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
Findings Of Fact On July 5, 1978, Gulfside applied to DER for the issuance of a permit to operate a wastewater treatment plant on property owned by it on Perdido Key in Escambia County, Florida. The proposed plant is designed to serve a condominium complex consisting of 64 units, with the expectation that 350 gallons of water per day per unit will be discharged into the system, thus requiring a minimum plant capacity of 22,400 gallons per day. The plant described in the application has a capacity to handle 24,000 gallons per day. The proposed plant will use an extended aeration process whereby effluent is routed from the individual units through a filter within the proposed plant and then discharged into two percolation ponds associated with the facility. The plant is designed to remove 90 percent of B.O.D. and suspended solids. In addition, the plant is designed with duplex blowers and pumps to insure continued operation in the event of failure of one of the units. An emergency generator is included to provide back-up power for the entire plant, including blowers, pumps and chlorinators. Perdido Key, where the proposed plant is to be located, is a barrier island located off the coast of Escambia County, Florida, near the Florida- Alabama border. There is substantial residential development presently on Perdido Key, but no central sewer system exists to service the area. Currently, only septic tanks and package sewer plants are available for waste treatment purposes on the island. Adjacent to Perdido Key is Old River, which has been classified a Class III water. Soils on Perdido Key are primarily sandy, and as a result, have a high percolation rate. The problem of high percolation rate through the soils of Perdido Key was adequately addressed by Gulfside in the design of percolation ponds associated with the proposed plant. The two percolation ponds are designed to be located at a minimum of four feet elevation above maximum high ground water level. In fact, during DER's review of this application, Gulfside agreed to raise the bottom elevation of these percolation ponds in response to a concern regarding their initial location in close proximity to the water table. The problem of the expected fast percolation rate was addressed in designing the size of these percolation ponds, and also taken into consideration in designing the method of distributing effluent across the bottom surface of the ponds. With regard to the latter consideration, initial design of the project contemplated a single point for discharge of effluent into each percolation pond. However, Gulfside has agreed to redesign these percolation ponds in such a fashion to discharge effluent more evenly throughout the bottom area of the ponds too combat the problem of the excess percolation rate. The proposed percolation ponds are designed with surface areas in excess of 15,000 square feet. The ponds were initially designed utilizing a six-to-one slope, which would have given twice the bottom surface area of the three-to-one slope eventually required by DER in the process of reviewing the application. The three-to-one slope shown in the plans and specifications results in a bottom surface area of 2,974 square feet. However, the engineering report submitted with the application indicates that percolation ponds will have a bottom surface area of 4,480 square feet. From the evidence, it would appear appropriate for the ponds to have a minimum bottom surface area of 4,480 square feet. From the evidence, this problem can easily be rectified by raising the bottom elevation of the percolation ponds by approximately one foot. This requirement should be imposed as a condition to the granting of the requested permit. The proposed plant, although designed to remove 90 percent of B.O.D. and suspended solids, is not designed to remove nutrients from the effluent. However, the evidence establishes that these nutrients. Will be removed by a combination of filtration through soil substrata and biological action in the percolation ponds. Gulfside has also agreed to install a spartina marsh waterward of the percolation ponds to act as a final nutrient scrubber. The system design is reasonably calculated to assure removal of harmful quantities of nutrients, and no competent evidence was adduced to indicate that the system design was not sufficient for this purpose. Thus, although the treatment plant is proposed to be located only 50 feet from Old River, there is no indication that it will, in fact, result in any adverse impacts to that water body. In addition, DER has no rules or guidelines regulating distances from which package sewer plants, such as that proposed in this application, should be located from bodies of water such as Old River. It should be noted here that the application which is the subject of this proceeding is solely for the purpose of construction of the proposed facility. DER has imposed a permit condition requiring an initial four months operation for appropriate testing to determine compliance with the rules and regulations promulgated by DER before issuance of an operation permit. If testing demonstrates noncompliance with DER's rules and regulations, the operating permit for the facility can be denied. Testimony adduced at the hearing established that members of Petitioner, Southest Escambia Improvement Association, Inc., own property in the vicinity of the proposed facility, and that they utilize waters surrounding Perdido Key for sailing, swimming, crabbing and other recreational uses. Both Petitioner and Gulfside have submitted Proposed Findings of Fact. Petitioner's Proposed Findings of Fact numbered 1, 2, 3, 4 and 8 have been substantially adopted in this Recommended Order. Gulfside's Proposed Findings of Fact numbered 1 through 5 have also been substantially adopted in this Recommended Order. To the extent that Proposed Findings of Fact submitted by either Petitioner or Gulfside are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues under consideration in this cause, or as not having been supported by the evidence.
Findings Of Fact The Petitioner, Phillip G. Panos, recently moved from Michigan to Florida and is now a Florida resident. On December 9, 1989, prior to moving to Florida, he applied to the Respondent, Department of Environmental Regulation for certification as a Class C domestic waste water treatment plant operator. The Respondent is an agency of the State of Florida charged, among other duties, with regulating the certification, the practice standards and the educational standards of Class C domestic waste water treatment plant operators. The Respondent agency reviewed the Petitioner's application and denied it for failure to demonstrate the requisite three years of experience required by the rule cited below. From April, 1974 to June, 1990 the Petitioner was employed at the Chapaton Pumping Station in St. Clair Shores, Macomb, Michigan. The Chapaton Pumping Station duties involved the Petitioner monitoring the distribution of sewage flows, collecting sludge samples, chlorinating the effluent and pumping it into Lake St. Clair. When the Petitioner left the Chapaton Pumping Station, in June of 1990, he held the position of Senior Station Operator II. The Chapaton Pumping Station receives a combination of storm water flow and sanitary sewage flows. It is a pumping and storm water retention facility for combined sewage. The facility provides primary treatment and disinfection for this combined sewage effluent. The effluent is chlorinated and then pumped to nearby Lake St. Clair while the solids that have settled out of the effluent are retained, collected and sent to the Detroit waste water treatment facility for advanced waste treatment. Chapaton is classified by the state of Michigan's Department of Natural Resources as an "industrial/commercial facility". The industrial classification was originated by the U.S. Environmental Protection Agency (EPA) and has been adopted as a designation or classification by both Michigan and Florida. The Petitioner holds an industrial/commercial waste water treatment certification from the state of Michigan in the category of "plain clarification and disinfection." The Petitioner's experience in Michigan is in the area of industrial waste water treatment and does not constitute actual experience in on-site operational control of a domestic waste water treatment plant (that is a sewage treatment plant). The Petitioner's experience in Michigan does not qualify as industrial waste water treatment plant experience, that could be used to meet the actual experience requirement, because the Chapaton plant performs only primary treatment and disinfection. Secondary or advanced waste treatment is performed at the Detroit waste water treatment plant, with which the Petitioner has no experience. In a typical domestic waste water treatment plant in Florida, "primary treatment" involves primary clarification or settling. Primary clarification occurs in a circular or rectangular tank where soluble solids settle out to the bottom of the tank and floating solids are removed by a skimming device. The soluble solids are called sludge. Primary clarification can remove 40% of BOD and suspended solids. It is not a form of advanced treatment or even secondary treatment. At the Chapaton plant, during primary treatment, a minimum of 70% BOD and suspended solids are removed. The sludge is not treated at the Chapaton plant but is pumped to the Detroit waste water treatment plant. Thus Chapaton could not be classified as a domestic waste water treatment plant by Florida standards, since it only provides primary clarification and no secondary or advanced waste water treatment. Secondary treatment consists of two types. Activated sludge or trickling filter treatment. Both types deal with oxygen being introduced to the sludge to achieve stabilization and more settling out of the sludge elements. Since June 18, 1990 the Petitioner has been employed as a waste water treatment plant operator I in a training program at the George L. Lohmeyer Waste water Treatment Plant in Ft. Lauderdale, Florida. In that training program the Petitioner is being trained in all phases of operation of the Lohmeyer plant. It is a 34-million-gallon-per-day (MGD) activated sludge treatment plant. In his duties, the Petitioner monitors the plant treatment processes, takes samples and submits them to the city's laboratory. The Petitioner is capable of testing the samples himself for dissolved oxygen, chlorine and ph. Reports are signed by the regional chief or the regional facilities manager. The Petitioner's present position qualifies as actual, appropriate experience in the operational control of a waste water treatment plant. The Petitioner has accumulated approximately 3-1/2 months of the 12 months of actual experience required for certification as a Class C waste water treatment plant operator, through the exercise of his duties at the Lohmeyer plant. The Petitioner must accumulate 12 months or 2,080 hours of actual experience before he can qualify for the Class C certification. The Petitioner is a high school graduate and has successfully completed Volumes I and II of the California State University correspondence course in waste water treatment, which is included on the Respondent agency's list of approved courses. Petitioner's 3-1/2 months of actual appropriate experience in Ft. Lauderdale, plus his educational background, including the courses taken in California, yield a total of 36 months or 3 years of constructive experience. Petitioner does not yet have the 12 months of actual experience required by the rules but rather, is approximately 8-1/2 months short of the actual experience requirement. Thus, the Petitioner fails to meet the experience requirement necessary for certification as a Class C domestic waste water treatment plant operator at this time, although in approximately 8-1/2 months, he should be able to meet that requirement.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is therefore RECOMMENDED: That a Final Order be entered by the Department of Environmental Regulation denying Petitioner's application for certification as a Class C domestic waste water treatment plant operator without prejudice to reapplication at such time as his one year of actual experience at such a treatment facility is completed. DONE and ENTERED this 11 of December, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11 day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-479 (The Petitioner filed no proposed findings of fact.) RESPONDENT'S PROPOSED FINDINGS OF FACT 1. - 21. are accepted. COPIES FURNISHED TO: Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Phillip G. Panos 2315 N.W. 115 Drive Coral Springs, FL 33065 Francine M. Ffolkes, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Respondent/Applicant, North Orlando Water and Sewer Company, filed an application on August 11, 1981, with Respondent, Department of Environmental Regulation, seeking a permit to authorize the construction of sewage effluent disposal ponds in Winter Springs, Seminole County, Florida. On August 16, 1981, the Department advised the Applicant that additional information was required. This information was supplied by Applicant on September 11, 1981. After reviewing the application and supplemental information, the Department determined that Applicant had provided reasonable assurance that the proposed percolation ponds would not adversely affect waters of the State and thereafter issued Permit No. DC59-46435 on September 22, 1981, authorizing the construction of the requested activity. Petitioners are owners of the property on which one of the disposal ponds is to be constructed. On June 12, 1981, Applicant instituted condemnation proceedings in Circuit Court for Seminole County under Chapters 73, 74 and 361, Florida Statutes, seeking to condemn the property so that the facilities could be constructed. The suit remains pending until all necessary permits from the Department are acquired by Applicant. The parties agree that based on plans, test results and other information, the construction of the proposed installation will not discharge, emit, or cause pollution in contravention of Department standards, rules or regulations. The permit was issued without formal public notice. However, it falls under the class of permits enumerated in Rule 17-1.62(3)(a), Florida Administrative Code. That rule makes publication of a notice discretionary on the part of the Department, and no abuse of discretion was shown. Item D(i) on page 7 of the application requires that the Applicant "[i]ndicate the number of potable water supply wells within 500 feet of effluent disposal area, the depths of these wells and their approximate distances from the disposal area." Applicant answered "None". There are no public potable water supply wells within 500 feet of the effluent disposal area. There are several private potable water supply wells within 500 feet of the pond but adequate buffer zones between these private potable water supply wells and the actual effluent disposal area exist. Moreover, Petitioners' expert witness conceded that seepage would be minimal, should not be a concern, and the failure to list the private wells on the application had no effect on the substantive merits of the application. Applicant construed the term "potable water supply wells" to mean only public wells since DER has no jurisdiction over private wells. For this reason, it answered the question in the manner that it did. The Department concurs in this interpretation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Permit No. DC59-46435 be issued to Applicant, North Orlando Water and Sewer Company. DONE and ENTERED this 23rd day of July, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1982.
