed and some of the units sold. The remaining 20 acres are currently under development. In developing its remaining 20 acres, Tahitian Development would be required to install stormwater drainage systems and sewage transportation lines to connect with Aloha Utilities. Located within 1/2 mile of the development are wells of Aloha Utilities that are permitted for an average daily flow of 100,000 gallons or more. Tahitian Development also owns a 40-acre parcel in Orange County which it plans to develop for light industrial uses such as an industrial park or an office complex. Such development would result in at least a 40 percent impervious surface, including building tops, within that 40-acre parcel, and require the installation of a sewage transportation system and a stormwater drainage system. Petitioner, A.C. & R., Inc., is the owner/developer of a project in Pasco County known as Aloha Gardens Unit Number 12. The project, which currently is represented by 40-50 developed lots, is located just north of the Aloha Gardens sewage treatment facility, and is serviced by Aloha Utilities. Located within 1/2 mile of the development that is permitted for an average daily flow of 100,000 gallons or more. Petitioner, Great Cypress Mobile Village, Inc., is the owner/developer of a 149 unit mobile home park in Pasco County. Twenty of these units are completed and ready for occupancy. Completion of the project will require the installation of additional sewer lines. Located at the interior of the property is a sewage treatment plant owned by Northern Utilities which services the project, and within 600 feet of the project's boundary there is a well which services that utility. The capacity of that well was not, however, demonstrated in these proceedings, nor was it shown whether such well was part of a community water system. Petitioner, Barrington, Ltd. is a party of unknown capacity, origin, or interest. No evidence was presented on its behalf to demonstrate that its substantial interests would be affected by the proposed rules. Intervenor, Florida Electric Power Coordinating Group, Inc. (FCG), a Florida corporation, is an association of Florida's electric utilities, and is composed of 37 members. The FCG has, as part of its internal organization, an environmental committee whose purpose is to participate in regulatory development and provide mutual member assistance with regard to water related matters. This committee was authorized by the FCG executive committee to participate in the development of the rules at issue in these proceedings, as well as Intervene in these proceedings, to represent and protect the interests of FCG members. The FCG participated in the development of the subject rules by the Department, and was granted full party status by the ERC during that rulemaking process. The members of FCG are owners and operators of electric power generating facilities. These facilities“ include the power plant and ancillary facilities such as substations. Incident to the operation of these facilities are wastewater discharges associated with the production of electricity and stormwater discharges. One of these facilities, Gainesville Regional Utilities' Deer Haven generating station is located across Highway 441 from a major community drinking water supply well. Intervenor, Florida Land Council, Inc., a Florid corporation, is composed of 12 primary members who own large tracts of land in interior Florida, and who are engaged primarily in agribusiness. The Land Council's purpose is to protect the asset value of its members property and, because of that purpose, it is concerned with environmental regulations, growth management regulations, land use regulations, and comprehensive planning. To protect its interests, the Land Council sought leave to intervene in these proceedings. There was, however, no proof that any lands owned by any member of the Land Council were proximate to any major public community drinking water well. Intervenor, Pasco County, is the owner/operator of 25 wastewater treatment plants with capacities In excess of 100,000 gallons per day, and has under construction, or in the design stage, additional facilities with capacities in excess of 100,000 gallons per day. The construction of these new facilities will require the installation of new lines for the collection of wastewater. Pasco County's current, as well as its planned, wastewater treatment facilities will utilities a rapid rate land application effluent disposal process. Within a mile of any wastewater treatment plan operated by Pasco County can be found a major public community drinking water well as defined by the rules at issue in these proceedings. Pasco County also owns and operates wells within the county with permitted withdrawal rates exceeding 100,000 gpd, and participates in the ownership and management of their wells with permitted withdrawal rates exceeding 100,000 gpd through West Coast Regional Water Supply Authority. Pasco County currently has plans to add new production wells in the county with an average daily pumpage in excess of 100,000 gallons per day. Intervenor, West Coast Regional Water Supply Authority (West Coast), is an interlocal government body created in 1974 to develop, store, and supply water to its member governments so that all citizens within the areas served by the authority may be assured an adequate supply of water. Member governments served by WCRWSA are Hillsborough County, Pasco County, and the cities of St. Petersburg and Tampa. Wellfields operated by West Coast are the Starkey Wellfield located in west central Pasco County, which serves the citizens of New Port Richey and Pasco County; the South-Central Hillsborough Regional Wellfield located in south-central Hillsborough County, which serves the citizens of Hillsborough, County; the crossbar Ranch Wellfield located in north-central Pasco County, which principally serves the citizens of Pinellas, County; the Cypress Creek Wellfild located in south-central Pasco County, which serves the citizens of Hillsborough, Pinellas, and western Pasco Counties and the City of St. Petersburg; the Northwest Hillsborough Wellfield located in northwest Hillsborough County, which serves the citizens of Hillsborough County; the Section 21 Wellfield located in northwest Hillsborough County, which serves the citizens of the City of St. Petersburg; and, the Come-Odessa Wellfield located in northwest Hillsborough County, which serves the citizens of the City of St. Petersburg. 3/ Each of the wellfields operated by West Coast are public community water systems, and contain wells permitted to withdraw in excess of 100,000 gallons per day. Collectively, these wellfields serve a total population of 800,000 persons. Intervenor, Concerned Citizens of Citrus County, Inc. (Concerned Citizens), is a not-for-profit corporation, was chartered in 1981, and has 350 members who obtain their drinking water from operational community water supply wells permitted for over 100,000 gallons per day in Inverness, Crystal River, Floral City, Sugar Mill Woods, Beverly Hills, and Rolling Oaks, Citrus County, Florida. The purpose of Concerned Citizens is to protect the natural resources of Citrus County through planning and zoning regulations, and local and state legislation and regulations. It was granted party status by the ERC. General aspects of the proposed rules The proposed rules establish new eligibility criteria for designation of an aquifer segment as Class G-I groundwater. Under the existing rule, the ERC could reclassify an aquifer or portion of an aquifer as G-I within specified boundaries upon a finding that: The aquifer or portion of the aquifer is the only reasonably available source of potable water to a significant segment of the population; and The designated use is attainable, upon consideration of environmental, techological, water quality, institutional, and social and economic factors. Under the proposed revisions, an aquifer segment could be classified by the ERC as G-I provided it was: ...within the zones of protection of a major public community drinking water supply well(s) or wellfield(s) withdrawing water from unconfined aquifers or from leaky confined aquifer... and, upon consideration of: ...environmental, technologial, water quality, institutional (including local land use comprehensive plans), public health, public interest, social and economic factors. As with thee existing rule, the proposed rules require that rulemaking procedures be followed to actually designate a G-I aquifer or aquifer segment at any particular location. The scheme envisioned by the proposed rules is to provide protection to "major community drinking water supply wells", community water systems that are permitted by consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater, by preventing contaminants from entering the groundwater within a circumscribed radius of the wells. To accomplish this purpose, the proposed rules establish a methodology whereby two zones of protection would be established around such wells if they were withdrawing waters from unconfined aquifers (an aquifer exposed to the atmosphere) or leaky confined aquifers (an aquifer in which groundwater moves vertically from the water table to the top of the aquifer in five years or less). The first zone (the inner zone) would be based on a fixed radius of 200 feet. The second zone (the outer zone) would be based on a radius, calculated under the rule's methodology, of 5 years groundwater travel time. Within the inner zone, discharges would be prohibited. Within the outer zone, certain developments which discharge to groundwater would be prohibited or restricted. A major emphasis of the proposed rules is to restrict discharges to groundwater within the zones of protection. For example, the rules eliminate the zone of discharge within the zones of protection, and require that new discharges to groundwater of treated domestic effluent meet the groundwater criteria specified in rule 17-3.404, F.A.C., prior to discharge. 4/ Additionally, such wastewater treatment facilities would be required to pre-treat industrial wastewater, provide daily monitoring to insure proper treatment plant process control, and provide 24 hour a day attendance of a wastewater operator under the general supervision of a Class A certified wastewater operator. New underground lines for the transport of domestic raw wastewater would be required to be constructed so that no more than 50 gallons per inch of pipe diameter per mile per day could leak into the ground. Within the 5 year zone of protection, there are no restrictions on stormwater discharges for residential developments. However, discharges from new stormwater facilities serving an area forty acres or larger with a forty percent impervious surface, excluding building tops, are required to monitor the discharge. Construction and operation of new sanitary landfills would be prohibited. As previously noted, to be eligible for reclassification as a G-I aquifer, the aquifer or aquifer segment under consideration must be leaky confined or unconfined. Whether the aquifer is leaky confined or not will be determined through application of the "Vv" and "Tv" formulae contained in the proposed rules, and the zones of protection will be established by reference to the "r" formula contained in the proposed rule. To date, neither the Department nor any party has applied the "Vv" and "Tv" formulae to identify wells hat are withdrawing from unconfined or leaky confined aquifers, nor has anyone delineated any zones of protection by application of the "r" formula. The Department has, however, identified those areas of the state at which it is likely that major community drinking water supply wells are withdrawing from such aquifers. Based on this identification, the Department has contracted with the U.S. Geological Survey (USGS) to "map" the Middle-Gulf region (Pinellas, Hillsborough, Pasco, Hernando, and Citrus Counties) by applying the "Vv" and "Tv" formulas to each well permitted to withdraw 100,000 gpd or more to determine if it is withdrawing from such aquifers and, if so, to delineate proposed zones of protection around such wells or wellfields through application of the "r" formula. The USGS is currently mapping the Middle-Gulf region. Pertinent to this case, the Department has identified all of Pasco and Pinellas Counties, the northern half of Hillsborough County, and most of Orange County including Orlando, as areas within which wells are most probably withdrawing from unconfined or leaky confined aquifers, and for which aquifers the Department will seek G-I reclassification. Under the circumstances, the parties have established, except as heretofore noted, that there is a reasonable likelihood that the proposed rules will substantially affect their interests. The rule challenge The gravamen of the protestant's challenge is that certain definitions and formulae continued within the proposed rule are vague, ambiguous, or not supported by fact or logic. The Protestants' also challenge the adequacy of the economic impact statement. The Protestants concerns are addressed below. Definitions Rule 17-3.021, as amended, would define "Confined Aquifer", "Leaky Confined Aquifer", and "Unconfined Aquifer", as follows: (7) "Confined Aquifer" shall mean an aquifer bounded above and below by impermeable beds or by beds of distinctly lower permeability than that of the aquifer itself. For the purpose of G-I, it shall mean an aquifer confined from above by a formation(s) which restricts the movement of groundwater vertically from the water table to the top of the confined aquifer for a period of more than five years * * * (16) "Leaky Confined Aquifer" shall mean, for the purposes of G-I, an aquifer confined from above by a formation(s) which allows groundwater to move vertically from the water table to the top of the leaky confined aquifer in five years or less. * * * (34) "Unconfined Aquifer" shall mean an aquifer other than a confined aquifer. For the purpose of G-I it shall mean an aquifer other than a confined or leaky confined aquifer. 5/ Protestants contend that the definition of "confined aquifer" and "leaky confined aquifer" are vague and meaningless because they are "defined by use of the phrase being defined". Accordingly, they conclude that proposed rule 17-3.021(7) and (16) must fall because they are without thought and reason, irrational and vague. Protestants further contend that since the definitions of "confined aquifer" and "leaky confined aquifer" are flawed, proposed rule 17-3.021(34), which defines unconfined aquifer, must also fall. The Protestants' contentions are not persuasive. If one were restricted to the definition of "confined", "leaky confined" and "unconfined" aquifer to glean their meaning, the rules might be considered vague. However, these definitions are, as they specifically provide, "for the purpose of G-I" and they must be read in context with the balance of the rule. When so read, it is apparent that "top of the confined aquifer" or "top of the leaky confined aquifer" is the top of the aquifer that has been calculated as confined or leaky through manipulation of the "Vv" and "Tv" formulae. Under the circumstances, the subject definitions are not vague, arbitrary or capricious. Proposed rule 17-3.021(20) provides: "New Discharge" shall mean, for the purpose of G-I, a discharge from a new installation; or a discharge from an existing permitted installation that has been altered, after the effective date of G-I reclassification, either chemically, biologically, or physically or that has a 211 22 different point of discharge, and which causes a significantly different impact on groundwater. Protestants contend that the definition of "new discharge" is vague, arbitrary and capricious because existing installations would be classified as new dischargers, and subject to the more stringent requirements of the proposed rules, whether the alteration of their discharge significantly improved or adversely affected groundwater. As proposed, the rule would so define new discharge, and it is not vague or ambiguous. The proof demonstrated, however, that the Department only proposed to define, as new dischargers, those existing installations whose altered discharge caused a significantly different negative impact on groundwater. The Department conceded this point, and offered no proof to demonstrate the reasonableness of classifying existing installations that improve their discharge as new discharges. Under the circumstances, proposed rule 17-3.021(20) is arbitrary and capricious. Proposed rule 17-3.021(35) defines "underground storage facility or underground transportation facility as follows: "Underground storage facility" or "underground transportation facility" shall mean that 10 percent or more of the facility is buried below the ground surface. This proposed rule is, however, only pertinent to proposed rule 17-4.245, which addresses the permitting and monitoring requirements for installations discharging to groundwater. Pertinent to this case, proposed rules 17-4.245(3)(c) and (d) establish construction requirements for the following facilities within the five year zone of protection: Underground storage facilities. An underground storage facility includes any enclosed structure, container, tank or other enclosed stationary devices used for storage or containment of pollutants as defined in Section 376.301(12), F.S. or any contaminant as defined in Sect ion 403.031(1), F.S. Nothing in this paragraph is intended to include septic tanks, enclosed transformers or other similarly enclosed underground facilities.... Underground facilities for transportation of wastewater or pollutants as defined in Section 376.301(12), F.S. or any contaminant as defined in Section 403.031(1), F.S. excluding natural and liquified petroleum gas. Underground facilities for transportation of waste effluent or pollutants or contaminants include piping, sewer lines, and ducts or other conveyances to transport pollutants as defined in Section 376.301(12), F.S., and contaminants as defined in Section 403.031(1), F.S.... Protestants contend that the proposed rules are contained in two separate chapters of the Florida Administrative Code with no bridge between them. Under such circumstances, they contend the rules fail to adequately define either facility in either chapter, and that the rules are therefore vague, arbitrary and capricious. Protestants' contention is not persuasive. Proposed rule 17-3.021(35) defines "underground storage facility" or "underground transportation facility" as meaning that 10 percent or more of the facility is buried below the ground surface. Proposed rules 17-4.245(3)(c) and (d) address what type of facility is included within the terms "underground storage facility" and "underground transportation facility." Notably, Rule 17-4.021, F.A.C., provides: Definitions contained in other chapters of the Department's rules may be utilized to clarify the meaning of terms used herein unless such terms are defined in Section 17-4.020, F.A.C., or transfer of such definition would defeat the purpose or alter the intended effect of the provisions of this chapter. Under the circumstances of this case, the rules are appropriately read together. So read, the construction requirements for "underground storage facilities" and "underground transportation facilities", as required by proposed rule 17-4.245(3)(c) and (d), are applicable if 10 percent or more of the containment device used for the storage or transport of pollutants is buried below the ground surface, and the proposed rules are not vague, arbitrary or capricious. Proposed rule 17-3.021(39) defines "Zones of Protection" as follows: "Zones of Protection" shall mean two concentric areas around a major public community drinking water supply well(s) or wellfield(s) drawing from a G-I aquifer whose boundaries are determined based on radii from the well or wellfields of 200 feet and five years groundwater travel time respectively. Protestants contend that the definition of "Zones of Protection" is vague, arbitrary and capricious because nowhere within the proposed rules is "G-I aquifer" defined. protestants' contention is not persuasive. Proposed rules 17-3.403(1) and (7) adequately explain what is meant by "G-I aquifer", and proposed rule 17-3.403(8) sets forth the metodology for calculating the zones of protection. The definition of "Zones of Protection", set forth in proposed rule 17-3.02(39) is not vague, arbitrary or capricious, because of any failure to define "G-I aquifer." Mapping Priorities When considering whether to reclassify an aquifer or aquifer segment as G-I, proposed rule 17-3.403(5)(e)2 requires that the aquifer or aquifer segment: Be specifically mapped and delineated by the Department on a detailed map of a scale which would clearly depict the applicable zones of protection. Maps will be grouped and submitted for reclassification generally on a regional basis. Mapping priorities shall follow the Commission directive of February 27, 1985. The remaining areas of the state will be mapped by the Department as time and resources allow. The mapping priority directive referred to in purposed Rule 17-3.403(5)(e)2a, was an oral directive of the ERC that Pinellas, Hillsborough, Pasco, Hernando, and Citrus Counties, referred to as the Middle-Gulf region, be mapped first. That directive has not been reduced to writing and, consequently, a copy thereof has never been available for inspection. Categories of G-I Aquifers and determination of zones and protection Proposed rules 17-3.403(7) and (8), respectively, set forth the eligibility criteria for reclassification as G-I aquifers and the methodology whereby the boundaries of the zones of protection are established. To this end, proposed rule 17- 3.403 (7) provides: Categories of G-I aquifers. For aquifers or aquifer segments to be eligible for potential reclassification as G-I aquifers one of the following criteria must be met: That the aquifer or aquifer segment under consideration be within the zones of protection of a major public community drinking water supply well(s) or wellfield(s) withdrawing water from unconfined aquifers or from leaky confined aquifers.... (b)(. reserved.) Proposed rule 17-3.403(8) provides: Determination of the boundaries of the zones of protection. (a) The boundaries of the zones of protection shall be based on radii from the wellhead or wellfield (if closely clustered, so that the five year zones of protection are overlapping) measured in 200 feet for the inner zone and five years for the outer zone. The radius of the outer zone shall be determined using the following formula: percent.x4n where Q = permitted average daily flow from the well (measured in cubic feet per day); T = five years (1825 days); 3.14 = mathematical constant pi; r = radius (feet); h distance from the top of the producing aquifer to the bottom of the hole (feet); n effective porosity. Protestants contend that the foregoing provisions of the proposed rules are vague, arbitrary and capricious because the wells that would be subject to and around which a zone of protection would be established cannot be identified or, if identifiable, do not comport with the Department's intent or interpretation. Protestant's concerns are not without merit. To be eligible for consideration as a G-I aquifer, proposed rule 17-3.403(7) requires that the aquifer segment be within the zones of protection of a "major public community drinking water supply well(s) or wellfield(s). Proposed rule 17- 3.021(17) provides that "major public community drinking water supply" shall mean: those community water systems as defined in Section 17-22.103(5), F.A.C., that are permitted by consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater. Community water system" is defined by Section 17-22.103(5) as: a public water system which serves at least IS service connections used by year- round residents or regularly serves at least 25 year-round residents. Facially then, the proposed G-I rules are applicable to "community water system" that hold a consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater", and which are withdrawing from unconfined or leaky confined aquifers. Notably, the rule does not ascribe the 100,000 gpd permitted rate of withdrawal to each well, but to a permit held by a community water system. Accordingly, under the literal reading of the proposed rules, each well covered by the consumptive use permit would be subject to a zone of protection regardless of its individually permitted rate, so long as it was withdrawing from an unconfined or leaky confined aquifer. While there may be legitimate reasons to designate zones of protection around wells, regardless of their individual permitted rate when the community water system holds a consumptive use permit to withdraw groundwater at a 100,000 gpd average, the Department advanced none. To the contrary, the Department contended that zones of protection were only to be established around a well that was permitted to withdraw an average daily amount of 100,000 gallons or greater. Under the circumstances, the provisions of proposed rules 17-3.403(7) and (8) are arbitrary and capricious. 