Findings Of Fact On October 15, 1982, Hal Thomas Reid Associates applied for a septic tank permit to serve a 16-room motel. On February 2, 1983, this application was amended to a 5,800 gallon septic tank to serve a 32-unit condominium and office. The lot on which this drain field is to be located is 70 feet by 100 feet. When the application was filed, the lot was inspected by the Citrus County Health Department. The elevation of the land averaged 2.5 to 2.9 feet above mean sea level. The 10-year flood plane in this area is 4.9 feet. Occasional high tides inundate this area; however, the water drains off rapidly and no one testified that water ever remained standing as long as seven consecutive days. Usually the water drains off in less than 24 hours. On March 1, 1983, an extremely high tide flooded this area and roads in the vicinity to a depth of approximately one foot. This water remained on the site less than 24 hours. The site is not located adjacent to state waters, is not an area designated as wetlands, and is without the dredge and fill permitting jurisdiction of the United States Army Corps of Engineers and the Florida Department of Environmental Regulation (Exhibits 20 and 21). By adding five feet of fill to the site, the bottom of the gravel below the drain pipes will be above the 10-year flood plane. The drain field capacity is adequate to handle the flow from 33 bathrooms of residential units. In approving this permit, the Citrus County Health Department used the 150 gallons per day discharge for residential units rather than the 100 gallons per day discharge from a motel unit. The water table at this location is two feet above mean sea level. This is determined by the elevation reached at high tides for 14 consecutive days. As a condition to Citrus County withdrawing as an intervenor in these proceedings, Applicant agrees: To revegetate and restore any alleged wetlands affected by the permit to a like or similar condition; To install three shallow draft monitor wells around the drain field towards the wetlands area adjacent to the site and towards Woods 'n Waters subdivision, establish an existing level of bacteria count prior to the activation of the septic tank, and to monitor said wells through the Citrus County Health Department on a quarterly basis; and In the event any monitor wells shall test at an unsatisfactory level, Applicant will forthwith correct this condition to the satis- faction of the Citrus County Health Department. This application meets all of the code requirements of Chapter 10D-6, Florida Administrative Code.
The Issue Whether Respondent's permit for disposal of septic tank sludge should be revoked, as set forth in letter of the Volusia County Health Department, dated February 15, 1979. This case was originally set for hearing on June 21, 1979, pursuant to Notice of Hearing, dated March 30, 1979. On June 20, Respondent Philip G. Koan orally advised the Hearing Officer that he wished to withdraw his request for hearing. He was advised by the Hearing Officer to submit a written withdrawal of the petition and that the scheduled hearing would be cancelled pending receipt. On June 21, Respondent orally advised the Hearing Officer that he had changed his mind after reflection and now desired that the hearing be rescheduled. Since no written withdrawal of the petition or voluntary dismissal had been filed, the case was renoticed for hearing to be held on September 10, 1979. At the commencement of the hearing on that date, Petitioner moved to dismiss the case for lack of jurisdiction claiming that the petition had been dismissed by Respondent by his oral communication to the Hearing Officer on June The motion was denied because the proceeding had never been formally terminated by action of the Respondent or the Hearing Officer.
Findings Of Fact On October 5, 1978, Respondent Koan Septic Tank, Inc., Deland, Florida, submitted an application to the Volusia County Health Department for a permit to operate a septic tank cleaning service and temporary privy service. The application reflected the equipment which the applicant intended to use for the operation. Petitioner's application form contained a block entitled "Method and Place of Disposal." The applicant inserted the words "Smith Farm and Greens Dairy Grove" on the form. On November 7, 1978, Larry Herman, a sanitation aide for the County Health Department, performed an inspection of Respondent's facilities and equipment, and prepared a report on a mimeographed form headed "Septic Tanks and Privy Pump Truck Inspection." This form had a block entitled "Method and Place of Disposal." The inspector entered the words "Smith Farm - Greens Diary (sic), dumped & tilled." Although Herman testified that he had made no special inquiry at the time of his inspection as to the intended method of sludge disposal, he was aware that Respondent's customary method at its Smith Farm location was to "bury" the sludge into the ground by spreading and mechanical tilling. However, he recalled having conversations with Respondent's owner, Philip G. Koan, concerning disposal of sludge by the action of worms, prior to and after his inspection. On the other hand, both Koan and another officer of the corporation testified that Koan advised Herman at the time of the latter's inspection that the worm method of disposal would be used at the Greens Dairy location and that he expressed no objections. It is found that Herman was advised of Respondent's proposed method of disposal at the time of the inspection; however, he was not authorized to approve or issue permits. (Testimony of Herman, Gnann, Koan, Page, Petitioner's Exhibits 1-2) On November 7, 1978, the Volusia County Health Department issued a permit authorizing Respondent to operate its establishment. The permit reflected an expiration date of September 30, 1979, and provided that violation of any applicable health law would revoke the permit. No conditions were attached to the permit, nor did it indicate any required method of sludge disposal. (Testimony of Page, Petitioner's Exhibit 3) Respondent has been in the business of manufacturing, installing and servicing septic tanks for approximately eighteen years. In addition, Koan conducted a business involving the sale of worms. In the fall of 1978, he had approximately 12,000 pounds worms on hand. He had conducted various experiments at his business premises utilizing worms to dispose of manure and septic tank sludge. He found that the worms would eat the sludge material and excrete the same, resulting in worm "castings" or material which resembles potting soil with no residual odor. He had also placed worms in clogged septic tank drain fields and found that they later became unclogged, thus resulting in his conclusion that worms had disposed of the septic tank material in the tank. He further discovered that odors associated with septic tank sludge dissipated in a very short time when worms were present in the material, and observed that one pound of worms would "digest" or dispose of one pound of sludge in approximately twenty-four hours. Therefore, prior to receiving the county permit, he deposited the 12,000 pounds of worms in a trench located at the Greens Dairy location. After receiving the permit, Respondent dumped septic tank sludge in the trench approximately three times a week. The trench was about four feet wide, one foot deep, and 200 feet long. A screen was placed over the top of the ditch. However, it did not prevent access to files. (Testimony of Koan, Warnock, Petitioner's Exhibits 8-9) On December 12, 978, the owner of a skating rink adjacent to Respondent's Green Dairy property complained to the County Health Department concerning the presence of odors and flies at her establishment which had been the subject of customer complaints. A county sanitarian inspected the sludge operation on that date and found that there was some odor and a few flies in the immediate vicinity, but no fly larvae was observed. The ditch was full of sludge at the time. Some spillage has occurred in the driveway on the property. The location is approximately two to three hundred feet from the rear of the skating rink. A further inspection by the county Director of the Environmental Health Section was made on December 27. As a result, he wrote Respondent on December 28 that, although the inspection showed that flies and odors were minimal at the time, he could foresee an escalation of the same during certain periods, together with increased complaints from local businessmen. The letter further stated that the use of septic tank sludge for enriching a "worm bed" was in violation of Chapter 10D6.29, Florida Administrative Code, and Chapter 386 Florida Statutes, and was a sanitary nuisance which must be abated. A further complaint in January, 1979, followed by another county inspection revealed essentially the same conditions that existed at the time of the prior inspection, and prompted a second letter from the Environmental Health Section director to Respondent on January 31, 1979, wherein he was advised to cease dumping septic tank sludge at the Greens Dairy location within fourteen days and commence using the county sanitary landfill for such purposes. As a result of this letter, Respondent stopped dumping at the location on or about February 2. On February 15, another county letter was sent to Respondent which advised that its permit for disposal of septic tank sludge was revoked, subject to a request for hearing, as being in violation of Chapter 10D6.29(1) and (3)(c), Florida Administrative Code, and Chapter 386.041(1)(e), Florida Statutes. The stated grounds for proposed revocation were that Respondent was employing an unsatisfactory and unacceptable method and place for disposal of waste, and was maintaining a condition capable of breeding flies, mosquitoes and other insects capable of transmitting diseases. The letter further stated that Respondent was not tilling the sludge as had been stated on the permit application and that the potential for breeding flies was evident due to concentration and lack of covering with soil. (Testimony of Tyndall, Van Ulzer, Page, Camp, Koan, Petitioner's Exhibits 4-7) During the approximate three-month period from November 1978 through January 1979 when Respondent was dumping sludge, a strong and distinctive odor and an unusually large number of flies were experienced on the skating rink premises nearby. After the dumping stopped in early February, both problems disappeared. However, other odors incident to the presence of hogs and chickens at farms in the area also produced a noxious odor in and around the skating rink. The odor produced by the dumping of sludge dissipates rapidly after dumping. The absence of fly larvae in and around the ditch shows that flies were not breeding there during the period of dumping operations, but does not rule out the potential for such breeding in the future. (Testimony of Munshower, Tyndall, Coffin, Branton, Tontone, Warnock, Hunt, Stipulation) The Volusia County Health Department issues permits involving the disposal of sludge only when a treatment method of burial, incineration, or sanitary landfill is used in the operation, as prescribed by Respondent's Rule 10D-6.29, Florida Administrative Code. However, long-standing policy permits disposal by mechanical tilling of the sludge into soil as a "modified" method of burial. This method cuts the sludge with a disc and harrow and mixes it into the soil to a depth of approximately four inches. It also produces a temporary odor when the sludge is first spread on the soil. The county has no policies concerning the use of worms to dispose of sludge and does not consider it to be an acceptable method of disposal. The County Health Department has not conducted any scientific tests to determine the presence of pathogens in soil which has been mechanically tilled with sludge. (Testimony of Page) When sludge is placed over a "worm bed" and has settled, the material begins moving as the worms eat the sludge. The residue of the digestive process is sold as a soil conditioner which meets State Department of Agriculture requirements and which contains plant nutrients. Earth worms multiply rapidly when feeding on sludge. Respondent had approximately 50,000 pounds of worms in its trench when it ceased operations in February 1979. This method of sludge disposal has not been accepted generally by health authorities as a recognized and acceptable procedure. (Testimony of Koan, Warnock, Hunt, Tontone, Nemeyer, supplemented by Respondent's Exhibit 1)
Recommendation That Respondent's Permit No. 18362 be permitted to remain in effect until its expiration date provided that it disposes of sludge and/or contents from septic tanks in an acceptable method, as provided in Rule 10D-6.29, F.A.C. DONE AND ENTERED this 26th day of September, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 904/488-9675 COPIES FURNISHED: Robert Eisenberg, Esquire Department of HRS District IV Counsel 5920 Arlington Expressway Post Office Box 2050 Jacksonville, Florida Craig James, Esquire Post Office Drawer DD Deland, Florida 32720 Department of HRS Attn: Eric J. Haugdahl 1317 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether Gar-Con's revised application for a permit to construct a sewage plant, and soakage trenches to dispose of the effluent, should be granted?