The Issue The issue presented is whether Petitioner has the requisite experience necessary for certification by Respondent as a Class A drinking water treatment plant operator.
Findings Of Fact On May 9, 1989, Petitioner, Allen T. Segars, in an attempt to enhance his professional status, applied to Respondent, Department of Environmental Regulation, for certification as a Class A drinking water treatment plant operator. Respondent reviewed Petitioner's application and denied it for failure to demonstrate the requisite twelve years of experience in the operation, supervision and maintenance of a drinking water treatment plant. Since June 30, 1969, Petitioner has been employed by the Miami-Dade Water and Sewer Authority (WASA) in several capacities each dealing with drinking water treatment. However, Petitioner has never served as a drinking water treatment plant operator nor been licensed as a drinking water treatment plant operator at any classification. WASA is composed of three regional drinking water treatment plants and nine interim plants servicing portions of South Florida with a total average production of 320 million gallons per day. From June 30, 1969 through March 21, 1982, Petitioner worked with the electrical component of WASA. For seven of those years, he worked as an electrician. He was then promoted to be an electrical supervisor which position he held for five years. His duties while working in the electrical operation involved performing preventative maintenance, installing and repairing equipment and supervising the personnel working with him in the electrical area. This experience is not in the management of a drinking water treatment plant and does not qualify as actual experience therein. On March 22, 1982, Petitioner was promoted to his current position of Water Production Superintendent to oversee the employees and the entire drinking water treatment operation of WASA. He remains on call twenty-four hours a day and is actually on the job approximately forty-five hours per week. He begins a typical day around 6:00 A.M. by contacting each of the plants to determine their capacity levels and to find out if any problems exist. If the operation is normal, Petitioner begins his daily process of visiting each plant. He begins at the Hialeah Treatment Plant which houses his office. At each stop, Petitioner goes over the operational log with the treatment plant supervisor. He inspects the facility. He collects samples and spot tests the results. If an adjustment is necessary, he prescribes the remedy or goes over it with the operator on duty. He assesses the chemical inventory and places necessary orders. Petitioner also makes repairs and adjustments; he carries his own repair tools. Petitioner performs most all of the functions of the treatment plant supervisor. Added to his responsibilities are the administrative duties of being the Water Production Superintendent. On the average, these administrative duties encumber less than eight hours of his normal forty-five four week Although Petitioner's current position is supervisory in nature, in fact, it is a technical and operational position. Petitioner participates at most all levels of the operation of the drinking water treatment process. In each position that Petitioner has held with WASA, he has been involved in onsite, on-hands activity with the facilities and equipment controlling the operation of WASA. For the seven years and one month that Petitioner has served as Water Production Superintendent, his work has been actual experience in the operation supervision and maintenance of a drinking water treatment plant. Petitioner is a high school graduate and has successfully completed 128 hours of classroom and laboratory work in a course approved by Respondent. Petitioner has also completed 16 classroom hours in a course pertaining to cross connection control in a treatment plant. These activities yield three years and five months of constructive experience. The combination of Petitioner's total experience accounts for ten years and six months of the twelve years of experience required for classification as a Class A operator. Thus, Petitioner's activity fails to meet the experience requirement necessary for certification as a class A drinking water treatment plant operator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Environmental Regulation issue a Final Order denying Petitioner's application of May 9, 1989 for certification as a Class A drinking water treatment plant operator. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of November 1989. JANE C. HAYMAN 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 7th day of November 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-3705 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 5. Addressed in paragraph 1. Addressed in paragraph 1. Addressed in paragraph 1. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. Addressed in paragraphs 5 and 6. Addressed in paragraph 6. Addressed in paragraph 5. Not supported by competent and substantial evidence. Addressed in paragraph 6. Addressed in paragraphs 4 and 6. Addressed in paragraphs 3 and 8. Respondent's proposed findings of fact are addressed as follows: Addressed in paragraphs 2 and 3. Addressed in paragraphs 5 and 6. Addressed in paragraph 4.- Addressed in paragraph 9. Addressed in paragraph 1. Addressed in paragraph 1. Subordinate to the result reached. Conclusion of law. Subordinate to the result reached and addressed in paragraph 10. Addressed in paragraph 8. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. COPIES FURNISHED: Alice Weisman, Esquire Robert A. Sugarman, Esquire Sugarman & Susskind, P.A. 5959 Blue Lagoon Drive Suite 150 Miami, Florida 33126 Cynthia K. Christen, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue As reflected in the parties' prehearing stipulation filed on August 28, 1991, the issue in this case is whether the St. Johns River Water Management District (SJRWMD) should approve South Brevard Water Authority's (SBWA) consumptive use permit (CUP) application. The SBWA is seeking permission to withdraw an annual average daily rate of 18.8 million gallons (mgd) and a maximum daily rate of 21.4 mgd. The District proposes to grant the permit with specified conditions. Petitioners challenge the issuance of the permit, alleging that applicable requirements of Chapter 373, F.S. and Chapter 40C-2, F.A.C. and other applicable law are not met. The standing of Petitioners, other than Osceola County, is at issue. Also at issue is whether the relevant criteria include consideration of the adequacy of existing sources of water, and the consideration of costs of utilizing existing sources versus the cost of the proposed new source of water.
Findings Of Fact The Parties The applicant, South Brevard Water Authority (SBWA) was created by special act of the legislature, Chapter 83-375, Laws of Florida. Its principal office is located in Melbourne, Brevard County, Florida. Its general mission is described in Section 1, of Chapter 83-375, Laws of Florida, as amended by Chapter 87-481, Laws of Florida: Section 1. It is hereby declared and determined by the Legislature that a regional water authority is the most responsive, efficient, and effective local government entity to secure, operate, and maintain an adequate, dependable, and safe water supply for the district and customers of the district. It is the intent of the Legislature that such regional water authority possess the full power and authority to implement, finance, and operate a single coordinated program of water supply transmission and distribution to meet the future quantity and quality needs of the district and for customers of the district. There is a paramount public need to develop a safe, reliable, and energy-efficient source of public water for the district residents and to contruct the wellfields, transmission lines, and other facilities necessary to supply such water. The St. Johns River Water Management District (SJRWMD or District) is an agency created pursuant to Chapter 373, F.S. in charge of regulating consumptive uses of water in a 19-county area of the State of Florida, including all of Brevard and part of Osceola County. The geographical boundaries of the District are described in Section 373.069(2)(c), F.S. Osceola County is a political subdivision of the state, west of, and contiguous to, south Brevard County. The Corporation of the President of the Church of Jesus Christ of Latter Day Saints (Deseret) is a Utah corporation authorized to conduct business in the State of Florida. Deseret owns real property in Osceola County to the north and east of the proposed wellfield. Deseret possesses a valid consumptive use permit authorizing the withdrawal of water for this property. East Central Florida Services (ECFS) does not own land or possess a consumptive use permit (CUP). Its purpose is to take over the water management program for the Deseret property. It has applied to the Public Service Commission for certification. Notwithstanding the parties' stipulation that "Triple E Corporation" and "Triple N Corporation" own real property in Osceola County near the proposed wellfield (prehearing stipulation, filed 8/28/91, p. 5), no such corporations are registered in the State of Florida. The lands identified as Triple E and Triple N are owned by multiple parties through trusts, primarily managed by Maury L. Carter, one of the owners. Neither Triple E nor Triple N properties have CUP's. The properties are used for agricultural purposes and the Triple N property has a well and recreational camp. The Site of the Proposed Use The proposed wellfield is located on property owned by the SJRWMD, the Bull Creek Wildlife Management Area (BCWMA), located entirely in eastern Osceola County. The BCWMA is comprised of 22,206 acres within the drainage area of the St. Johns River. The northern third of the management area is drained by Crabgrass Creek, and the southern two-thirds is drained by Bull Creek. The easternmost boundary is located approximately one mile from the Brevard County boundary. Currently all 22,206 acres of the BCWMA are under lease to the Florida Game and Fresh Water Fish Commission, which agency manages the area as a public recreation facility for hunting, fishing, hiking, horseback riding, camping and archeological studies. The sparsely populated area has historically been used for logging and cattle grazing. It was acquired for a detention area and it currently provides nonstructural flood protection. Its surface topography is relatively flat, with uplands and wetlands separated by only inches in vertical elevation. Upland communities include pine flatwoods, saw palmetto prairies, pine savannahs and sand oaks. Wetland communities include cypress domes, mixed shallow marshes, sawgrass marsh, wet prairies and transitional prairies. The BCWMA is classified as a "conservation area" in the District's current adopted Five Year Land Plan which summarizes the agency's land acquisition and management policies. A "conservation area" is defined as "...an area acquired for water resource conservation and protection in an environmentally-acceptable manner". The term includes water supply areas, including areas for public wellfield location. (Osceola Co. exhibit #33, p. 15) Facilities Associated with the Proposed Consumptive Use Although the precise siting of the wells has not been established, the wellfield will be located at the northern end of the BCWMA, east-west into a "panhandle" area, and extending south, for an inverted "L" shape. The wellfield will consist of 12 production wells in 2000 ft. intervals. Wells 1-9 will lie along an east-west axis adjacent to Crabgrass Creek, while wells 10-12 will lie along a north-south axis below well 9, the eastern-most well. The capacity of each well is designed at 3,000 gallons per minute or approximately 4.30 million gallons a day (mgd). Each well consists of 20" diameter casing pipe extending 700' below the ground surface. From there, an open hole for production will extend another 250 feet in depth. A small, 20 ft. by 30 ft., concrete building will enclose the motor and other equipment associated with each well, in order to eliminate vandalism and to baffle the noise. The wells will be sited to avoid jurisdictional wetlands. In addition to the production wells, monitoring wells will be constructed to comply with permit conditions. Because the water drawn from the proposed wellfield will exceed potable standards, reverse osmosis (RO) desalinization treatment is required. A below ground header pipeline will carry raw water from the wellfield to an RO treatment facility in Brevard County. The RO treatment facility will process 75 percent of water coming from the wellfield, 85 percent of which is recovered as finished water, and 15 percent of which is disposed of as brine by deep well injection. The 25 percent of raw water which bypasses the treatment process will be blended with the finished water to yield water which meets drinking water standards for chloride levels. The yield is anticipated to be 16.67 mgd on an average day and 18.9 