6/ The "Vv" and "Tv" formulae Proposed rule 17-3.403(7)(a) prescribes the methodology where by vertical travel time will be calculated, and therefore whether a particular aquifer will be classified as confined or leaky confined. To this end, the proposed rule provides: ... Determination of vertical travel time for leaky confinement will be by application of the following formulae: Vv= Kv h/nl where: Vv= vertical velocity (feet/day). Kv= vertical hydraulic conductivities of the surficial aquifer and underlying confining bed materials (feet/day). h= head difference between water table in the surficial aquifer and the potentiometric surface of the producing aquifer (feet). n = effective porosities of the surficial aquifer and underlying confining bed materials. 1 = distance from the water table to the top of the producing aquifer (feet). Tv= 1/Vv 365 where: Tv= vertical travel time (years). 1 = same as above. Vv= same as above. The "Vv" formula and the "Tv" formula are valid formulae, and are commonly used by hydrogeologists to calculate the vertical velocity and vertical travel time of groundwater. As proposed, the formulae present a reasonable methodology for computing the vertical velocity and vertical travel time of groundwater if the well is producing from one aquifer. The formulae cannot, however, as hereafter discussed, be reasonably applied if tee well is producing from multiple aquifers or if another aquifer intervenes between the surf aquifer and the producing aquifer. While not the most prevalent occurrence in the state wells in the Middle-Gulf regions often do penetrate more than one aquifer and do produce water from more than one aquifer. The rule defines the "Kv" element of the "Vv" formula as the "vertical hydraulic conductivities of the surficial aquifer and underlying confining bed materials (feet/day)." This is a reasonable definition and will produce a scientifically valid result provided the well does not penetrate multiple aquifers. Should the well penetrate multiple aquifers, the values derived for vertical velocity ("Vv") and vertical travel time ("Tv") will not be accurate since the hydraulic conductivities of the intervening aquifers are not, by the rule definition, factored into the calculation of "Kv". Under such circumstances, whether an aquifer was classified as confined or leaky confined would not be determined by a valid "Kv" but, rather, by chance. Protestants also contend that the rule is vague, arbitrary and capricious because it does not specify the methodology by which "Kv" is to be calculated. There are, however, methodologies commonly accepted by hydrogeologists to derive a scientifically valid "Kv", whether the well penetrates one or more than one aquifer. The infirmity of the rule is not its failure to specify a methodology, but its to include data necessary to produce a meaningful result. The rule defines the "n" element of the Vv formula as "effective porosities of the surficial aquifer and underlying confining bed materials." This is a reasonable definition and will, though the application of commonly accepted methodologies, produce a scientifically valid result. 7/ The rule defines the element "Delta h" in the Vv formula as the "head difference between the water table in the surficial aquifer and the potentiometric surface of the producing aquifer (feet)", and defines the element "1" as the "distance from the water table to the top of the producing aquifer (feet)." These elements are utilized in the formula to calculate a gradient, and must be measured using the same points of reference to yield a meaningful result. To this end, the proof demonstrates that the definitions are reasonable since they utilize the same points of reference, and that when applied in accordance with accepted hydrogeologic practice will produce a scientifically valid gradient. (See Department exhibit 7). Protestants contend, however, that the definitions of "Delta h" and "1" are vague, arbitrary and capricious because they do not specify when the measurements should be made, do not define "producing aquifer", and do not define "top" of the producing aquifer. For the reasons that follow, Protestants' contentions are found to be without merit. While a water table is a dynamic surface subject to frequent, if not daily fluctuation, resulting from variations in rainfall and the demands of man, and while a potentiometric surface is likewise a dynamic elevation that changes with time and season, protestants failed to demonstrate that there was any particular date or dates that would be most appropriate to make such calculations. Rather, protestants contended that unless such measurements were taken contemporaneously, any derivation of "Delta h" and "1" would not be reliable. While such might be the case, the rule does not mandate a divergence from the accepted hydrogeologic practice of taking such measurements contemporaneously. While the rule does not define "producing aquifer," it is an accepted hydrogeologic term and not subject to confusion. The only confusion in this case was the introduction of the issue of multiple producing aquifers and protestants' contentions that this rendered the Vv formula vague, arbitrary and capricious since it did not factor in such a consideration. Protestants' contention does not, however render the term "producing aquifer" vague. The sole purpose of the Vv and Tv formulas are to determine whether the aquifer from which water is being produced is leaky confined. To establish this, the formulae are applied to calculate whether the vertical travel time is five years or less. If a well is withdrawing water from more than one aquifer it may be necessary to calculate Vv and Tv for each aquifer to discern which of those aquifers are within the 5 year vertical travel time threshold, and therefore subject to G-I reclassification. To this end the rule is not vague, and would adequately address the multiple producing aquifer scenario. While the rule doe not define "top" of the producing aquifer, this term is an accepted hydrogeologic term and is not subject to confusion. In application there may, however, be disagreements among hydrogeologists as to where this line should be established because geologic boundaries are fine gradations, and not sharp lines which would lend themselves to the designation of precise points of reference. This is not, however, a failure of the rule, but a peculiarity of nature, and is subject to scientific proof. Notably, protestants did not demonstrate that "top" of the producing aquifer could be defined with reference to a fixed point. Under the circumstances, "top" of the producing aquifer is a reasonable reference point. Zones of Protection Proposed rule 17-3.408 provides: Determination of the boundaries of the zones of protection shall be based on radii from the wellhead or wellfield (if closely clustered, so that the five year zones of protection are overlapping), measured in 200 feet for the inner zone and five years for the outer zone. The radius of the outer zone shall be determined using the following formula: QT 2 3.14 hn where Q = permitted average daily flow from the well (measured in cubic feet per day); T = five years (1825 days); 3.14 = mathematical constant pi; r = radius (feet); h distance from the top of the producing aquifer to the bottom of the hole (feet); n effective porosity. For the purpose of this calculation the following effective porosities for representative Florida aquifers will be used: Floridan .05 Sand and Gravel .2 Biscayne .15 Surficial .2 The Department shall use more site-specific values for "Q", "n", or "h" when available for designation of the zones of protection by the Commission. Proposed rule 17-3.403(8)(a) provides that the inner zone of protection shall be based on a radius from the wellhead or wellfilled, as appropriate, of 200 feet. While denoted as an arbitrary radius, the 200 foot radius was not derived without fact or reason. Rather, it was a result reached at the workshops after consideration of existing regulations that establish buffer zones of 200-500 feet between a public water supply and a pollution source. Conceptually, the 200 foot zone was adopted because it is so small and so close to the well that it essentially constituted a zone of protection of the well head by preventing contaminants from moving into the well opening directly or the annular space around the well casing. Accordingly, the 200 foot zone has a reasonable basis. Its actual delineation is, however, as flawed as that of the five year zone discussed infra. The "r" formula defines the outer zone of protection, and calculates it as a radius equal to the distance groundwater would flow in five years toward the well. The basis for the "r" formula is the formula used to calculate the volume of a cylinder. That formula, V = pi r2 h, yields a simple volumetric measurement without any consideration of velocity. By the introduction of the element "n" (effective porosity), the "r" formula introduces a velocity component which would, properly applied, produce a radius equal to the distance groundwater would flow in 5 years. 8/ As proposed, however, the rule would establish a meaningless line around a well. Under the proposed rule, the Department would calculate "r" based on specified effective porosities ("n") for the Floridan, Biscayne, sand and gravel, and surficial aquifers absent site specific data. The Department is, however, under no requirement to generate site specific data, and currently is mapping the Middle-Gulf region based on the values established by the rule. Absent chance, the areas mapped will bear no relationship to groundwater travel time. The lithology of an aquifer and the surrounding layers is varied and diverse, and directly affects the direction and velocity of groundwater flow. By assuming "n", the "r" formula ignores the varied lithology, and produces a radius that would seldom, if ever, represent the actual rate at which groundwater moved toward any well. 9/ The zone thus circumscribed is an illusion since the groundwaters and contaminants within it may move at a rate significantly greater than or less than 5 years travel time. Notably, the Department has conducted no study or test to validate its proposed methodology. The element "Q" in the "r" formula is defined as the "permitted average daily flow from the well (measured in cubic feet per day)." Protestants contend that such definition is vague, arbitrary and capricious because the Department proposes to rely on consumptive use permits issued by the various water management districts to derive "Q", and such permits would not necessarily provide the requisite data. While the proof demonstrates that "Q" cannot always be derived by reference to a consumptive use permit, this does not render the definition of "Q" vague, arbitrary, or capricious. Rather, "Q" is a factual matter, and subject to a factual derivation through reference to consumptive use permits and other site specific data. The element "T" in the "r" formula is defined as "five years (1825) days." By its inclusion, the Department proposes to circumscribe the outer zone of protection at five years groundwater travel time. The concept of a zone of protection is premised on the theory that restrictions should be placed on discharges to groundwater within an area proximate to a public water supply for public health and safety concerns. The five year standard, which is found throughout the rules, was based on the theory that if a contaminant was introduced to groundwater a period of time should be allowed to discover the contamination and remove it or make provision for an alternate water supply before the contaminant reached the public water supply. The five years proposed by the rule was not, however, founded on fact or reason. During the workshops that under scored the proposed rule, the time factor was the subject of considerable discussion and ranged from less than two years to greater than ten years. Based on its own in-house search, the Department initially proposed a 10-year standard. That search revealed that it took 10 to 15 years between the time a contaminant was discovered and cleanup could commence, and between seven and eight years between the time a contaminant was introduced into groundwater and it discovery. Notwithstanding the results of its own in-house search, the Department, in the face of debate, elected to "compromise" and propose a five-year standard. Such standard was not the result of any study to assess its validity, and no data, reports or other research were utilized to derive it. In sum, the five- year standard was simply a "compromise", and was not supported by fact or reason. As previously noted, the lithology of an aquifer and the surrounding layers is varied and diverse, and directly affects the direction and velocity of groundwater flow. The effective porosity of those materials in the Floridan aquifer canvary from to .4 at various places. The rule proposes, however, to use an effective porosity for the Floridan aquifer of .05 to establish "r." The value ascribed to "n" is a critical value, as previously discussed in paragraph 65. It also has a profound impact on the aeral extent of the zone of protection. For example, assuming "Q" equals 3 million gallons and "h" equals 600 feet, an "n" of .02 would result in a radius of 4,406 feet or 1,400 acres, an "n" of .03 would result in a radius of 3,578 fee or 934 acres, an "n" of .05 would result in a radius of 2,787 feet or 560 acres, and an "n" of .2 would result in a radius of 1,393 feet or 140 acres. While an effective porosity of 05 for the Floridan aquifer may be a reasonable value at a particular site, it is not a value that can be reasonably ascribed to the Floridan in general. For this reason, and the reasons heretofore set forth, the rule's specification of an effective porosity of .05 for the Floridan aquifer is unreasonable. Proposed rule 17-3.403(8)(a), sets forth the manner in which the zones of protection will be drawn around a well or wellfield. That proposed rule provides: For well fields whose individual zones of protection overlap due to clustering, a single zone of protection will be calculated in the following manner: Using the permitted average daily withdrawal rate of the wells with overlapping zones of protection, the area on the surface overlying the aquifer equal to the sum of the areas of the five year zones of protection of the individual wells, shall be used to define the area which encircles the perimeter of the wellfield. In cases where a zone of protection of a single well protrudues beyond the calculated perimeter or when the configuration of the wellfield is irregular, the perimeter will be shaped to accommodate the configuration. The surface are encircling the perimeter of the wellfield shall not exceed the total surface area of the overlapping zones of protection for individual wells. In the case of unclustered wells within a wellfield, individual zones of protection around each well will be calculated. As previously discussed, the proposed G-I rules are facially applicable to "community water systems" that hold a " consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater," and which are withdrawing from unconfined or leaky confined aquifers. Under proposed rule 1773.403(8)(a), the five-year zone of protection would be drawn around each of these wells. If the wells are located so close to each other that the five year zones of protection are overlapping (clustered), those wells would be deemed a wellfield by rule definition and a five year zone of protection would be established around it. The proposed rule's description at how to determine and configure a zone of protection around a wellfield is however, vague and ambiguous. While the rule provides that when the configuration of the wellfield is "irregular", the perimeter will be shaped to accommodate the configuration", it sets forth no standard by which the perimeter will be established. Effectively, the rule vests unbridled discretion in the Department to establish the configuration of a wellfield. The Economic Impact Statements Pursuant to the mandate of Section 120.54(2), Florida Statutes, the Department prepared economic impact statements for the proposed revisions to Chapters 17-3 and 17-4, Florida Administrative Code. The economic impact statements were prepared by Dr. Elizabeth Field, the Department's chief economist, an expert in economics. Dr. Field developed the economic impact statements by examining the proposed rules and discussing their potential impact with Department staff. Additionally, Dr. Field attended the public workshops that were held concerning the proposed rules, and solicited input from those participants. The Florida Home Builders Association and the Florida Petroleum Council submitted data for her consideration, but none of the petitioners, although some were represented at such workshops, responded to her requests for information. The economic impact statements prepared by Dr. Field to address the proposed rules conclude that, apart from the cost to the Department for mapping, there are no direct costs or economic benefits occasioned by the rules. Dr. Field's conclusion was premised on the fact that the proposed rules only establish the eligibility criteria for reclassification of an aquifer to G-I and the standards for discharge to that aquifer. Under the proposed rules, further rulemaking would be required to actually designate a specific aquifer as G-I, and delineate a zone of protection. 10/ Pertinent to this case, proposed rule 17-3.403, provides: The intent of establishing G-I eligibility criteria is to determine which aquifer or aquifer segments qualify for potential reclassification to G-I aquifers. Adoption of these criteria does not imply nor does it designate aquifer or aquifer segments as G-I. Such designation can only be achieved through reclassification by the Commission after eligible segments have been mapped by the Department. (6)... the following procedure shall be used to designate Class G-I aquifers: Rulemaking procedures pursuant to Chapter 17-102, F.A.C., shall be followed; Fact-finding workshops shall be held in the affected area; All local, county, or municipal governments, water management districts, state legislators, regional water supply authorities, and regional planning councils whose districts or jurisdictions include all or part of a proposed G-I aquifer shall be notified in writing by the Department at least 60 days prior to the workshop; A prominent public notice shall be placed in an appropriate newspaper(s) of general circulation in the area of the proposed G-I aquifer at least 60 days prior to the workshop. The notice shall contain a geographic location map indicating the area of the zones of protection and a general description of the impact of reclassification on present and future discharges to groundwater. A notice of a G-I workshop shall be published in the Florida Administrative Weekly prior to the workshop(s). At least 180 days prior to the Commission meeting during which a particular zone of protection will be considered for reclassification, the Department will provide notice in the Florida Administrative Weekly and appropriate newspaper(s) of the intended date of the Commission meeting. The Commission may reclassify an aquifer or aquifer segment as a G-I aquifer within specified boundaries upon consideration of environmental, technological, water quality, institutional (including local land use comprehensive plans), public health, public interest, social and economic factors. When considering a reclassification an aquifer or aquifer segment shall: ....(Be within the zones of protection of a major public community drinking water supply well(s) or wellfield(s) withdrawing water from unconfined or from leaky confined aquifers.).... Be specifically mapped and delineated by the Department on a detailed map of a scale which would clearly depict the applicable zones or protection. Maps will be grouped and submitted for reclassification generally on a regional basis. Mapping priorities shall follow the Commission directive of February 27, 1985. The remaining areas of the state will be mapped by the Department as time and resources allow. (Emphasis added). While, if and when applied, the proposed rules would certainly have a direct economic impact as a consequence of a reclassification of an aquifer to G-I and the designation of a zone of protection, as well as the standards for discharge to that aquifer, such costs at this stage are not direct or are not quantifiable. When mapped and the zones of protection identified, a reasonable assessment of the economic cost or benefit of the proposal can be addressed. This is specifically reserved by the Commission whereby its decision to reclassify an aquifer as G-I will, pursuant to proposed rule 17-3.403(6) follow rule making procedures and be based on consideration of economic factors. This result obtains whether the affected party is a small business or some other entity. In reaching the conclusion that the economic costs or benefits of the proposed rules, apart from the cost of mapping, do not at this stage have a direct or quantifiable impact, I have not overlooked the "announcement effect" that is occasioned by the announcement of a governmental agency to regulate an activity. Such announcement certainly has a chilling effect on the community that may reasonably be impacted. The economic impact is, however, speculative or not quantifiable in the instant case. Further, the proof does not demonstrate any incorrectness or unfairness in the proposed adoption of the rules occasioned by the EIS prepared in this case.
Findings Of Fact The Respondent, Albert R. Stewart applied to take the examination given on August 3, 1979, to receive a Class "C" waste-water treatment plant operator license. At the examination site of Clearwater, Florida, on the scheduled examination date, the examinees were instructed to print their names on the examination answer sheet and to sign their names on the cover of the examination booklet. At the request of Mr. Stewart, Mr. Alan Ferguson appeared and took the examination in Clearwater, Florida, on August 3, 1979, in the place of and on behalf of Mr. Stewart. Mr. Ferguson signed the examination cover (DER Exhibit 2) and answer sheet (DER Exhibit 3) with the name of "Albert Stewart". The signature on the examination booklet does not resemble any of the signatures of Albert R. Stewart on his application for this examination or for any previous exams. The signature does resemble that of Mr. Ferguson in his prior correspondence with the Department of Environmental Regulation. (Mr. Ferguson presently holds a Class "C" permit). The testimony of Mr. Stewart that he actually took the examination administered on August 3, 1979, is not credible. To allow Mr. Ferguson to be admitted to the examination, Mr. Stewart provided him with his social security card and his driver's license. He also gave Mr. Ferguson twenty dollars ($20.00) for his expenses incurred in traveling to and from Clearwater. At the time of the examination, Mr. Stewart who is presently employed as a supervisor for the Waste-Water Treatment Plant for the City of Inverness, was the supervisor of Mr. Ferguson. Mr. Stewart by his agreement with Mr. Ferguson to take the examination in his place, has falsely represented to DER that he took the August 3, 1979 examination. This false representation occurred in the process of his application for a waste-water treatment plant operator license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation immediately revoking the Class "C" waste-water treatment plant operator's license granted to Respondent, Albert R. Stewart. DONE and ENTERED this 25th day of July, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1980. COPIES FURNISHED: Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Albert Roscoe Stewart Post Office Box 306 Crystal River, Florida 32629 =================================================================
The Issue The issues set forth in DOAH Case No. 84-3810 concern the question of whether the State of Florida, Department of Environmental Regulation (DER) should issue a permit to Homer Smith d/b/a Homer Smith Seafood (Homer Smith) to construct a wastewater treatment facility which is constituted of a screening mechanism, dissolved air flotation treatment system, sludge drying bed, pumping station and subaqueous pipeline. In the related action, DOAH Case No. 84-3811, the question is raised whether DER should issue a dredge and fill permit to Homer Smith for the installation of the aforementioned pipeline along submerged lands in Trout Creek, Palmo Cove and the St. Johns River.