Findings Of Fact Eight to ten miles south of Melbourne Beach and 8.3 miles north of Sebastian Inlet, Gar-Con plans to develop a parcel of land stretching west from the Atlantic Ocean, across Highway A1A, to the Indian River. Gar-Con expects to build a motel and residential complex complete with tennis courts, parking garage, water treatment plant and the sewage treatment facility for which a construction permit is sought in these proceedings. The sewage treatment plant would be built on a site 480 feet west of Highway A1A and 90 feet south of Gar-Con's northern property line, at an elevation of 11 or 12 feet above mean sea level. Ocean Way Water and Sewer Association, Inc. is to be organized as a nonprofit corporation to own and operate the wastewater treatment facility. The Public Service Commission, through the director of its water and sewer treatment, has taken the position that the proposed "sewer system will fall within the exemption described in Section 367.022(7), Florida Statutes." DER's Composite Exhibit A. PACKAGE PLANT PROPOSED The facility Gar-Con proposes is designed to treat 100,000 gallons of sewage daily, which is the estimated "total flow" (T. 75) the sanitary engineer who designed the system anticipates from the development. Sewage generated by the development would flow to the plant, through a bar rack designed to remove rags and other large objects, and into aeration tanks where, over a 24 hour period, interaction with air and a biological mass would supply oxygen and cause the formation of biological floccules. The flocculant sewage would then move to a clarifier hopper. During its five hour stay there, solids which were not earlier segregated as the sewage moved over a weir into the clarifier, would be precipitated and removed. The clear, residual liquid would be pumped through one of two sand filters (each of which would also have granular activated carbon and be capable of filtering 100,000 gallons daily) into one of two chlorine contact chambers where a gas chlorinator would introduce chlorine for an hour. Under ordinary circumstances, the chlorinated effluent would then be pumped into one of two soakage trenches. The soakage trenches, each designed for use every other week, are to be gravel-filled ditches covered over first with felt paper, then with compacted fill. The gravel would lie at least one foot beneath the surface of the ground in a space ten feet wide and three feet deep stretching the 940 foot length of each soakage trench. Punctured like sieves, two six-inch PVC pipes would run through the gravel, sweating effluent from their pores. There is also a plan to dig a percolation pond or grassed swale five feet deep, 120 feet long and 80 feet wide near the wastewater treatment plant, which could serve as a receptacle for effluent, in case of "a 1:10 year storm or when the filters are down and/or if soakage trenches would need repair." Gar- Con's Exhibit 2-A. It would hold about 100,000 gallons. The solids caught by the weir, those extracted in the clarifying process, and those recovered from backwashing the filters would serve as catalyst for the aeration process as needed. Excess sludge, about 3,000 pounds monthly, would undergo "aerobic digestion," before being removed to Brevard County's Central Disposal Facility on Adamson Road, for disposal there. Gar- Con's Exhibit No. 7. Primary and secondary drinking water standards would be met by the effluent as it left the plant (although the engineer who designed the system would not drink the effluent himself), except that, from time to time, nitrate concentrations might reach 12 milligrams per liter, and except in the "event that a homeowner might put some type of [inorganic toxic or carcinogenic] material into the sewer system." (T. 86) The biological oxygen demand (BOD) would be ten milligrams per liter; suspended solids would probably amount to about five milligrams per liter; pH would probably be slightly under seven; nitrates would average approximately eight milligrams per liter but would "peak out at certain times during the year, for maybe extended periods up to two months, at twelve milligrams per liter," (T. 80); and there would be a chlorine residual after 60 minutes of two milligrams per liter. AMBIENT WATERS There would be no direct discharge to the Atlantic Ocean, Indian River or any other body of surface water, nor would any indirect effect on surface waters be measurable. No body of surface water lies within 500 feet of the site proposed for the plant and soakage trenches. Potable groundwater underlies the site; the groundwater table slopes toward the Atlantic Ocean, 9.5 to 12.5 feet below ground. "[D]uring the traditional rainy season," Gar-Con's Exhibit 2B, Attachment, p.3, the groundwater may rise to within seven feet of the surface. The PVC pipes in the soakage trenches are to be placed two and a half feet deep. As effluent percolated through the sandy soil, there would be "mounding" of the groundwater underneath the soakage trenches, and dispersal in all directions. Surface flow is to be diverted from the soakace trenches so that only rainwater falling directly on them would percolate down through the gravel beds. Taking soil characteristics into account, and assuming a "water table depth" of 20 feet, an engineer retained by Gar-Con predicted that "the maximum expected groundwater rises beneath the east and west trenches are 2.4 and 2.1 feet, respectively under a loading of 100,000 gpd for a period of 7 days." Gar-Con's Exhibit No. 3. The water table depth, "the height, the top of the groundwater from the first restrictive layer," (T. 172), is probably more like 40 feet than 20, which accounts in part for the "conservatism" of the mounding predictions. Under very severe weather conditions (a 100 year storm), groundwater would rise as high as the bottom of the trenches making them unavailable to receive effluent, but the effluent would not be forced above ground. In a 100 year flood, water would be expected to rise to seven feet above mean sea level. Under such conditions, people could be expected to evacuate the area. In a 25 year storm, the system could be expected to continue to function. Groundwater to the north and east of the proposed site was sampled, and the samples were analyzed. The water to the north had 380 milligrams of chlorides per liter and the water to the east had 450 milligrams of chlorides per liter. As it left the proposed treatment plant, the effluent would contain approximately 150 milligrams of chlorides per liter. SOUND AND LIGHT Lights like those used as street lights are to be installed at four places in the wastewater treatment plant. A timer, which can be overridden, would turn the lights on at dusk and off at eleven o'clock at night. The lights would illuminate the plant adequately. Pumps would move sewage to and through the proposed plant. Most of the pump motors would be submerged and unable to be heard. Two electric blowers, a flow meter and a totalizer would also have electrical motors. The blowers and the blower motors are to be equipped with insulated fiberglass covers and the blowers would also have intake and double outlet silencers. Four feet from the plant the noise of the motors would be comparable to that of a home air conditioning unit. At the nearest residence the noise level would scarcely exceed background noise. At hearing, Gar-Con revised its application and agreed to install an emergency generator which would also be encased in insulated housing and is to be equipped with a muffler. AEROSOL AND ODOR Unless the proposed plant loses electric power for 24 hours or longer, no offensive odors would emanate from it. The bar rack and weirs would be regularly hosed down. Against the possibility of a power failure, Gar-Con agreed at hearing to install permanently an emergency generator with sufficient capacity to keep both the wastewater treatment plant and the water treatment plant it plans to build operable. No aerosol drift is foreseen. The surface of the liquid In the aeration tanks would be 1.4 feet below the top of the rim. Walkways four feet wide along the inside perimeters of the aeration holding tanks would prevent dispersal of most of aerosol. A decorative hedge around the treatment plant, which would eventually be 15 feet high, is a final fail-safe. WELLS To the north are two shallow wells within 500 feet of the site proposed for the wastewater treatment plant. Both wells belong to Kel Fox, who wrote Gar-Con that he had no objection to their proposed wastewater treatment facility in light of Gar-Con's agreement to furnish drinking water to existing facilities on his property and reimburse him expenses incurred in disconnecting the two shallow wells. Gar-Con's Exhibit 2E. There is a deep well within 500 feet to the south. DER and Gar-Con have entered into the following stipulation, dated September 2, 1983: Existing Wells. Prior to the operation of its waste water treatment plant, Gar-Con will offer to supply drinking water at a reasonable cost to owners of property on which are located operational or approved shallow drinking water wells that are within 500 feet of Gar-Con's land application site. Gar-Con will make this offer to all such owners known to it prior to the operation of its plant. Gar-Con will further offer to provide reasonable compensation to such owners to disconnect their shallow wells. Gar-Con will endeavor to arrange for provision of drinking water to these owners and the disconnection of those wells prior to the operation of its plant. Future Wells. Should nearby individual (non-corporate) property owners propose to construct shallow drinking wells located within 500 feet of Gar-Con's land application site after Gar-Con begins operation of its waste water treatment plant, Gar-Con also will offer to supply them with drinking water at a reasonable cost and to provide reasonable compensation to them to disconnect those wells. However, Gar-Con shall have no obligation to make any such offer to owners of future wells if sampling of monitoring wells located at or near its external property line indicates that the groundwater meets the primary drinking water standards and, after July 1, 1985, the secondary drinking water standards listed in Florida Administrative Code Rule 17-22.104. Gar-Con agrees to record a master notice of restriction barring future owners of lots within the Ocean Way development, which are owned by Car-Con at the time of permit issuance, from installing shallow drinking water wells on such property or otherwise using the shallow aquifer beneath their property as a source for irrigation or for potable water, so long as use of the proposed sewage disposal system continues, and the Department has not found that this restriction is unnecessary. This restriction, which shall be a covenant running with the land, further shall require future owners to purchase water from Gar-Con or any successor owner of the development's water system if Gar-Con or the successor provides water service. These restrictions also shall be contained in all other appropriate documents of title. In addition, Gar-Con plans to create a non-profit water and sewer association to own and control the development's water and sewer system. Gar-Con will include in the Articles of Incorporation of this association a requirement that all property owners served by the system must be members of the Association. Gar-Con is entitled to a zone of discharge extending to its current property line with the exception that the zone of discharge shall not include the area contained within a 100' radius of Gar-Cons's proposed water supply wells. DER Staff concurs that the above conditions, in conjunction with the sewage treatment and disposal system and the groundwater monitoring program proposed by the applicant, to meet the requirements of Chapter 17-4, F.A.C. will provide reasonable assurance that existing and future off-site and on-site property owners will be protected from any adverse effects that might result from the operation of the proposed sewage treatment disposal system. Petitioner's Exhibit No. 10. There are to be a half dozen monitoring wells to allow sampling of the groundwater at strategic points in the shallow aquifer. NATURAL RESOURCES Turtles nest in the general vicinity but off the site of the proposed project. Construction and operation of the proposed waste water treatment facility would have no impact on the turtles apart from making it possible for more people to live closer to where they nest.