mgd on a maximum day. However, the finished water yield could be higher if raw water quality permits greater blending and less reject water. On the finished water side, the water will need to be treated again to assure that it will be compatible with water from the City of Melbourne plant. Failure to balance the blended waters chemically could result in corrosion of pipes, leaching of pipes, discoloration, rusty water, and odorous water. A proper process, therefore, is essential and is highly sophisticated. From the treatment facility the water will travel in underground pipes, beneath the St. Johns River, beneath I-95 and east to the Melbourne distribution system. From there some water is anticipated to travel south to connect to the General Development Utilities (GDU) system. Hydrogeologic Characteristics of the Site For modelling purposes, the aquifer system in the region is represented by sequential layers of differing characteristics in the flow and movement of water. The SBWA model contains 6 layers; the Osceola model contains 7 layers. In both models, layer 1 corresponds to the surficial (water table) aquifer; layer 2 corresponds to the Hawthorn formation (the upper confirming layer); layer 3 is the Upper Floridan aquifer; layer 4 describes the 200 ft. thick portion of the Upper Floridan called the "production zone"; layer 5 in the SBWA model is approximately 450 ft. thick and is called a confining unit; Osceola's consultants consider this layer less permeable or semi-confirming; layer 6 is the lower Floridan; and layer 7 in the Osceola model is the bottom reaches of the lower Floridan. The surficial aquifer consists of sand and shell deposits and extends to a depth of approximately 100 feet below land surface. The surficial aquifer is capable of producing small to moderate amounts of water for domestic uses. The Hawthorn is an interbedded formation consisting of clay, limestone and phosphate. Due to its extremely low permeability, this layer restricts both the vertical and horizontal movement of water. The Hawthorn is thicker in Central Florida than in other portions of the state. At the BCWMA the thickness of the Hawthorn ranges from 240 feet in the area northwest of the management area to 80 feet in the southeastern portion of the management area. The upper Floridan Aquifer at the BCWMA, as characterized by the SBWA's consultant and based on site specific data, extends from the base of the Hawthorn to a depth of approximately 900 feet below land surface. That portion of the upper Floridan Aquifer between the bottom of the Hawthorn and 700 feet below land surface consists of fine grained limestone with relatively low permeability. This zone corresponds with layer 3 in the groundwater modeling done by the SBWA. The portion of the upper Floridan between the bottom of the Hawthorn and 700 feet below land surface is less capable of producing water than the portions below this level. That portion of the upper Floridan Aquifer between 700 feet and 900 feet of depth consists of hard dolomites. Dolomitic zones are the most productive zones of water within the Floridan in this part of the state because these formations contain solution fractures and cavities. This zone corresponds with layer 4 in the groundwater modeling done by the SBWA. Several researchers and modelers have suggested the existence of a zone, variously referred to as a semi-confining unit, a zone of lower permeability or a middle semi-confining unit, located between the upper and lower Floridan Aquifer. This area between 900 feet and 1350 feet below land surface consists largely of hard dolomites similar in nature to those in the zone immediately above it. This zone corresponds to layer 5 in the groundwater modeling done by SBWA. Previous regional modeling efforts have utilized model derived values to describe the middle semi-confining unit rather than site specific information showing the location, thickness or hydrogeological characteristics of the zone. Site specific data tends to confirm the lower permeability of this zone relative to the layers above and below it. Site specific data consists of a core sample, mineral content observed during the drilling of the test monitor well, and a Neumann-Witherspoon ratio analysis conducted during the aquifer performance test. The area between 1350 feet and 1450 feet below land surface also consists of dolomites but with greater permeability and greater transmissivity (the measure of an aquifer's ability to transmit water in a horizontal direction). This area corresponds to layer 6 in the groundwater modeling done by the SBWA. No site specific data exists beneath 1483 feet, representing the total depth of test well TM. Regional data does exist which characterizes the areas from 1500 feet below land surface to the bottom of the lower Floridan Aquifer as consisting of zones of varying lithology, and varying permeabilities. This zone which corresponds to layer 7 in the groundwater modeling done by Osceola County is not homogeneous or uniform over its entire thickness according to available regional data, consisting of geologic reports of deep wells in the east-central Florida area. All parties agree that in the area of the proposed wellfield, horizontal movement of water in the Floridan aquifer is from west, where the greatest recharge occurs along the Lake Wales Ridge, to east, where there is little or no recharge. Water quality in the upper Floridan as measured by chloride concentrations deteriorates as one moves from west to east. The Floridan aquifer beneath the BCWMA represents a transition zone between the recharge area to the west and high saline formation waters in the east. The dominant geochemical components in water beneath the BCWMA are biocarbonates. Water quality, as measured by chloride concentrations, also deteriorates with depth. Chloride concentrations, based on data derived from the drilling of well TM at the BCWMA, increase gradually from 306 milligrams per liter (mgl) at 410 feet, to 658 mgl at 1473 feet below land surface. Chloride concentrations increase abruptly to 1980 mgl in well TM at 1483 feet of depth. Evidence is inconclusive as to whether all of the proposed production wells will draw water exceeding 250 mgl in chloride concentrations. It is undisputed that most will, but chloride contours initially provided by SBWA's consultant indicate that the southernmost wells may produce water between 150 and 250 mgl. A comprehensive aquifer performance test (APT) was conducted at the BCWMA by the SBWA's consultant, Post, Buckley Schuh, and Jernigan, Inc. (PBSJ). The test was designed by the staff of the SJRWMD in consultation with the U.S. Geological Survey (USGS). This test yielded data which enabled PBSJ to calculate several aquifer characteristics for use in the groundwater modeling which was later done by SBWA's modeling consultant, Environmental Science and Engineering, Inc. (ESE). Eight wells were utilized in connection with the APT conducted at the BCWMA in January and February 1990. Three of the wells were dual zone monitoring wells capable of monitoring events in two different geologic units simultaneously. Three wells, including the test production well (TP) were open to the interval between 700 and 900 feet below land surface which was identified by the SBWA as the production zone. Typically APT's are run for 12 to 72 hours in Florida. Well TP was pumped for approximately 10 days at a rate equivalent to that expected during actual production while observations were made of water levels in all wells, including three off-site wells (the Holopaw test well, the Kempfer well and the Bruner well). All of the information the SBWA needed from the APT was obtained in the first hours of the test. Water levels in the area monitored during the APT ceased dropping due to pumpage within 1 hour after the pumping started. Three different analytical models were used to calculate a transmissivity value for the production zone, utilizing data derived during the APT. The result showed transmissivity in this zone to be approximately 2 million gallons per foot per day. This is a very high transmissivity value indicating a comparatively prolific aquifer, capable of producing the volumes of water requested in the application. As transmissivity increases, the cone of depression associated with pumpage tends to flatten out and be less steep. The cone of depression extends further out, creating a wider area of drawdown. Hydraulic conductivity is the measure of an aquifer's resistance to flow either in a vertical (KV) or horizontal (KH) direction. Two methods were used to calculate the hydraulic conductivity of the Hawthon Formation by PBSJ: laboratory analysis of a core sample taken from this unit, and a bail test (measuring an increase in water level over time) conducted on a well on site by the SJRWMD. Two different methods were used by PBSJ to calculate the hydraulic conductivity of layer 5: laboratory analysis of a core sample taken from that zone, and the Neuman-Witherspoon ratio analysis method. Porosity is the void space in porous media through which transport of particles, such as chlorides, can occur. Effective porosity has an impact on the ability of saline or dense water to move upward from depth toward a pumping well. The lower the effective porosity within an aquifer, the greater the potential for upconing of saline water within that aquifer. Effective porosity for layers 4 and 5 was calculated using two different methods, those being laboratory analysis of core samples taken from these zones, and analysis of acoustic logs generated during the APT. Each of these methods is accepted in the field of hydrogeology. Anticipated Impacts to Groundwater Levels and Flows as a Result of the Proposed Consumptive Use A numeric groundwater flow model is a computer code representing the groundwater flow process. Both SBWA and Osceola used numeric groundwater flow models developed by their consultants to predict and simulate the impacts associated with withdrawals proposed in the application. The SBWA used a finite difference model called INTERSAT for its simulations. INTERSAT is a widely used and accepted groundwater flow model. The model was run by ESE for the SBWA in the impact or drawdown mode. Drawdown or impact models simulate changes in water levels in response to a stress such as a pumping well. Drawdown models are an accepted and frequently used method to evaluate wellfield stress, particularly in association with a CUP application. ESE and PBSJ utilized several analytical models to first determine and later to verify the area to which the boundaries of their model would extend. The radius of influence of a well or wellfield is the distance from the center of pumpage extending out to where drawdowns caused by that pumpage reach zero. The boundary for a numeric groundwater model should be set at, or beyond, the radius of influence of the pumpage being simulated by the model. Based on the analytical models run by ESE and PBSJ the radius of influence of the wellfield proposed in the application is 43,000 to 45,000 feet. The approximate distances of the boundaries set in INTERSAT model from well TP were 50,000 feet to the east, 40,000 feet to the west, 40,000 feet to the north and 50,000 feet to the south. The INTERSAT model covers a total area of 320 square miles. This size falls somewhere between a regional model and a local model, and is adequate in size to address the impacts associated with the proposed withdrawals. The vertical boundary of SBWA's model extends to 1450 feet below land surface and, as stated above, is divided into 6 layers. The 1450 feet depth generally coincides with the limits of site specific data generated during the APT. The six layers in the SBWA flow model coincide with the six distinct geologic units identified by PBSJ in their APT report. The site specific data generated by the APT was utilized, along with other regional modeling studies, to arrive at a set of "conservative" aquifer parameters to be utilized in the INTERSAT model. "Conservative" parameters for purposes of this application are those which would tend to overpredict drawdown in the surficial aquifer and the production zone, while allowing for more upconing of dense water from the bottom of the model. The selection of "conservative" aquifer parameters by SBWA involved taking site specific values, comparing them with the ranges of values reported in the other available regional models and selecting values which, while still within the range of reported values used in other studies, would tend to show greater impacts for the areas of primary concern than the site specific values. Every aquifer parameter utilized in SBWA's groundwater flow model falls within the range of values reported in at least one of the groundwater modeling studies previously done in this region. The size of the grids utilized in the SBWA model were 500 feet by 500 feet within the vicinity of the wellfield. Grid sizes expand as one moves toward the outer boundaries of the model. The fineness of the grids used by ESE, particularly in the wellfield area, allows for accurate