Findings Of Fact Introduction and Background In 1982, Homer Smith, under the name of Homer Smith Seafood, established a calico scallop processing facility in the vicinity of the intersection of State Road 13 and Trout Creek in St. Johns County, Florida. From that point forward, Smith has owned and operated the processing plant. His plant adjoins Trout Creek, which is a tributary to the St. Johns River. Both Trout Creek and the St. Johns River are tidally influenced waters that are classified as Class III surface waters under Rule 17-3.161, Florida Administrative Code. The processing undertaken by Smith's operation at Trout Creek contemplates the preparation of the scallops for human consumption. In particular, it involves the purchase of calico scallops from Port Canaveral, Florida, after which the scallops are transported by refrigerated trucks to the processing plant. They are then unloaded into metal hoppers and directed into rotating tumblers which separate out the scallops from sand, mud and other extraneous material. The scallops are placed in a steam tumbler that removes the shells and then passed through a flow tank that washes away sand, grit and shell particles. The scallops are next passed through eviscerators. These eviscerators are long tubes of aluminum with roughened surfaces that pull the viscera off of the scallops. The detached scallops are then sent along a conveyor belt, with scallops in need of further cleaning being picked out and sent to a second eviscerator. The eviscerated scallops are then chilled and packed for marketing. It is the viscera and wastewater associated with this material that is the subject of permitting. Homer Smith is one of about six automated scallop processing plants located in Florida. Two other plants are within St. Johns County, on the San Sebastian River in St. Augustine, Florida. Three other plants are located in Port Canaveral, Florida. When Smith commenced his operation of the scallop processing plant in the summer of 1982, he discharged the scallop processing wastewater into an area described as a swamp with an associated canal which connected to Trout Creek. By the fall of 1982, Smith had been told by representatives of the Department of Environmental Regulation that to operate his facility with the discharge would require a permit(s) from DER. At the time of this discussion, automatic scallop processing was an industry for which appropriate wastewater treatment alternatives had not been specifically identified by the Department of Environmental Regulation or the United States Environmental Protection Agency. This was and continues to be the case as it relates to the promulgation of technology-based effluent limitations designed for calico scallop processors. This circumstance is unlike the situation for most other industries for which DER has established technology-based effluent limitations. To rectify this situation, Florida Laws 85-231 at Section 403.0861, Florida Statutes, requires DER to promulgate technology-based effluent limitations for calico scallop processors by December 1986. In the interim, consideration of any permits that might be afforded the calico scallop processors by the exercise of DER's regulatory authority must be done on a case-by-case basis, when examining the question of technology-based effluent limitations. DER sent a warning letter to Smith on April 20, 1983, informing the processor that discarding its wastewater into Trout Creek without a DER permit constituted a violation of state law. After the warning letter, scallop harvesting declined to the point that by mid-June of 1983 the plant had closed down, and it did not reopen until the middle part of September 1983. Upon the recommencement of operations, DER issued a cease and desist notice and ordered Smith to quit the discharge of wastewater from the facility into Trout Creek. On the topic of the cease and desist, through litigation, Smith has been allowed the right to conduct interim operation of his business which involves direct discharge of wastewater into Trout Creek, pending assessment of wastewater treatment alternatives and pursuit of appropriate DER permits. 1/ When Smith filed for permits on April 10, 1984, he asked for permission to dredge and fill and for construction rights pertaining to industrial wastewater discharge into the St. Johns River. The application of April 10, 1984, involved the installation of a wastewater treatment system and an associated outfall pipeline to transport treated wastewater to the St. Johns River from the plant location. This system would utilize a series of settling tanks and a shell-filter lagoon as the principal wastewater treatment. DER, following evaluation, gave notice in October 1984 of its intent to issue permits related to dredge and fill and the construction of the wastewater treatment facility. In the face of that notification, the present Petitioners offered a timely challenge to the issuance of any DER permits. In considering treatment alternatives, Homer Smith had employed various consultants and discovered that treatment beyond coarse screening had not been attempted in processing calico scallop wastewater. Those consultants were of the opinion that conventional treatment methods such as clarification, sand filtration, vortex separation, breakpoint chlorination, polymers and spray irrigation were of limited viability due to the inability to remove key constituents within the waste stream or based upon certain operational difficulties that they thought would be experienced in attempting those methods of treatment. As envisioned by the April 10, 1984, application for permit, interim treatment of the wastewater was provided by the use of a series of settling tanks and a shell-filter lagoon, within which system adjustments were made to the delivery of wastewater treatment. The April 10, 1984, permit application by Smith did not envision any chemical treatment of the wastewater aside from that which might occur in association with the settling and filtration through the shell-filter lagoon. Following DER's statement of intent to issue a permit for construction of the wastewater treatment facility as described in the April 10, 1984, application by Smith, DER became concerned about the potential toxicity of calico scallop wastewater, based upon its own studies. As a consequence, Smith amended the application for wastewater treatment facility to include use of chemical coagulation and flotation. This amendment occurred in March 1985, and the wastewater treatment process in that application envisioned the use of an electroflotation wastewater system. In view of toxicity problems experienced with the testing related to the use of an electroflotation wastewater treatment system, this treatment alternative was discarded in favor of a dissolved air flotation (DAF) system. This system was pursuant to an amendment to the application effective May 31, 1985. This amendment of May 1985 was in furtherance of the order of the hearing officer setting a deadline for amendments to the application. DER issued an amended intent to grant permits for the DAF unit and the associated pipeline and that action dates from June 28, 1985. The Petitioners oppose the grant of these permits for the DAF unit and pipeline, and under the auspices of their initial petition have made a timely challenge to the grant of a permit for the installation of the DAF wastewater treatment unit and associated pipeline. It is the DAF unit and pipeline that will be considered in substance in the course of this recommended order. On July 6, 1984, Smith sought an easement from the State of Florida, Department of Natural Resources (DNR) for the installation of the pipeline. This was necessary in view of the fact that the pipeline would traverse sovereignty lands which were located beneath Trout Creek, Palmo Cove and the St. Johns River. On December 17, 1984, DNR issued a notice of intent to submit that application to the Board of Trustees of the Internal Improvement Trust Fund with a recommendation of approval. This action was challenged by the Petitioners on January 7, 1985, in a petition for formal hearing challenging the grant of the easement. DOAH Case No. 85-0277 concerns this challenge to grant of an easement. Originally, by action of January 28, 1985, the easement case was consolidated with the present DER permit actions. At the instigation of DNR, the easement case was severed from consideration with the present action. The order of severance was entered on July 31, 1985. The DNR case will be heard on a future date yet to be established. The DNR case was severed because that agency preferred to see test results of treatment efficiencies following the construction of the DAF unit. By contrast, the present DER cases contemplate a decision being reached on the acceptability of the construction of the DAF unit and attendant features, together with the pipeline on the basis of theoretical viability of this entire system. This arrangement would be in phases in which the construction of the upland treatment system would occur within 90 days of the receipt of any construction permit from DER, followed by a second phase within which Smith would construct the pipeline within 60 days of receipt of any other necessary governmental approval, such as the DNR easement approval. Furthermore, DER would wish to see the results of an integrated treatment system involving the upland treatment by the DAF unit and its attendant features and the use of the pipeline and the availability of a mixing zone, that is to say the end of pipe discharge, before deciding on the ultimate question of the grant of an operating permit for the wastewater treatment system. The quandary presented by these arrangements concerns the fact that discharge from the DAF treatment unit would be temporarily introduced into Trout Creek, pending the decision by DNR to grant an easement for the pipeline and the necessary time to install that pipeline. Given the difficult circumstances of these actions, there is raised the question of the propriety of discharging wastewater into Trout Creek pending resolution of the question of whether DNR wishes to grant an easement to place the pipeline over sovereignty submerged lands. This is a perplexing question in view of the fact that DNR requested severance from the present action, thereby promoting further delay in the time between any installation of the upland treatment system and the pipeline. Finally, Trout Creek is an ecosystem which has undergone considerable stress in the past, and it is more susceptible to the influences of pollution than the St. Johns River would be as a point of ultimate discharge from the pipeline. This dilemma is addressed in greater detail in subsequent sections within the recommended order. Petitioner River Systems Preservation, Inc., is a nonprofit organization comprised of approximately seven hundred persons. The focus of the organization is to protect and enhance the environment of northeast Florida. The individual Petitioners, Pinkham E. Pacetti, Robert D. Maley, Ruth M. Whitman and others, are members of the corporation who own property or live near the scallop processing plant of Respondent Smith. In addition, Pacetti owns a marina and recreational fishing camp that is located across Trout Creek from Smith's plant. Pacetti's fish camp dates from 1929. On the occasion of the opportunity for the public to offer their comments about this project, a significant number of persons made presentations at the public hearing on August 29, 1985. Some members of the public favored the project and others were opposed to the grant of any permits. St. Johns County Board of County Commissioners, in the person of Commissioner Sarah Bailey, indicated opposition to the project, together with Bill Basford, President of the Jacksonville City Council. Warren Moody, the vice-chairman of the Jacksonville Waterways Authority spoke in opposition to the project. The Florida Wildlife Federation and the Jacksonville Audubon Society expressed opposition to the project. The officials related the fact of the expenditure of considerable amounts of public tax dollars to improve water quality in the St. Johns River and their concern that those expenditures not be squandered with the advent of some damage to the St. Johns River by allowing the permits in question to be issued. These officials considered the St. Johns River to be a significant resource which they are committed to protecting. The City of Jacksonville, Clay County, Green Cove Springs, the Jacksonville Waterways Authority, the Northeast Florida Regional Planning Council and St. Johns County expressed opposition to the project contemplated by the present permit application, through the adoption of certain resolutions. These broad-based statements of opposition were not spoken to in the course of the hearing by members of any technical staffs to these governmental institutions. Private members of the public, some of whom are affiliated with River Systems Preservation, Inc., expressed concern about water quality violations, harm to fish and other environmental degradations that have been caused by the Homer Smith operation in the past and their belief that these problems will persist if the permits at issue are granted. Those persons who favored the project, in terms of public discussion, primarily centered on the idea that, in the estimation of those witnesses, fairness demanded that Smith be afforded an opportunity to demonstrate that this proposed system of treatment was sound and the quality of the water being discharged from the Homer Smith plant was not as bothersome as had been portrayed by the persons who opposed the grant of environmental permits. Industrial Wastewater Construction Permit Treatment System Description of Homer Smith's Plant and Its Operation. The source of water used for the processing of the scallops at the Homer Smith plant is a well which is located on that property. Homer Smith is allowed to withdraw 300,000 gallons of water per day in accordance with a consumptive use permit that has been issued by the St. Johns River Water Management District. To ensure Smith's compliance with this permit, a metering device is located on the well. Typically, the plant operates an eighteen-hour day, five days a week, using water at a rate of 200 gallons per minute. This would equate to 215,000 gallons per day over an eighteen-hour day. Prior to the imposition of restrictions by the Department of Environmental Regulation through the consent order, this facility had processed as much as 40,000 pounds of scallops each day, for a total of 36,000 gallons each week, at a gross revenue figure of $225,000 per week. Characteristics and Frequency of Effluent Discharge The wastewater generated by the scallop processing that is done at the Homer Smith plant is principally constituted of the well water used to clean the scallops, proteinaceous organic materials, and metals. The metals are introduced into the wastewater stream from the scallop tissue. The wastewater stream also has a certain amount of sand and grit, together with shell fragments. The concentrations of organic materials within the wastewater stream are at high levels. There is also an amount of fecal coliform bacteria and suspended solids. The pollution sources within the wastewater stream include total suspended solids (TSS), biochemical oxygen demand (BOD), nutrients (nitrogen and phosphorus) and the coliform bacteria. In the neighborhood of 30 percent of the BOD in the wastewater is soluble. The balance of the BOD is associated with the suspended solids. With time the organic materials in the wastewater stream will decompose and with the decomposition present certain organic decomposition products, which would include ammonia, amines and sulfides. Heavy metals in the wastewater have been in the scallop tissue and are released with the cleaning of the scallops. These metals include cadmium, copper, zinc, iron, manganese, silver and arsenic. The presence of these metals within the tissues of the scallops are there in view of the fact that the scallops are "filter-feeders" which have taken in these elements or metals that naturally occur in the ocean water. The permit application contemplates an average of five days a week of operation for eighteen hours a day. Notwithstanding the fact that in the past the Homer Smith Seafood operation had processed scallops seven day week, twenty- four hours per day, Smith does not desire to operate more than five and a half days a week in the future. That is perceived to mean five eighteen-hour days and a twelve-hour day on the sixth day. The treatment system contemplated here is for a flow volume of around 200 gallons per minute during normal operation. The system can operate as high as 300 gallons per minute. That latter figure approaches the design capabilities of the treatment system proposed. Wastewater is discharged only when scallops are being processed. There is basically 1:1 ratio between the volume of well water used to process the scallops and the amount of wastewater discharged. Proposed Treatment System and Alternatives As already stated, there is no specific industry standard set forth in the DER rules which would describe technology-based standards for the treatment of calico scallop wastewater. In those instances where the agency is confronted with an industry for which technology-based standards have not been established, DER examines the question of whether that effluent is amenable to biological treatment as contemplated in Rule 17-6.300(1)(n)1., Florida Administrative Code, as an alternative. Biological treatment is a treatment form normally associated with domestic waste and the imposition of this treatment technique is in furtherance of achieving a secondary treatment standard found in Chapter 17-6, Florida Administrative Code, which results in 20 mg/L of BOD and TSS, or 90 percent removal of those constituents, whichever is the greater performance in removal efficiency. In the absence of specific standards related to the calico scallop industry, and in the face of the interpretation of its rules in which DER calls for an examination of the possibility of biological treatment as an alternative to treatment specifically described for a given industry, it was incumbent upon this Applicant to examine the viability of biological treatment of the scallop wastewater product. The Applicant has considered biological treatment as an alternative and rejected that treatment form, in that Smith's consultants believe the wastewater is not amenable to biological treatment. By contrast, Petitioners' consultants believe that biological treatment should be the principal focus in treating the scallop wastewater and contend that biological treatment is a more viable choice when contrasted with the option chosen by the Applicant. If this waste is not amenable to biological treatment, Rule 17-6.300(1)(n)1., Florida Administrative Code, envisions an acceptable or minimum level of secondary treatment shall be determined on a case-by-case basis. In the instance where biological treatment is not a reasonable choice, the Applicant is expected to achieve treatment results which are comparable to those arrived at in treating domestic waste by the use of biological treatment techniques. On this occasion, DER had not established what they believe to be a comparable degree of treatment for calico scallop waste, assuming the unavailability of biological treatment. The present case is a matter of first impression. As a result, the idea of a comparable degree of treatment shall be defined in this hearing process, assuming the inefficacy of biological treatment. In that event, DER must be assured that the proposed treatment plan has an efficiency that rivals the success which biological treatment promotes with domestic waste, taking into account the quality of the effluent prior to treatment, available technology, other permitting criteria and the ambient conditions where the waste stream is being discharged. In arguing in favor of biological treatment, Petitioners pose the possibility of an integrated system in which primary settling tanks or clarifiers would be used together with a biological treatment step, which is referred to as a trickling filter, followed by final settling by the use of tanks or clarifiers in an effort to achieve BOD concentrations in the range of 200 mg/L to 400 mg/L. In this connection, the dissolved air flotation system is seen in the role of alternative to the initial stage of settling of the constituents within the wastewater stream. It is not regarded as the principal means of treatment of the waste. The trickling filter system as a biological treatment medium involves the use of a bacterial culture for the purpose of consuming the oxygen-demanding constituents, BOD. The trickling filter technique, if a viable choice, has the ability to remove 70 to 75 percent of BOD and TSS. Petitioners suggest further treatment of the waste beyond primary and final settling and trickling filter can be afforded by involving activated sludge, which according to their experts would end up with a biological oxygen demand in the 20 mg/L range. Although the constituents of the Smith plant's waste are of a highly organic nature, and, at first blush a candidate for biological treatment by use of the trickling filter, the problem with this form of treatment has to do with the intermittent flow in the Smith operation. This intermittent flow is caused by the fact that the plant does not operate throughout the year. The plant operations are seasonal, depending on calico scallop harvesting which does not occur on a routine basis. Therefore, the problem is presented of trying to keep the biological treatment system "alive" and operating at levels of efficiency which can be expected to maintain the percentage of removal of BOD and TSS that a healthy system can deliver. The bacteria colonies which are vital to the success of the biological treatment system must be fed on a continuous basis to maintain balance in the population of the colony. This would be a difficult undertaking with the Smith operation, given the interruptions in operations which could lead to the decline in the bacterial population and a poorer quality of treatment once the operations were resumed. This finding takes into account the fact that the colony can survive for a week or two by simply recirculating water over the filter. Obviously, in order to maintain necessary efficiencies within this biological treatment, the bacteria must do more than survive. The further suggestion that has been offered that the bacteria could be sustained for longer periods of time by feeding them seafood waste or dog food are not found to achieve the level of efficiency in the operation that would be necessary in posing biological treatment as an alternative. Again, it is more of an intervening measure designed to assure the survival of bacteria pending the continuation of the operations of the plant, as contrasted with a system which is continual and taking into account the uniformity of the waste product more efficient. Another problem with feeding the bacteria when the plant is not operating is that of disposing of the waste produced when this auxiliary feeding is occurring. Just as importantly, biological treatment is questionable given the long retention times necessary for that process and the build-up of toxic levels or concentrations of ammonia. The Applicant had employed an aerated lagoon in attempting to treat the waste and experienced problems with ammonia build up. Although this system did not call for the degree of treatment of the waste prior to the introduction into the lagoon that is contemplated by the present proposal of the Applicant, it does point to the fact of the problems with ammonia in the biological treatment system. Dr. Grantham, a witness whose testimony was presented by the Petitioner, conceded the difficulty of removing ammonia from the trickling filter. Moreover, the biological treatment system is not especially efficient in removing metals and phosphorus from the wastewater. Alternative treatment would be necessary to gain better efficiency in removals of those constituents. The trickling filter is expected to gain 50 percent metals removal, which is inadequate given the concentrations of heavy metals found in the scallop wastewater. Phosphorus could be removed after treatment by the trickling filter by the use of lime or alum. Assuming optimum conditions in the use of biological treatment after primary and final settling, thereby arriving at a BOD level of 200 mg/L, it would then be necessary to make further treatment by the use of activated sludge to see 20 mg/L BOD. The problem with activated sludge is related to the fact that this form of treatment is particularly sensitive to interruptions in flow, which are to be expected in this wastewater treatment setting. On balance, biological treatment does not present a viable choice in treating scallop waste. That leaves for consideration the question of whether the Applicant's proposal would afford a comparable degree of treatment to that expected in the use of biological treatment of domestic waste. The manufacturer of the dissolved air flotation unit or DAF system proposed, known as the Krofta "Supracell," offers another piece of equipment known as the "Sandcell" which in addition to the provision for dissolved air flotation provides sand filtration. The Sandcell might arrive at BOD levels of 400 mg/L. However, the testimony of the witness Lawrence K. Wang, who is intimately familiar with the Krofta products, in responding to questions about the use of the Sandcell system and suggestion that the system would arrive at 400 mg/L BOD responded "could be." This answer does not verify improvement through the contribution of sand filtration. For that reason inclusion of a Sandcell for filtration of BOD is not suggested in this fact finding and the system as proposed must be sufficient in its own right. Having realized the need to provide greater treatment than screening or filtering the waste stream, the Applicant attempted to design a treatment system using flotation technology together with chemical precipitation and coagulation. At first the Applicant examined the possibility of the use of electroflotation (EF). This involved the collection of wastewater in a retention tank and the generation of an electric current to create a series of bubbles to float insoluble flocs. Those flocs are caused by the use of ferric chloride, sodium hydroxide and various polymers which are added to the waste stream. The flocs are then pushed to the top of the chamber by the air bubbles, and this particulate matter is skimmed off by the use of a paddle. Pilot testing was done of the electroflotation technology and showed promising results, so promising that a full-scale electroflotation unit was installed and tested. The full-scale electroflotation showed reasonable removal of BOD, TSS, nutrients, coliform and trace metals. This technique was discarded, however, when bioassay testing of the treated effluent was not successful. In examining the explanation for the failure, the experts of the Applicant were of the opinion that certain chemical reactions were occurring as a result of the passage of the electrical current through the wastewater stream. When this problem with acute toxicity could not be overcome through a series of adjustments to the process, the Applicant decided to test another form of flotation, which is referred to as dissolved air flotation (DAF). This system employs the use of chemicals to create insoluble flocs. Unlike the electroflotation unit, though, it does not utilize electrical currents to create the air bubbles employed in the flotation. The dissolved air flotation thereby avoids problems of toxicity which might be attributed to the passage of electrical current through the water column. The present system as proposed by the Applicant has a number of components. The first component of treatment involves the passage of raw wastewater through a mechanical screening device, which is designed to remove a certain number of particulates by catching those materials on the screen. That material is then removed from the plant and disposed of off site. The balance of the wastewater after this first stage of treatment passes into a sump area and from there into a primary mix/ aeration tank. This water is then chemically treated to facilitate the formation of insoluble flocs. The chemically treated wastewater then enters a premanufactured Krofta Supracell 15 DAF unit which is designed to form bubbles by the use of pressurized air, with those bubbles floating the waste materials within the floc to the surface. Again, this method does not use electrolysis. The floated solid materials are then skimmed from the surface and directed to a holding tank and subsequently pumped to sludge drying beds. Some of the treated wastewater is recycled through the DAF unit after pressurization and in furtherance of forming the necessary bubbles for the DAF unit. The balance of the water is directed to a force main lift station. This water would then be transported through the