Findings Of Fact On May 4, 1979, the Department received from Hudson an Application for Variance from Rules 1704.244(1)(f), 1704.244(1)(h)(1), 1704.244(1)(i)(1) and 1704.4244(4), Florida Administrative Code. The request was for a period of twenty four months and was prompted by Hudsons alleged inability to meet the standards set forth in the rules at a secondary waste water treatment facility which is operated in conjunction with a pulp and paper plant in Palatka, Florida. The wastewater is discharged from the plant into Rice Creek and from the creek into the St. Johns River. Hudson stated in its request for a variance that no technology exists, now or in the foreseeable future, which would enable Hudson to meet the rule standards. Hudson further stated that it is presently utilizing the best available technology economically feasible at its Palatka plant. After reviewing the Application for Variance, the Department requested additional information concerning Hudson's application which involved: Hudson's inability to meet applicable water quality standards within the 800 meter mixing zone set forth in Rule 1704.244(1)(f), Florida Administrative Code. Hudson's inability to meet water quality standards within 10 percent of the total length of Rice Creek as required by Rule 1704.244(1)(h)(1), Florida Administrative Code. Hudson's inability to meet a dissolved oxygen level of not less than 4 mg/1 as required by Rule 17-4.244(1)(i)(1), Florida Administrative Code. and Hudson's inability to meet a minimum dissolved oxygen level of 1.5 mg/1 at any time or place. Due to its alleged inability to meet the applicable standards, Hudson proposed that the zone of mixing be extended into the St. Johns River and that average and minimum dissolved oxygen levels be inapplicable in the extended mixing zone. Hudson clarified its request on July 11, 1979, to include in the mixing zone that portion of Rice Creek between Hudson's point of discharge and Rice Creek's confluence with the St. Johns River and 2000 feet beyond the confluence into the river. Additionally, Hudson clarified its request for average and minimum dissolved oxygen levels 0.0 mg/1, respectively, within the modified mixing zone. On August 24, 1979, the Department issued a Notice of Intent to approve the variance subject to the following conditions: That the variance be in effect for a period of not ore than 24 months. That Hudson study alternative discharge and monitoring systems with details and scope of the studies to be approved prior to the effective date of the variance. That Hudson utilize its treatment facilities to the maximum extent to minimize BOD5 loading into Rice Creek and maximize dissolved oxygen levels. Within two months of the effective date of the variance, Hudson is to provide the Department a report outlining how the company will meet this requirement. That Hudson continue to apply new technology as it becomes available and conduct ongoing studies in this area and submit the same to the Department upon completion and That Hudson continue to study, stress and utilize water reuse conservation techniques to reduce the amount of water consumed per ton of product produced. Subsequently, the Department received from Hudson a technical program for continued water quality studies at Rice Creek. Following further communications and discussions, Hudson and the Department agreed on a six month study to replace the two month requirement concerning dissolved oxygen levels in the effluent. Eventually, the Respondents agreed on a study to encompass conditions 5(b) and (c) set forth, supra. Following receipt of a letter to the Department from the Florida Game and Fresh Water Fish Commission, Hudson agreed to incorporate into its study the issues raised by that agency. At the formal hearing the Petitioner and Intervenor, an adjoining property owner, pressed their objections to the Department's intent to issue a variance to Hudson. Hudson demonstrated that its wastewater treatment system at its Palatka facility utilizes the most effective and technologically advanced treatment system available. Hudson has made a major commitment towards upgrading its treatment facilities as new and practicable treatment technologies become available. Hudson's Palatka plant has the highest quality of effluent of any paper mill operating in the state. Hudson is unable to meet the present standards for discharge due primarily to the classification of Rice Creek as a Class III water body. Although classified as a Class III water, Rice Creek, even in the absence of the Hudson discharge, would be unable to meet the standards of the Florida Administrative Code for such waters at all places and times. There is no practicable technology currently available which would enable Hudson to meet Class III water standards. Hudson's annual average for discharge of Biochemical Oxygen Demand ("BOD") and Total Suspended Solids ("TSS") exceeded the Best Available Technology ("BAT") standard proposed by the Federal Environmental Protection Agency by 47% and 22% respectively. Hudson's permit levels only require the standards to be exceeded by 20% and 19%, respectively. Despite Hudson's good faith efforts to meet water quality standards, it is not presently possible to meet Class III criteria for discharge into the St. Johns River. Accordingly, a variance is required from the mixing zone and dissolved oxygen provisions of Chapter 17-4 Florida Administrative Code, if Hudson is to continue in operation. In the intended mixing zone proposed by Hudson, dissolved oxygen levels of 0.0 mg/1 could be expected at certain times of the year and under certain conditions. The variance does not authorize Hudson to discharge at levels in excess of its present permits. If the Palatka plant were to close, Putnam County and a surrounding area would experience severe economic harm due to the tremendous impact the plant has on the local economy. The water quality of the St. Johns River is not significantly affected by the discharge into Rice Creek.
The Issue The issue for consideration in this matter is whether Respondent’s license as a water well contractor should be disciplined because of the matters alleged in the Administrative Complaint and Order entered herein by the District.
Findings Of Fact At all times pertinent to the issues herein, the Southwest Florida Water Management District (SWFWMD) was the state agency responsible for the conservation, protection, management, and control of water resources within its boundaries, and consistent therewith, the licensing of water wells therein; and for the licensing and regulation of water wells and water well contractors within the district. The three wells in issue herein were within the jurisdiction of the Petitioner, and Respondent was a water well contractor licensed by the District. On June 4, 1998, Respondent signed a contract with Karen Anne Grant, to drill a four-inch domestic water well on her property located at 33442 Larkin Road, Dade City, Florida. The property, on which Ms. Grant was building a residence, was a part of a pre-existing citrus grove. After application by the Respondent, SWFWMD issued WCP No. 606175.01 to him on June 1, 1998, and Respondent began construction of the well on June 15, 1998. His application reflected the well was to be drilled using the cable-tool method. Construction was completed on the well on or about July 7, 1998, but because the well was vandalized during construction by the dropping of an unknown substance (probably a piece of casing) down the well, the well was unsatisfactory and was not used. Respondent attempted to repair the well but was unable to do so. Respondent claimed the well was unusable and he would have to drill another one. Although he did not obtain a permit to close the well, he subsequently did so. He was paid $5,375.00 to dig this Well (No. 1). Because of the failure of Well No. 1, Respondent applied to the District for and received WCP No. 613349.01 on December 9, 1998, to construct a second four-inch water well on Ms. Grant's property. This was Well No. 2. He began construction that day and completed it on January 27, 1999. From the time of its initial use, Well No. 2 produced water which contained unacceptable amounts of sediment, debris, and sand. In addition to the unsatisfactory quality of the water it produced, Well No. 2 also failed to produce a sufficient quantity of water for domestic potable water use or grove irrigation. Respondent admitted to Ms. Grant that Well No. 2 was not satisfactory for grove irrigation, and in an effort to fix the water quality problem, installed a sand filter and sedimentation tank. Well No. 2 was not properly closed. It was covered with a PVC cap instead of a tamper-resistant watertight cap or valve as required, and Respondent did not properly seal the upper terminus of the well. Without obtaining a third WCP, on February 25, 1999, Respondent started construction of a third well on the Grant property. Respondent contends WCP No. 613349.01, pulled for Well No. 2, was not for that well but for Well No. 3. He argues that the second well was so close to the first well that he did not feel another permit was required. Though Well No. 3 was completed and produces water, the water quality is poor. It contains sand, sediment, debris, and rock, which results in clogging of plumbing fixtures at the Grant home. In addition, the volume of water produced is insufficient for comfortable home use. Well No. 3 is open down to 178 feet below land surface, beyond which point it is obstructed by sand. Use of a diagnostic tool available to the District reveals that the sand seems to be coming from around the well casing. Ms. Grant initially contracted with Respondent to dig her well in June 1998. Although Petitioner disputes it, the location of the well near the new house she was building was, she claims, by mutual agreement. Respondent did not express any dissatisfaction with the location of this or either of the other wells, He said he was familiar with the area and had worked all around there. Respondent started work on Well No. 1 on June 15, 1998 and it was completed on July 2, 1998. The house was not yet completed, and electric service had not been installed, though it was being arranged for. Before the well could be put in operation, however, Respondent claimed it was vandalized and his equipment, which he had left at the site, stolen. At this point, Respondent told Ms. Grant that he had run into an obstruction which he believed was pipe which had been dropped into the well at more than 100 feet. He said he had tried to get it out, but could not, and had to drill another well. The casing of Well No. 1 was not cut off at that time. Ms. Grant later discovered it had been cut off and plugged, but she does not know who did that. Ms. Grant used Well No. 2, which was located about 20 to 30 feet west of Well No. 1, for just about two months but was never satisfied with the amount or quality of the water it produced. Not only was the water quality low, but there was also insufficient volume for grove irrigation, one of the intended uses of which she had advised Respondent. When Grant complained to Respondent about the water quality, he suggested she run hoses constantly to clear the sand out. In February, 1999, just after Ms. Grant contacted the District to complain, Respondent said he would come by to cap Well Nos. 1 and 2, and start Well No. 3. On February 25, 1999, Respondent started Well No. 3 at a site about 200 feet north of Well Nos. 1 and 2, agreed upon by the parties after some discussion, and on March 5, 1999, he completed it. Respondent billed Ms. Grant $3,271 for this well, in addition to the $5,375 paid for Well No. 1 and the $4,585 paid for Well No. 2. Whereas the builder paid for the first two wells, Ms. Grant paid for Well No. 3, but she had the same problems with Well No. 3 that she had had with the