The Issue The issues to be considered in this Recommended Order relate to an Administrative Complaint which the Petitioner filed against Respondent. In particular, the Administrative Complaint calls for the revocation of Respondent's certificate to conduct laboratory analyses for various microbiological parameters, select chemical tests and turbidity studies. This disciplinary action is in keeping with the State Public Water Laboratory Certification Program, Section 403.863, Florida Statutes, and Chapter 10D-41, Florida Administrative Code, which relates to that same subject. These alleged violations are set forth in the Administrative Complaint and those allegations are further refined through the attachments to the Administrative Complaint. They deal with certain alleged failures on the part of the Respondent in performing tests, analyses, recording functions, provision of materials, tabulations, and retention of records. He is also accused of making false statements through documents dealing with certification. All of these acts are in violation of provisions of Chapter 10D-41, Florida Administrative Code, according to the complaint. (The details of the Administrative Complaint are discussed in the Conclusions of Law section of this Recommended Order.) WITNESSES AND EXHIBITS The list of witnesses, in order of their appearance, may be found in the index to transcript. The list of exhibits, page of their identification and receipt may be found in the index to transcript, with the exception of those exhibits upon which ruling on their admissibility was reserved. Those exhibits which were not admitted in the course of the hearing are discussed in the Conclusions of Law section of this Recommended Order.
Findings Of Fact In keeping with language in Section 403.863, Florida Statutes, and Chapter 10D-41, Florida Administrative Code, Petitioner licensed Kamran Kahjeh- Noori, who does business as as Kahjeh-Noori Laboratory. The licensing was through a process of certification to allow Kahjeh-Noori to conduct water testing. In particular, the laboratory was certified in microbiology (membrane filters); microbiology (most probable number); chemistry, and those materials, arsenic, barium, cadmium, chromium, lead, mercury, selenium and silver; chemistry (nitrates); chemistry (fluorides) and turbidity. Water testing laboratories test drinking water from community and non- community water distribution systems. At times relevant to this case, Respondent's laboratory performed microbiological and chemical tests of drinking water. On October 13, 1981, Petitioner filed an Administrative Complaint against the Respondent charging various violations related to Respondent's certification. The Respondent requested a Subsection 120.57(1), Florida Statutes, hearing and that hearing was conducted on August 11, 1982. In connection with the aforementioned certification in the various categories which Respondent had applied for and been granted, Petitioner, through its employees, conducted surveys of the Kahjeh-Noori Laboratory on December 12, 1979; December 8, 1980, February 10 and 11, 1981, and June 9, 1981, to insure compliance with rules related to Respondent's certification. The inspection on December 12, 1979, revealed that the inhibitory residue test as specified in Rule 10D-41.55(6)(b)8., Florida Administrative Code, had not been performed to demonstrate that the washing/rinsing processes provide glass free of toxic materials. This relates to microbiology. Respondent was made aware of this deficiency in writing and in responding to the statement of deficiencies, indicated that correction had been made or as Respondent stated that the correction had been "performed." A survey conducted by the Petitioner on December 8, 1980, revealed the same problem with the inhibitory residue test as had been described in the matters related to the December 12, 1979, visit, in that that test had not been performed in accordance with Rule 10D-41.55(6)(b)8., Florida Administrative Code. Respondent was again advised in writing of the deficiencies and in response to the deficiencies indicated that a correction had been "performed" on January 8, 1981. This response, as was the case in the December 12, 1979, incident, was a written response. A further survey was conducted on February 10 and 11, 1981, in which the laboratory was inspected and the problem with the inhibitory residue test, in that it was not performed, was discovered in the course of this inspection, again related to Rule 10D-41.55(6)(b)8., Florida Administrative Code. This statement of deficiencies or violation was made known in writing and in his written response, Respondent indicated "media have been ordered from FIFFCO and will be completed by week of 4/20/81." Finally, in an inspection on June 9, 1981, the problem with the inhibitory residue test, that is to say the fact that that test was not being performed to demonstrate that the washing/rinsing