representation and resolution of surface water features, impacts in the production zone and for evaluating the effects of saltwater upcoming in the transport model also done by ESE. Within the radius of influence of the proposed wellfield, there are no existing wells in layers 5 or 6. The ESE model simulations for 18.8 mgd pumpage predict a maximum drawdown in the surficial aquifer (layer 1) of 0.14 feet centered primarily within the BCWMA. At a distance of 1 mile from the wellfield the impact drops to 0.12 feet. None of the existing legal users of water in layer 1 within the radius of influence of the proposed wellfield will suffer a ten percent or greater reduction in withdrawal capacity from their wells solely as a result of the proposed withdrawals, since 10 percent reduction would require at least 3 feet of drawdown. The ESE model simulations predict a maximum drawdown caused by the proposed pumpage of 4.5 feet in layer 3 centered along the alignment of wells and primarily within the BCWMA. At a distance of 2 miles, the drawdown drops to 2 feet. At the Brevard-Osceola County line the drawdown in layer 3 is approximately .5 feet. Petitioner Deseret's flowing wells are drilled in layer 3 and are located within the area where a drawdown of 1 foot is predicted in layer 3 by the ESE model. Deseret uses its property for a cow/calf ranching operation and has approximately 32,000 head of cows. Deseret uses 39 flowing wells east of state road 192 to irrigate pasture, water cattle and supply drinking water. Deseret possesses a valid CUP for a portion of the total flow capacity from those wells. Seasonally, the wells flow at different rates, but they are most relied upon in dry conditions when the natural flow would be decreased. It is unlikely that the proposed SBWA withdrawals will stop the flow of any of Deseret's wells; and it is unlikely that the flow will be reduced by more than 10 percent. Deseret and Osceola's consultants do predict a greater drawdown and opine that approximately 12 of Deseret's wells will cease flowing as a result of the SBWA withdraw As addressed below, the modelling by Petitioner's consultants, upon which those predictions are based, is less reliable than that of SBWA's consultants. If the effects are greater than predicted, mitigation in the form of installation of pumps is possible, albeit inconvenient and expensive. Mitigation would have to be provided by the applicant, SBWA. The drawdowns predicted by the ESE model for layer 4 are not significantly different from those for layer 3. It is anticipated that no legal user of water within the radius of influence of the proposed wellfield will suffer a 10 percent or greater reduction in withdrawal capacity for its wells, as a result of SBWA's proposed withdrawals. Petitioners' consultants, Hartman and Associates, (Hartman) modeled a significantly larger (4900 square miles) and deeper (3000 feet) area than did SBWA. The model makes its predictions based on one data point for every 49 square miles within the modeled area. Petitioners utilized much larger model grids in the wellfield area (2000 feet by 2000 feet) than did the SBWA. Grid of this size lacks the resolution necessary to evaluate wellfield impacts. Petitioners selected their aquifer parameters from another regional modeling study done in 1985 rather than using site specific data. Those parameters were then adjusted or calibrated until a match was obtained to a computer created potentiometric surface which was supposed to reflect the potentiometric surface for May 1990, an uncharacteristically dry period. The created potentiometric surface to which Hartman calibrated its model varies greatly from the potentiometric surface as reflected in the actual data points from which USGS derives its potentiometric surface maps. While no model is perfect, and actual data is preferable, in the absence of all the actual data that is needed, the ESE model is a more credible predictor of drawdowns. Anticipated Impacts to Groundwater Quality as a Result of the Proposed Consumptive Use Solute transport models are computer models designed to simulate the movement of mass, in this case -- chlorides -- through a groundwater flow system. These models are linked to, and are dependent on flow fields generated by groundwater flow models. In order to predict changes in water quality anticipated to occur as a result of its proposed withdrawals, SBWA's consultants used a solute transport model called HST3D. Developed by the USGS, this model is widely used and accepted. For simulations using the HST3D model, SBWA used the flow field and a portion of the grid generated by its INTERSAT groundwater flow model. The HST3D simulations run by ESE utilized a cross section of the INTERSAT model grid extending through row 26 of that grid, which is the row containing the line of 9 proposed wells running on an east-west axis. Use of a cross sectional grid is an appropriate method by which to examine salt water intrusion. Upconing, to the extent that it will occur as a result of the proposed pumpage, would be greatest within the cross section containing the 9 wells. The cross section extends two miles through the wellfield to the west. As chloride concentrations in water increase, the density of the water increases. Density can retard the degree of upconing when chloride concentrations are as low as 1000-2000 parts per million and becomes significant at 3000-5000 parts per million. Failure of a model to consider density effects, when appropriate, would tend to overstate upconing. HST3D does consider density effects. SBWA's consultant ran several simulations with the HST3D model to predict changes that would occur as a result of the proposed pumpage in chloride concentrations over 7, 14 and 30 year time periods. These simulations utilized the same aquifer parameters as the INTERSAT model together with the effective porosity values derived from site specific data. Assuming a starting chloride concentration of 1000 mgl at the bottom of layer 5, the measured concentration at that level in well TM on the BCWMA site, after 30 years of pumpage at 18.8 mgd, the chloride concentrations in layer 4 would increase by only 100 mgl. The simulations for 7 years of pumpage which is the duration of the proposed permit, show that the predicted increase in chloride levels would be substantially less than 100 mgl. Other HST3D simulations were run by SBWA for a pumpage rate of 35 mgd utilizing beginning chloride concentrations of 5,000 mgl and 10,000 mgl, respectively at the bottom of layers. The results did not show any significant changes in chloride concentrations in layer 4 over and above those shown when a lower starting chloride concentration was assumed. In a circumstance where, as here, the chloride concentrations in the zone from which water is proposed to be withdrawn exceeds secondary drinking water standards (250 mgl), the SJRWMD evaluates the existing legal water uses within the area that would be impacted by the proposed use. If it is determined that the increase in chloride concentrations caused by a proposed use would detrimentally affect other existing legal users or the applicant, only then is the increase deemed to be "significant". Within the layers of the aquifer which would experience increases in chloride concentrations as a result of the proposed withdrawal, layers 4, 5 and 6, no existing users of water would be detrimentally affected. Petitioner Deseret's closest wells to the proposed wellfield are in layer 3 where chloride levels will not be affected by the proposed wellfield within the 7 year duration of the proposed permit or even beyond that period. Further, the use Deseret makes of the water from the wells in closest proximity to the proposed wellfield, pasture irrigation, can tolerate significantly higher chloride concentrations than will exist even directly beneath the wellfield in level 4 after 30 years of pumping. Use of water for public supply purposes is considered by SJRWMD to be in the public interest. Utilization of the water beneath BCWMA for public supply purposes, even with some increase in chloride concentrations in the source of the water over the life of the permit, does not on balance detrimentally affect the public interest. Two different solute transport models were done by Petitioners' consultants, one a numeric model and the other an analytical model. The numeric model done by Hartman, RANDOMWALK, does not predict changes in chloride concentrations within an aquifer, but rather tracks movement of particles. RANDOMWALK does not account for density effects. The analytical model done by Prickett for the Petitioners relies on assumptions, many of which are not met in the aquifer system at BCWMA. Those assumptions relate to uniformity of the system, for example: porosity and permeabilities, and lack of regional gradients. The solute transport models utilized by the Petitioners are less reliable for predicting water quality changes resulting from the proposed pumpage than the model utilized by the SBWA. Salt water intrusion is a dramatic increase of chloride levels in an aquifer layer. The saline water encroachment which occurs from the wellfield stress will be in the lower confining unit. There will be limited degradation in the lower part of the production zone. The wellfield will not induce significant lateral intrusion from the east. There will not be any dramatic changes in chlorides. The movement of the chlorides is confined to the locality of the wellfield. Most of the movement is vertical and is of limited increase. The proposed Bull Creek withdrawals will not aggravate any currently existing salt water intrusion problems. The reject brine water from the RO treatment plant will be disposed of in deep injection wells in Brevard County. These injection wells would deposit the brine into a receiving body of water in the Oldsmar geologic formation. The brine reject will have a total dissolved solids (TDS) concentration of approximately 7,000 mgl. The receiving water into which the brine will be injected approximates sea water, with TDS concentrations in the range of 36,000 mgl. The receiving body will obviously not be further degraded. Environmental Impacts of the Proposed Consumptive Use District staff, SBWA consultants and Osceola's consultants independently conducted onsite field investigations of the BCWMA to evaluate the vegetative communities and land uses which exist on site. Each consultant prepared a habitat map identifying the various vegetative communities found at the site. While relatively pristine, the BCWMA has been logged and grazed by cattle in the past. The impacts of man's activities have been remediated by ceasing the activity. There are few permanent incursions, such as roads, canals and buildings. The area is a very diverse landscape, with a mosaic of different types of plant communities. There are various upland and wetland habitats. The variety of wetlands are forested and non-forested, deep and shallow, open and closed. These wetlands perform important functions, including water storage and purification, aquifer recharge, flood control, and provision of food sources and habitat for wildlife, and they are "factories" for producing the materials needed by many higher organisms. The wetlands on site are structurally complex and are good habitat for macro- invertebrates and the fish and higher organisms that feed on them. A number of these wetlands are shallow, isolated wetlands. During periods of inundation, when the wetlands fill up with water and interconnect with the Bull Creek drainage system, the system exports various organisms to the wetlands. Fish that are live bearers move into isolated wetlands during periods of inundation, and they and their offspring become a source of food for birds. Fish species that lay eggs can withstand desiccation (total drying out) can survive the temporary drying of wetlands, but live bearers must repopulate during periods of inundation. The mixed wetland hardwoods on site contain a diversity of bugs, crawfish, mayflies, damsel flies, midges, and snails. Some of these are important food sources for higher organisms. The apple snail, for example, is an important food source for such birds as the limpkin and the endangered snail kite, and its eggs are food for crawfish and other organisms. The biological communities that exist in the wetlands and uplands at the site are determined by a number of factors, including the depth and duration of the hydroperiod, soils, climate, temperature, and availability of sunlight. These communities and their habitats will react to changes in light, water, temperature, and many other subtle effects, causing changes in plant diversity and structure, the areal extent of certain types of habitats and wetlands, and utilization by wildlife. Natural fluctuations in the hydroperiod also cause these changes, generally from the exterior edges of a wetland to the interior. The wetlands in the BCWMA have been able to withstand the natural drought and flood periods, or they wouldn't be there today. Periodic burning is essential to the health of ecosystems