prior two wells. An irrigation company called in to see what could be done to get water to the citrus grove indicated there was too much sediment in the water and not enough flow. About a year after Well No. 3 was completed, the Grants noticed the water pressure was dropping, and when they went to the well site, they noticed the pump was constantly running. As a result, they called another well driller who pulled the pump and replaced the impellers. After that, Ms. Grant contacted Respondent about the fact that the wells he had drilled had never worked properly. All he would recommend was to keep the hoses running. He indicated he would try to develop the well to rid it of debris but when he tried, he was unsuccessful. As a result of the situation with the three wells, the Grants had no water to their home; the pumps they installed were destroyed; they were unable to irrigate their 8-acre citrus grove; they suffered a resultant loss of income; and, they were forced to drill a fourth well. When Well No. 1 was closed, the casing was cut off at or below ground level. It did not extend one foot above the land surface, nor was the casing capped or sealed with a tamper- resistant watertight cap or valve. Examination of the well site by Sharon Lee Vance, then a technician IV for the District, on May 25, 1999, based on a complaint filed by Ms. Grant, revealed that the water quality was poor - cloudy with excessive sand and rock particles. Ms. Vance tried to contact Respondent, whose name appeared on the permit as contact, by phone but always got his voice mail. Though she left messages requesting him to call back, he never did. Ms. Vance went back to the Grant site in July 1999 in the company of other District personnel. At this visit, Ms. Vance learned there were two wells. She located both and found that Well No. 1 was buried. When she first saw that well, she noted that it had been cut off below the surface, a fence post had been driven into the top, and the well had been buried. In Ms. Vance's discussions with Ms. Grant about this well, Ms. Grant categorically denied she was the one who cut off the top of Well No. 1 or buried it. She does not have access to the cutting equipment used to cut off the top of the well. Such equipment, however, is commonly used by well contractors. It was obvious to Ms. Vance that Well No. 1 had several problems. It was clearly not suitable for its intended use because it was cut off below ground level and was obstructed. It had not been properly abandoned. Though she dug down approximately one-and-a-half feet all the way around the casing, she could find no evidence of bentonite or any other approved closing medium. Even though Respondent now claims the second permit he pulled was not for Well No. 2 but for Well No. 3 instead, the permit itself appears to authorize the construction of Well No. Ms. Vance found several problems with this well, also. It was not properly sealed with bentonite or any other properly approved closure medium; a PVC cap had been applied to the top instead of a waterproof or tamperproof cap, and the PVC cap was cracked; the well was not suitable for its intended purpose because it was obstructed and produced both insufficient and poor quality water; and it was not properly abandoned. Ms. Vance observed a metal plate placed around the well top. She does not know what purpose it was to serve, but based on her experience and her examination of the site, she believes it was placed there to keep the casing from falling into the well. Notwithstanding, Ms. Vance's opinion that the second permit was for Well No. 2, Respondent contends he believed the permit for Well No. 1 was adequate to permit drilling of Well No. 2 without a new permit. Though his belief is incorrect, he admitted to obtaining a permit for Well No. 3. Therefore, it is found that Well No. 2 was not properly permitted. Well No. 3 was permitted. The water in Well No. 3 was not of good quality. She examined the sand filter which had been installed by the Respondent and found it to be full of sand. So was the settling tank. She also noted debris and unusual sediment around the well head. Based on water samples taken at the well, and the observations made, it was clear to Ms. Vance that the well was not properly seated and was pumping sand. Further, the well casing did not extend down to the static water level, and the well was not properly permitted. Ms. Vance further noted that the water from Well No. 3, in addition to the excessive sand, also had large pieces of rock and chunks of clay in it. This was unusual and indicated to her that there was a problem with the well's construction. The casing integrity as not good, which permitted an infusion of contaminant into the well. This condition is not unusual during the first day or so of a well's operation, but it usually clears up after that. In this case, it did not. Ms. Vance admits she does not know who cut Well No. 1 off below ground level. She knows the well was not properly abandoned as required by rule, however, because it was not properly grouted with neat cement grout or bentonite. She dug down beside the well for a total of two and a half feet without seeing any evidence of grout or bentonite. The fact that the well had pipe dropped into it, and the existence of the cutting off of the pipe below ground, made it inappropriate for the intended purpose of providing water for the home. Ms. Vance she does not know who cut off the pump; Ms. Grant does not know who cut off the pipe; and Respondent denies having done it. Though the work was clearly done by someone with access to well drilling tools, Respondent was not the only driller to work at the site. Therefore, it cannot be found that Respondent cut the pipe off below ground. It is clear, however, that Respondent failed to properly abandon and close Well No. 1, when he found it unusable, and it was his responsibility to do so. Well No. 2 also was not properly sealed by Respondent, according to Ms. Vance. A proper seal would include a good cap, not a cracked PVC cap, which would suffice only as a temporary cap. A proper cap would be one that is water tight and could not be readily removed. Ms. Vance admits she does not know who cracked the existing cap - only that it is cracked. This well, too, did not produce water fit for its intended purpose because of the existence of the tools which had been dropped into it. A permit was not obtained to abandon it. Under all these circumstances, Ms. Vance did not attempt to determine if it would produce sufficient water. Finally, Ms. Vance concluded that Well No. 3 was not properly seated. According to rule, the casing has to seat to or below the static water level. Based on the debris in the water drawn from this well, she was satisfied this well was not properly cased. Mack Pike, a water resources technician III for the District, does much of the well logging for the District. The equipment he uses goes to the bottom of the well and shows the diameter up to the point where the casing usually starts. Among other items, he uses a camera, which is what he used on the wells in issue here. On July 22, 1999, he went to the Grant property to look at Well Nos. 1 and 2. His first efforts to get into these wells were unsuccessful, so he stopped his effort and returned on May 10, 2000 with the camera. On May 17, 2000, he also ran the camera down all three wells. In Well No. 3 he found the pump at 176 feet. He found Well No. 1 cut off about one and a- half feet below ground level, with a log jammed into the casing top down to the level of the casing. The pipe had been cut with a torch, but the casing had not been properly sealed with bentonite. Use of the log to stuff the pipe was an improper seal. He found the well open below the log down to 128 feet, but obstructed below that. There was no water in the well. Respondent adamantly insists he used bentonite in all three wells, but since no trace of it was found in any of the wells by Mr. Pike or Ms. Vance, it is found that he did not. At Well No. 2, Mr. Pike found a welded slab around the pipe to keep the casing from falling in. The cap was cracked and was no good. The camera showed the well was closed off. He hit sand at 158 feet. The presence of sand indicated to Mr. Pike that the casing was not properly sealed. The well was unusable. Mr. Pike did not examine Well No. 3 until after he opened the sediment tank and found sand which appeared to have come from the surface. If the casing had been properly sealed, there should have been no surface sand. This means that the well was not properly seated. Respondent has been a licensed well contractor since 1989 and has drilled approximately 300 wells since that time. Though he claims he suggested alternate locations for the wells to Ms. Grant, she insisted the well be placed near her irrigation line. Respondent claims he was against this because the site was a transition area which raised the possibility of the pipe bending. Notwithstanding the advice he got from others regarding the siting of the wells, he agreed to place the well where Ms. Grant wanted it. Respondent claims he dug the first well and installed the pump, but the power was insufficient to run it. As a result, he pulled out the pump and told Ms. Grant that when she got the proper power to run it, he'd come back and reinstall the pump. It was when he returned to the site in response to her call that he found that the site of Well No. 1 had been vandalized. Though he recommended the well be abandoned, Ms. Grant did not want to do that, so he moved over 20 feet and started to drill again. He categorically denies having cut off the casing of Well No. 1 below ground level. It has been found that the evidence shows Respondent that cut the pipe on Well No. 1, is insufficient. Mr. Holt admits he did not seek a permit for this second well because his understanding was that one could drill like wells on the same premises without abandoning the pre- existing wells. He drilled the second well which, he claims, produced water for five to six months. However, it was impossible to stop the sand from infiltrating the well, and the well was not producing sufficient water to irrigate the grove. Because the water produced by Well No. 2 was insufficient in quantity to use the 5-horsepower pump called for in the contract, Respondent replaced it with a one and a-half horsepower pump. According to Respondent, he and Ms. Grant discussed where to site Well No. 3. Finally, Ms. Grant agreed to move it up the hill on which Respondent wanted to site it, as this would accommodate her irrigation system. Respondent was not comfortable with this because it was on the slope too close to the others, but he went along with it. As Well No. 3 was being constructed, Respondent discussed with Ms. Grant the need to close Well Nos. 1 and 2. She did not want to pay for the closings, so he decided to cap the existing wells. As a result, Well No. 2 is still a viable well, and though it will not irrigate the grove, it will, Respondent claims, provide sufficient water for the house. He admits placing the PVC cap on Well No. 2, but claims it was not cracked when installed. He also admits to placing the plate around the top of Well No. 2 because the drive shoe was bent. It broke off, and he was afraid if he did not reinforce the area as he had the casing would collapse when he tried to ream out the drive shoe to recover it. At the 126-foot mark of Well No. 3, Respondent hit a boulder through which the drill would not go. At that time, the hole below the casing was still good with no infusion. Respondent installed a pump and drew water, but, the pump soon began to pull sand. Respondent installed a filter, but it was insufficient. He ultimately drilled through the rock and placed the pump at 178 feet. That well is currently being used. Respondent claims that all wells in that area pull sand to