processes were providing glassware free of toxic material as specified in Rule 10D-41.55(6)(b)8., Florida Administrative Code, was still observed in the inspection. The inhibitory residue test, which is designed to determine whether the washing of glassware is leaving residue on that container which might inhibit or enhance bacterial growth, was conducted subsequent to the last survey. In particular, it was conducted on June 17, 1981, and February 25, 1982, by an employee of the Respondent. The results of those tests may be found as Respondent's Exhibit Nos. 1 and 2. In the inspection of December 12, 1979, it was discovered by Petitioner that laboratory pure water had not been analyzed annually by the test for bacteriological properties set forth in Rule 10D-41.55(6)(a)4., Florida Administrative Code (microbiology). Respondent was made aware of this shortcoming by written notification and in replying to this deficiency, indicated that the matter had been "performed." Further inspection of the matter of laboratory pure water in the test for bacteriological properties set forth in Rule 10D-41.55(6)(a)4., Florida Administrative Code, was made during December 8, 1980, and a written notification was given to Respondent, indicating that this test had not been performed and requiring an explanation of that deficiency. In responding to the deficiency, Respondent indicated that it "had been analyzed only 2 parameters missing" and the date stated for the completion of that correction was January, 1981. The inspection of February 10 and 11, 1981, discovered the same difficulty on the topic of laboratory pure water, in that the water was found not to have been analyzed on an annual basis by the test for bacteriological properties as required by Rule 10D-41.55(6)(a)4., Florida Administrative Code. This violation or problem was made known to the Respondent by written communication and replying to the deficiencies, in writing, Respondent indicated that "water will be analyzed by end of April." The June 9, 1981, survey by the Petitioner of the Respondent's laboratory, established the same problem with testing related to laboratory pure water under the terms of Rule 10D-41.55(6)(a)4., Florida Administrative Code. Again written notification was made of this shortcoming. Subsequent to the inspection of June 9, 1981, and specifically on June 17, 1981, an employee of Respondent made the test required by Rule 10D- 41.55(6)(a)4., Florida Administrative Code, and the results of that test may be found in Respondent's Exhibit No. 2. The water tested was that water which had been used in the Respondent's laboratory as far back as May, 1981, the date of the initial employment of the employee conducting this test. The conclusion reached was that the water did not contain toxic substances. The survey of December 12, 1979, revealed that laboratory pure water had not been analyzed monthly for conductance, pH, chlorine residual and standard plate count as specified by Rule 10D-41.55(6)(a)5., Florida Administrative Code (microbiology). Surveys by the Petitioner of Respondent's laboratory conducted on December 8, 1980; February 10 and 11, 1981, and June 9, 1981, concerning Rule 10D-41.55(6)(a)5., Florida Administrative Code, revealed the same shortcomings on the matter of monthly analysis for conductance, pH, chlorine residual and standard plate count. The responses made to the written notification of the problems, which notification occurred following each survey, were the same as were related in the responses for violations of Rule 10D- 41.55(6)(a)4., Florida Administrative Code, discussed above. The inspection of Respondent's laboratory, by Petitioner's employee, which occurred on December 8, 1980, revealed that sample bottles were not being tested with lauryl tryptose broth as required by Rule 10D-41.55(6)(b)9., Florida Administrative Code (microbiology). This problem was announced to Respondent in writing. By written response, the Respondent indicated that this matter was "performed" on January 8, 1981. Further inspection of February 10 and 11, 1981, as conducted by Petitioner on Respondent's laboratory, revealed a lack of compliance with the rule related to testing of sample bottles with lauryl tryptose broth as specified in Rule 10D-41.55(6)(b)9., Florida Administrative Code. This deficiency was made known in writing from Petitioner to Respondent and in answering this shortcoming, Respondent indicated in writing that the matter was "completed," effective February 17, 1981. In the period beginning late December, 1980, through late May, 1981, some tests related to sample bottles by the lauryl tryptose broth technique were carried out by one of Respondent's employees; however, no record was kept. In the absence of that record, it was reported in the evaluation report of the June 9, 1981, survey, which report was made by Petitioner's employee, that the matter related to testing sample bottles with lauryl tryptose