such as in the Bull Creek area. Fires reduce the prevalence of species less tolerant to fire, allow other species to strengthen their presence, return organic material to the soil, and reduce the fuel available for wild fires. Originally occurring naturally as a result of lightening strikes, prescribed burns are now undertaken by agencies such as the Division of Forestry and the Game and Fresh Water Fish Commission to replicate the beneficial functions of natural periodic burning. Fire management is used as a land management technique at BCWMA and continued fire management at the BCWMA will maintain a natural ecological setting typical of Florida. Slight variations in elevation which mark the difference between wetlands and uplands can result in utilization of the areas by different animal communities. Where different types of plant communities meet, an "ecotone" is created. Where an ecotone exists, the "edge effect" of the competition between the two communities occurs. The result of the edge effect is higher plant and animal species diversity, which is extremely important to the natural community. Some animals make specific use of the ecotone for habitat and food resources. Many amphibians, frogs in particular, live in the ecotone. Some birds will not roost in the upland forests but will roost in the edge of the forest adjacent to wetlands. Wetlands in the BCWMA are connected to the remainder of the Bull Creek system through groundwater resources. Their biological and ecological communities are also connected as the same organisms move throughout the system. Isolated wetlands also exhibit a "moving edge" effect, where changes in the surface water and water table levels cause different plants, or plants at different levels of maturity, to exist in the wetland and its perimeter. This increases the productivity of the wetland by making it attractive to a wider variety of plant and animal species. If the expansion and contraction of isolated wetlands is reduced by lowered water levels, the smaller wetlands would exhibit a reduced edge effect, and the cumulative effect of this reduction over time would disrupt the functioning of the wetland-upland system. Isolated wetland systems are more sensitive to drawdowns in the surficial aquifer than connected wetland systems because the drainage area contributing water to the wetland system is smaller. Isolated herbaceous wetland communities are the most sensitive of the vegetative communities on BCWMA to drawdowns in the surficial aquifer. The surficial aquifer fluctuates naturally as much as five feet annually. Rainfall is the primary source of water for the surficial aquifer. Water levels in the surficial aquifer respond very quickly to rainfall events. Hydroperiods of the wetland systems in the BCWMA respond to rainfall and surficial aquifer levels. The wetland hydroperiods vary from year to year, and wetland ecosystems have adopted to those annual changes. But a groundwater withdrawal from the surficial aquifer in the Bull Creek area would cause a corresponding lowering of the surface water level, since the wetlands are not "perched", or separated from the aquifer by a confining layer. A drawdown would lower water levels throughout the hydroperiod, under both high water and low water conditions, with a more pronounced effect during the dry season and drought periods. Some of the over twenty threatened and endangered plant species present at Bull Creek grow in shallow, marginally wet areas. Changes in even a few inches of groundwater would cause these plant species to be retarded in growth, and their abundance would decrease or they would die out at the site. Many of the wetlands are shallow, broad, sloping areas, and groundwater elevation changes of just a few inches will cause changes in the areal extent of these wetlands. Even the .14 foot drawdown predicted by SBWA's modeling would affect shallow inundated or saturated systems by changing the moisture level at the surface, particularly by affecting the lowest water levels. Changes in the vegetative composition of wetlands will affect the macro-invertebrate characteristics of a site. For example, as water levels change, the density of the vegetation (in terms of number of plant stems per acre) can decrease, leaving fewer places for the macro-invertebrates to hide, and the populations of macro-invertebrates will decrease through predation. As food sources, habitat and breeding grounds decrease, those animal species that can relocate will attempt to do so. Relocation can adversely affect the survival of the species; for example, a wood stork unable to find a particular food upon which it is dependent at a particular interval in its life cycle may abandon its nest and its young. Animals that attempt to relocate may find that there is not a suitable similar habitat available, making their attempt to adjust to the change in their environment unsuccessful. The proposed use will not significantly affect the stages or vegetation of the upland communities at the BCWMA because they are not as dependent on saturation or inundation as a wetland community. Forested wetland systems, be they isolated or connected, will not be influenced by a drawdown of the magnitude predicted by SBWA for the surficial aquifer. Forested systems have deep root zones and the canopy provides shading to the strata below. Forested systems are able to tolerate natural changes in hydrology. The SBWA assessment does not offer any detailed cataloguing of the plant and animal communities on site, or a description of how the systems operate or interface with each other. It does not provide sufficient information to be able to assess the impacts of the proposed wellfield on these systems. There was insufficient information presented by the applicant to conclude that the environmental harm to be caused by operation of a wellfield at the BCWMA has been reduced to an acceptable level. The applicant relied on the fact that drawdowns in the surficial aquifer will be minimal, without fully considering the impact of those minimal drawdowns on a fragile wetland ecosystem during a dry period. Water Demand The SBWA was created by special act in 1983 as a dependent special district for the purpose of developing regional water supplies and transmission of water to water distribution systems. In its existence so far, its labors have been in the former, and none in the latter category. Efforts to develop a regional water supply have been frustrated by litigation, by reluctance of local public systems to give up their authority and by delays in pursuing and processing CUP applications, two of which are still pending, in addition to the instant application. The City of Melbourne's public water system provides water to Melbourne, Palm Bay and West Melbourne, and to some unincorporated areas surrounding Melbourne. It also supplies water to the area called south beaches, comprised of the Brevard County area south of Patrick Air Force Base, including Satellite Beach, Melbourne Beach, Indiatlantic and Indian Harbor Beach. The current water supply is Lake Washington, which is part of the chain of lakes on the St. Johns River. The city of Melbourne was granted a CUP on January 15, 1991, for withdrawals from Lake Washington, ranging from 27.15 million gallons maximum daily withdrawals in 1991 to 21.7 million gallons maximum daily withdrawals in 1998. In addition, Melbourne has planned a new facility and has the CUP to withdraw 8.13 million gallons a day from the Floridan Aquifer commencing in 1993. After reverse osmosis treatment, the groundwater withdrawal will yield 6.5 million gallons a day finished water, making up the difference from reduced withdrawals from Lake Washington. Approximately 56 potable water systems have been identified by SBWA in South Brevard, south of the Pineda Causeway. Almost all are small private systems. Besides Melbourne, the other major water supplier in the area is General Development Utilities (GDU), serving the City of Palm Bay. GDU's CUP expires in 1993 with an average daily withdrawal of 6.5 mgd and maximum daily withdrawal of 8.5 mgd. It has ample capacity until 1996, and beyond to the year 2000, if an additional Department of Environmental Regulation capacity rating is obtained. The total capacity of the two major existing facilities is approximately 30 mgd and total existing consumptive use quantities (including existing CUPs with expiration dates varying from 1993 to 1998) approach 40 mgd. The current SBWA water master plan assumes that existing sources need replacing. More specifically, SBWA, if this CUP is granted, seeks to replace Lake Washington as the primary source of water in the area with the groundwater obtained from the BCWMA wellfield. An agreement between the City of Melbourne and SBWA provides that the City will initially purchase 8 mgd, plus all future needs of water from the SBWA. This 8 mgd would be used by Melbourne prior to using its 6.5 mgd finished water from the RO facility, and the RO water would be used prior to withdrawals from Lake Washington. The agreement, dated January 9, 1991, acknowledges the need for, and specifically authorizes improvements to Melbourne's Lake Washington Water Treatment Plant, including the conversion of the existing high service pumping station to a low service pumping station with average daily capacity of 20 mgd and maximum capacity of 25 mgd. (SBWA Ex. 49) GDU is a private utility and currently is outside the jurisdiction of the SBWA. General Development Corporation is in receivership and the City of Palm Bay is negotiating for purchase of the utility. If the purchase is successful, the supply will become publicly owned and subject to the jurisdiction of the SBWA. The City of Palm Bay is not bound to purchase GDU at any price, and the requirement that it would shut down its newly purchased facility to receive water from SBWA is a disincentive to the acquisition. In the meantime, GDU has no incentive to reduce CUP capacity and devalue its facility. GDU's service has been uninterrupted and reliable. Contamination to the surface aquifer utilized by GDU has been successfully treated. Although septic tanks proliferate in Palm Bay, their location, as well as the presence of confining layers in the surficial aquifer, reduce the susceptibility of GDU wells to contamination from septic tanks. The applicant's concerns about unreliability and safety of Lake Washington as a continued water source are unsubstantiated by the weight of evidence in this proceeding. Surface water facilities have been used in Florida since before the turn of the century and no major facility has ever been off-line one day due to raw water contamination. Nor has any major Florida surface water plant ever been sabotaged. There is a greater chance in Florida of problems with pipeline failures, and the miles of pipes planned to transmit ground water from Bull Creek east to SBWA consumers increase the chances of those problems. Recently, the SJRWMD Upper Basin Project has significantly improved the water quality and quantity in Lake Washington through restoration of marshlands in the upper basin and capping flowing wells. Restored marsh areas will allow for additional removal of nutrients and provide an additional storage to the Lake Washington/Upper Basin system, significantly improving safe yield quantities. Comparisons of concentrations of raw water chlorides and total dissolved solids for the drought years of 1989 and 1990, show significant reductions for the latter time frame. Recent evaluations indicate that Lake Washington would be acceptable in terms of chlorides and TDS concentrations for a 35 mgd withdrawal, even during 50 and 100 year droughts. Water quality improvements to Lake Washington can be directly related to the Upper Basin project. Trihalomethanes are regulated by the Safe Drinking Water Act. They are produced by the disinfection process of treating raw water with chlorines, and they are carcinogenic. A previously experienced problem at the Melbourne plant has been corrected with operational changes. As recently as 1988, an internal staff report by SJRWMD staff provided: Lake Washington has been a reliable source of public water supply since 1960 and can remain so in the future with the continuation of sound basin planning and watershed management by the St. John's river Water Management District. The quality of the raw water from Lake Washington is subject to annual and seasonal variations that make the treatment process more difficult, and the quality of the delivered water less consistent, than would be the case with a groundwater supply. A supplemental water source near Lake Washington would improve the quality of the water delivered to the users, would increase the total volume that could be taken from the lake in times of stress, and would provide a reliable alternative in case of emergency. The upper zone of the Floridan Aquifer within south Brevard County has the potential to supply a significant portion of the area's future water needs with existing low-pressure, reverse osmosis technology at a cost that is comparable to current supplies.