some degree. He insists that Ms. Grant's wells just pull too much. He claims he could have quit, but because of his relationship with the builder, he felt obligated to drill a working well for Ms. Grant. Anthony Gilboy, who has been with the District for 20 years, is currently the District's manager of well construction. He is familiar with the statutes and the rules of the District relating to water well construction and abandonment. According to Mr. Gilboy, they are loose enough to permit some latitude in their application. There is a freedom to amend methodology where circumstances so dictate. A licensed water well contractor is required to obtain a permit to construct a water well. Once a permit is drawn, if the well needs to be changed, the permittee must apply for an amendment and then plug the old well consistent with District guidelines. Plugging is critical to prevent potential contamination of water and to preserve it. Rule 40D-3.042, Florida Administrative Code, permits multiple (up to 8) wells under a single permit for similar types of wells that have diameters of 4 inches or less, but not domestic water wells. There are different ways to drill a water well. One is by cable-tool drill in which a bit is hammered into the rock. As the casing is being driven down into the ground, it holds back the sediment. Another method involves the use of a rotary drill which employs water and bentonite to hold back sediment. It is possible to tell whether bentonite was used in the drilling process just by looking at the well. The bentonite adheres to the well casing and looks different from the surrounding soil. In fact, there is no soil appearing naturally in Florida that looks like bentonite. In the instant case, Respondent applied to use the cable-tool method. Bentonite traces were not found at the sites. When a well is drilled, the casing is to be poured in segments as drilling progresses. When a well is to be abandoned, one approved method of doing so involves the use of bentonite, a type of clay which swells to about 10 to 15 times its volume in dry form. Studies done by the District in conjunction with the University of Florida show that over all, bentonite is a better seal than natural soil, and it prevents surface water from settling down the side of the casing. Rule 40D-3.517(3), Florida Administrative Code, requires bentonite's use for this purpose, and a rule of the Department of Environmental Protection, though not specifically mentioning bentonite, requires that casings be sealed. The casing of a water well is used to seal off any unconsolidated materials. Rule 62-532, Florida Administrative Code, requires the casing be extended into the static water level at the time the well is drawn. If a well is not sealed, debris and sand can slide into the well and damage the pump and other equipment. If debris is seen, it usually means the casing was not sealed properly. After a well is completed, the rules of the District and the Department, Rules 40D-3.521(2) and 62-532.500(3)(a)4, Florida Administrative Code, respectively, require the upper part of the well to be sealed off to prevent infusion of contaminants. The seal must be tamper-proof and permanent. A fence post is not acceptable, nor is a cracked PVC cap. In addition, the upper terminus of a private well must extend at least 1 foot above the land surface. The purpose of this requirement is to allow the well to be found, and to prevent infusion of contaminant. (Rule 40D-3.53(2), Florida Administrative Code) According to Rule 62-532-500(4), Florida Administrative Code, all abandoned or incomplete wells must be plugged from top to bottom with grout (neat cement). The Rule and Stipulation 39 of the permit provide that the well drilling contractor is responsible for proper abandonment of a well. This is not conditioned on the willingness of the owner to pay. The contractor has the responsibility to do it. An abandoned well is one which the use of which has been permanently discontinued or which is so in need of repair as to be useless. These determinations must be made by the District, hence the need for the permit. In the instant case it was determined that Well Nos. 1 and 2 were not suited for their intended purpose, and they should have been properly abandoned. The process for well abandonment is not complex, but it does require the obtaining of a permit. At least 24 hours in advance of initiation of the plugging process, the contractor must advise the District that the process will be implemented. Thereafter, the well hole is filled with neat cement or bentonite grout. To abandon a well by any other method would require a variance from the District. Neither permit nor variance was sought as to Well Nos. 1 and 2. The standards adopted by the Department and the Water Management Districts are statewide in application. Construction of a water well without first obtaining a permit is classified as a major violation. The failure to properly abandon a well or the failure to use bentonite or neat cement in well closure are also major violations. Failure to construct a well so that the casing extends below the static water level is a major violation. Failure to seat or seal a casing into rock formation is a major violation. Failure to place a water-tight seal and failure to extend well casing at least one foot above the ground level are both major violations. Penalties may be assessed for these violations according to a schedule set out in the Department rules. However, these penalties may be adjusted based on such factors as the economic benefit to the contractor of his non-compliance; his history of non-compliance; the negligence or willfulness of his actions; and whether he acted in good faith. Under the circumstances of this case, Mr. Gilboy is of the opinion that the actions proposed by the District are appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, Fletcher Holt be ordered to pay an administrative fine of $4,600; that 46 points be assessed against his water well contractor's license; and that he be required to properly abandon Well Nos. 1, 2, and 3, which he drilled on the Grant property. DONE AND ENTERED this 18th day of July, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2000. COPIES FURNISHED: Onofre Cintron, Esquire 305 North Parson Avenue Brandon, Florida 33510 Margaret M. Lytle, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether the Petitioner is entitled to an extension of time of 565 days for the completion of the project which is the subject of this proceeding, as opposed to the 367 days time extension which was granted for completion, and thereby is free from liquidated damages in the amount of $31,680.
Findings Of Fact On February 21, 1973, a contract was entered into between the Petitioner and Respondent for the construction of Phase II, University of North Florida, at Jacksonville, Florida, State Project No. BR-6504/7801-D. The Form of Agreement Between Contractor and Owner For Construction of Buildings, through its Article 4.2 identifies the conditions of liquidated damages. Article 8.5 states the conditions for settlement of claims and disputes. Contained as part of the contract, was standard form AlA Document, A201, American Institute of Architects, General Conditions of the Contract for Construction. Within the document A201, was Article 4.5, warranty of the work by the contractor; Article 8.3.1 discussing the matter of delays and extensions and Article 13.2.1 discussing uncovering and correcting. All these contract conditions are found in Petitioner's Exhibit "A" which was admitted into evidence. In pursuit of the contract obligations, the Petitioner entered into a contract with W. W. Gay, Mechanical Contractor, Inc., 523 Estelle Lane, Jacksonville, Florida. This contract with W. W. Gay as subcontractor contemplated the installation of mechanical parts of the contract work, and the agreement between the Petitioner and W. W. Gay is Petitioner's Exhibit "B", admitted into evidence. Part of the work to be performed by W. W. Gay involved the installation of a hot water piping system. According to Mr. W. W. Gay, President of W. W. Gay, Mechanical Contractor, Inc., 95 percent of the pipe to be used in the Phase II project was already available, having been left over from Phase I of the University of North Florida Project. This pipe had been stored for as long as 16 months, exposed to the weather. The storage itself was in accordance with the conditions of modification to contract document prepared by Reynolds, Smith and Hills, Architects, Engineers and Planners of Jacksonville, Florida. Petitioner's Exhibit "C" sets out the requirements for storing the aforementioned pipe. In addition, Mr. Gay testified that some of the type resin epoxy utilized in the Phase I project was left over and was stored in a facility whose temperatures reached 90 degrees Fahrenheit, although the recommended storage temperature for the substance was 70 degrees Fahrenheit. The piping spoken of was a type manufactured by Ric-wil Manufacturing known as FRP, Dual Gard 250. The pipe was identified in the course of the hearing by Carl Bowles, General Superintendent for W. W. Gay, as being a fiberglass type pipe. This pipe had been selected in lieu of the job specification pipe which is a form of asbestos pipe manufactured by Johns Manville, due to the fact that the Johns Manville pipe had not been approved for release by Johns Manville's quality control department. The substitution of the Ric-wil pipe was approved by the project architect, John Brickert, who was also the project manager and an employee of Reynolds, Smith and Hills. The approval for substitution was on the basis that the Ric-wil pipe was acceptable because it was a non-metallic pipe and the Johns Manville pipe was a non-metallic pipe. Approval for the substitution had been granted in Phase I and carried over into Phase II. In addition to the hot water piping system in Phase II, W. W. Gay installed a chill water system using a PVC type pipe identified as Ric-wil Chil Gard. Prior to the installation of the Ric-wil Dual Gard pipe in Phase I, W. W. Gay had never installed that type piping system. In the course of the installation of the piping system in Phase I, some problems were experienced with the installation which were not similar to the problems that would be experienced in the construction of the Phase II University of North Florida project. Phase I was completed utilizing the Ric-wil Dual Gard pipe. In the beginning of Phase II, W. W. Gay ran the cold water system and hot water system in a common area underground from valve pit one to valve pit six, in order to put into operation buildings 008 and 009 of the University of North Florida. These locations are shown on the engineering drawing which is Petitioner's Exhibit "K", entered into evidence. Installation of the two piping systems commenced in October of 1973. Sometime in the middle part of November, 1973, a test was conducted on the hot and chilled water systems between valve pits one and six. The hot water system passed the test. The chilled water system failed. Later in November, the chilled water system also passed. This successful test opened up the hot and chilled water systems to buildings 008, 009 and 011. Further tests were conducted in early January, 1974 and again the hot and chilled water lines passed. In January, 1974, W. W. Gay began to run the hot water piping system from valve pit six to valve pit seven and in the area of building 010 found that the line would not hold pressure. A decision was made to retest between valve pit one and six, a leek as found in the area of valve pit one. This leak was discovered in late January, 1974. A subsequent test of the hot water piping system was run in early February, 1974, between valve pit one and valve pit six and into the buildings 008, 009 and 011. This test failed. In the middle of February, 