broth, as specified in Rule 10D-41.55(6)(b)9., Florida Administrative Code, was still a problem. Beginning June 13, 1981, written records were kept of bottles tested with lauryl tryptose broth, as may be seen through Respondent's Exhibit No. 4a, which is a record of those tests. That record reveals no growth of bacteria. The February 10 and 11, 1981, survey conducted by Petitioner's employee, revealed that Respondent's laboratory was not recording the time of water sample arrivals as specified by Rule 10D-41.55(5)(a)7., Florida Administrative Code (microbiology). This violation was made known to the Respondent in writing and in his written reply, Respondent indicated that the matter was being "performed" effective February 12, 1981. The inspection of June 9, 1981, conducted by Petitioner's employee found that Respondent and his laboratory personnel were still failing to record the time of sample arrival, as required by Rule 10D-41.55(5)(a)7., Florida Administrative Code. Petitioner had contended that Respondent, in his equipment, i.e., sample bottles with screw caps, had liners to those caps that could not withstand repeated sterilizations as required by Rule 10D-41.55(5)(a)6., Florida Administrative Code (microbiology). This notice of violation was made in the course of the June 9, 1981, survey conducted by Petitioner at Respondent's laboratory. The facts when considered do not reveal such a violation or problem. Moreover, the Respondent's laboratory used "whirlpacks" for purposes of collecting drinking water samples and that had been its process beginning June, 1980. During the June 9, 1981, survey, Petitioner discovered that the Respondent, in his laboratory operation, was not carrying out water sample incubations at 350 degrees Celsius +/- 0.5 degrees Celsius. This discovery in the June 9, 1951, survey is borne out by the record of temperature controls made by the Respondent in a period of April, May and June, 1981, prior to the inspection, and also following the inspection in June through December, 1981, Respondent's Exhibit Nos. 5a-c. This allegedly violates Standard Methods, 14th Edition, pages 916, 917, 918 and 931, and thereby contravenes Rule 10D- 41.55(4)(a), Florida Administrative Code (microbiology). Respondent admits that he had this text during pertinent times; however, this volume was not provided to the Hearing Officer. The inspection of December 8, 1980, conducted by Petitioner's employee, revealed that the Respondent, in his laboratory operation, was not using quality control charts or a tabulation of mean and standard deviation to document data validity of silver and nitrate analyses as required by Rule 10D- 41.56(5)(1), Florida Administrative Code (chemistry). This problem was made known to the Respondent in writing and in answering the deficiencies Respondent indicated that the matter had been "performed" effective January 8, 1981. During the course of the February 10 and 11, 1981, inspection, the same problem was observed with the quality control charts on the topic of tabulation of mean and standard deviation set forth in Rule 10D-41.56(5)(1), Florida Administrative Code. In response to this written notification of violation, Respondent replied in writing "corrected and copy was mailed 2/20/81" and indicated a completion date of 2/18/81. Although certain charts had been received by the Petitioner prior to the June 9, 1981, survey (Petitioner's Exhibit No. 9c), that survey still revealed that quality control charts on silver and nitrate analyses as required by Rule 10D-41.56(5)(1), Florida Administrative Code, were missing. Respondent ultimately submitted charts on silver and nitrate, Respondent's Exhibit Nos. 10 through 13. Those exhibits from the Respondent are flawed in that the measurements of precision and accuracy related to the chemical substances are identical and that degree of exactitude makes the results unreliable. (Accuracy describes whether an average of a group of identical samples represents a true value of those samples and precision describes whether the individual test results of several identical samples are similar.) In the June 9, 1981, survey, it was discovered that the raw data and calculations related to quality control charts for the substances arsenic, barium, cadmium, chromium, lead, mercury, selenium and fluoride analyses had not been retained by Respondent's laboratory as specified by Rule 10D-41.59(1)(f)2., Florida Administrative Code. Respondent has made statements in answering stated deficiencies found in paragraphs 5a through 5h of the Administrative Complaint which did not prove to be accurate. These circumstances are reported in the findings of fact related above. Tests of sample bottles performed using lauryl tryptose broth during the period late December, 1980, through May, 1981, were not always recorded as specified by Rule 10D-41.59, Florida Administrative Code, in that on some occasions no record was made of the test.