Recommendation Based on the foregoing, it is hereby, recommended that the SBWA application for CUP be denied. RECOMMENDED this 12th day of March, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 12th day of March, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 91-1779, 91-1780, & 91-1781 The following constitute disposition of the findings of fact proposed by each party. Petitioner, Osceola County These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-5, 7-8, 14, 21-22, 24-25, 27-28, 30, 32, 35, 62-65, 73, 104, 113, 116-125, 127, 129-130, 132-138, 140, 154, 157-158, 164, 167-168, 183, 186, 189, 191-195, 197-200, 202-204, 209, 212. These findings are rejected as contrary to or unsupported by the weight of evidence: 37-38, 48, 51, 53, 56, 66, 79-81, 84-90, 92-94, 102-103, 105-107, 110-112, 115, 128, 171-172, 212(d), (f) and (g), 213-214. These findings are rejected as cumulative, unnecessary or irrelevant: 6, 9- 13, 15-20, 23, 26, 29, 31, 33-34, 36, 39-47, 49-50, 52, 54-55, 57-61, 67-72, 74- 78, 82-83, 91, 95-101, 108-109, 114, 126, 131, 139, 141-153, 155-156, 159-163, 165-166, 169-170, 173-182, 184-185, 190, 196, 201, 205-208, 210-211, 212(e), 215. Petitioners, Triple E, Triple N, East Central Florida Services, Inc., and Deseret These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-6, 8-9, 16-20, 22-25, 27-28, 30-31, 50- 56, 59-60. These findings are rejected as contrary to or unsupported by the weight of evidence: 7, 12, 32, 34-37, 40, 42, 44, 48, 49, 58. These findings are rejected as cumulative, unnecessary or irrelevant: 10- 11, 13-15, 21, 26, 29, 33, 38-39, 41, 43, 45-47, 57, 61-63. Respondent, South Brevard Water Authority These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-6, 9-11, 13, 16-24, 28, 30-34, 36, 38, 46-48, 61, 64, 70, 72-74, 90-91, 94-98, 105-108, 110-111, 113, 115-116, 121, 126-129, 133, 149, 152, 157, 169, 179, 181-190, 192-194. These findings are rejected as contrary to or unsupported by the weight of evidence: 41, 130-132, 156, 158, 167, 174, 177. These findings are rejected as cumulative, unnecessary or irrelevant: 7-8, 12, 14-15, 25-27, 29, 35, 37, 39-40, 42-45, 49-60, 62-63, 65-69, 71, 75-89, 92- 93, 100-104, 109, 112, 114, 117-120, 122-125, 134-148, 150-151, 153-155, 159- 166, 168, 170-173, 175-176, 178, 180, 191. Respondent, St. Johns River Water Management District These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-8, 10-22, 24-36, 38-44, 47-62, 64-88, 90, 92-116, 118-122, 124-130, 132-142, 144-151, 159-160, 164, 166-167, 169, 171, 174-175, 177, 193-196, 198, 202, 206. These findings are rejected as contrary to or unsupported by the weight of evidence: 131 (the conclusion), 153-154, 156-157, 161-162, 197, 204, 207. These findings are rejected as cumulative, unnecessary or irrelevant: 9, 23, 37, 45-46, 63, 89, 91, 117, 123, 143, 150, 152, 155, 158, 163, 165, 168, 170, 172-173, 176, 178-192, 199-201, 203, 208-210. COPIES FURNISHED: Segundo J. Fernandez, Esquire Scott Shirley, Esquire OERTEL, HOFFMAN, FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, FL 32314-6507 Douglas P. Manson, Esquire BLAIN & CONE, P.A. 202 Madison Street Tampa, FL 33602 Clifton A. McClelland, Esquire POTTER, McCLELLAND, MARKS & HEALY, P.A. Post Office Box 2523 Melbourne, FL 32902-2523 Wayne Flowers, Esquire Nancy B. Barnard, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Neal D. Bowen, County Attorney Osceola County Room 117 17 South Vernon Avenue Kissimmee, FL 32741 Carol Browner, Secretary Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Mr. Robert W. Hall, Certification Officer for Respondent, reviewed the application. As indicated by Hall's testimony and notations on Petitioner's application, Respondent gave Petitioner credit for work and training experience in Vietnam, but determined that Petitioner was only qualified to be a Class C water treatment plant operator. Respondent certified Petitioner as a Class C operator on February 4, 1982. Hall's testimony established that although Petitioner met Class B operator education and experience requirements, he had not taken or successfully completed an approved training course as described in Section 17-16.03(9), Florida Administrative Code (FAC). A list of approved training courses was introduced as Exhibit 3. The required length of time for the training course is 120 hours, and courses are available in the vicinity of Petitioner's residence and by correspondence course. In response to Hall's testimony, Petitioner stated that he had taken an equivalent course for four months in Vietnam, as indicated on the second page of his application to the Respondent. The application was, however, inconsistent with Petitioner's resume (Exhibit 2), which listed training from July, 1972 to August, 1972 at the National Water Supply Agency in Saigon, Vietnam. Furthermore, Petitioner presented no evidence, documentary or otherwise, to establish course content, the number of hours involved, or the certification, if any, granted. Respondent also presented the testimony of Mr. William Johnson, Director of Public Utilities for the City of Saint Petersburg. Johnson is certified as a Class A water treatment plant operator, which is the highest level of certification. He has an extensive professional background in the area of water and wastewater treatment, and is involved in teaching and curriculum development in these areas at Hillsborough County Community College. He was a member of a task force established in 1975 when Respondent first implemented the above cited rule. The task force established various criteria and standards to be applied in developing curricula for water plant operator training courses, based upon accepted national practices. Johnson's testimony established the distinction between Class C, B and A operators. A Class C operator is typically a line employee at a water treatment plant who is able to make repairs, but works at the direction of a supervisor. A Class B operator has sufficient managerial capabilities to manage a shift at a major treatment plant, and has extensive familiarity with the mechanics and engineering of the treatment plant processes. A Class A operator has additional theoretical knowledge as well as administrative and budgetary skills, and can take charge of a major water treatment plant.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a Final Order denying the petition. DONE and ENTERED this 31st day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1982. COPIES FURNISHED: Mr. Hinh van Nguyen 445 11th Avenue North St. Petersburg, Florida 33701 Daniel H. Thompson, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact On or about October 30, 1984, Lawrence E. Bennett, a consultant engineer for Peninsula, forwarded to DER's domestic waste engineering section an application to construct/operate a domestic wastewater treatment and disposal system along with the appropriate plans and a check for the fee. The package included proposals for construction of a 300,000 gpd splitter box and addition of a 100,000 gpd contact stabilization plant. Thereafter, on May 22, 1985, Mr. Bennett submitted a revised copy of the application pertaining to the 100,000 gpd expansion initially submitted as above. The revised application reflected Peninsula's proposed outfall to the Halifax River which was applied for under separate permit. By application dated October 7, 1983, as revised on May 15, 1985, Peninsula proposed to construct an outfall discharge into the Halifax River from the secondary treatment plant. By letter dated October 29, 1984, Mr. Bennett advised DER, inter alia, that the discharge rate would be an ADF of 1.25 mgd. The application for the additional 100,000 gpd plant and splitter box also provided for a chlorination facility. This expansion was needed because 200,000 gpd capacity is already committed to serve current residents and customers of the utility. The new construction is designed to accommodate established future demand. In Mr. Bennett's opinion, the design of this facility will accommodate all DER criteria and standards. The outfall facility proposed in the second project will be a pvc forced main for a part of the distance with iron pipe for the remainder and a lift station attached to pump the effluent to a point in the river selected where the river is deep enough to meet DER water criteria. The initial permit application on this project called for discharge into a portion of the river which did not meet water quality standards. As a result; DER suggested discharge point closer to the center of the river, and this change is now planned. At this point, the outflow will meet DER standards. Intents to issue the permits, as modified, were issued in August 1985. Peninsula has also filed for permits with the Florida Public Utilities Commission, the United States EPA, and the U.S. Army Corps of Engineers for these projects. The plans are based on the estimated population expansion called for in the next few years. Peninsula is fully capable, financially, of providing and paying for the projected improvements. In the past, it has always provided sufficient funding to do that which is called for under its permits and which is necessary. The waters in question here are Class III waters of the State, mainly recreational. There is no shellfish harvesting in the area because of the pollution of the Halifax River, condition which has existed since at least 1941. Results of tests conducted by experts for Peninsula show the quality of the water presently coming out of the treatment plant is cleaner than that currently existing in the Halifax River. The outfall pipe in question will have the capability of handling approximately 1,200,000 gpd. Latest reports from the water treatment plant indicate that the current average daily flow is 150,000 gpd representing approximately 75% of capacity. The design estimated for this project was based on a 250 gpd per unit use rate multiplied by the estimated number of units presently existing and to be constructed in the period in question. It is estimated however, that within two to three years even this project will be insufficient and Peninsula will have to file an additional request for expansion. Construction will have no detrimental environmental effect on the waters of the Halifax River. Mr. Bennett recommends discharge into the river rather than pumping the effluent backup to Port Orange because the local dissipation rate into the Halifax River, which is called for under these projects, is much quicker than that at Port Orange. Studies run on siting of the outfall pipe location which is close to Daggett Island included studies relating to dilution calculation and water quality of the effluent versus water quality of the river near the outfall. The project was, therefore, sited in such a manner as to provide for the least possible detrimental effect. Those studies, however, were for the original outfall location, not the present location as proposed by DER which is approximately 150 to 200 feet away. In the experts' opinion, however, there is very little difference in the two sites. The Daggett Island site is not unique in any way. It is a mangrove swamp of approximately 3 to 4 acres with nothing on it. Once the pipe is buried, it will be difficult to know that it is there. Even during construction, there would be little detrimental effect or disruption to the river ecology. Mr. Bennett's conclusions are confirmed by Mr. Miller; a DER engineer specializing in wastewater facility permits who has reviewed the plans for expansion of the plant for completeness and adequacy and found that they were both. The approval of the outfall pipe initially was made in Tallahassee based on the original siting. He reviewed it again, however, and determined that both projects are environmentally sound and conform to the DER standards. Rule 17-6, Florida Administrative Code, requires surface water discharge to have secondary treatment activity prior to discharge and the discharge cannot exceed 20% 80D and suspended solids. According to DER studies; the secondary treatment afforded the water at this location was adequate with the caveat that the District might want to require an extension of the outfall to the main channel of the river to promote tidal flushing of the effluent. It was this change which was; in fact, made by the District office. Without the change, the incoming tide would take the wastewater up into Daggett Creek. By moving it as suggested, west of the point of Daggett Island, the tide would go up river rather than into the creek taking the effluent with it. Concern over the creek is due to its limited natural flushing as opposed to the greater natural flushing of the river. It was the intent of all parties to achieve the desired result and move the outfall point; if at all possible, at no increase in cost. Consequently, the pipeline was moved at the same length with a slight possible addition to take the outlet to the same depth and this change became a condition to the issuance of the permit. The Peninsula will also need