1974, a further test was made from valve pit one to the end of the line, to the northwest corner of building 011, and this test failed. For the balance of February, 1974, time was spent trying to repair the leaks in the hot water piping system. These continued failures in the system brought about two meetings to discuss the solution of the problem. These meetings will be discussed subsequently. At the time the subcontractor was experiencing problems with the installation of the hot water system, problems were also being experienced with the chill water system. Throughout March, the chill water system was continuing to be installed and in late March a leak was discovered opposite building 010. This leak was repaired. In mid April a leak was found in the chill water system in the area of valve pit six and an attempt to repair it was unsuccessful. Problems continued until June, 1974, at which time replacement of the water pipe and fittings was begun between valve pit one and six. Further testing showed a failure in the chill water piping. Finally in September, 1974, the chill water system passed. One of the problems with the chill water piping system concerned the couplings for that system which were found to be defective. An example of the problems associated with the couplings in the chill water system is demonstrated through Exhibit "N", by the Petitioner, which is a cross section of one of the couplings which was removed after being installed in the Phase II University of North Florida Project. This cross section shows numerous surface irregularities, which promote leaks. On February 28, 1974, a meeting was held in the offices of Reynolds, Smith and Hills which was attended by the project manager, John Brickert; representatives of the Petitioner; representatives of Ric-wil, Incorporated; representatives of the University of North Florida; representatives of the subcontractor W. W. Gay, and other representatives of Reynolds, Smith and Hills associated with the project. Varying theories were advanced in trying to explain the problems associated with the hot water piping system. From the subcontractor's point of view, expressed by W. W. Gay, this difficulty was not obvious because it was his contention that the pipe was being installed according to the directions of the manufacturer's representative who was on the job site for some 90 percent of the installation. Jack Green, the mechanical construction specialist for Reynolds, Smith and Hills, testified that from his on site observations, which occurred about the general time frame of the meeting of February 28, 1974, that he had seen water in the trenches around the building 010. Furthermore, according to Green, the subcontractor had undercut the ditches and had attempted to install the hot water piping system while the ditch was too wet, using loose soil which was not compacted. In addition Mr. Green stated that he felt that the joints were dirty and moist and had not been sanded properly. Finally, Mr. Green stated that he had stopped the installation of the pipe because of the conditions mentioned. The deposition upon written questions of C. G. Schoor, Service Manager with Ric-wil, said that he had been at the job site on February 11, 1974, and had noticed water leaks in the fringes and couplings of the hot water pipes. He felt that in the area of the flanges there was improper sanding because when the pipe was pulled out, the surface was clean and resin remained in the flange. He also commented in his deposition that there was improper surface sanding and a large area of entrapped air on one of the 10" couplings pulled out between points two and three on the second joint north of two and this occurred during an initial 150 lb. hydro test. In one joint the resin epoxy had not hardened and was still in a plastic state, according to Ben Schoor. In speculating about the plasticity, Schoor said that it could have been promoted by long storage of the material, or contamination of the material which constitutes the resin epoxy or improper mixture of the two components of the epoxy resin on the part of the subcontractor. He felt that this plasticity would probably promote leaks but he observed no such leaks where the resin epoxy was plastic. The deposition on written questions of Ben Schoor was entered into evidence as Respondent's Exhibit "B". Discussion at the February 28, 1974, meeting considered two alternatives: First, to allow for the further installation of the Ric-wil Dual Gard System using the expertise of the Ric-wil employees; second, to substitute the Ric-wil Dual Gard pipe with Ric-wil Hi-Gard Pipe, which is steel. A further meeting on March 4, 1974, was held with representatives of the Petitioner; the subcontractor, W. W. Gay; Reynolds, Smith and Hills, by John Brickert, and other representatives of that firm. It was decided at that meeting, that due to the effect of oil shortages causing the unavailability of the Ric-wil Dual Gard pipe and fittings, the Ric-wil Company would design a pipe system to utilize steel pipes, and the subcontractor would determine the necessary adjustments to use the steel pipe. At this meeting the subcontractor, W. W. Gay, requested some relief from possible liquidated damages, and the minutes of that meeting indicate that consideration of that request was deferred. According to notes from time sheets of Reynolds, Smith and Hills, which was admitted as Respondent's Exhibit "A", installation of the steel piping system was commenced on July 1, 1974, and completed August 21, 1974. Minutes of the meetings of February 28, 1974, and March 4, 1974, are found as Petitioner's Exhibits "E" and "F" respectively, admitted into evidence. After the March 4, 1974, meeting, discussion was continued on the question of liquidated damages in view of the substitution of the type of piping, and conjecture was made about the problems with the piping system. In correspondence of March 22, 1974, Neil A. Porter, Vice President of the Petitioner, makes reference to the liquidated damages question in this letter to John Brickert, and suggests holding the matter in abeyance. This letter enclosed a letter from W. W. Gay dated March 21, 1974, directed to the Petitioner, which sets out the approximate time to complete the system will be 105 days. The Gay letter also states opinions by Mr. Gay as to what was determined in the course of the February 28, 1974, meeting on the subject of the cause of the problems with the Ric-wil Dual Gard piping. Mr. Gay made further comments that he felt that the change in temperature, from 70 degrees to 90 degrees as stored, adversely effects the resin epoxy and that the ultra violet rays of the sun also effected the pipe which was stored outside. Mr. Gay's letter of March 21, 1974 and Mr. Brickert's letter of March 22, 1974 are Petitioner's composite Exhibit "G", which was admitted into evidence. Mr. Brickert responded to Mr. Porter by letter of March 29, 1974, in which he suggests the question of liquidated damages cannot be addressed at present because the amount of delay is unknown, and Reynolds, Smith and Hills is not a part of the contract and cannot accept a stipulation for extension. This letter is Petitioner's Exhibit "H", which was admitted into evidence. On April 19, 1974, a change order was entered by Mr. Brickert which allowed for the substitution of Ric-wil Hi-Gard steel pre-insulated pipe for the Ric-wil Dual Gard 250 plastic pre-insulated pipe. Page three of that change order indicates the rationale for accepting such a substitute and alludes to the possibility of a time extension which is not subject to identification at the moment of the change order, but which will be requested. This change order is Petitioner's Exhibit "I", which was admitted. A further statement on the Chil Gard pipe and the problems with the couplings is found in Petitioner's composite Exhibit "J", a letter of May 29, 1974, with attachments from John T. Brickert to Neil A. Porter. By Change Order #19 and the accompanying letter of explanation from John T. Brickert, addressed to Jack C. Koons, Administrator, Department of General Services; the project manager has denied, and the Respondent has agreed to such denial, of any time extension conditioned upon problems with the piping systems. This denial by the letter of September 8, 1975, is premised on the conclusion that any failure on the system was due to faulty installation or failure of material which was subject to the control of the Petitioner. As a result of Change Order #19, 198 days of time overrun at $160.00 a day have been assessed as liquidated damages, totaling $31,680.00. These items of Change Order #19 and the correspondence alluded to are found in composite Exhibit "D" by the Petitioner, which was admitted into evidence. A review of the evidence offered on the question of the cause of the problems in the hot water system which was being installed as Ric-wil Dual Gard indicates a possible problem associated with the manufacture of Ric-wil Dual Gard pipe; a possible problem with the storage of the Ric-wil Dual Gard pipe at the job site for a period of up to 16 months prior to its installation; possible problems associated with the storage of the resin epoxy at temperatures which would damage the compound; possible contamination of the resin epoxy; possible improper mixture of the resin epoxy and possible improper application of the resin epoxy on the surface of the piping; possible improper sanding of the surfaces of the pipe where it was joined; possible improper preparation of the ditch in which the pipe was being placed, and possible improper installation of the pipe itself. From an examination of the testimony and the evidence offered in support of that testimony, the cause of the problems with the pipe would appear to be a combination of all the factors mentioned above, but it cannot be discerned with reasonable exactness what the percentage of responsibility is in determining the factors which lead to the rejection of the Ric-wil Dual Gard System in favor of the Ric-wil Hi-Gard System. From the testimony and the exhibits offered on the question of the problems associated with the Chil Water System, the testimony points to defective couplings as the responsible agent for the problems associated with that installation. These defective couplings are found to be the primary cause of the problems associated with the Chill Water System. On the question of liquidated damages penalties to be associated with a substitution of the Ric-wil Hi-Gard System for the Ric-wil Dual Gard System testimony was offered, as described before, by W. W. Gay who was under the impression that he was receiving relief from any liquidated damages and thought that relief would be afforded. This testimony is supported by the testimony of Neil Porter, the Vice President of the Petitioner who likewise had such an understanding. It is also supported by the testimony of John Daniel Cheatwood, the President of Petitioner, who was in attendance at the March 4, 1974 meeting at the offices of Reynolds Smith and Hills. In addition, Jack Green, Field Representative Mechanical, for Reynolds, Smith and Hills recalled that W. W. Gay requested relief from any possible liquidated damages for substitution of the pipe and the appearance was given that some consideration would be made of the necessity for extension of time. Mr. Brickert, as spokesman for the owner, felt that the meeting of March 4, 1974, did not commit the owner to grant an extension, and upon ultimate assessment an extension of time associated with the substitution of the pipe was denied. It is found as a matter of fact that the owner through negotiations with the contractor and/or his subcontractor, W. W. Gay, and through the Petitioner's Exhibit "I" agreed to an extension of time for the installation of the Ric-wil Hi-Gard Pipe in substitution for the Ric-wil Dual Gard pipe.