eight-inch PVC pipe some 13,000 feet into the main channel of the St. Johns River where it is distributed through a five port diffuser. The screening mechanism spoken of had been installed in mid-December 1984 and has been used since that time to filter the wastewater. The screening mechanism is in substitution of settling tanks and shell pits. The shell pits which had been used before presented problems with odors as well as the ammonia build up which has been addressed in a prior paragraph. The removal efficiency of the screening mechanism is 30 percent of particulates associated with pollution parameters, as example BOD, total Kjeldahl nitrogen, total phosphorus and TSS. The frequency of the transport of these screened materials to the off site disposal is four to six times a day and the screen is decontaminated at the end of each day when the operations are closed. The application contemplates the same operating procedures of disposal and maintenance with the advent of any construction permit. The primary mix/aeration tank aerates the wastewater and through that process and the retention time contemplated, equalizes the flow regime and promotes a more balanced concentration of waste materials prior to the introduction of that wastewater for chemical coagulation and flotation. This step in the treatment process enhances the treatment efficiency. Some question was raised by the Petitioners on the size of the primary mix-aeration tank as to whether that tank was sufficient to equalize the flow, and conversely, the impacts of having too much retention time built into that tank, which would promote the build-up of toxic concentrations of ammonia in the wastewater. The retention time within the sump and the primary mix-aeration tank approximates one and one-half hours. The retention time and size of the primary mix-aeration tank are found to be acceptable. This design appropriately addresses concerns about the build-up of decomposition products and toxicity, to include ammonia. The sludge which collects in the primary mix-aeration tank will be pumped back to the sump pit by return flow. The sump pit itself will be pumped out in the fashion of cleaning a septic tank on the basis of once a week. The sump pit also receives the return flow of leachate from the sludge drying bed. Once equalization of flow is achieved in the primary mix-aeration tank, that wastewater is then treated by the use of alum, sodium aluminate and polymers. The purpose of this treatment is to convert soluble and insoluble organic matter such as TSS and BOD, trace elements and phosphorus into insoluble flocs that can be removed by flotation. These combinations of chemicals and dosage rates have been tested in electroflotation and dissolved air flotation bench and pilot scales for use associated with this project and a list of appropriate chemicals and ranges of dosage rates has been determined. It will be necessary for these chemicals and general dosages to be adjusted in the full- scale operation under terms of the construction permit. This facet of the treatment process must be closely monitored. Once the wastewater stream has received the chemical treatment, it is introduced into the Krofta Supracell 15 DAF unit. This unit is 15 feet in diameter, and within this cylinder bubbles are generated by pressurizing some of the chemically treated wastewater and potentially clean tap water. The use of clean tap water promotes dilution of the wastewater stream as well as greater efficiency in the production of the bubbles. Chemically treated wastewater is brought into the cylinder through the back of a revolving arm that moves around a center column of the DAF unit at the speed of the effluent flow. The purpose of this mechanical arrangement is to eliminate horizontal water velocity, to protect the integrity of the flocs that are being formed by the use of the chemicals. Those flocs float to the surface in a few minutes' time, given the normal turbulence and shallow depth of the DAF unit. This limited retention time also avoids ammonia build up. The floating material is then scooped and poured into a stationary center section and is discharged by gravity to the sludge holding tank. Wiper blades which are attached to the revolving arm scrape the bottom and sides of the tank and discharge any settled sludge to a built-in sump in the DAF unit. These materials which are settled in the bottom of the DAF cylinder are transported through the sludge holding tank and eventually placed in the sludge drying beds. The treated wastewater is removed by an extraction pipe associated with the center section of the DAF unit. It is then discharged. The use of clean tap water from the well and the ability to recycle the waste stream can promote greater treatment efficiency in terms of removal of undesirable constituents of the waste stream and the reduction of concentrations of those materials. As a measurement, approximately 8 percent of the wastewater flow will be removed as sludge. This sludge is sufficiently aerated to be reduced in volume by about one-half over a period of ten to thirty minutes in the sludge holding tank. It is then sent to the sludge drying beds. The sludge drying beds are designed to accommodate 30,000 gallons of sludge. They are 60 feet long, 25 feet wide and 4 feet deep. Those drying beds are of greater size than is necessary to accommodate the volume of sludge. The sludge drying beds have a sand and gravel bottom. The water drains from the sludge as leachate and returns to the sump pit in the treatment system at a rate of five to ten gallons a minute. Some concern has been expressed that the "gelatinous" nature of the sludge will make it very difficult to dewater or dry. This opinion is held by experts of the Petitioners, notwithstanding the fact that polymers are used in the treatment process. One expert in particular did not believe that the sludge would adequately dry. Having Considered the evidence, the opinion that the sludge will not dry sufficiently is rejected. Nonetheless, it is incumbent upon the Applicant to monitor drying conditions of the sludge very carefully and, if need be, to add some chemical such as calcium hydroxide to enhance the drying capacity of the sludge material. It is anticipated that the sludge will be removed once a day and this arrangement should be adhered to. With adequate drying, the sludge material can be removed with the use of shovels, rakes and a front-end loader as proposed by the Applicant. With frequent removal and adequate drying, problems with odors can be overcome, and problems with ammonia build up and the generation of unreasonable levels of bacteria can be avoided. Should problems with odors, ammonia and bacteria occur, it would be necessary for the Applicant to purge the drying beds, to include the sand and gravel which had been invested with the sludge materials that had caused the problems. Although Smith has not tested the drying bed leachate as to specific nature, the treatment process can be expected to deal with problems of any build-up of ammonia concentrations, fecal coliform bacteria and other organic decomposition products. This pertains to the ability to remove these offending substances from the site in terms of removal of the residual solids and the ability to treat those parameters within the leachate as the wastewater is cycled through the system. The treated wastewater will be transported to a pumping station by gravity flow and then pumped via the pipeline to the proposed point of discharge in the main channel of the St. Johns River. This pipeline is constituted of fabricated sections of pipe 20 feet in length, connected with bell and spigot joints, rubber gaskets and solvent welding. The treated wastewater is released into the river through a five point diffuser which has three-quarter inch openings angled at ten degrees from the horizontal bottom. The pipeline is anchored with prefilled 80-pound concrete bags attached with polypropelene straps which are placed at 8-foot intervals. These are placed to keep the pipe from floating. The diffuser is supported by four piles driven into the river bottom and surrounded by a series of concrete bags. The purpose of this arrangement is to hold the diffuser in place and to protect it against potential damage from anchors or other possible impact. The Applicant acquiesces in the choice to have the pipeline tested for leaks once a month in the period June through September and every other month during other parts of the year. If leaks are found, the Applicant would be responsible for repairing those leaks. As stated before, it is necessary for the Applicant to receive permission from the State of Florida to be granted an easement before the pipe can be installed. Prior to that permission being granted, the treated wastewater would be placed in Trout Creek, which is adjacent to the processing plant. Predicted End of Pipeline Quality of the Effluent In trying to predict the quality of effluent at the end of the pipeline, bench scale and pilot scale testing was done related to the DAF technology. This testing was done related to screened wastewater that was collected from the plant in April 1985. In this connection two series of DAF bench scale tests were performed. They related to samples collected on April 18 and 19, 1985, which were packed in ice and shipped directly to a research laboratory in Lenox, Massachusetts, where they were treated with chemicals and a laboratory size DAF unit. The concentration of the wastewater parameters were measured and recorded before and after treatment, and the results of those tests are set forth in the Applicant's Exhibit A-4(B)(3), at Table 2-1. The pilot scale testing that was done in this case related to a 4-foot diameter DAF unit which had been installed at the Homer Smith plant. This testing occurred in April 1985. The basis of the testing was samples taken on April 15 and 19, 1985. Again, wastewater parameters were measured before and after treatment and the results are set forth in Applicant's Exhibit A-4(B)(3), at Table 2-1. When the initial testing was done with the DAF, results for total coliform bacteria uniformly fell below a range of 35 organisms/100 ml. Subsequent pilot tests yielded higher bacterial counts which would indicate that there was a build-up of bacteria within the DAF unit. This verifies the need to require that the DAF unit contemplated by the application be routinely cleaned or sanitized to avoid the build-up problem. TSS in the pilot unit effluent was reduced to 40 mg/L and lower. The capacity for metals removal in the pilot scale testing was good pertaining to copper and zinc. The ability to remove cadmium showed a result of 0.013 and 0.015 mg/L. The best performance in the pilot scale testing related to BOD removal showed a value of 510 mg/L. It should be noted that the bench scale testing and pilot scale testing were in the face of significant variations in the amount of BOD presented by the screened wastewater. This identifies the need to pay close attention to the removal efficiency of the system related to the BOD parameter in order to achieve consistent levels of BOD following treatment. The system under review is referred to as full-scale treatment. This treatment can be expected to exceed the levels achieved in the DAF bench and pilot scale testing because: (a) As a general proposition, treatment efficiency improves as the scale of machinery increases from bench to pilot to full-scale; (b) The bench and pilot scale tests were run without the benefit of the primary mix-aeration tank and the benefits derived from that part of the treatment apparatus, that is to say, uniformity of the flow and better dispersion of the constituents of the wastewater stream, prior to chemical treatment; (c) The pilot DAF unit used exclusively recycled wastewater to undergo pressurization for the creation of the air bubbles. In the course of the hearing it was established that approximately 50 gallons per minute of clean tap water could be brought in to the treatment process resulting in the formation of more bubbles and the facilitation of up to 10 percent greater treatment efficiency based upon that change. The other contribution made by the use of clean tap water was the possibility of as much as a 20 percent dilution of the wastewater stream, in terms of concentration of constituents within the wastewater stream; (d) In a full-scale operation, the opportunity is presented to routinely adjust the chemical dosages as well as select among a range of chemicals in order to achieve the greatest treatment efficiency; (e) In employing routine sanitization of the DAF unit by use of a mild chlorine compound, the tendency to accumulate coliform bacteria can be overcome. Removal of this adverse influence improves the water quality. In traveling through the pipeline, the transit time is in the range of two to three hours. At a normal rate of 250 gallons per minute of discharge, the transit time in the pipeline is 2.25 hours. Given the constituents of the wastewater, bacterial populations can be expected and could conceivably consume sufficient amounts of oxygen to affect the dissolved oxygen levels within the wastewater as it exits the pipe at the diffuser ports. In addition, there is some possibility of ammonia build up within the pipeline. To avoid the build up of bacteria at harmful levels, sanitation of the DAF unit must be accomplished. In addition, the pipeline itself should be flushed with clean water at the close of operations each day and treated with small amounts of chlorine to address bacteria which may form within the pipeline. This avoids the increasing concentrations of ammonia and protects against lowered dissolved oxygen concentrations and the possibility of increased levels of toxic substances in the effluent which might be attributable to the proliferation of bacteria and the build-up of ammonia during the transport through the pipeline. Taking into the account the nature of this wastewater and the velocity associated with the transport and the sanitization of the pipeline, sedimentation associated with organic solids or other materials will not present a problem. The pollution parameters associated with the treated effluent at the point of discharge from the pipeline can be expected to meet Class III orders, excepting unionized ammonia, specific conductance, copper, cadmium, pH and zinc. In order to achieve satisfactory compliance with regulatory requirements related to those parameters, the Applicant has requested a two-meter mixing zone. The purpose of that mixing zone would be to afford an opportunity for dispersion and mixing in the ambient water before imposition of water quality standards. The implications of that mixing zone are discussed in a subsequent section to the fact finding within the Recommended Order. In effect use of the mixing zone will promote compliance with standards pertaining to the subject parameters. Petitioners point out the fact that the Applicant has based its assumptions on the results of treatment on the availability of four sets of data which were obtained from DAF effluent--two sets of data coming from the bench tests and two sets of data from the pilot plant. Further, there is an indication of the variation in quality of the effluent from one test to the next and the need to employ different dosage rates of chemicals in the face of those variations. The full-scale system utilizes a number of techniques to gain some uniformity in the quality of the effluent prior to chemical treatment and thereby some uniformity in the amount of chemicals necessary to treat the effluent. This overall system can then be expected to produce treated wastewater that is basically uniform in its constituents. Petitioners point out the limited amount of data in the testing related to BOD. There were, in fact, only two data points: one related to the bench system and one related to the pilot system pertaining to BOD, both of these the product of different chemical dosages for treatment. Again, the system that is at issue in this proceeding can be expected to arrive at a more consistent level of BOD than is depicted in the results pertaining to bench scale and pilot scale testing. In fact, those results were not remarkably disparate in that the bench sale test produced 560 mg/L and the pilot scale test produced 510 mg/L. While the data related to BOD is limited, it still gives sufficient insight as to the probability of successful full-scale treatment and the test data is found to be a reliable indication of success in achieving the goal of 510 mg/L BOD. Contrary to the Petitioners' perceptions, the treatment efficiency is improved with the system that is under review. Petitioners believe that the bench and pilot scale testing not only is unrepresentative of the full-size DAF system, they also believe that the full-size system represents a lesser quality of treatment. In this regard reference is made to features which would adversely affect the treatment efficiencies. The first of those pertains to leachate which drains from beneath the sludge drying beds and is recirculated to the existing sump pit and added to the waste stream. Sludge which sits in the drying bed does decompose and causes biochemical reactions to occur, as Petitioners suggest. Moreover, no specific testing has been done of the leachate to ascertain the ammonia concentrations, pH or other chemical characteristics. Nonetheless, given the intention to clean out the residual matter within the sump pit frequently, and the flexibility to make that cleanup more routinely, and the fact that this amount of leachate is comparatively small in its ratio to wastewater which is being sent through the system for treatment, the leachate is not found to be an unmanageable problem. Nor is the sludge a problem. Likewise, the amounts of heavy metals within the leachate can be accommodated. Concerns expressed by the Petitioners related to the organic materials in the primary mix-aeration tank that is being returned to the sump pit can also be dealt with by the evacuation of the materials in the bottom of the sump pit. This can be achieved more frequently than on a weekly basis if that becomes necessary, and in doing so avoid problems with concentrations of ammonia, bacteria, amines, sulfides and general organic decomposition products. These materials which are returned to the treatment process as wastewater reintroduced into the primary mix-aeration tank can be adequately addressed in the subsequent treatment that occurs by reaeration, the use of the chemicals and DAF flotation. The retention inherent in the sump pit, primary mix-aeration tank and sludge drying bed has a potential to cause problems with ammonia build-up; however, the problems can be satisfactorily addressed, as well as potential problems with other toxic substances in the effluent, by routinely taking the residual material in the sump pit and sludge drying bed out of the treatment system. While the specific chemicals and precise dosage rates to be used with a full-size DAF system remain open, the basic concept of chemical treatment has been identified sufficiently. The precaution that is necessary is to make certain that close monitoring is made of the results of changes in the chemicals and dosage rates. Likewise, special attention should be paid to the implications of adjustments in the pH of the effluent to make certain that compliance is achieved with the Class III water criterion related to changes in pH above background. Adjustments can be made without violating Class III water standards related to pH. In testing that was done pertaining to the electroflotation effluent, a number of other chemicals were observed, to include trimethylamine, dimethyl sulfide, chloroform and other hydrocarbons. There is some indication of the presence of dichleoroethane, ethylbenezene and other aromatics. The possibility exists that these substances may also be products within the DAF effluent. In that event, the critical question would be whether they have any adverse effect in the sense of influences on the ability of the effluent to pass bioassays and the ability of the effluent to comply with standards related to other parameters such as dissolved oxygen, BOD, and TSS. The routine testing which is called for by the draft permit, which is deemed to be appropriate, would create a satisfactory impression of the materials set forth in the paragraph in the sense of the implications of their presence and allow any necessary adjustments in treatment. While the effluent produced in the testing on the part of the Applicant is different, it is representative, and the treated effluent which will be produced in the full-scale system will be of a better quality and present less adverse impacts than shown in the past testing. Petitioners question whether the Applicant has given a conservative portrayal in analyzing the effluent. In particular, it is urged that the Applicant claimed to be vying for use of the bench scale testing as a conservative depiction of the results of treatment. In this connection, the impression given in the hearing was that of ascendancy in treatment efficiency beyond the use of bench scale, pilot scale and ending in full-scale treatment. As pointed out by Petitioners, in making his case the Applicant has used results of bench and pilot scale testing. As example, use was made of the results of testing in the pilot scale in describing the removal effioiencies related to cadmium, whereas in the measurements of nitrogen concentrations the bench scale result was better than that of the pilot testing and was utilized. The real question is whether the overall testing has given some reasonable indication of success in full-scale treatment. To that end, use of results from either the bench scale or pilot scale testing is appropriate, and those results point to success in the full-scale operation. The system that is proposed is designed to address fluctuations in flow and concentrations in the effluent, given the primary mix-aeration tank contribution and the ability to recycle flow within the DAF unit, with the use of clean tap water. This will allow the Applicant to deal with the remarkable differences in BOD that were seen in the test period, ranging from 900 to 3000 mg/L. COD data as well as BOD data is limited but is found to be an ample depiction of potential treatment efficiencies related to that former parameter. In addition to the aforementioned references to changes in chemicals in the treatment process, Petitioners characterize the use of clean tap water in the recycle flow as being "unsubstantiated speculation." While the use of tap water was discussed in a theoretical vein, that discussion is found to be an accurate assessment of the value of the contribution of clean tap water to the treatment system. Impacts on St. Johns River Ambient Water Quality and Conditions The St. Johns River and the area of the proposed discharge is a riverine estuary. It has a freshwater source flowing from the south and a tidal ocean boundary to the north. The confluence of freshwater flow and tidal influences causes the water movement within this area to be oscillatory. That is to say that at different times the water will flow downstream, to the north, and upstream, to the south. There are occasions in which the net flow over a given tidal cycle will be zero; however, the water is always moving. Conductivity and chloride data indicate that the freshwater flow is the dominant flow compared to tidal influences. The extrapolation of available flow data indicates that there is a net downstream flow of fresh water averaging approximately 6,000 CFS. The St. Johns River at the point of discharge is over one and a half miles wide and relatively shallow with maximum depth in the range of 3 to 3.5 meters. Given the fact of the width and depth in this segment of the river, and the imposition of wind conditions and tidal influence, the water is well mixed and flushed. There is no stratification in this portion of the river. The Applicant looked into the question of current bearing and velocity in depths between two to fourteen feet in the water column. Eleven sampling stations were utilized in arriving at information about current bearing. This observation was over an eleven-nautical-mile stretch of the main channel of the St. Johns River. These stations are depicted on Applicant's Exhibit 38. In this portion of the river the current at all measured depth was flowing up and down the main channel. Within these sections there is no indication of a pronounced subsurface water movement toward the east and west banks of the river. Current velocities within the three stations closest to the POD averaged in the range of 0.5 feet per second and velocities in the other stations found within the main channel were within that range of movement. By contrast current velocities within the embayment areas along the east bank of the river were substantially weaker. DER conducted two studies using tracing dyes poured into the St. Johns River at the approximate point of discharge and monitored the course of dispersement of that dye. During this observation the dye was constantly replenished while being carried on the currents. While the dye remained within the area of the main channel, it stayed on the east side of the river as it moved down river on the outgoing tide in the direction of Smith's Point and the Shands Bridge. As the tide was slowing before the change of tide, the dye drifted for approximately two hours in the immediate vicinity of the point of discharge. The DER dye study was a fairly gross measurement of the direction of water movement within the river beyond the point of discharge. It tended to confirm that the water flow was basically up and down river, depending on whether the tide is incoming or outgoing. The studies were not sufficiently refined to speak with any certainty on the possibility that some part of the flow regime would move toward the east or west bank of the river. Nonetheless, in examining the nature of the shallow embayment areas along the banks of the St. Johns River, they are not seen to be subject to the basic flow regime that is occurring in the main channel during tide events. The bathymetry in this area is such that if the main flow regime was having some influence on the embayment areas, the depths within those embayments would be more similar to the depths found in the main channel of the river. Petitioners have employed a number of dye and drogue measurements to try to give a more accurate depiction of the influence of flow within the main channel upon the dispersion of effluent upon discharge and the possibility of those pollutants reaching the embayment areas. While there is no dispute over the fact that Trout Creek is a tributary to the St. Johns River with some tidal influences being shown in that Creek and there is no dispute that water from the St. Johns River flows in and out of Palmo Cove and Trout Creek, there does not appear to be a significant flow of water from the St. John River into the cove and creek from the main channel, in particular from the area of the point of discharge. One of the witnesses of the Petitioners, Sandy Young, did a dye procedure in which a plume was allowed to develop over a distance of approximately 1,000 feet. Although some slight lateral variation was shown in the dye plume, it did not identify a basic flow pattern toward the embayment areas on the east side of the river. The DER dye study was over a distance of some eight thousand feet and also showed some minor lateral variation. Both of these dye studies tend to show a basic flow pattern within the main channel. The dye study run by the Petitioners' witness White gave the same basic depiction as seen in the studies by DER and Young and did not identify a flow pattern out of the main channel toward the embayment areas. In the drogue studies run by Young three Chlorox bottles were filled to 95 percent of volume with water and released at the point of discharge. They were followed for a period of five hours. They moved initially with the outgoing tide toward Jack Wright Island and then when the tide slowed, the drogues slowed. When the tide changed with the incoming tide, the drogues moved toward the center of Palmo Cove. The drogue studies by Young do tend to indicate that some water was exchanged from the main channel at the point of discharge and the embayment areas. It is not a very exact measurement as it only deals with the surface area of the water column, given the wind and wave conditions existing on that occasion. It is in no way representative of the flow direction of the rest of the water column. Therefore, although it may tend to identify that some of the pollutants leaving the point of discharge may find their way to Palmo Cove, it does not establish that quantity of that pollution dispersion and the significance of that dispersion. Based upon this evidence it cannot be seen to be so revealing that the assumptions made by the applicant in trying to identify the dispersion characteristics of the effluent at point of discharge are negated based upon the results of the drogue study. The drogue study which