a dredge and fill permit in order to accomplish the work in question. The outfall plans (both construction and discharge) meet the requirements set forth in the pertinent provisions of Rule 17-6, Florida Administrative Code. DER evaluated post- construction, concluding that the new point source discharge would not violate these standards. However, prior to approval of these projects, DER did not perform a biological, ecological, or hydrographic survey in the area. As a result, it cannot be said that the criteria outlined in Rule 17-4.29(6), Florida Administrative Code, will not be adversely affected by the outfall pipe. Nonetheless, these surveys were not deemed necessary here. EPA denial of the NPDES (National Pollution Discharge Elimination System) permit, would have no impact on DER's intent to issue the instant permits. NPDES permits have no bearing on the state permitting process. If the NPDES permit is denied, the utility cannot discharge its effluent into the river. The state permit merely authorizes the construction. The NPDES permit applies to the outfall portion of the project, not to the treatment plant. Only if it could be shown there was a longstanding adverse effect on the water quality so as to bring it below standards, would this construction not be permitted. The depth of the water in the proposed area of the outfall is five feet. A 12-inch pipe would extend below the soil with an upturn to exit into the bottom of the river. Short term impacts of actual construction are not relevant to the permitting process. If there are any, they would be related to and considered in the dredge and fill permitting process. This conclusion is supported by the testimony of Jan Mandrup-Poulsen, a DER water quality specialist who, in his analysis of the instant projects, first looked at the plans for the outfall just a week before the hearing. By this time, the water quality section of DER had previously considered the project and he is familiar with the suggested change in the outfall location. In November 1985, he spent several days on a boat on the Halifax River in this area collecting data. His inquiry and examination showed that in the area in question, there are no grass beds, oyster beds, or anything significant that would be adversely affected by the location of the pipe and the outlet. The pipe outlet, as suggested, is far enough out into the river to keep it under sufficient water at all times to promote adequate flushing. In his opinion, the proposed discharge will be quickly diluted and will not violate the standards or other criteria set out in Section 17-3.121, Florida Administrative Code. In contrast to the above, Mr. Richard Fernandez, a registered civil engineer with a Master's Degree in environmental engineering, who did a study of these projects for TPI, indicated that the County 201 plan relating to this area, mandated by the federal government, calls for the eventual closing of all independent wastewater treatment plants with ultimate delivery of all wastewater to the Port Orange facility. If implemented, this plan calls for the conversion of the Peninsula facility to a pump station for the transmittal of effluent to Port Orange. In his opinion, the proposed discharge standard, as evaluated here, for the secondary treatment facility, is very high for such a facility. He feels the surface water discharge content of dissolved oxygen and suspended solids should be lower. In addition, he is of the opinion that the degree of treatment of discharged water required by the facilities in question here is too low and lower than typical secondary discharge points elsewhere in the area. Nonetheless, Mr. Fernandez concludes that while the intended facility here would probably not lower the quality of river water below standards, it is not in the public interest to construct it. Having considered the expert testimony on both sides, it is found that the construction requested here would not create sufficient ecological or environmental damage to justify denial. The proposals in the 201 plan calling for the transmittal of all effluent to Port Orange would not be acceptable to DER. The cost of such a project and the ecological damage involved would be so great as to render the project not even permittable. The currently existing percolation ponds used by the facility at Port Orange are not adequate to serve current needs and leech pollutants into the surrounding waterway. While the exact transmission routes called for under the 201 plan are not yet set, there would be substantial ecological problems no matter what routing is selected. There would be substantial damage to bird habitat, mangrove, and other protected living species unless some way were found to get the pipe across the river in an environmentally sound fashion. Consequently, DER has taken the position that the current proposals by Peninsula are superior to any plan to transmit waste to Port Orange.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED THAT DER: Enter an order dismissing with prejudice Volusia County's Petition in DOAH Case No. 85-3029 and, Issue permits to Peninsula Utilities, Inc., for the construction of a 100,000 gpd expansion to its existing wastewater treatment plant and to construct a river outfall line as was called for in the amended specifications listed in the application for this project. RECOMMENDED this 25th day of April, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986. COPIES FURNISHED: Martin S. Friedman, Esquire Myers, Kenin, Levinson & Richards 2544 Blairstone Pines Drive Tallahassee, Florida 32301. Deborah Getzoff, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Rd. Tallahassee, Florida 32301 Lester A. Lewis, Esquire Coble, McKinnon, Rothert, Barkin, Gordon, Morris and Lewis, P.A. P. O. Drawer 9670 Daytona Beach, Florida 32020 Ray W. Pennebaker, Esquire Assistant County Attorney P. O. Box 429 Deland, Florida 32720 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by Petitioner, TPI 1-2. Accepted in paragraph 17. 3-4. Rejected as contra to the weight of the evidence. Rulings on Proposed Findings of Fact Submitted by Peninsula 1-13. Accepted in the Findings of Fact of the Recommended Order. Rulings on Proposed Findings of Fact Submitted by Respondent, DER 1. Accepted and incorporated in Finding of Fact 1 and 2. 2-3. Accepted and incorporated in Finding of Fact 5. 4-5. Accepted and incorporated in Finding of Fact 20 and 21. 6. 7. Accepted in Finding of Fact 19. 8. Accepted in Finding of Fact 14. 9. Accepted in Finding of Fact 9. 10. Accepted in Finding of Fact 8 and 21. 11. Accepted in Finding of Fact 14 and 17. 12-13. Accepted in Finding of Fact 14 and 17. 14-15. Rejected as a statement of evidence and not a Finding of Fact. Accepted in Finding of Fact 17. Recitation of Mr. Miller's testimony is not a Finding of Fact. The conclusions of Mr. Mandrup- Poulsen's testimony is not a Finding of Fact. Recitation of Mr. Mandrup-Poulsen's testimony testimony is not a Finding of Fact. Accepted in Finding of Fact 23. Recitation of testimony is rejected as not a Finding of Fact. Conclusions drawn from that testimony accepted in Finding of Fact 24.
Findings Of Fact As planned, Phase I of Foxwood Lake Estates will consist of 300 mobile homes, which would require treatment of up to 45,000 gallons of sewage per day. The proposed sewage treatment plant would have a capacity of 46,000 gallons per day and would be capable of expansion. It would discharge treated, chlorinated water into a completely clay-lined polishing pond that has been designed for the whole of Foxwood Lake Estates at build-out; capacity of the polishing pond would be three times the capacity necessary for Phase I by itself. From the polishing pond, water is to flow into one or both of two evaporation-percolation ponds, either of which would be big enough for all the sewage expected from Phase I. The sides of these ponds would be lined with clay and a clay plug would constitute the core of the dike on the downslope side of each pond. According to the uncontroverted evidence, effluent leaving the treatment plant for the polishing pond would have been effectively treated by the latest technology and would already have been sufficiently purified to meet the applicable DER water quality requirements. The applicant proposes to dig the triangular polishing pond in the northwest corner of the Foxwood Lake Estates property, some 400 feet east of the western property line. The evaporation-percolation ponds would lie adjacent to the polishing pond along an axis running northwest to southeast. Their bottoms would be at an elevation of 164.5 feet above mean sea level and they are designed to be three feet deep. The evaporation-percolation ponds would lie some 300 feet east of the western property line at their northerly end and some 400 feet east of the western property line at their southerly end. A berm eight feet wide along the northern edge of the northern evaporation-percolation pond would be 50 feet from the northern boundary of the applicant's property. Forrest Sawyer owns the property directly north of the site proposed for the evaporation-percolation ponds. He has a house within 210 feet of the proposed sewage treatment complex, a well by his house, and another well some 300 feet away next to a barn. Two or three acres in the southwest corner of the Sawyer property are downhill from the site proposed for the ponds. This low area, which extends onto the applicant's property, is extremely wet in times of normal rainfall. Together with his brother and his sister, Charles C. Krug owns 40 acres abutting the applicant's property to the west; their father acquired the property in 1926. They have a shallow well some 100 feet from the applicant's western property boundary, and farm part of the hill that slopes downward southwesterly from high ground on the applicant's property. Sweetgum and bayhead trees in the area are also a money crop. Charles C. Krug, whose chief source of income is from his work as an employee of the telephone company, remembers water emerging from this sloping ground in wet weather. Borings were done in two places near the site proposed for the ponds. An augur boring to a depth of six feet did not hit water. The other soil boring revealed that the water table was 8.8 feet below the ground at that point. The topsoil in the vicinity is a fine, dark gray sand about six inches deep. Below the topsoil lies a layer of fine, yellow-tan sand about 30 inches thick. A layer of coarser sand about a foot thick lies underneath the yellow-tan sand. Beginning four or five feet below the surface, the coarser sand becomes clayey and is mixed with traces of cemented sand. Clayey sand with traces of cemented sand is permeable but water percolates more slowly through this mixture than through the soils above it. The applicant caused a percolation test to be performed in the area proposed for the ponds. A PVC pipe six feet long and eight inches in diameter was driven into the ground to the depth proposed for the evaporation-percolation ponds and 50 gallons of water were poured down the pipe. This procedure was repeated on 14 consecutive days except that, after a few days, the pipe took only 36 gallons, which completely drained into the soil overnight. There was some rain during this 14-day period. Extrapolating from the area of the pipe's cross-section, Vincent Pickett, an engineer retained by the applicant, testified that the percolation rate of the soils was on the order of 103 gallons per square foot per day, as compared to the design assumption for the ponds of 1.83 or 1.87 gallons per square foot per day. Water percolating down through the bottoms of the evaporation- percolation ponds would travel in a southwesterly direction until it mixed with the groundwater under the applicant's property. It is unlikely that the ponds would overflow their berms even under hurricane conditions. Under wet conditions, however, the groundwater table may rise so that water crops out of the hillside higher up than normal. The proposed placement of the ponds makes such outcropping more likely, but it is impossible to quantify this enhanced likelihood in the absence of more precise information about, among other things, the configuration of the groundwater table.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant the application on the conditions specified in its notice of intent to issue the same. Respectfully submitted and entered this 17th day of December, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Carlton Building Tallahassee, Florida 32301 Telephone: 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of December, 1980. COPIES FURNISHED: Andrew R. Reilly, Esquire Post Office Box 2039 Haines City, Florida 33844 Walter R. Mattson, Esquire 1240 East Lime Street Lakeland, Florida 33801 David M. Levin, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether Petitioner has documented that he has the requisite experience to qualify to take the Class A Domestic Drinking Water Plant Operator certification examination.