Recommendation It is recommended that the relief requested from the imposition of liquidated damages due to the delays associated with the installation of the hot water system and chill water system, which were assessed as 198 days at a $160.00 per day, for a total of $31,860, be reduced in an amount which would equate to the time necessary to install the substituted hot water system, and be upheld in the amount which would equate to the time necessary to install the chill water system. DONE and ENTERED this 23rd day of June, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, 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 June, 1976. COPIES FURNISHED: William S. Stevens, III, Esquire For the Executive Director Department of General Services State of Florida 725 South Calhoun Street Tallahassee, Florida 32304 S. Gordon Blalock, Esquire Suite 2301 Independent Square Building Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issue is whether Sarasota County's application for a permit authorizing the construction of a Class V, Group 3 aquifer storage and recovery well system at the Central County Water Reclamation Facility in Sarasota, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background On September 14, 1999, the County, through its Utilities Department, filed with the Department an application for a permit to construct a Class V, Group 3 aquifer storage and recovery (ASR) test well and monitor well system at its Central County Water Reclamation Facility, 79005 South McIntosh Road, Sarasota, Florida. The Department is charged with the responsibility of issuing such permits. On July 19, 2001, the Department issued its Notice of Intent to issue Permit No. 160882-001-UC. The permit authorizes the County to construct one test well to determine the feasibility for the storage and recovery of reclaimed water from the Suwannee Limestone of the Upper Floridan aquifer system at a depth of between 500 and 700 feet below land surface. Also, the County is authorized to construct three monitor wells, one into the target storage zone, the second into the first overlying transmissive unit, and the last into the overlying Arcadia Formation. The storage capacity of the test well is projected to be between one and two million gallons per day. On August 10, 2001, Petitioner, who is a citizen of the State of Florida, resides in Tallahassee, and is a long- time employee of Legal Environmental Assistance Foundation, Inc., filed her verified Petition for Formal Administrative Hearing (Petition) under Sections 120.569, 120.57(1), and 403.412(5), Florida Statutes. In her Petition, she generally contended that the permitting would have the effect of impairing, polluting, or otherwise injuring the water of the State because the proposed injectate (being placed in the well) will not meet primary and secondary drinking water standards, may be harmful to human health, and will violate the minimum criteria for groundwater. She also contends that the permit application was not signed by the proper signatory and that the Department failed to require the County to first drill an exploratory well (as opposed to a test well). While these allegations were not sufficient to demonstrate that Petitioner's substantial interests were affected by the proposed permitting, they were deemed sufficient (subject to proof at final hearing) to satisfy the pleading requirements of Section 403.412(5), Florida Statutes. Water Reuse Generally Water reuse is the use of reclaimed water for a beneficial purpose. Because of Florida's continuing population growth and occasional water shortage, the use of reclaimed water is an important conservation tool. Indeed, in 2002 the Legislature showed strong support for water conservation and reuse by amending Section 403.064(1), Florida Statutes, and adding language which states that "the reuse of reclaimed water is a critical component of meeting the state's existing and future water supply needs while sustaining natural systems." To this end, the County has filed its application for the purpose of using reclaimed water for such lesser uses as irrigation so that the existing high quality fresh groundwater can be used for higher and better purposes such as drinking water for the general public. The Southwest Florida Water Management District (District) has also encouraged the use of reclaimed water by providing funding for this type of program to induce utilities to move forward with reuse programs. In addition, the Department has been proactive in promoting the reuse of water throughout the State in order to conserve water resources. Aquifer Storage and Recovery Aquifer storage and recovery (ASR) is a reuse program encouraged by the Legislature, Department, and District. It involves the storage of water underground in a suitable formation, through a well, during times when water is available to put into the well, and then recovery of that stored water from the well during times when it is needed for some beneficial purpose. Put another way, an ASR operates like an underground storage tank. Water is placed into the ASR wells (by means of pumping) during recharge periods when it is raining and there is no demand for reclaimed water. When the water is pumped into the well, a stored water bubble is created by using buffer zones made of water with more salinity than the stored water. These buffer zones are designed so that there can be full recovery of the stored water. The recovery rate is generally around 100 percent. There are three ways to store reclaimed water: surface ponds, storage tanks, and ASR. The ASR storage method is the most efficient method of storing reclaimed water, and it has significant environmental, utility, and economic benefits. The ASR method has no impact on wetlands and ecosystems, and unlike pond storage (and to a lesser degree storage tanks), it does not require the use of large surface areas and is not affected by evapotranspiration and seepage. (There is typically a 60 percent loss of water due to evaporation in surface storage areas.) It also results in cost savings (up to a 50 percent reduction in capital costs) and avoidance of wetlands impacts. One of the goals of the County's Comprehensive Plan is to maximize the use of reclaimed water for irrigation purposes. Because other storage methods have proved to be inefficient, ASR is the County's preferred storage method to meet this goal. At the time of the final hearing (August 2002), there were at least fifty-six ASR systems operating outside the State of Florida (and around one hundred more in various stages of development) and eleven ASR systems successfully operating in the State, the first one having been established in 1983. At that time, there were also two ASR test programs underway in the area, including one in the Englewood Water District, a few miles to the south of the proposed project, and the Northwest Hillsborough ASR program, which is located just north of the County. Also, ASR systems are located in Manatee County and near the Peace River, which is in the same storage area being proposed here. Therefore, the County has the benefit of drawing upon twenty years of experience with this type of system. The Permit The County began an informal water reuse program in 1988, when it first used effluent disposal for irrigation purposes at a local golf course. A formal program (the Reuse Master Plan) was commenced in 1994; however, the County still lacks the storage capacity to meet the seasonal demands of its reuse customers.3 Without storage, any excess water must be discharged and lost. In order to meet the County's goal of maximizing reclaimed water use, it must be able to adequately store reclaimed water. Due to projected population growth and issues concerning management of limited resources, in 1997 the County began considering the use of ASR as a means to better manage its reclaimed water supply and demand for those facilities which serve the North County Reuse System. If all necessary permits are obtained, the County intends to use reclaimed water from its Central County wastewater facility. Currently, that effluent receives advanced tertiary treatment with deep bed filtration and high level disinfection. The proposed test well will be approximately 700 feet deep; at that depth, the injection (or storage) zone will consist of the Suwannee Limestone formation of the Upper Floridan aquifer system. The storage zone is brackish, with the water quality or salinity having about six times the acceptable degree of salinity for a drinking water source. It is anticipated that the total dissolved solids (TDS) concentration in the injection zone will be greater than 3,000 TDS. If water quality at the proposed injection zone is greater than 3,000 TDS, this fact will be revealed during the construction of the test injection well and during the various tests to be conducted during construction. (Assuming this level of TDS is found, then at that point the County would have to provide reasonable assurance that the water reclamation facility is providing full or principal treatment to the domestic waste.) The evidence establishes that there is some level of transmissivity in the confining layer overlying the proposed injection zone. That is to say, there is some small degree of connectivity between the proposed injection zone and the aquifer above it. The actual level of transmissivity will be determined based upon tests run during the construction of the first monitor well. The effluent produced from the County's water reclamation facility meets drinking water standards. If the plant is unable to produce effluent that meets or exceeds the applicable water quality standards, this issue is an operational concern which can be addressed in a permit modification authorizing operational testing. Under the Department's permit process, if the construction permit is approved, the County will construct a monitor well to obtain more site-specific information concerning such things as the geology, hydrology, and water quality at the site. (At this point, while the County has published literature sources and regional geologic information from two nearby ASR systems using the same storage area to rely upon, it has no specific data for the very small parcel where the well will be constructed.) Once the information is obtained, an engineering report is prepared and submitted to the Department. That report contains a wide array of technical data, including construction data, hydrogeologic data, formation samples, water quality samples, hydraulic data, core data, Packer data, and geophysical data. This information is then used by the Department (and a special advisory committee called the Technical Advisory Committee) to evaluate whether the site can be authorized for cycle testing and later for operational purposes. If cycle testing is appropriate, the County must then request a modification to its construction permit to authorize cycle testing of its ASR well. That modification, and any others that may be warranted by the new information, are "final agency action subject to the procedural safeguards contained in Chapter 120, F.S." Fla. Admin. Code R. 62- 528.100(2). When the test injection well is constructed and eventually placed into operation, monitor wells will be used to monitor background water in both the injection zone and in the two aquifers overlying the proposed injection zone. However, until further Department approval is obtained, no injection of reclaimed water is authorized; the permit being sought here authorizes only the construction of the well itself. Finally, Florida Administrative Code Rule 62- 528.640(1)(a) requires that the County obtain a separate operation permit after the construction permit has been issued and testing completed. Criteria and Standards for a Class V Well Florida Administrative Code Chapter 62-528 governs all injection wells defined as Class I, III, IV, or V wells. (In Class II wells, the injected fluids are used in connection with oil and natural gas production and are regulated by the Florida Geological Survey under Chapter 377, Florida Statutes.) The category of wells in which the County seeks a permit is a Class V, Group 3 permit, which includes all domestic wastewater wells. See Fla. Admin. Code R. 62- 528.300(1)(e)3. A Group 3 well involves the injection of fluids that have been processed through a permitted domestic wastewater treatment plant. Even though the County is requesting a permit for a Class V well, at the request of the Department, it submitted a different (and more stringent) type of application (a "900" application) since the Department has the authority to apply "any of the criteria for Class I wells" if it believes that the well may cause or allow fluids to migrate into an underground source of drinking water which may cause a violation of primary or secondary drinking water standards. See Fla. Admin. Code R. 62-528.605(2). (A Class I well is a well used to inject hazardous waste below the lowermost formation containing an underground source of drinking water.) In this case, the Department opted to apply certain Class I construction standards for the well, in addition to the normal standards for Class V wells. Those standards are found in Florida Administrative Code Rule 62-528.400. This means that the County will be held to a higher standard than a general underground injection control permit. Florida Administrative Code Rule 62-528.605 contains the Class V well construction standards. For the following reasons, the County has given reasonable assurance that all criteria will be met. Subsection (1) of the rule requires that "a well shall be designed and constructed for its intended use, in accordance with good engineering practices, and the design and construction shall be approved by the Department with a permit." The evidence clearly establishes that good engineering practices have been followed by the County for the design and construction of the well. Subsection (2) requires that an applicant design and construct the well so that it will not "cause or allow fluids to migrate into an underground source of drinking water which may cause a violation of a primary or secondary drinking water standard . . . or may cause fluids of significantly differing water quality to migrate between underground sources of drinking water." Subsection (3) is also directed at the migration of fluids. The evidence shows that the migration of fluids between aquifers will be prevented as a part of the design and construction of the ASR well program. The design chosen by the County has been proven to prevent migration of fluids between aquifers, and it will preserve the integrity of the confining beds. The combination of steel casing and cementing prevents the migration of fluids along the borehole. The well will be constructed by a Florida licensed contractor, as required by Subsection (4). The remaining criteria in the rule will be satisfied during the construction process. Florida Administrative Code Rule 62-528.620 contains reporting requirements for Class V wells. All of these requirements are included in the draft permit and will be met by the County. The Department has also included Special Condition 1(h) in the draft permit, which provides that nothing will be injected into the well that does not meet the Federal Primary Drinking Water Standard. This condition is drawn from Florida Administrative Code Rule 62-528.307, which specifies general conditions to be included in underground injection control permits. In accordance with this condition, the County will