Young did and the observation of the movement from Smith's Point to Little Florence Cove are no more compelling than the dye studies done at the point of discharge. When the Petitioners suggest that there is some influence by centrifugal force pushing the water to the outside of the curve toward the eastern bank, they are correct. However, the contention by the Petitioners that the incoming and outgoing tides sweep to the eastern shoreline of the St. Johns River moving toward Pacetti Point, Palmo Cove, Florence Cove and Smith Point is not accepted. Again, the general flow regime is up and down the main channel of the river and not primarily to the eastern bank. Finally, the fact that the Tetratech data produced for the benefit of the Applicant showing the flow pattern within the overall water column, which indicated that the general direction is the same at the top or bottom of the water column, did not tend to identify the fact that pollutants throughout the water column will be dispersed into the embayment areas from the point of discharge. The data collected in the main channel seem to establish that the water was flowing up and down the channel at depths below the surface. The question becomes whether the amount of pollutants that are being brought into the embayment areas is in such concentrations that they tend to cause problems along the shoreline, especially as it pertains to dissolved oxygen levels. From the facts presented, this outcome is not expected. Levels of dissolved oxygen in the St. Johns River can vary in the natural condition as much as 2 to 3 mg daily. These variations are influenced by algal activity and are not uncommon in Florida waters. Dissolved oxygen is essential to aquatic life. Optimum levels of dissolved oxygen for the fish population of the river are in the neighborhood of 6 to 8 mg/L. DER has established a minimum DO standard of 5 mg/L for Class III waters such as Trout Creek, Palmo Cove and the St. Johns River. This standard is designed to achieve uniform compliance throughout water column at whatever time the measurement may be made. DER, by the employment of this rule, is attempting to deal with those instances in which, in view of the dissolved oxygen level, aquatic organisms are placed under greater stress. The lowest DO concentration expected is normally seen in the summer in July, August and September. DO concentrations in the water column are expected to be highest at the surface area and lowest near the bottom. Measurements near the bottom are significant in this instance because the discharge will occur approximately one foot off the bottom of the river. The Applicant took DO measurements of the area in question during the spring of 1984 over a period of three days. These measurements were taken at a time when a better quality of dissolved oxygen might be expected as contrasted with circumstances in the summer. With the amount of wind involved impressive levels of reaeration were also occurring. These measurements showed that in all stations DO levels were at least 5.0 mg/L at all depths. A study by Applicant's consultant Environmental Science Engineering related to a diurnal event for dissolved oxygen was taken approximately one kilometer downstream from the point of discharge in August 1985 and did not reveal any measurements below 5.0 mg/L. The river was choppy on that day and this would improve the quality of dissolved oxygen. Historical data by DER related to water quality at Picolata, which is south of the POD in the St. Johns River, reveals average DO levels of approximately 6 mg/L. Historical water quality data collected by the Florida Game and Freshwater Fish Commission near Green Cove Springs, which is several kilometers north of the point of discharge, indicated average DO levels in compliance with water quality standards. Diurnal data from near Green Cove Springs did not show any history of DO values below the state standards. There is other historical data, however, which indicates that DO concentrations in the general vicinity of the point of discharge do go below 5.0 mg/L. Game and Freshwater Fish Commission data indicate that the readings below 5.0 mg/L could occur as much as 10 percent of the time. This relates to the study done at Green Cove Springs. There does not appear to be any particular pattern to these events of low DO violations other than the expectation of their occurring in the summer months, occurring more frequently in the lower depths of the water column and in areas which are shallow with limited flow. The summer circumstance is one in which there is a possibility of very heavy rainfall followed by hot weather with overcast skies and no wind, and the DO values go down in that set of conditions. The DO values are, in addition to being lower near the bottom of the water column, likely to be lowest in the evening or early morning hours and persist in length of time from eight to ten hours. Some of the Florida Game and Freshwater Fish Commission data from Green Cove Springs depicted some DO concentrations as low as 1.8 mg/L at the bottom and 2.1 mg/L at the surface. The low readings that were taken at Green Cove Springs occurred in September 1979 after Hurricane David had created unusual conditions in the upper St. Johns River as to effects on DO. The same report indicated DO concentrations at eleven stations in the lower St. Johns River in July and September 1982 were in the range to 4.0 to 4.5 mg/L respectively. This particular data is not particularly valuable in view of the location of those stations. There are occasions when the DO concentration at the point of discharge could go below 5 mg/L and could be as low as 2 mg/L on the bottom, but this is not a routine occurrence and would not persist. The Petitioners' consultant Young had taken certain dissolved oxygen readings at the point of discharge in April 1985 and found compliance with the 5 mg/L standard. At other times he and the consultant white measured substandard dissolved oxygen concentrations at the point of discharge. On July 20, 1985, white collected water samples at the surface and at two feet above the bottom and determined that the readings were 4 mg at the surface and 3 mg near the bottom. On August 10, 1985, Young measured DO concentrations of 4 mg/L near the bottom. On August 30, 1985, Young measured DO values of 4 mg/L at the point of discharge. Young had also measured DO concentrations at Green Cove Springs on August 10, 1985, and discovered readings as low as .5 mg/L and ranging up to 3.8 mg/L. A downstream measurement away from the point of discharge in the main channel made on August 10, 1985, by Young showed a dissolved oxygen reading of 4 mg/L. In these August measurements Young had discovered a number of readings that were in compliance with the 5 mg/L requirement. Again on September 5, 1985, Young made a measurement of dissolved oxygen near the bottom of the water column at the point of discharge which was 5.3 mg/L. Young's measurements of dissolved oxygen at the surface and in the intermediate depth, typically were above 5 mg/L. Bottom readings taken by Young in the main channel of the river and to some extent in the embayment areas were extracted from the soft detrital materials, the place of intersection of the river bottom and the water column. DO levels in these anoxic materials would tend to give lower dissolved oxygen readings and, to the extent that this anoxic material remains in the test probe while taking measurements toward the surface, would have an influence on the readings, making them appear lower than would be the case if the anoxic sediments were not present in the test device. These effects were not so dramatic as to cause the rejection of the data collected by this witness. Some explanation for lower DO readings at the point of discharge can be attributable to the fact that the anoxic material associated with high benthic oxygen demand on the bottom reduces the dissolved oxygen in the water column. Although Rangia clams were present at the point of discharge and they are capable of living in an environment of low salinity and low DO, they are likewise able to live in higher ranges of DO and their presence cannot be regarded as meaning that the dissolved oxygen levels are consistently below 5 mg/L. Petitioners' consultant White opined that there would be a very frequent violation of DO standards at the point of discharge, approaching 25 percent of the time. Considering the facts on the subject of dissolved oxygen in that area, this opinion is rejected, as is the opinion that DO concentrations will go below DER standards most of the time in July, August, and September. Young believes that a more involved study of worst case conditions would reveal DO violations throughout the column in the center of the river. The data that was presented was ample to demonstrate that violations would not be that widespread. Nor is the opinion of the consultant Parks on the subject of DO violations, to the effect that they will occur on many occasions accepted. In the Palmo Cove area it is not unusual to see some DO readings below the 5 mg/L standards. The E.S.E. group found substandard DO conditions in Palmo Cove at sampling Station 1 in September and October 1984 and some instances in April and May 1985. DO concentrations were found in the range of .4 and .6 mg/L in August 15 and 30, 1984, respectively, with DO concentrations of 1.8 and 2.1 mg/L reported on October 4 and October 29, 1984, respectively. DO violations in four out of eight checking periods between April 25 and May 24, 1985, were shown in the Palmo Cove area. Measurements taken by the consultant white showed 3 mg/L at the surface and 2 mg/L at the bottom on July 28, 1985. The consultant Young also made a measurement of 3.2 mg/L of dissolved oxygen on August 10, 1985, in a mid-depth reading in the Palmo Cove area. On September 5, 1985, he found a DO reading of 4.0 mg/L. At those places along the eastern shoreline of the St. Johns River and the relative vicinity of Florence Cove, Jack Wright Island, Little Florence Cove and Colee Cove, low dissolved oxygen readings were found, that is below 5 mg/L. These coves can be expected to have substandard readings frequently during the summer period, based upon measurements taken by the consultant Young. In the conduct of the drogue study related to the Chlorox bottle, the consultant Young in tracking the path of those bottles, found a couple of locations in the path of the drogue which were in the range 2.8 to 4.2 mg/L and 2.0 to 4.6 mg/L. The influences of the discharge will not reduce DO in the embayments. The ambient conditions for BOD in the area where the discharge is contemplated is relatively low and there is no thermal or saline stratification even in the summer months. Nutrient concentrations in this part of the St. Johns River are as indicated within the Applicants Exhibit A-4(B)(3) and at present are at such levels as to promote a healthy fish community. There is algae production that can be sufficient in some areas within this section to cause algae blooms. Algae blooms are not found to be a routine occurrence. Algae blooms reflect higher levels of nitrogen and phosphorus. The consultants Young and White have seen algae blooms in the St. Johns River away from the general area of concern, both upstream and downstream. Should those algae blooms occur, they would promote significant rises and falls in DO concentrations. In Palmo Cove and the St. Johns River, supersaturated DO concentrations have been detected and they are indications of high rates of primary algal productivity. The circumstance of supersaturated conditions, related to dissolved oxygen, can be the by-product of an algal bloom. The concentrations of nitrogen range from an average of 1.42 to a maximum of 2.54 mg/L. Nitrogen concentrations of 1.4 mg to 1.5 mg/L are optimally advantageous for fish production. Significant increases above those levels would cause the decline of the fish population. Total phosphorus concentrations in the ambient waters are high. Concentrations in excess of 0.1 mg/L of total phosphorus are regarded as a indication of eutrophication and the average concentration here is measured as 0.3 mg/L with a maximum ambient concentration found at 0.52 milligrams per liter. There is significant algal growth in the inshore areas and an indication of some eutrophication in the grass beds. The dominant species of algae found in that vicinity are blue-green, which are seen as being nuisance species. The grass beds along the shoreline are basically healthy. On the other hand, some of the public witnesses identified the fact that grass beds and other vegetation have died with the advent of discharge from the Applicant's plant into Trout Creek. This was under a system in which little or no treatment was afforded the effluent. One other public witness indicated that his dock in the Florence Cove area had been covered with a slimy material and algae during the past two years. Significant grass beds are found along Jack Wright Island and in other areas along the eastern shoreline of the river. These grass beds are important as fish habitat to include nursery areas, areas for various juvenile species of fish and other organisms. Some of these grass beds are showing signs of environmental stress, and nutrient loading can contribute to that stress. Some of the grass beds are covered with higher amounts of algae, duckweed and periphyton than are desirable. The duckweed had floated into these areas from other locations and can be expected to move away. The presence of algae is an indication of nutrient loading. The presence of duckweed is not a product of nutrient loading in the sense of the production of the duckweed at the site where they were found along the shoreline. The area in question between Pacetti Point and Shands Bridge serves as a nursery in a sense of providing habitat for juvenile species of fish and other organisms. The grass beds along the shoreline provide habitat for feeding and breeding related to juvenile organisms, to include such species as bass and shrimp. Juvenile catfish are found within the deeper portions of the river as well as croaker and other marine species. There is a high number of juvenile blue crabs in this area of the river and this is a commercial resource. Shrimp are taken by recreational fisherman in the area of the North Shore Pacetti Point. Clam beds are also present near the point of discharge. Juvenile and adult manatee have been seen in the St. Johns River and in the area near Jack Wright Island. Manatee have also been observed in Trout Creek at a time before the operation of the Applicant's plant and at times following the cessation of operations in June 1985. During the course of the operation of the Applicant's plant, when raw effluent was discharged into Trout Creek, fish kills were observed. Those events had not been seen prior to the operation of the plant. Indications are that fish were killed in the creek due to the use by the Applicant of fly bait, which made its way into the water. Dispersion Modeling of Water Quality Impact In order to gain some impression of the influences caused by the dispersion of the pollutants within the effluent, the Applicant through its expert employed several modeling techniques. DER was made aware of this modeling as it developed. A far-field model was used to calculate what the long-term or steady state impacts of the treated effluent would be on the ambient water quality. In trying to identify the influence of the discharge, measurement of metals were taken based upon an assessment of long term increases. BOD, which breaks down and consumes oxygen over time, was examined in the sense of the long term effects as to DO deficits. In essence these projections were superimposed over the ambient condition to gain an impression of the adjusted ambient values, taking into account the influence of the discharge. The Applicant also ran a plume model which was designed to calculate spreading and dispersion of the treated effluent within the zone of initial dilution or mixing zone at the point of discharge. This model responds to the discharge configuration. Through the use of computer calculations, it was established that a five-point diffuser with port openings of 0.75 inches in diameter angled upward at ten degrees would result in an effluent dilution ratio of 28.5:1 within two meters of the point of discharge. The calculated impacts of the plume model were superimposed upon the adjusted ambient water quality conditions set forth in the far-field model in order to determine net impact upon the receiving waters within the mixing zone. A third model was used, referred to as the lateral diffusivity model. This model is designed to calculate the six-hour or short term water quality impacts of the treated effluent when it moves from the zone of initial dilution during flood and ebb tide conditions. By estimating dispersion rate, this model predicts what dilution would occur in the path of the effluent plume. These impacts were then superimposed upon the adjusted ambient water quality conditions to determine the total impact in the path of the plume. The modeling work by the Applicant's consultant is a reasonable depiction of the predicted impacts of the pollution on the ambient conditions. The calculations used in the far-field model assumed a freshwater flow of 2,000 CFS. This assumption in the far-field model satisfactorily addresses worst case flow conditions related to seven-day, 10-year low flow. The temperature utilized in depicting ambient water was 30 degrees centigrade when employed in the far-field and lateral diffusivity models. This corresponds to warm weather conditions, which are more profound in describing effects on water quality. The far-field and lateral diffusivity models assumed that the treated effluent discharged from the pipeline would have a BOD concentration of 665 mg/L. This is contrasted with the maximum concentration allowed by the draft permit, which is 510 mg/L, which is the expected amount of BOD. This tends to depict the impacts of the discharge more conservatively. The model assumes the BOD loading of 2,720 kg per week, equating to an average discharge concentration of 665 mg/L if the plant operates five days a week on an eighteen-hour day. The reaeration rate and NBOD and CBOD decay rates used in the far field and lateral diffusivity models are acceptable. Likewise, the longitudinal dispersion coefficient that was used in the far-field model is acceptable. The standard modeling methodology in this process calls for an assumption of a 1.33 growth rate of the plume in the lateral diffusivity model. The Applicant's consultant decided to use a lower constant diffusivity growth rate. As a consequence, less lateral spreading is depicted. With less lateral spreading, less dilution is shown, and the impacts predicted by the model are exaggerated. One of the parameters of the plume model has to do with river flow which causes some turbulence and also brings about dilution. In this instance the plume model calculations assume stagnant conditions which is a more conservative assessment. As the Petitioners have suggested, the modeling to explain the impacts of dispersion of the pollutants is not designed to give precise calculations of the DO deficit at each point in the river along the eastern shoreline. It is indeed an estimate. The estimate on this occasion is reasonable. Although DER performs mathematical analysis of dispersion of proposed discharge in some cases, it did not do so on this occasion. Nonetheless DER was satisfied with the present choice for modeling the dispersion characteristics of the discharge. Although the models utilized were not subject to exact calibration by measurement of the dispersion at the site, the information gained by the Applicant prior to the imposition of the modeling techniques was sufficient to develop the models and to give a theoretical verification of the expected impacts from the discharge. The Applicant's belief that the maximum DO deficit caused by the discharge will not exceed 0.1 mg/L is accepted. The dissolved oxygen level in the effluent at the point of discharge will be above 5 mg/L. The Applicant's choice of reaeration rates, CBOD decay rates, NBOD decay rates, discharge rate from the pipeline, hours of operation, average reversing current speed, net non- tidal flow, non-tidal velocity, time lag before NBOD decay, maximum tidal velocity, and other variables and assumptions within the models were acceptable choices. Although the possibility exists of an occasional 5 1/2 day operation in which 10 additional hours of operation are added, this would not be so significant as to set aside the predictions as to the pollutant dispersion. The Applicant's consultant who modeled the dispersion rates did not conduct dye studies to verify or calibrate the actual dispersion in the river. One of the dye studies indicated a lateral spreading rate which was less than that predicted by the model. Notwithstanding this revelation, the overall techniques used by the Applicant in predicting lateral spreading rate are sound and do not present a risk of a greater DO deficit than was predicted based upon incorrect assumptions as to lateral spreading rates. The Applicant's consultant's use of 2,000 CFS as the net non-tidal low flow was a more convincing estimate than the field data collected by the United States Geological Service, given the paucity of information about the flow conditions within the St. Johns River. The Applicant's choices in describing maximum tidal velocities and average velocity are accepted. The critique of the modeling efforts done by the Applicant that was made by Petitioners' consultant, Dr. Parks, in which he concludes that the DO deficit is considerably greater than 0.1 mg/L is not accepted. Comparison of Predicted Impacts of Discharge with Statutory and Regulatory Criteria Inside the Mixing Zone Applicant's assumptions about the increase in nutrient concentrations in the St. Johns caused by the discharge are accepted. This is based on the assumption of a nitrogen value of 52 mg/L which was achieved in bench scale testing of the effluent and which can be achieved in the full scale operation. As the effluent is discharged from the diffuser within the mixing zone, there will be some turbidity problems in that the bottom near the point of discharge. The soft silt there is easily resuspended. When the discharge is concluded, the material will settle back to the bottom. There will be further resuspension when the operation commences again and there is a discharge. The transport of these suspended materials is limited in that the water velocity associated with the discharge is quickly dissipated. This phenomenon will not cause adverse environmental impacts. The mixing zone does not include an area approved by the State of Florida, Department of Natural Resources for shellfish harvesting; it does not exceed the presumptive maximum size set forth in Rule 17-4.244, Florida Administrative Code. Nor does it include an existing drinking water supply intake or any other existing supply intake that would be significantly impaired by the proposed mixing zone. The water in this area is of sufficient depth that it will not support grass beds that are associated with a principal nursery area, such as pond weed, midgeon grass, manatee grass, turtle grass or eel grass which are used to support nursery activities. These grasses are normally found inshore. Although juvenile fish are found throughout this reach of the St. Johns River, and for that matter in the entire lower eighty miles of the St. Johns River, the mixing zone is not of such dimensions that it will preempt the health of juvenile fish. Most of the freshwater fish in this system use the littoral areas for reproduction. Marine and estuarine species do not reproduce in the St. Johns River. There is some reproduction that is occurring with some species, such as catfish. Given the size of the mixing zone, no significant adverse effects will occur with the established community of organisms in this portion of the river. The mixing zone will not otherwise impair designated uses of the St. Johns River. The treated effluent will not create a nuisance condition or violate any other DER standards that apply within the mixing zone. With the advent of the full scale facility, maximum, average and chronic toxicity criteria can be reasonably expected to be met at the point of discharge, within the mixing zone and at the boundary of the mixing zone. As described before, the effects of sediment transport upon discharge are localized. The proposal for a mixing zone takes into account Rule 17-4.244, Florida Administrative Code, in the sense of addressing present and future sources of pollutants and the combined effects with other pollutants or substances which may be present in the ambient waters. One of the concerns which DER has about wastewater is the effect which that pollutant has on organisms within the environment. To gain an impression of that influence, testing is required to establish whether the wastewater is acutely toxic. The testing is known as bioassay assessment. While this assessment is normally done after the grant of a construction permit, when confronted with uncertainty about the quality of the effluent, some testing is beneficial prior to the grant of a construction permit. This is especially true given DER's experiences in dealing with raw effluent of several of the scallop processors, to include Homer Smith, which showed that the raw effluent was acutely toxic. This acute toxicity testing is done by placing test organisms into aquaria containing the effluent and measuring survival of those species over time. Results are described in terms of a measurement of the concentration of the effluent at which 50 percent of the organisms are killed during a prescribed test period. In static testing the organisms are simply exposed to the effluent for the requisite period of time. By contrast, a static renewal test calls for the effluent to be replaced with another sample of the effluent at various intervals within the test period. Finally, a flow through bioassay test calls for a continuous stream of fresh effluent to be introduced in prescribed concentrations over the duration of the test. A bioassay assessment in the static condition was performed related to DAF pilot scale effluent that was collected on April 19, 1985. In this instance Daphnia magna were used as test organisms and demonstrated a survival rate of greater than 50 percent in a 100 percent concentration of effluent over a period of 96 hours in the setting of static and static renewal tests. That survival rate was also shown in lesser concentrations of effluent as well. The April 19, 1985, sample was also used in testing the response of Pimephales promelas. These test organisms did not survive either in the static or static renewal tests. While an hypothesis has been made that acute toxicity was experienced in this test organism attributable to build-ups of ammonia, which is greater with this type of organism than with the Daphnia, due to larger biomass which allows for a greater number of ammonia generating bacteria to be presented in the test aquaria and the fact that the Pimethales excrete more ammonia, these differences do not definitely explain why the Daphnia survived and the Pimephales did not. In the series of static renewal bioassays performed on the wastewater that was collected at the plant on April 29, 1985, and shipped to Lenox, Massachusetts, for bench scale treatment, the test organisms of both types failed to survive for 96 hours. It was discovered that during the course of the test period, levels of ammonia rose rapidly. Trace metals in the treated effluent are principally in the form of stable species, as opposed to free ions. These constituents standing alone are not likely to have caused the mortality in the test organisms. The effect of decomposition of the organic constituents in the waste stream is the most likely explanation of why the bioassays of pilot and bench scale treated effluent did not lead to a satisfactory result. Unionized ammonia, a by-product of organic decomposition, is found to be a principle player in the explanation of why the treated effluent was acutely toxic to the test organisms. The exact cause of toxicity has not been precisely identified. Given the complex nature of the effluent, other potentially toxic substances such as sulfides, amines, and other organic compounds could have contributed to the demise of the test organisms. Moreover, toxicity can increase with combinations of chemicals acting in a synergistic fashion, making their combined effects more devastating than the effect of any single substance. Having in mind the fact that ammonia is a major problem in the survival of test organisms subjected to a bioassay, the question becomes one of what may be done to remove ammonia. The production of ammonia in wastewater would depend upon the presence of bacteria. The proposed DAF system removes substantial numbers of bacteria, thereby limiting the possibility of ammonia build-up, if bacteria are not allowed to recolonize in some part