Findings Of Fact Petitioner, Manuel Rodriguez, Jr., applied for and received certification from DER as a Florida Class C Domestic Drinking Water Plant Operator in 1985. The requirements for certification as a Class C Operator included three years of actual or recognized constructive experience with at least one year of actual experience in the operation, supervision, and maintenance of a drinking water plant. In the processing of this application, DER accepted Mr. Rodriguez's claimed 12.96 months of actual experience without requiring documentation of that experience. Mr. Rodriguez applied for and received certification from DER as a Class B Domestic Drinking Water Plant Operator in 1988. The requirements for certification as a Class B Operator included eight years of actual or recognized constructive experience with at least two years of actual experience in the operation, supervision, and maintenance of a drinking water plant. In the processing of this application, DER accepted Mr. Rodriguez's claimed 38.76 months of actual experience without requiring documentation of that experience. The requirements for certification as a Domestic Drinking Water Plant Operator at the A, B, and C levels of certification have not changed since 1985. DER should have required Mr. Rodriguez to document his actual experience when he applied for his C level of certification and for his B level of certification, but it did not do so. On or about May 5, 1989, Mr. Rodriguez, submitted to DER an "Application for Certification for Operators of Domestic Wastewater or Drinking Water Plants" on a DER form found at Rule 17-1.210(1), Florida Administrative Code. This application was for certification as a drinking water operator at certification level "A". The application form for certification at the "B" and "C" levels were on the same form used for the "A" level. The criteria for certification has not changed since 1982. Such an application for certification must be reviewed and accepted by DER before the applicant is permitted to sit for the requisite examination. The application submitted by Mr. Rodriguez was rejected by DER because the application failed to document that Mr. Rodriguez met the actual experience requirements for certification at the "A" level. In order to qualify to take the Class A level certification examination, an applicant must document 12 years (144 months) of total experience. Of this, 4 years (48 months) must be actual experience. DER considers 2,080 hours of experience as being equal to one year of experience. DER's application form (which has been adopted as a rule) requires an applicant to document his experience by: (a) listing the name and address of each public drinking water system at which the applicant has performed work that qualifies for actual experience credit, (b) listing the class designation of that water system, and (c) detailing the number of hours the applicant has worked at that system. On his application for his Class A Certification, Mr. Rodriguez claimed 49.85 months of actual experience for his employment with Atlantic Salt & Water Treatment, a company Mr. Rodriguez owns and operates. This company is not a water treatment plant, but provides services to residential customers and to certain public drinking water systems. The application provided no documentation as to the public drinking water systems at which Mr. Rodriguez claimed to have performed services. Mr. Rodriguez also claimed actual experience based on information on file with DER in past applications. Mr. Rodriguez was notified that his application was rejected because of his failure to document his actual experience. The Notice of Final Order of Denial, dated May 31, 1989, based the rejection of the application on the following: You have not accumulated the 4 years of satisfactory full-time on-site employment in the operation of a treatment plant, as required by Section 17-16.03, F.A.C. Your application indicates that you have only 11 years, 0 months of operational experience on the date of the application. The Notice of Final Order of Denial, dated May 31, 1989, erroneously reflected that Mr. Rodriguez had been credited with 11 years, 0 months of operational experience. This erroneous statement was caused by a computer error. Mr. Rodriguez was aware of this error and was aware that DER had credited him with having no actual experience because his application failed to document that experience. Following the rejection of his application, Mr. Rodriguez filed an amendment to his application which provided additional information regarding his work experience. This information, submitted in late June 1989, claimed 76 months of actual experience as follows: 39 months between March 1985 and June 1989 while employed as the owner and operator of Atlantic Salt (the full name of Petitioner's company was not spelled out on the amendment). This claimed experience is based on services rendered to Jones Fish Camp (twice a week) and to South Dade Storage and Industrial Park (once a week). 14 months between October 83 and December 84 while employed by Home Refinement. This claimed experience is based on services to South Dade Shopping Center (twice a week), Commercial Carriers (once a week), Dennys Restaurants Miami Beach (once a week), Dennys S. Dixie Highway (once a month), Bank of Homestead (twice a week), Tivoli Shopping Plaza (twice a week), Florida Power & Light Princeton Complex (twice a week), Florida Rock & Fill (twice a week), Florida Transport (twice a week), The Dialysis Center Homestead (once a month), and Botanical Garden (once a month). 12 months while employed by Culligan Water between October 1978 and October 1979. This claimed experience is based on services to Jackson Memorial Hospital (twice a week), Mercy Hospital (twice a week), Coral Reef Hospital (twice a week), Baptist Hospital of Miami (once a month), Howard Johnson Hotel Downtown (once a month), Americana Hotel Miami Beach (twice a month), Kings Bay Club (once a month), and Standard Concrete Plant (twice a month). 7 months while employed by Enviropact, Inc., between March 1977 and October 1978 (sic). This claimed experience is based on services to Quality Inn S. Dixie Highway (once a week). 4 months while employed by Florida Water Treatment between January 1977 and March 1977 (sic). This claimed experience is based on services to Hialeah Garden School for the Handicapped (once a week). The application, as amended, did not contain the required documentation of actual experience. There was no listing of the address of each respective water system, the class designation for each system, or the number of hours Mr. Rodriguez claimed to have worked at each water system. DER maintains a computer list which contains a complete inventory listing of all public drinking water systems recognized as such be DER, including inactive systems. DER checked the establishments for which Mr. Rodriguez claimed experience against its computer records to determine which of those establishments are DER approved public drinking water systems. Although such a computer check is not authorized by rule, this type check is routinely performed by DER and the computer records are verified for accuracy and for completeness. Mr. Rodriguez correctly contends that inclusion on the DER computer inventory should not determine whether an entity is a public drinking water system because that determination should be made by application of the pertinent DER rules. However, in the absence of documentation to the contrary, this computer check provides a reasonable means of determining whether an entity is a public drinking water system. On July 7, 1989, DER notified Mr. Rodriguez that the amendment was insufficient in a letter that provided, in part, as follows: The Department carefully reviewed your amend- ment to your application. Of the establish- ments you listed only Jones Fish Camp and Botanical Garden (Morey's Garden Center) are public drinking water systems. We estimated that you have spent approximately 200 hours over four years at these businesses. This is not sufficient to meet the criteria for an "A" level water treatment license. DER determined that at most Mr. Rodriguez has documented 200 hours of actual experience for work at Jones Fish Camp and the Botanical Garden. (It was determined after the letter of July 7, 1989, that no credit should have been given for the Botanical Garden because the entity to which Mr. Rodriguez referred was not the same Botanical Garden that appeared on the computer inventory.) DER properly awarded no actual experience credit to Mr. Rodriguez for services he rendered to any other entity he listed in his amended application because none of the other entities were on DER's computer inventory of DER approved public drinking water systems or otherwise documented by Mr. Rodriguez to have been public drinking water systems as defined by DER. Mr. Rodriguez has not provided an accurate or detailed statement as to the number of hours he has spent during the course of his employment in the operation of those entities he asserts should be considered to be public drinking water system. Mr. Rodriguez's inability to give details about the services he has provided has been impaired because his former employers are now his competitors and they refused to cooperate with him. However, there was no evidence that Mr. Rodriguez attempted to subpoena any of the records from these former employers. Mr. Rodriguez has received appropriate constructive experience credit for his education and specialized training. He has successfully completed all of the required course work for the Class A water treatment plant operator certification, and it was only his inability to document his actual experience that prevented his sitting for the Class A examination. Each level of certification is independent of each other, and a lower level certification is not necessary in order to receive a higher level. DER determined that the credit for actual experience given to Mr. Rodriguez based on his application for Class C certification and his application for Class B certification should not have been given because he did not document that experience, and did not credit him with the experience for the Class A certification to the extent he was unable to document such experience. Mr. Rodriguez failed to document that he has the requisite experience to sit for the Class A examination. While Mr. Rodriguez may in fact have such experience with public water systems, he has not documented that experience either in his application or at the formal hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which upholds the Department of Environmental Regulation determination that Petitioner, Manual Rodriguez, Jr., has failed to document that he has the actual experience required for Class A Domestic Drinking Water Plant Operator, and which upholds the rejection of his application to sit for the Class A Domestic Drinking Water Plant Operator examination. RECOMMENDED in Tallahassee, Leon County, Florida, this 13th day of February, 1991. CLAUDE B. ARRINGTON 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 13th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4052 The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-5, 7-8, and 10-15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 6 and 9 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 16 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Calvin Fox, Esquire Elena Tauler, Esquire TAULER & FOX, P.A. 3477 S.W. Third Avenue Miami, Florida 33145 Cynthia K. Christen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel 2600 Blair Stone Road Tallahassee, Florida 32399-2400