monitor the movement of fluid to ensure that there are no violations. The County has also demonstrated that there will be no hazardous waste injection, as prohibited by Florida Administrative Code Rule 62-528.600(1)(a). Finally, the requirements of Florida Administrative Code Rule 62-528.630(3) do not apply at this time since the proposed permit is only for construction of a well, and not the injection of water. Class I Well Construction Standards Because the Department has imposed more stringent construction standards on the County, the Class I well construction standards found in Florida Administrative Code Rule 62-528.410(1) come into play. The County has demonstrated that it has complied with the requirement that the well be cemented and cased. In addition, the County has considered corrosion protection in the cementing and casing of the proposed well. Because the casing will be cemented, coating is not required. Finally, there will be no open annulus (spacing between the casings and the bore hole) in the ASR test well. Other Requirements Drilling Geophysical surveys will be conducted during the pilot hole drilling stages to collect hydrogeologic information. Further, drill stem tests will be conducted throughout the drilling, and a driller's log will be maintained. See Fla. Admin. Code R. 62-528.410(3). Casing Steel casing will be used, taking into consideration the possible corrosion of steel. The life expectancy of the well was considered, as required by Florida Administrative Code Rule 62-528.410(4)(a), and was determined to be unknown. Cement Type 2 cement will be used, which is sulfate resistant and is specifically designed for use in regions such as Florida. Testing Geophysical logs will be used during the construction and testing of the well to verify the physical conditions of the well and confirm that construction is proceeding according to the plan. Also, geophysical surveys will be conducted during pilot hole drilling stages to collect subsurface hydrogeologic information. Environmental concerns Once a drilling contractor is selected, the location for the disposal of drilling fluids will be submitted for Department approval in accordance with Special Condition 1(b) in the draft permit. Monitor well construction standards The monitor well will meet all construction requirements under Florida Administrative Code Rule 62- 528.420. (The same standards that are applied to Class V wells are also applied to monitor wells.) General design considerations Exploratory pilot hole drilling stages will be conducted to collect hydrogeologic information, and complete sets of geophysical surveys will be performed. Because cement generates heat, temperature surveys will be run as a part of the construction sequence to verify coverage of the cement. This means that tools will be lowered into the hole after each cementing stage to verify coverage. Monitoring requirements Florida Administrative Code Rule 62-528.425(1)(d) requires that an applicant perform "a demonstration of mechanical integrity . . . at least once every five years during the life of the well." Details to accomplish this are found in both the application and the draft permit. Florida Administrative Code Rule 62-528.425(1)(f) requires that the background water quality of the injection zone and monitoring zone be determined prior to injection. The County will perform this task before injection occurs. Florida Administrative Code Rule 62-528.425(1)(g) requires that monitor wells be installed above the injection zone near the project. The County will construct three wells, as required by the rule. They will also be placed at a sufficient distance from the project, as required by Florida Administrative Code Rule 62-528.425(1)(h), and the specific monitoring intervals are detailed in the draft permit. Reporting requirements The Department requires periodic data reports and progress reports regarding eight separate types of information. See Fla. Admin. Code R. 62-528.430(1)(a). These reporting requirements will be performed and followed. Because a Class V well may be required to be plugged and abandoned, the Department requires a plugging and abandonment report. See Fla. Admin. Code R. 62-528.625. All requirements under this rule have been met, and the County has the financial resources to accomplish this task, when required. General Class I permitting requirements Florida Administrative Code Rule 62-528.440 sets forth general permitting requirements for Class I and III wells. Because the Department has opted to impose certain Class I criteria on the County's application, some of the criteria in this rule apply. They include special conditions 1(a), (c), and (e) in the permit for well construction, system modification, and fluid injection, all of which have been, or will be, met by the County. In addition, the duration for the operation permit cannot exceed five years, and the County was required to submit an application for a permit which conformed with the requirements of the rule. As a part of its application, the County established an area of review for the construction permit, taking into account the zone of endangering influence. See Fla. Admin. Code R. 62-528.300(4). (An area of review is the area surrounding an injection well, including the area of possible endangering influence.) This requirement was met because the established area of review is one mile even though the predicted area of influence is expected to be no more than 400 feet. As a part of the preceding analysis, the County also conducted an area of review study, as required by Florida Administrative Code Rule 62-528.440(6)(a). In doing so, the County evaluated the impact on the ASR well, and the impact the ASR well would have on the surrounding area. That evaluation determined that there are no water supply wells within the area of review. Because the construction permit only has a duration of five years, and given the County's supporting information submitted with the area of influence study, the Department has not required that the County provide a corrective action plan. See Fla. Admin. Code R. 62-528.300(5)(a). Class I well construction permit criteria All guidelines for constructing the well have been followed, and the construction of the well will not be a source of pollution. The County has provided reasonable assurance that the project will function in accordance with the requirements of Florida Administrative Code Chapter 62- 528. Hydrological modeling Finally, Florida Administrative Code Rule 62-528.405 specifies criteria for evaluating the geologic and hydrologic environment of Class I wells. The County has satisfied all criteria in the rule. Other Issues Exploratory well Petitioner contends that the Department should require the County to construct an exploratory well, as defined in Florida Administrative Code Rule 62-528.603(1), rather than a test well. That rule defines an exploratory well as one being "drilled for the specific purpose of obtaining information to determine the feasibility of underground injection at the proposed site." However, Florida Administrative Code Rule 62-528.450(1)(b) requires an exploratory well only "for those projects located in an area where available information is lacking concerning geologic or hydraulic confinement or existing information indicates that geologic or hydraulic confinement may be poor or lacking." For example, an exploratory well would be required in a remote area (such as certain parts of Polk County) where the Department had insufficient literature, studies, or prior history concerning the general geology across and around the site. In this case, two nearby ASR systems are located in the Englewood Water District and near the Peace River and use the same storage zone as that proposed by the County. Those systems have been operating for a number of years, and the County and Department can draw upon that experience. Given this significant regional geologic information, an exploratory well is not required. More importantly, the requirement for an exploratory well applies only to Class I well construction, and not Class V wells, and the Department properly exercised its discretion to not apply that requirement to the County's Class V application. Signature on the application and other documents Florida Administrative Code Rule 62-528.340(1)(c) requires that all permit applications by a local government be signed by "either a principal executive officer or ranking elected official." Also, subsection (2) of the same rule requires that "reports required by permits and other information requested by the Department shall be signed by a person described in subsection (1) of this section [a principal executive officer or the highest ranking elected official], or by a duly authorized representative of that person." Petitioner contends that these requirements were not met. The County's application was signed by James E. Caldwell, who was then the Manager of Sarasota County Utilities. At that time, Mr. Caldwell had overall responsibility for the County's utility operations. On August 27, 2002, James L. Ley, the County Administrator (and principal executive officer of the County), also executed the original copy of the application. (That is, on that date he signed the original application underneath Mr. Caldwell's signature.) By doing so, Mr. Ley cured any previous technical deficiency in the application. Responses to requests for additional information which were submitted to the Department during the review process were signed by one of the County's outside consultants. However, on January 13, 2002, Mr. Ley submitted a letter to the Department authorizing various County employees and agents to act on his behalf in processing the instant application. Accordingly, the outside consultant was a duly-authorized representative of the chief executive and was authorized to sign those documents. Satisfaction of injection criteria Petitioner also contends that before a construction permit may be issued, the County must meet all principal treatment and disinfection requirements, as required by Florida Administrative Code Rules 62-610.466 and 62-528.563. However, those rules apply to permits which authorize the injection of reclaimed water into the groundwater. Here, the requested permit does not authorize injection, and therefore those requirements do not apply. Groundwater criteria Even though Petitioner conceded at hearing that the issue of whether the construction of the proposed wells would harm the environment was not raised in her Petition, the County provided reasonable assurance that this was not an issue of concern. Adequacy of permit conditions Petitioner also suggested at hearing that the proposed conditions in the permit are insufficient. However, she failed to show in what respect they were insufficient or how they should be amended. Water quality concerns Florida Administrative Code Rule 62-528.605(3) requires that a Class V well be constructed so that its intended use does not violate the applicable water quality standards. On this issue, the evidence establishes that the construction of the proposed test well and monitor system will not discharge, emit, or cause pollution. Indeed, a well and monitor station does not emit or discharge pollution and, if constructed according to the technical requirements of Florida Administrative Code Chapter 62-528, does not cause pollution. Therefore, the County's compliance with the technical requirements of the Department's regulations is reasonable assurance that the proposed system will not cause pollution. I. Request for Attorney's Fees and Costs In its Proposed Recommended Order, the County has requested an award of attorney's fees and costs on the theory that Petitioner is a non-prevailing party who has participated for a "frivolous, meritless, and improper purpose" within the meaning of Section 120.595(1), Florida Statutes. This argument is based on the assertion that Petitioner is a non- prevailing party, that is, she failed to substantially change the outcome of the proposed final agency action which is the subject of this proceeding, and she "failed to produce any witnesses or evidence to support [her] claim that the proposed permit that was the subject of this proceeding should not be issued." While it is true that Petitioner is a non-prevailing party, she attempted to utilize the testimony of three expert witnesses previously retained by the City of Venice, a former party in Case No. 01-3516. Those subpoenas, however, were quashed on August 16, 2002, and that ruling was memorialized in an Order dated August 19, 2002, or just before the final hearing began. Without those witnesses, Petitioner's presentation was obviously limited in some respects.4 Further, until the final hearing, Petitioner assumed that evidence in support of her allegation that the injectate would harm the water quality would be admissible and relevant. (As this Recommended Order clearly points out, however, not a single drop of water can be injected into the well until a modification of the permit is obtained, and therefore such evidence is irrelevant.) During the course of the hearing, the undersigned sustained objections by the County and Department to the introduction of such evidence. This ruling had the effect of limiting the scope of the issues to be tried. Despite these limitations, her participation cannot be described as being frivolous or meritless, as claimed by the County, and it is found that she did not participate for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Permit No. 160882-001- UC authorizing the County to construct one Class V, Group 3 aquifer storage and recovery injection well and monitor well system in Sarasota County, Florida. DONE AND ENTERED this 19th day of April, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2004.
Findings Of Fact Respondent purchased the motel with swimming pool some eight years ago. At the time of purchase the pool had a three-feeder type unit capable of automatically feeding acid to the pool water but the chlorine feeder was the only feeder attached. During the years Respondent has owned this motel he has never had to add acid or soda ash to his pool. Acid and soda ash change the pH of the pool water. Adding one raises the pH, adding the other lowers the pH. Approximately four years ago Respondent was in need of a new test kit and, after inquiring of the local health department regarding the type he needed, he purchased the type they recommended. Since its purchase he has used this test kit in successfully maintaining the proper chemical balance of the water in his pool. This kit will not measure calcium hardness, total alkalinity, acid demand and base demand. Respondent testified there had never been a deficiency in the pool water reported to him by the county health inspectors following their routine inspections and tests. The sanitary inspector testified that his records show that on one occasion during the years for which he had records the pH reached 8.0 which is slightly above the 7.2-7.4 range recommended. No other defects in the water quality were reported. The calcium hardness and alkalinity tests which Respondent is unable to measure with the test kit he owns, measure factors which go to the water quality of the pool but do not effect sanitation per se. Acid demand and base demand tests measure the pool's ability to resist change in the pH content of the pool water. Once a change his occurred it can be measured by Respondent with the test kit he owns.
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.