of the system prior to discharge. As discussed before, reduction of bacterial activity can be achieved within the proposed treatment system. This is unlike the experience with the bench scale and pilot scale testing that was done on the effluent in which a substantial amount of time transpired before subjecting the test organisms to the effluent and in which a substantial amount of time transpired while the test organisms were being subjected to static and static renewal procedures with the same effluent. The time intervals contributed to the build- up of toxic levels of ammonia in the effluent. The system which is proposed in this instance can avoid the problem of time as it relates to the build-up of levels of ammonia. To further reduce the influence of retention of the waste product, flow through bioassay testing would be the most appropriate measurement of the survivability of the test organism in that it would be responding to real case conditions pertaining to the quality of effluent and its potential toxicity. Under these circumstances, it is reasonable to believe that in a flow through bioassay test of the full scale treatment system, the test organisms could survive. This determination is reached given the reduction in retention time compared to the bench and pilot scale testing, which reduces ammonia, with further ability to reduce ammonia by frequent removal of residual materials from the sludge drying bed and sump pit and taking into account basic improvements in treatment efficiency associated with the full scale system. In addition, the pH of the effluent can be regulated to avoid toxicity in the ammonia which is associated with inappropriate balance within the pH. While a 96-hour LC-50 cannot be calculated with the results of bench scale and pilot scale testing, a reasonable possibility exists for the establishment of that measurement with the advent of a flow through bioassay. There is sufficient similarity between the effluent in the pilot and bench scale testing and the expected effluent in the full-size system for the bioassay testing that was done in those limited systems to give a meaningful indication of the probability that the Applicant can pass a flow through bioassay. Applicant can be reasonably expected to produce an effluent in the mixing zone which will not exceed the 96 hour LC-50 for acute toxicity. As with the circumstance of ammonia, pH can be controlled within the system to address the implications of changes in pH as it pertains to other pollutants in the wastewater. Ammonia production can be influenced by the amount of alkalinity in the effluent and the receiving waters. Alkalinity has not been measured thus far. Alkalinity could be established for the effluent and receiving waters and dealt with if it was suspected as being an explanation of problems with the build up of ammonia which might exceed DER standards. The discharge from the Applicant's plant will not cause long-term problems with low DO, high nutrients, algal imbalances, and chronic toxicity. Outside the Mixing Zone Those constituents within the waste stream, to include those for which a mixing zone was sought, will comply with applicable water quality standards at the boundary of the mixing zone. The dissolved oxygen deficit at its maximum can be expected to be in the neighborhood of 0.1 mg/L and will be exerted somewhere in the range between 1 and 2.5 km downstream of the point of discharge across the width of the plume in worst case conditions. This deficit is not of a dimension which is easily detectable. The implications of that deficit are difficult to perceive in terms of tangible environmental consequences. While a deficit in the range of 0.1 mg/L has some relevance in the DER permitting decision, that deficit as it is dispersed is not expected to cause or contribute to violations of water quality standards in the main channel of the river or in the inshore and embayment areas. While it is true that there are periodic fluctuations of dissolved oxygen below 5 mg/L, DER, as a matter of present policy and professional judgment believes that in this system which evidences characteristics of a clean well-flushed, unstratified water body occasional readings of low DO are not regarded as an indication of violation of water quality standards. This speaks to the main channel area of the river where the only quantifiable influence is expected. The facts presented in this case support the soundness of this policy choice. Petitioners presented the testimony of former officials within DER, namely Parks and Young, who stated that dissolved oxygen standards of 5 mg/L are applied at all times and at all places. They felt that the DER policy was to the effect that permits would not be granted for discharge in any circumstance where the DO concentrations are substandard in the ambient waters, regardless of the amount of decrease or deficit that would be promoted. Parks spoke of the availability of site specific alternative criteria, variances, exceptions or exemptions from the terms of the water quality rule. Having considered these remarks, the present DER policy of allowing the permit to be granted in the instance where occasional violations of ambient water quality standards related to 5 mg/L occur, in the face of the small deficit which is involved in this case, is the better choice. Further, it is a choice that is not so inconsistent with prior practices as to be arbitrary in nature. Finally, DER's position that it would be unadvisable to require a request for site specific alternative criteria, variances, exceptions or exemptions in circumstances such as this case is accepted, when taking into account the problems which would be presented to the agency in administering the permit program, should each Applicant who is confronted with occasional violations below standards for dissolved oxygen have to seek extraordinary relief. While the facts do identify that some pollutants can reach the embayment areas on the eastern shore, the facts do not depict a circumstance in which the amount and quality of that effluent will be such that it will cause or contribute to dissolved oxygen violations in those areas. The water quality in the embayment areas is lower than that in the main area of the river due to inadequate flushing. The areas inshore do not interact with the main channel in a way that would take advantage of the faster moving currents found in the main channel as this interaction might promote a better quality of water. In view of the situation in the embayment areas, the Applicant, on advice of his consultants, moved the proposed location of the discharge into the main channel away from the areas which were under greater stress in terms of dissolved oxygen values and in doing so avoided damage to these areas. The current velocities in the area east of the main channel are weak. There is a substantial distance from the point of discharge to the inshore areas. As the effluent moves toward the inshore or nearshore areas it will become so diluted it will not have an adverse influence on dissolved oxygen. Not only the distances involved, but also the fact that water flowing near the surface is well aerated contributes to the dilution of the effluent as it approaches the shore. Although it has been shown that some stress in the grasses along the eastern shoreline has occurred and the existence of blue-green algae has been shown, together with indications of undesirable algal production, the nutrients which are part of the effluent at the point of discharge are not expected to cause an imbalance in the natural populations of flora and fauna or create nuisance conditions or violations of transparency standards. The nitrogen increase could cause an increase in algal production in the order of one percent, which is inconsequential. The treated effluent will not adversely effect biological integrity of the St. Johns River. The benthic microinvertebrate community in this part of the river is fairly low density due to the fluctuations in salinity levels and predation by fish and blue crabs and given the nature of this substrate which is unstable with low levels of dissolved oxygen. The organisms that are predominant have a tolerance to siltation and fluctuations in dissolved oxygen. The treated effluent will not adversely effect the microinvertebrate community. Petitioners point out the fact that when DO concentrations decrease below optimum levels, fish and other organisms suffer. The fish reduce their movement, feeding and reproduction and they are less disease resistant. They are placed in a position of having to leave the area or risk death if the impacts of the decrease in dissolved oxygen are severe. The influence of the effluent at the point of discharge in this project is not expected to have significant impact on fish and other organisms within these topics of concern expressed in the paragraph. Even though the dissolved oxygen deficit extends in amounts below 0.1 mg/L as far as 2.1 km upstream and 4.5 km downstream and within a wide breadth of the center portion of the river, those deficits will not be significant to the water quality. The BOD associated with the discharge, allowing for mixing will not depress dissolved oxygen levels below DER standards of 5 mg/L. The combination of BOD and nutrient discharge will not cause an imbalance of algal production in the river, nor will it contribute to the dominance of nuisance algal species. The BOD nutrient loading associated with the discharge into the St. Johns will not promote significant ecological impacts on the St. Johns River, to include the possibility of more frequent and severe algae blooms, increase in benthic oxygen demand, risk of increase eutrophication, destruction of grass beds or decline in the fishery. With the advent of discharge in the St. Johns DO fluctuations in the river will not be greater nor will there be an occurrence of a swing from substandard dissolved oxygen levels to supersaturated dissolved oxygen. While the discharge from the Applicant's plant contains pollutants such as cadmium, zinc, arsenic, copper and organic decomposition products, the treatment provided the wastewater is expected to overcome any acute toxicity associated with these materials individually or in combination. Chronic toxicity is not expected related to these materials. The effects of these materials are not expected to cause physiological and behavioral responses which are abnormal in organisms such as reduced locomotion and reproduction or increase susceptibility to diseases to include ulceration and increased mortality. Treatment contemplated and provision of a mixing zone will allow compliance with the standards related to cadmium. Reference has been made to a development known as St. Johns Harbor which is in the vicinity of the proposed discharge and can be expected to promote some pollution in Palmo Cove and the St. Johns River. Although St. Johns Harbor development is proceeding through stages of permit review, it does not appear that it has reached a place in which exact information about its implications as a pollution source can be set out. In discussing the St. Johns Harbor Development, Petitioners emphasized that this eventuality and other matters which deal with cumulative impact have not been satisfactorily addressed. There is no indication than any other substantial development or activity other that St. Johns Harbor is contemplated in this area associated with the permit review at hand. St. Johns Harbor eventually hopes to develop 3000 residential units. It has received the approval of the Northeast Florida Regional Planning Council for the initial phase of development. It has been reviewed by the Florida Fresh Water Game and Fish Commission. The developers are proceeding with the project to include the sale of lots. Nonetheless, that development has not reached the phase where its implications would form the basis of a denial of this project based upon the theory of cumulative impact. While Petitioners contend that stormwater runoff from the St. Johns Harbor project will be a problem, assuming an inadequacy in the design which that developer employs to deal with that matter, this eventuality is not expected based on a review on the facts presented. Reference is made to the Ulcer Disease Syndrome which fish in the St. Johns have suffered from. The principal area in which this event has occurred is north of the area expected to be influenced by this discharge. Nonetheless, diseased fish have been found in Palmo Cove. This Ulcer Disease Syndrome is caused by heavy metals and hydrocarbons, and these materials act in league. The advent of additional heavy metals and other pollutants, such as those being discharged from the Applicant's plant could cause further deterioration in the condition of fish suffering from Ulcer Disease Syndrome. Having considered the facts, this outcome is not expected. Ambient levels of 18 other pertinent pollution constituents in the vicinity of the point of discharge were ascertained by the Applicant's consultants on the basis of field observations and historical United States Geological Survey and Florida Game and Fresh Water Fish Commission data. This formed a basis of an assessment of average and worst case values. This information indicates compliance with those parameters for purposes of water quality standards at the point of discharge. Implementation of Construction Permit Permit Conditions Applicant's Exhibit A-10 is a copy of the DER intent to issue the construction permit. It sets forth seventeen specific permit conditions, and these conditions should be imposed in the permit. The following are additional conditions that should be set forth in the construction permit: The operation and maintenance manual required by original Condition 10 shall provide that the DAF treatment system be cleaned regularly with a mild chlorine solution and that the wastewater from this maintenance be placed in a vehicle and carried off the premises for disposal at an appropriate location. This wastewater from the cleanup shall not be discharged from the plant into state waters. The operation and maintenance manual shall provide that a dosage level of chlorine to clean the pipeline that will result in comp- liance with all water quality standards at the end of the pipeline be added to a fraction of fresh water used to flush the system at the cessation of discharges each day. DER must approve this dosage amount before it becomes part of the operation and maintenance manual. The operation and maintenance manual shall set forth a regular schedule for pumping the accumulated sludge or solid materials from the sump pit. The operation and maintenance manual shall provide that as much as 50 gallons per minute of fresh tapwater may be added to recycled wastewater for pressurization. Any discharge created with this addition may not exceed 250 gallons per minute. Any discharge created above 200 gallons per minute shall be consti- tuted only of tap water. Two machine scallop processing operations at the plant will be limited to an average of 18 hours per day and no more than 90 hours in a week. Monitoring in Trout Creek shall continue as specified in paragraph 17(E) of the Consent Order as long as discharges into Trout Creek continue. On each occasion when the DAF treatment system is in operation, the Applicant shall have a fully trained operator on site. The terms of the construction permit shall expire on December 31, 1986. The constructed pipeline shall be leak tested once a month from June to September and every other month during other months of the year. If a leak in the pipeline is detected it shall be repaired within 20 days and retested for leaks within 15 days thereafter. The carrying out of any leak testing and repairs shall hereunder shall be certified by a professional engineer. Pre-pipeline Operations Petitioners have pointed out the fact that when two or more pollutants are present, as in the instance of the effluent discharged by the Applicant's plant, those pollutants tend to act in a synergistio manner. That can exacerbate the circumstance where you find low dissolved oxygen. This is particularly a matter of concern when discussing Trout Creek. This is unlike the impacts of the discharge into the St. Johns River which are not expected to exceed standards or promote adverse effects. The implications of operation within Trout Creek to allow necessary permit review by DER and the State of Florida, Department of Natural Resources can be overcome once the discharge is withdrawn from Trout Creek and may be addressed by DER more immediately if the dissolved air flotation unit, after a reasonable period of adjustment, does not perform in the fashion that it appears to be capable of. In the instance of discharge into Trout Creek, the material discharged tends to remain in that area for a relatively long period in that the creek is small and has very little flow and poor flushing characteristics. DO levels will be depressed, the presence of a deficit in dissolved oxygen caused by the discharge from the DAF unit would increase the probability of fish kills when contrasted with a circumstance where there is no further deficit of dissolved oxygen. Given the explanation of why a fish kill occurred based upon the past use of fly bait by the Applicant and the fact that there is no indication of fly bait in the present plans, a fish kill in Trout Creek in the time of interim discharged does not seem probable. With the advent of discharge into Trout Creek, the possibility is enhanced for algae blooms and increased eutrophication. There would also be some accumulation of toxic substances. Additionally, there would be some influence on juvenile fish which are more sensitive to pollutants and the possibility exists that it could reach levels that are lethal to bass larvae and juvenile sports fish. The creek would lose some of its viability as a nursery and some fish would leave the creek. These events are not irreversible and can be reasonably remedied with the cessation of discharge into the creek. Moreover, as in the instance with the problem with fish kills, if some set of circumstances attributable to the discharge were to occur in such dimensions as to cause long term impacts in Trout Creek, DER could take action against the construction permit. Dissolved oxygen in Trout Creek can be below the 5 mg/L standard. Data of the E.S.E. group showed that at Highway 13 bridge, approximately fifty yards from the plant in December 1984 and January 1985, values were as low as 0.1 and 0.2 mg/L, and readings could be frequently below 2 mg/L at Highway 13. In April through June 1985, periodic surface dissolved oxygen concentrations were in the range of 3 mg/L and as low as 2.4 mg/L. DO concentrations generally found at the bottom of Trout Creek could be as little or lower than 1 mg/L at times. In July 24, 1985, at the time when the plant had not been operating for approximately a month, the DO concentrations were 2.9 mg/L at mid-depth and 0.8 mg at the bottom. Within Trout Creek in the area of the Pacetti marina, Consultant White measured DO concentrations in the range 1-3 mg/L. On August 10, 1985, six weeks after operations had stopped at the Smith facility, DO concentrations were found to be 3 mg at the surface, less at mid-depth and 0 near the bottom. Computer modeling was not done to ascertain the impacts of a discharge directly into Trout Creek from the DAF unit. The modeling done by the Petitioner's consultant, Parks, using some of the concepts considered in the Applicant's modeling for the St. Johns River is inapplicable to the circumstances in Trout Creek. Trout Creek has also served as a nursing ground for reproduction and habitat for young fish. During the course of the operations by the Applicant in the discharge of essentially untreated effluent, the beds of bass and sun fish have not been seen within the creek. Water quality improves with the DAF unit and sediment loading by heavy metals decreases. Trout Creek is a stressed system at present. It has low levels of dissolved oxygen, high nutrient concentrations and the presence of heavy metals in undesirable amounts. The low numbers of pytoplankton species give some indication of a highly stressed ecosystem. The present officials of DER, Palmer, Owen and Fox, expressed their concerns about dissolved oxygen in those instances where there would be a decrease in ambient DO concentrations. This has particular importance in discussing the problems associated with the discharge into Trout Creek, as opposed to the point of discharge contemplated in the St. Johns River, which risk is minimized given the characteristics of that area and the higher readings of ambient dissolved oxygen in that water, as contrasted with low readings within Trout Creek. A literal interpretation of the position of the agency officials would lead to the conclusion suggested by the Petitioners that no discharge should be allowed into Trout Creek, even on an interim basis. However, such a position would be inherently unfair considering the fact that some discharge would occur into the creek before the installation of the pipeline, whether based upon simultaneous permit review by DER and the State of Florida, Department of Natural Resources in the easement case or sequential review as is contemplated in this instance. Admittedly, the amount of time involved in the discharge into Trout Creek increases in view of the severance of the easement case from the present proceedings. This circumstance occurred in view of the desire on the part of the DNR to see the actual treatment efficiencies involved with the dissolved air flotation unit as opposed to the theoretical possibilities of that equipment. In the present situation, it would be a reasonable policy choice for DER to allow an interim discharge into Trout Creek pending the opportunity for DNR to monitor the quality of the effluent produced by the DAF unit and make a decision about the easement, thus allowing installation of the pipeline if the easement is granted. This arrangement contemplates that DER should closely monitor the quality of the effluent produced by the DAF unit, to make certain, after the Applicant has been given the opportunity to make necessary adjustments to that unit, that the Applicant is not allowed to continue to discharge into Trout Creek following this period of adjustment, when it is shown that the Applicant's equipment is not performing as expected. In any event, the discharge of effluent into Trout Creek will continue over a limited period of time and the system can be expected to quickly return to its healthier state after the removal of the discharge from Trout Creek. This has occurred in the past when the operations of the plant ceased and occurred at a time when the wastewater was of a more damaging quality than contemplated by that associated with the DAF unit. In summary, it would be a reasonable policy choice to allow the interim discharge into Trout Creek on this occasion. Dredge and Fill Permit Characteristics of Pipeline Corridor The pipeline corridor encompasses portions of Trout Creek, Palmo Cove and the St. Johns River. The bottom sediments where the pipeline is to be installed are constituted of soft, and sometimes extremely soft, flocculent silt. Although these sediments are easily resuspended, dispersement of these sediments will only occur while the pipeline is being installed. In placing the pipeline, it is the intention of the Applicant to simply allow the pipe to sink into the sediment. The soft substrate is several feet deep in some places within the proposed corridor. Nonetheless, the pipe is expected to stabilize as it sinks into the material. There are places within the corridor where a crusty material may be found on the surface of or just beneath the substrate. These are locations where jetting or mechanical excavation may be necessary. Jetting may also be necessary along the approximately 155 foot stretch of the corridor that crosses the State of Florida, Department of Transportation right-of-way. This requirement would occur in view of the fact that the Department of Transportation mandates that the pipeline be at a minimum of 30 inches below the creek bottom. In those instances where jetting or other mechanical excavation might be utilized, silt screens would be used to control the short term turbidity. In the areas within the pipeline corridor where tree trunks and branches have been found, these obstructions can be removed without incident. Taking into account the nature of the substrate, at the location where the diffuser will be placed at the end of the pipeline, special attention will be given to that installation to avoid having the diffuser settle into the soft silty material. Given the fact that the silty material is several feet deep and the related fact that the Applicant has not done specific testing of the depth, density and compressibility of this silty material, careful attention should be given to anchoring the diffuser and making certain that the exhaust ports within that device are correctly positioned. The need for this close attention is borne out by the fact that a test pipe which was placed in the silty material settled approximately two and a half feet within several weeks. The matter of the security of the diffuser is also critical, given the fact that the diffuser will be located within one foot of the bottom. Through proper installation, the Applicant can avoid having the diffuser settle into the silty material over time. The installation techniques satisfactorily address the potential problems. Projected Impacts (1) Environmental The icthyological and macroinvertebrate communities within the pipeline corridor have been examined by the Applicant in the person of his consultants. It was found that there are a variety of freshwater fishes within Trout Creek, such as large-mouth bass and sun fish, and a moderate density of macroinvertebrates. The St. Johns River proper is dominated by estuarine and marine aquatic organisms. Infaunal macroinvertebrate densities in the area of the pipeline corridor in the St. Johns River are not high. In placing the pipeline, the effects on aquatic and benthic communities within the corridor or upon water quality do not pose a threat to those communities or to water quality. During the installation of the pipeline, some disturbance of the benthic organisms can be expected; however, those organisms will be able to recolonize quickly. The mere presence of the pipeline is not expected to cause long-term impacts on biological resources or water quality. (b) Navigation In the area of the intended placement of the pipeline related to Trout Creek, boating clubs utilize that vicinity for purposes of anchorage. Those clubs have as many as twenty to thirty boats whose size varies from twenty to fifty-five feet in length. Some of those boats carry anchors which can weigh forty-five pounds or more. Typically, in anchoring one of these craft, the anchor rope is tied down and the engines reversed to set the anchor. Although testimony was given to the effect that the anchors being set might puncture the pipeline, given the explanation about the placement of the pipeline and the nature of the pipe itself, problems with puncturing the pipeline as it might interfere with navigation or environmental concerns such as turbidity plumes due to a puncture of the pipeline are not expected. Nor are the activities associated with retrieval of the anchors via the use of electric winches or hoists seen to be a problem in the sense of snagging the pipeline and rupturing the pipeline when the anchors are brought aboard the vessels. In summary, the pipeline will not be an interference to navigation in the sense of boat anchorage or other aspects of navigation associated with boating. Moreover, the Applicant is willing to indicate the location of the pipeline on navigational charts to assist boaters in avoiding potential problems with anchorage. This is a desirable arrangement and should be done. Comparison of Projected Impacts with Statutory and Regulatory Criteria The dredge and fill activities associated with the pipeline are not expected to cause long-term or short-term adverse impact on biological resources or water quality, or are they expected to interfere with the conservation of natural resources or marine productivity or interfere with navigation to such an extent to be contrary to public interest. The placement of the pipeline will not promote unacceptable interference with fish and other natural resources or destroy clam beds or grass flats, such as would be contrary to the public interest. Permit Conditions Appropriate permit conditions are as follows: Installation of the pipeline shall be conducted within Trout Creek only during weekdays. Pipeline installation activities within Trout Creek shall not block navigation. The pipeline shall be constructed within 60 days following the receipt of all necessary approval, to include the grant of an easement by the State of Florida, Department of Natural Resources for the placement of the pipeline over submerged sovereignty lands. All conditions set forth in the DER draft permit. See Applicant's Exhibit A-57.
The Issue The issue posed herein is whether or not the Respondent, Arthur M. Jones, Jr.'s Wastewater Treatment Plant Operator's license should be suspended or revoked based on conduct set forth hereinafter in detail based on allegations as set forth in the Petitioner's Administrative Complaint filed January 31, 1979.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the documentary evidence received, the following relevant facts are found. Respondent, Arthur M. Jones, Jr., is a duly certified Class C Wastewater Treatment Plant Operator, certified pursuant to Chapter 17-16, Florida Administrative Code. Respondent holds license No. 793 originally issued by the Florida Department of Health and Rehabilitative Services on May 13, 1971. The responsibility for certification of wastewater treatment plant operators was transferred to the Florida Department of Pollution Control by Executive Order 72-75. The Florida Department of Environmental Regulation is the successor agency to the Florida Department of Pollution Control by virtue of Chapter 75- 22, Laws of Florida, and is authorized by Section 403.101, Florida Statutes, to issue and revoke operators' certificates pursuant to its rules and Chapter 120, Florida Statutes. At all times material to this complaint, Respondent was employed by the Duval County School Board in Jacksonville, Florida. At all times material, Respondent was employed by the School Board as a School Sewer/Water Plant Mechanic, a position requiring certification by the Department as a Wastewater Treatment Plant Operator. In his capacity as a School Sewer/Water Plant Mechanic and Class C Operator, Respondent was responsible for the operation, supervision, maintenance and collection of influent and effluent samples from various Duval County schools. Persons responsible for the operation, supervision, maintenance and collection of influent and effluent samples must be licensed and certified by the Department as a Wastewater Treatment Plant Operator. Additionally, Respondent, in his capacity as a School Sewer/Water Plant Mechanic and Certified Class C Wastewater Treatment Plant Operator, was responsible for the proper collection of composite samples of raw sewage and the treated effluent from each such plant. According to instructions given the Respondent, a composite sample was to be taken by filling one-third of a sample bottle at two-hour intervals until the bottle was full. The composite sample of raw sewage was to be taken from the influent line and the composite sample of treated final sewage was to be taken from the effluent line. After the collection process, Respondent was responsible for properly and accurately labeling the composite samples and for depositing them in a refrigeration unit at School No. 98. The composite samples are then picked up at School No. 98 by authorized personnel for laboratory analysis to determine whether sewage is being adequately treated. The complaint, in summary fashion, alleged that the Respondent on or about February 15 and March 15, 1978, completely filled a raw sample bottle from the filter bed rather than from the influent line of the plant at School No. 94. That sample was submitted as a composite sample and placed in the refrigeration unit for pickup and analysis by laboratory personnel. Additionally, the complaint alleges that on February 15, 1978, at School No. 82, Respondent filled raw and final sample bottles for Schools Nos. 82, 64, 83 and 153, none of which were a proper composite sample. The samples, it is alleged, were all taken from School No. 82. The complaint alleges that similar acts occurred on March 15, 1978; on April 4, 1978 and April 11, 1978, all of which acts "constitute gross neglect and fraud in the performance of duties as an operator of a wastewater plant." Based thereon, the Petitioner seeks revocation of the Respondent's Class C Wastewater Treatment Plant Operator's license. L. L. Masters is Respondent's foreman and is in charge of the wastewater treatment plant facilities. Masters is Respondent's immediate supervisor. On March 15, 1978, Foreman Masters assigned Respondent the duties of taking composite samples of Schools 94, 64, 83, 82 and 159. Evidence reveals that Foreman Masters arrived at School 82 at 9:00 o'clock a.m. and departed at 2:00 p.m. Evidence also reveals that Foreman Masters had a clear view of the entire wastewater treatment plant and that it was impossible for the Respondent to enter and leave the treatment plant in a manner whereby composite samples could be collected without Foreman Masters seeing him. In this regard, Respondent's work orders reflect that he reported having arrived at School 82 at 10:40 a.m. and departed at 12:10 p.m. (Petitioner's Exhibits 5, 6, 7 and 8.) On April 4, 1978, Respondent was assigned to collect composite samples from Schools 72, 233, 76 and 208. (Petitioner's Exhibit 9.) Foreman Masters observed Respondent on April 4, 1978, with employee Carl Casey. Masters went to School 77 at 8:30 and Respondent was not there, although he had given a dispatcher a routing which would have taken him to School 76. When Foreman Masters noted that Respondent had not arrived at School 76 by 8:30 a.m., he took employee Carl Casey to School 233 and left Casey at School 233 while he returned to School 76. The Respondent was not there and Masters drove to School 208 where the Respondent arrived at approximately 9:30 a.m. It suffices to say that the Respondent then left for School 233 and arrived there at 10:30. From approximately 10:45 to 11:45, the Respondent was in the wastewater treatment area of School 233 and took three samples from the effluent line and three samples from the influent line at School 233 from the period 10:30 a.m. through 11:45 a.m. (Petitioner's Exhibits 9, 10 and 11.) Employee Pat Wilson testified that he accompanied Respondent on February 15, 1978, and that all samples were taken from the filter beds of Schools 98 and 82. Detective Jack C. Adams of the Jacksonville Police Department was assigned to the surveillance of Respondent on April 11, 1978. Detective Adams credibly testified that the Respondent did not take composite samples from the assigned schools as reflected by the work orders submitted by Respondent Respondent appeared and testified that one of the events for which he had been charged occurred as alleged; however, he testified that inasmuch as he questioned the procedures, he was of the opinion that since no harm was done, and since no school experienced problems, he is not guilty of gross neglect and fraud in the performance of his duties as an operator of a wastewater treatment plant as alleged. The evidence herein reveals that the Respondent was instructed as to the proper procedures for testing, collecting and preserving composite raw and final samples from wastewater treatment plants by his employer. He testified that he had attended a seminar wherein the instructions for such procedures were outlined to him and that he was given a manual on the methods for collecting raw and final samples. Barry McAlister, a certification officer for the Department, testified that Class C operators are instructed as to the proper procedures for collecting samples. Additionally, he testified that the submitting agencies rely heavily on the operators to properly collect samples which are submitted for analysis. Chapters 17-19.04, Florida Administrative Code, additionally set forth the sampling and testing methods for collection and preservation of composite samples. Although there was some conflicting testimony respecting the adherence to the procedures uniformly by the various wastewater treatment plant operators employed by the School Board, the undersigned is of the opinion that the Respondent was not at liberty to select and choose the manner within which he would collect composite samples for analysis by his employer in view of outstanding instructions which were in effect during his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Respondent, Arthur M. Jones, Jr.'s license as a Class C Wastewater Treatment Plant Operator be suspended for a period of two (2) years. RECOMMENDED this 28th day of September, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Silvia Morell Alderman, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Reed Tallahassee, Florida 32301 Joseph S. Farley, Jr., Esquire Mahon, Mahon & Farley 350 East Adams Street Jacksonville, Florida 32202
The Issue Whether SFP's revised application for a permit to construct a sewage treatment plant with percolation ponds should be granted or, for failure of SFP to give reasonable assurances that the plant will not cause pollution significantly degrading the waters of Gator Cove, be denied?
Findings Of Fact About 1,500 feet from Santa Fe Lake's Gator Cove, SFP proposes to build an extended aeration package sewage treatment plant to serve a "private club with restaurant and overnight accommodations," SFP's Exhibit No. l, to be built between the plant and the lake, on the western shore of Santa Fe Lake, just south of the strait or pass connecting Santa Fe Lake and Little Santa Fe Lake. The site proposed for the waste water treatment plant lies at approximately 177 or 178 feet above sea level, north of Earleton on county road N.E. 28 near State Road 200A, some three miles north of State Road 26, in unincorporated Alachua County, Section 33, Township 8 South, Range 22 East. SFP's Exhibit No. 1. Santa Fe Lake, also called Lake Santa Fe, and Little Santa Fe Lake, also called Little Lake Santa Fe, are designated outstanding Florida waters by rule. Rule 17-3.041(4)(i), Florida Administrative Code. Lake Santa Fe "is . . . the sixth largest non-eutrophic lake in the State of Florida . . . [and] the last remaining large non-eutrophic lake in Alachua County." (0.367). Recreation is a "beneficial use" of these waters. The Lakes Santa Fe are at an elevation of approximately 140 feet above sea level, and their level varies within a range of four feet. Input The proposed plant is to treat sewage generated by staff, by diners at a 150-seat restaurant, and by inhabitants of 150 lodge or motel rooms, comprising 100 distinct units. On the assumptions that 150 rooms could house 275 persons who would generate 75 gallons of sewage a day for a daily aggregate of 20,625 gallons, and that a 150-seat restaurant would generate 50 gallons of sewage per seat per day, full occupancy is projected to engender 28,125 gallons of sewage per day. This projection is based on unspecified "D.E.R. criteria; (5.35) which the evidence did not show to be unreasonable. Full occupancy is not foreseen except around the Fourth of July, Labor Day and on other special occasions. An annual average flow of between 15 and 20,000 or perhaps as low as 13,000 gallons per day is envisioned. (S.38) The proposed plant is sized at 30,000 gallons per day in order to treat the peak flow forecast and because package plants are designed in 5,000 gallon increments. Sluice-gate valves and baffling are to permit bypassing one or more 5,000 gallon aeration units so plant capacity can be matched to flow. The composition of the sewage would not be unusual for facilities of the kind planned. As far as the evidence showed, there are no plans for a laundry, as such, and "very little laundry" (S.37) is contemplated. The health department would require grease traps to be installed in any restaurant that is built. Gravity would collect sewage introduced into 2,000 feet of pipe connecting lodging, restaurant and a lift station planned (but not yet designed) for construction at a site downhill from the site proposed for the water treatment plant. All sewage reaching the proposed treatment plant would be pumped 3,000 feet from the lift station through a four-inch force main. Influent flow to the treatment plant could be calculated by timing how long the pump was in operation, since it would "pump a relatively constant rate of flow." (S.39) Treatment Wastewater entering the plant would go into aeration units where microorganisms would "convert and dispose of most of the incoming pollutants and organic matter." (S.40) The plant would employ "a bubbler process and not any kind of stirring-type motion . . . [so] there should be very little:; aerosol leaving the plant," (S.42) which is to be encircled by a solid fence. Electric air blowers equipped with mufflers would be the only significant source of noise at the proposed plant, which would ordinarily be unmanned. If one blower failed, the other could run the plant itself. A certified waste water treatment plant operator would be on site a half-hour each week day and for one hour each weekend. SFP has agreed to post a bond to guarantee maintenance of the plant for the six months' operation period a construction permit would authorize. (0.63) The proposed plant would not "create a lot of odor if it's properly maintained." Id. The specifications call for a connection for an emergency portable generator and require that such a generator be "provide[d] for this plant. . . ." (S. 43). The switch to emergency power would not be automatic, however. A settling process is to follow extended aeration, yielding a clear water effluent and sludge. Licensed haulers would truck the sludge elsewhere for disposal. One byproduct of extended aeration is nitrate, which might exceed 12 milligrams per liter of effluent, if not treated, so an anoxic denitrification section has been specified which would reduce nitrate concentrations to below 12 milligrams per liter, possibly to as low as 4 or 5 milligrams per liter. Before leaving the plant, water would be chlorinated with a chlorinator designed to use a powder, calcium hypochlorite, and to provide one half part per million chlorine residual in the effluent entering the percolation ponds. A spare chlorine pump is to be on site. The effluent would meet primary and secondary drinking water standards, would have 20 milligrams or less per liter of biochemical oxygen demand or, if more, no more than ten percent of the influent's biochemical oxygen demand, and total suspended solids would amount to 20 milligrams or less per liter. (5.294- 295). Half the phosphorous entering the plant would become part of the sludge and half would leave in the effluent. Something like ten milligrams per liter of phosphorous would remain in the effluent discharged from the plant into the percolation ponds. (5.202). Although technology for removing more phosphorous is available (S.298, 0.170-171), SFP does not propose to employ it. Allen flocculation treatment followed by filtration could reduce phosphorous in the effluent to .4 milligrams per liter, but this would increase the cost of building the treatment plant by 30 to 40 percent; and operational costs would probably increase, as well, since it would be necessary to dispose of more sludge. (0.170-172). SFP did agree to accept a permit condition requiring it to monitor phosphorous levels in groundwater adjacent to the proposed plant. (0.63). Land Application Three percolation ponds are planned with an aggregate area of 30,000 square feet. At capacity, the plant would be producing a gallon and a half of effluent a day for each square foot of pond bottom in use. The ponds are designed in hopes that any two of them could handle the output of effluent, even with the plant at full capacity, leaving the third free for maintenance. The percolation ponds would stand in the lakes' watershed, in an area "of minimal flooding, (S.30) albeit outside the 100-year flood plain. Santa Fe Lake, including Gator Cove, and Little Santa Fe Lake are fed by groundwater from the surficial aquifer. All effluent not percolating down to levels below the surficial aquifer or entering the atmosphere by evapotranspiration would reach the lake water one way or another sooner or later. If percolation through the soils underneath the percolation ponds can occur at the rate SFP's application assumes, effluent would not travel overland into Lake Santa Fe except under unusually rainy conditions, which would dilute the effluent. Whether the planned percolation ponds would function as intended during ordinary weather conditions was not clear from the evidence, however. In the event the ponds overflowed, which, on SFP's assumptions, could be expected to happen, if peak sewage flaw coincided with weather more severe than a 25-year rainfall, effluent augmented by rainwater would rise to 179.87 NGVD (S.34), then overflow a series of emergency weirs connecting the ponds, flow through an outfall ditch, drain into a depression west of the ponds, enter a grassed roadside ditch, and eventually reach Lake Santa Fe after about a half a mile or so of grass swales. (5.69). Sheet flow and flow through an ungrassed gulley in the direction of Gator Cove (0.154) are other possible routes by which overflowing waters might reach the lake. (0.263). Since the facilities the plant is designed to serve are recreational, wet weather would discourage full use of the facilities and therefore full use of the water treatment system. Effluent traveling over the surface into Gator Cove would wash over vegetation of various kinds. Plants, of course, do take up phosphorous, but they don't do it forever, and if you leave a plant system alone, it will come to a steady state in which there is no net storage of phosphorous in the plant material. (0.166) Whether by sheet flow or by traversing swales, overland flow would reach Gator Cove within hours. Effluent traveling through the surficial aquifer would not reach the lake for at least five years. (S.238-9). It could take as long as 45 years. (0.316). In the course of the effluent's subterranean passage, the soil would take up or adsorb phosphorous until its capacity to do so had been exhausted. In addition, interaction with certain chemicals found in the soil, primarily calcium, precipitates phosphorous dissolved in groundwater. As between adsorption and precipitation, the former is much more significant: "[W]ith a three-meter distance you can expect at least 70 to 80 percent removal of phosphorous just by a a[d] sorption alone." (0.21). Precipitated phosphorous does not return to solution, unless the soil chemistry changes. (0.19) Adsorption, however, is reversible, although not entirely, because of the "hysteresis phenomenon." (0.19) Eventually, a kind of dynamic equilibrium obtains to do with the binding of the phosphorous to soil constituents, binding or precipitation of phosphorous. At some point . all of the binding sites become saturated . [and] the amount of phosphorous leaving, into the lake really, will be equal to the amount of phosphorous going into the the system. When there is no more place to store the phosphorous in the ground, then the output is equal to the input and that is called the steady state. (0.161) Although precipitation of phosphorous would not reach steady state under "conditions that render the phosphorous-containing compound insolu[]ble," (0.168) these conditions were not shown to exist now "much less . . . on into perpetuity." Id. Spring Seep A third possible route by which the effluent might reach lake waters would begin with percolation through the sand, which is to be placed on grade and on top of which the percolation ponds are to be constructed. Underground, the effluent would move along the hydraulic gradient toward the lake unless an impeding geological formation (an aquiclude or aquitard) forced it above ground lakeward of the percolationi ponds. In this event, the effluent would emerge as a man-made spring and complete its trip to Gator Cove, or directly to the lake, overland. The evidence demonstrated that a spring seep of this kind was not unlikely. Relatively impermeable clayey soils occur in the vicinity. A more or less horizontal aquitard lies no deeper than four or five feet below the site proposed for the percolation ponds. Conditions short of an actual outcropping of clayey sand could cause effluent mounding underground to reach the surface. Nor did the evidence show that an actual intersection between horizontal aquitard and sloping ground surface was unlikely. Such a geological impediment in the effluent's path would almost surely give rise to a spring seep between the pond site and the lakes. In the case of the other percolation ponds in this part of the state that do not function properly, the problem is n [U] sually an impermeable layer much too close to the bottom of the pond," (S.179), according to Mr. Frey, manager of DER's Northeast District. Phosphorous in effluent travelling by such a mixed route would be subject to biological uptake as well as adsorption and precipitation, but again a "steady state" would eventually occur. On Dr. Bothcher's assumptions about the conductivity of the clayey sand (or sandy clay) lying underneath the topsoil, the effluent would accumulate as a mound of groundwater atop the clay unit, and seep to the surface in short order; and "after a matter of probably weeks and maybe months, it would be basically of the quality of the water inside of the percolation pond." (0.278). More Phosphorous in Gator Cove The total annual phosphorous load from all existing sources "to the lake" has been estimated at 2,942 kilograms. Assuming an average effluent flow of 17,000 gallons per day from the proposed plant, "the total phosphorous load [from the proposed plant] will be 235 kilograms per annum," (0.16), according to Dr. Pollman, called by SFP as an expert in aquatic chemistry. Even before any steady state condition was reached, 20.75 to 41.5 kilograms of phosphorous, or approximately one percent of the existing total, would reach the lake annually from the proposed plant, on the assumptions stated by Dr. Pollman at 0.22-23 (90 to 95 percent removal of phosphorous in the soils and average daily flow of 30,000 gallons). Santa Fe Lake is more than two miles across and two miles long, and Little Santa Fe Lake, which may be viewed as an arm of Santa Fe Lake, is itself sizeable, with a shoreline exceeding two miles. But Gator Cove is approximately 200 yards by 100 yards with an opening into Santa Fe Lake only some 50 to 75 yards wide. (0.154). On a site visit, Dr. Parks observed "luxuriant growth of submerged plants" (0.154), including hydrilla, in Gator Cove. If a one percent increase in phosphorous were diffused evenly throughout the more than eight square miles Santa Fe Lake covers, there is no reason to believe that it would effect measurable degradation of the quality of the water. Some nutrients are beneficial, and the purpose of classifying a lake is to maintain a healthy, well-balanced population of fish and wildlife. It's hard to see how 1.4 percent increase would lower the ambient quality. But . . . seepage into Gator Cove, which is a much more confined place [100 by 200 yardsj [would make it] quite probable that there would be a lowering of ambient water quality in the site . R] educed dispersion . . . in this cove would allow . . . phosphorous to build up. (0.156) Overland effluent flow to Gator Cove would increase concentrations of phosphorus there, with a consequent increase in the growth of aquatic plants, and the likely degradation of waters in the Cove, unless rapid and regular exchange of lake and cove waters dispersed the phosphorous widely, promptly upon its introduction Except for testimony that wind-driven waves sometimes stir up phosphorous laden sediments on the bottom, the record is silent on the movement of waters within and between Lake Santa Fe and Gator Cove. The record supports no inference that phosporous reaching Gator Cove would be dispersed without causing eutrophic conditions significantly degrading the water in the Cove. Neither does the record support the inference, however, that effluent moving underground into the lakes would enter Gator Cove. On this point, Dr. Bottcher testified: [T]he further away from the lake that you recharge water the further out under a lake that the water will be recharging into the lake; gives it a longer flow . . . it's going to migrate and come up somewhat out into the lake. (0.281-2) Phosphorous in the quantities the treatment plant would produce, if introduced "somewhat out into the lake" would probably not degrade water quality significantly, notwithstanding testimony to the contrary. (0.349, 354). Sands and Clays DER gave notice of its intent to deny SFP's original application because SFP proposed to place the pond bottoms approximately two and a half feet above an observed groundwater table. Placement in such proximity to groundwater raised questions about the capacity of the ground to accept the effluent. In its revised application, SFP proposes to place sand on the existing grade and construct percolation ponds on top of the sand. By elevating the pond bottoms, SFP would increase the distance between the observed groundwater table and pond bottoms to 5.2 feet. (S.256, 257). This perched water table, which is seasonal, is attributable to clayey sand or sandy clay underlying the site proposed for the percolation ponds. Between January 9, 1985, and January 17, 1985, "following a fairly dry antecedent period," (S.229) Douglas F. Smith, the professional consulting engineer SFP retained to prepare the engineering report submitted in support of SFP's permit applications, conducted six soil borings in the vicinity of the site proposed for the plant. One of the borings (TB 5) is in or on the edge of a proposed percolation pond and another (TB 4) is slightly to the north of the proposed pond site. Three (TB 1, 2 and 3) are east of the proposed pond site at distances ranging up to no more than 250 feet. The sixth is west of the proposed site in a natural depression. Mr. Smith conducted a seventh test boring under wetter conditions more than a year later a few feet north of TB 4. Finally, on September 5, 1986, during the interim between hearing days, Mr. Smith used a Shelby tube to obtain a soil sample four to six feet below grade midway between TB 4 and TB 5. 1/ The sites at which samples were taken are at ground elevations ranging from 173 to 178 feet above sea level. From the original borings and by resort to reference works, Mr. Smith reached certain general conclusions: The top four feet or so at the proposed pond site consists of silty sand, 17 percent silt and 83 percent quartz sand. This topsoil lies above a two-foot layer of clayey sand, 20 percent clay, 6 percent silt and 74 percent sand. Below the clayey sand lies a layer some eight feet thick of dense, silty sand, 23 percent silt, 7 percent clay and 70 percent sand, atop a one and one-half foot layer of clayey sand, separating loose, quartz sands going down 40 feet beneath the surface from what is above. These formations "are very heterogeneous, in the sense of the position and occurrence of the clay layers or the sandy layers . . .," (0.230) and all occur within the surficial aquifer. "There are layers of clay within it, and so perched water tables are rather common." (0.225). In March of 1986, the regional water table was some 17 feet down. SFP Exhibit 1B. Below the surficial aquifer lie the Hawthorne formation and, at a depth of 110 feet, the limestone of the Floridan aquifer. The soils above the Hawthorne formation are not consolidated. (S.254, 255). Conductivity Measurements The applicant offered no test results indicating the composition or conductivity of soils lying between the easternmost test boring and Gator Cove, some 1,200 feet distant. No tests were done to determine the conductivity of the deeper layer of clayey sand beneath the site proposed for the ponds. Tests of a sample of the topsoil in TB 7 indicated horizontal permeability of 38.7 feet per day and vertical permeability of six feet per day. On the basis of an earlier test of topsoil in TB 3, "hydraulic conductivity of the surface soils was measured to be 8.2 feet per day. . . ." SFP's Exhibit No. 1B. From this measurement, vertical hydraulic conductivity was conservatively estimated at .82 feet (9.84 inches) per day. Id. The design application rate, 2.41 inches per day, is approximately 25 percent of 9.84 inches per day. Id. The initial test done on a sample of the clayey sand, which lay beneath the topsoil at depths of 3.5 to 5.5 feet, indicated a permeability of 0.0001 feet per day. Thereafter, Mr. Smith did other testing and "made some general assumptions" (S. 235) and concluded that "an area-wide permeability of this clayey sand would be more on the order of 0.0144 feet per day." (S. 234). Still later a test of the sample taken during the hearing recess indicated hydraulic conductivity of 0.11 feet per day. SFP's Exhibit No. 10. The more than thousandfold increase in measured conductivity between the first laboratory analysis and the second is attributable in some degree to the different proportions of fines found in the two samples. The soil conductivity test results depend not only on the composition of the sample, but also on how wet the sample was before testing began. Vertical Conductivity Inferred On March 6, 1986, ground water was observed on the site about two and a half feet below the surface. SFP's expert, Mr. Smith, concluded that it was "essentially a 1.5 foot water table, perched water table over the clay." (0.422). There was, however, groundwater below, as well as above, the clay. On March 12, 1986, the water table at this point had fallen six inches. In the preceding month rainfall of 5.9 inches had been measured in the vicinity, after 5.1 inches had been measured in January of 1986, but in November and December of 1985 "there was a total of 0.6 inches of rainfall." (0.421). Later in the year, notwithstanding typically wet summer weather, no water table was measured at this point. From this Mr. Smith concluded that, once the clayey sand layer is wetted to the point of saturation, conductivity increases dramatically. If that were the case, a more or less steady stream of effluent could serve to keep the clayey sand wetted and percolation at design rates should not be a problem. But Dr. Bottcher, the hydrologist and soil physicist called as a witness for the Association, testified that the six- inch drop over six days could be attributed, in large part, to evapotranspiration. He rejected the hypothesis that the clayey sand's conductivity increased dramatically with saturation, since "the actual water table was observed . about three weeks after the very heavy rainfall had stopped" (0.290) and had probably been present for at least a month; and because the soil survey for Alachua County reports that perched water tables ordinarily persist for two months (0.227) in this type of soil. Certain soils' hydraulic conductivity does diminish with dessication, but such soils usually regain their accustomed conductivity within hours of rewetting. Dr. Bottcher rejected as unrealistically optimistic the assumption SFP's expert made about the conductivity of the clayey sand on grounds that "the conductivity that . . . [SFP] used, if you went out there you couldn't perch a water table for a month." (0.277). In these respects, Dr. Bottcher's testimony at hearing has been credited. In the opinion of the geologist who testified on behalf of the Association, Dr. Randazzo, a minimum of seven or eight additional augur borings in "definitive patterns to the northeast and to the northwest" (0.240) to depths of 15 to 20 feet, with measurements within each augur boring every two feet, are necessary to determine "how permeable the soils are and how fast the waters would move through them." (0.240). This testimony and the testimony of the soil physicist and others to the same general effect have been credited, and Mr. Smith's testimony that no further testing is indicated has been rejected. Wet Ground In the expert opinion of a geologist who testified at hearing, "it is reasonable to assume that saturation conditions of the surficial aquifer in this area can be achieved," (0.238) even without adding effluent from a wastewater treatment plant. The evidence that soils in the vicinity of the site have a limited capacity to percolate .water came not only from engineers and scientists. Charles S. Humphries, the owner of the property 150 feet from the proposed percolation site, "put a fence post line . . . every ten feet, and every ten feet [he] hit clay." (0.372). Three quarters of an inch of rain results in waters standing overnight in neighboring pastures. In parts of the same pastures, rain from a front moving through "will stay for a week or so." (0.373). It is apparent that the area cannot percolate all the rainfall it receives. This is the explanation for the gully leading down toward Gator Cove. Six-feet deep (0.377), "the gully is a result of natural surface runoff." (0.263).
Findings Of Fact Petitioner's application for a Class B waste water treatment plant operator was received by Respondent on September 20, 1991. Ms. Setchfield who is in charge of reviewing and approving and/or denying all applications, reviewed Petitioner's application. Based on the documentary evidence submitted by Petitioner, he was given constructive credit for 58 months and actual credits received was 27.6 months for a total credit time of 85.6 months. To receive credit for educational experience, an applicant must demonstrate that his major area of study is in science or biology. Alternatively, an applicant may receive credit provided he furnish Respondent a transcript which would delineate the areas of his studies he successfully completed and the credits received. However, in such instances, an applicant only receives partial credit. Petitioner has been advised (by Respondent) that if he furnish a copy of his transcript, it will be reviewed and if it demonstrates that he is entitled to credit for courses he successfully completed, he would be awarded such credit. Petitioner steadfastly refuses to provide a transcript to Respondent. To be eligible for certification as a Class B waste water treatment plant operator, an applicant must demonstrate, at minimum, that he/she has the required minimum of 96 months total creditable time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent enter a Final Order denying Petitioner's application for certification as a Class B waste water treatment plant operator, as he has failed to satisfy the minimum total time requirement for such certification. 1/ DONE and ENTERED this 29th Tallahassee, Leon County, Florida. day of May, 1992, in 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 29th day of May, 1992.
The Issue The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
Findings Of Fact On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface. On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit. On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's. Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility. Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean "permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act." Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations: Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L These standards are frequently referred to as the "10-10-10-1 Standard." In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard. Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively. On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules. The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation. The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L. The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires. Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively. Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well. Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well. In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported dilution rates on the range of seven orders of magnitude, i.e., 10 million times. After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods. The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations. Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility. The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine. Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth. Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria. Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition. The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit. PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending. Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health. Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 13th day of November, 2000. COPIES FURNISHED: Francine Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Evan Goldenberg, Esquire White & Case, LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-5309 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300
The Issue Whether the Petitioner's applications for (1) a general permit to operate a used oil refining facility and 2) an operation permit to operate an industrial waste water treatment system, at the same facility, in conjunction with the used oil refining operation, should be granted.
Findings Of Fact Sometime in the 1950's George Davis, the owner and operator of Davis Refining Corporation, became interested in used oil recycling and refining. From that time on, Mr. Davis worked towards his dream of operating a used oil recycling and refining center by gradually accumulating the land and equipment to operate such a facility. In order to further his goal, Mr. Davis acquired property located at 2606 Springhill Road in Tallahassee, Florida. Eventually, Mr. Davis applied for a permit to construct an industrial waste water treatment system in conjunction with a used oil refining facility on the Springhill Road property. On January 21, 1986, the Department issued a construction permit to the Petitioner to modify and construct an industrial waste water treatment system. The construction permit was subsequently extended on three different occasions. The last extension, granted May 30, 1989, extended the construction permit to its full statutory limit of five (5) years. The final expiration date of the construction permit was January 20, 1991. Petitioner was notified of the expiration date by the Department. During the time of the construction permit, Mr. Davis constructed an industrial waste water treatment system and an oil recycling and refining facility on his property on Springhill Road. Less than sixty days prior to expiration of the construction permit for the industrial waste water treatment system, the Petitioner submitted an application for renewal of an operation permit. The Department received the application on January 10, 1991. Unfortunately, the application for renewal of an operation permit was not the correct form since the Petitioner never had an operation permit. The application was rejected by the Department because it was the incorrect form and did not have the required permit fee. In March of 1991, after the expiration of Petitioner's industrial waste water treatment construction permit, Petitioner filed the correct application for an industrial waste water treatment operation permit and submitted the required fee. The industrial waste water operation permit application was denied by the Department because it was incomplete and lacked the required reasonable assurances that the system would not be a source of pollution in violation of water quality standards or contrary to the public interest. On October 29, 1990, Petitioner submitted a Used Oil Recycling Facility General Permit Notification to the Department. By letter dated November 28, 1992, the Department timely denied use of a general permit to operate a Used Oil Recycling Facility because the application lacked the requisite reasonable assurances that the proposed operation of the facility would not discharge, emit, or cause pollution so as to violate water quality standards or be contrary to the public interest. Even though the construction permit has expired and no additional permits have been issued by the Department the Petitioner continues to accept used oil and oily industrial waste water from outside sources for treatment. Currently, the facility consists of a used oil refining plant, industrial waste water treatment system, and separator (coalescer) system and water treatment pond. Munson Slough separates the facility into two parts. The used oil refining portion of the facility together with the industrial waste water treatment system input and separator (coalescer) system are located on the east side of Munson Slough. The refining portion of the facility is immediately adjacent to the slough. The industrial waste water treatment pond is located on the west side of Munson Slough. The industrial waste water treatment pond is likewise immediately adjacent to the slough. The industrial waste water treatment system is an integral part of the used oil recycling operation. Used oil and oily waste water are accepted from outside sources and are put through the separator system to separate the oil from the water and other contaminants. The separated oil is then re-refined at the refinery. The remaining industrial wastewater contains oily materials, solids, and volatiles. The separated water is pumped through a pipe underneath Munson Slough to the industrial waste water treatment pond. Additionally, the surface and stormwater runoff from the refining facility on the east side of Munson Slough also goes through the same industrial waste water treatment system and is pumped into the waste water treatment pond. Runoff from the refinery contains various pollutants as well as pollutants from any spills occurring at the refinery. Both the general permit for the refining facility and the operation permit for the industrial waste water treatment system depend on the ability of the waste water treatment system and pond to adequately handle the waste water and runoff water from the refining facility without permitting leaks of the wastewater into the environment. The industrial waste water treatment pond is lined with soil cement. Soil-cement is not a common material used in the construction of industrial waste water pond liners and the Department's personnel is not familiar with the material and its ability to function as an adequate liner for an industrial waste water pond. The soil-cement is a sand-cement mix (10 percent). The sand-cement was intended to be layered to a depth of six inches on the sides and bottom of the pond. The evidence showed that portions of the liner achieve a six inch depth. However, the evidence did not show that the soil-cement's depth is consistent throughout the liner since no as-built plans or certification for the facility were submitted to the Department and the engineer for the project at the time of its construction was not called to testify on whether the pond was constructed according to the construction plans. The sand cement liner overlays a high clay content pond bottom. The estimated (not established) permeability rate of the sand-cement pond liner is 1/100,000,000 centimeters per second and is within the Department's parameters for the adequacy of a lining material if that material is shown to actually have such a permeability rate by the time the operation permit is applied for. No materials data was submitted to the Department which demonstrated that the sand- cement liner of the pond actually achieved the permeability rate of 1/100,000,000 centimeters per second or the deterioration rate of such a liner. Likewise, no expert witness was called to establish such facts. The small amount of information given the Department on the sand-cement liner in Petitioner's application for its construction permit for the facility is inadequate to establish the actual performance of the sand-cement liner for purposes of the operation permit. Water from the industrial waste water treatment pond is discharged to the City of Tallahassee's waste water treatment system. The City of Tallahassee requires the industrial waste water treatment pond water to be tested for water quality prior to discharge to the City's waste water treatment system. The City requires that the waste water pond be aerated for approximately four (4) hours before discharge to the City waste water treatment system. One function of the aeration is to "blow off" the volatile contaminants from a used oil refining operation which might be present in the ponds water prior to aeration. However, the results of one water quality test indicated the presence of volatile substances and nonvolatile substances consistent with petroleum product contamination. Unfortunately, the results of only one water quality test were presented at the hearing. No conclusions either for or against the Petitioner can be drawn from the results of one testing period. Therefore, such test results cannot be used to affirmatively establish reasonable assurances that the pond is not leaking. In an unprecedented effort to aid the Petitioner in getting approval of his applications, the Department agreed to accept Petitioner's submittals and assertions regarding the integrity of the pond's liner as reasonable assurance if several soil borings and their subsequent analyses did not reveal any indication of contamination from the pond to soil or ground water. One soil boring was obtained by Dr. Nayak and six soil borings were obtained jointly by Dr. Nayak and the Department from locations around the industrial waste water treatment pond for chemical analysis. Unfortunately, chemical analysis of the soil borings revealed the presence of contaminants consistent with contamination parameters for waste oil recyclers. Therefore leakage or improper discharge from the pond could not be ruled out and it fell to the Petitioner to demonstrate that the contamination found in the soil was not the result of leaks or discharge from the pond. Petitioner points to the fact that the pond is supposedly setting on an impermeable layer of clay. However, it is not unusual for the geological features of a site such as the one upon which the treatment pond is located to vary within the limited site area. The different sites of the soil borings around the pond revealed that the substrata differed between the bore sites. The Department's geological expert testified that, based upon his observation at the site, including observing and participating in the taking of soil samples from the borings, that groundwater contamination was likely. In short, it is impossible to determine the geological composition of the entire site by the one soil boring taken by Dr. Nayak or even by the six borings performed jointly by the parties. Dr. Nayak's testimony that he is able to determine the geological features of the pond site with one boring is not credible nor is Dr. Nayak qualified to make such an assessment even if such were an acceptable scientific method for making such determinations. Therefore, the evidence failed to demonstrate that the waste water pond is sited over an impermeable layer of clay. Moreover, even if it were, then any contaminated water improperly discharging through the bottom layer of the pond would migrate along the top of the clay until it reached Munson Slough and still be a pollution problem for water quality purposes. The Petitioner has not, at any time prior to or during the hearing, obtained any environmental background of the site. Nor was any such information introduced at the hearing. The on-site observation of the taking of soil bores, visual inspection of the site, and the chemical analysis of the soil samples taken from the borings are consistent with petroleum contamination resulting from the industrial waste water pond. There are procedures and courses of action which the Petitioner can pursue to address the apparent contamination problems and to demonstrate the reasonable assurances necessary to qualify for the required Department permit to operate the used oil recycling facility. The Department has made many suggestions to the Petitioner as to various methodologies that the Petitioner might employ in order to endeavor to provide reasonable assurances that the waste water treatment pond does not leak. These suggestions include emptying the pond and examining the liner, performing a materials balance calculation, or performing more soil borings sampling and testing, together with assembling additional hydrological data. However, other than chemical analysis of the soil borings, the Petitioner has not opted to pursue any suggested procedure for obtaining the desired permit and did not submit sufficient competent, substantial evidence of any credible or scientifically reasonable alternative explanations for the presence of indicator chemicals in the soil borings. In short, The Petitioner has not submitted sufficient evidence nor provided any reasonable assurance that the operation of the used oil recycling facility will not discharge, emit or cause pollution. The Petitioner also has not provided reasonable assurance that the operation of the used oil recycling facility will not violate water quality standards or be contrary to the public interest. Similarly, there was insufficient evidence and no reasonable assurance submitted or offered by the Petitioner that the industrial waste water treatment system could be operated without violating water quality standards or being contrary to the public interest. Therefore Petitioner is not entitled to either a general permit for a used oil recycling facility or an operation permit for the industrial waste water treatment system used in conjunction with the used oil facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that a Final Order be entered denying the Petitioner both the general permit to operate a used oil recycling facility and the operation permit for the industrial waste water treatment system without prejudice to reapplying for such permits. DONE and ENTERED this 9th day of September, 1993, in Tallahassee, Florida. DIANE CLEAVINGER 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 9th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5140 and 92-1560 The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, and 29 of Respondent's Proposed Findings of Fact are adopted in substance insofar as material. The facts contained in paragraphs 11, 15, 27 and 30 of Respondent's Proposed Findings of Fact are subordinate. The facts contained in paragraph 10 of Respondent's Proposed Findings of Fact were not shown by the evidence. Paragraphs 1 and 2 of the Petitioner's Proposed Findings of Fact were introductory and did not contain any factual matters. The facts contained in the 1st, 2nd and 7th sentences of paragraph 4 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate. The facts contained in the 4th, 5th, 6th and 7th sentences of paragraph 5 of Petitioner's Proposed Findings of Fact are subordinate. The remainder of the paragraph was not shown by the evidence. The facts contained in paragraphs 3, 6, 7, 10, 12 and 13 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in the 3rd and 5th sentences of paragraph 8 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate. The facts contained in the last sentence of paragraph 11 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dr. S. K. Nayak 3512 Shirley Drive Tallahassee, Florida 32301 Candi Culbreath, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