The Issue The issue in this case is whether Respondent KW Resort Utilities Corp. ("KWRU") is entitled to issuance, by Respondent Department of Environmental Protection ("DEP"), of Domestic Wastewater Facility Permit FLA014951-012-DWIP and UIC Permits 18490-020 and 18490-021 (collectively, the "Permit at Issue"), authorizing the major modification of KWRU's existing permit to operate a domestic wastewater facility located at 6630 Front Street, Stock Island, Florida 33040. The Permit at Issue would authorize the expansion of KWRU's existing domestic wastewater facility and the installation of two additional underground injection wells.
Findings Of Fact The Parties Petitioner Last Stand is a not-for-profit corporation incorporated under Florida law. Last Stand has challenged the Permit at Issue in this proceeding. Petitioner George Halloran is a natural person residing in Key West, Florida, and is a member of Last Stand. Halloran has challenged the Permit at Issue in this proceeding. Respondent KWRU is a Florida corporation. KWRU is the wastewater utility service provider that owns and operates the Existing Wastewater Facility2/ and is responsible for its design, construction, operation, and maintenance. It is the applicant for the Permit at Issue in this proceeding. Respondent DEP is the state agency charged with administering the domestic wastewater program in Florida pursuant to chapter 403, Florida Statutes, implementing, as applicable, rules codified at Florida Administrative Code Chapters 62-4, 62-302, 62-303, 62-520, 62-528, 62-600, and 62-620, and various industry standards and manuals incorporated by reference into DEP rules. DEP's proposed agency action to grant the Permit at Issue is the subject of this proceeding. Background and Overview Domestic Wastewater Regulation in the Florida Keys The State of Florida has recognized the need to protect the Florida Keys' unique, sensitive environmental resources. To that end, portions of the Florida Keys are designated, pursuant to statute and by DEP rule, as an Outstanding Florida Water ("OFW"). § 403.061(27), Fla. Stat.; Fla. Admin. Code R. 62-302.700(9). The Florida Legislature also designated the Florida Keys an Area of Critical State Concern. § 380.0552, Fla. Stat. A stated purpose of this designation is to protect and improve the Florida Keys nearshore water quality through construction and operation of wastewater facilities that meet the requirements of section 403.086(10). Additionally, the Florida Legislature has enacted section 403.086(10), which addresses the discharge of domestic wastewater in the Florida Keys. That statute finds that the discharge of inadequately treated and managed domestic wastewater from small wastewater facilities and septic tanks and other onsite systems in the Florida Keys compromises the coastal environment, including the nearshore and offshore waters, and threatens the quality of life and local economies that depend on these resources. Section 403.086(10) directs that after December 31, 2015, all new or expanded domestic wastewater discharges must comply with the treatment and disposal requirements of the statute and DEP rules. Specifically, domestic wastewater treatment facilities having design capacities greater than or equal to 100,000 gallons per day must provide basic disinfection of the wastewater pursuant to DEP rule and must treat the wastewater to a level of treatment, which, on a permitted annual average basis, produces an effluent that contains no more than the following concentrations of the specified constituents: Biochemical Oxygen Demand ("CBOD5") of 5 milligrams per liter ("mg/L"); Suspended Solids of 5 mg/L; Total Nitrogen, expressed as N of 3 mg/L; and Total Phosphorus, expressed as P of 1 mg/L. Collectively, these effluent standards constitute the "advanced wastewater treatment" ("AWT") standards. Section 403.086(10)(e) also imposes requirements regarding disposal of treated domestic wastewater effluent through underground injection. Section 403.086(10)(e)1. requires Class V injection wells serving domestic wastewater treatment facilities having design capacities of less than one million gallons per day (hereafter "MGD") to be at least 90 feet deep and cased to a minimum depth of 60 feet, or to such greater cased depth and total well depth as may be required by DEP rule. Section 403.086(10)(e)2. requires Class V injection wells serving wastewater treatment facilities with design capacities greater than or equal to 1 MGD, excluding backup wells, to be cased to a minimum depth of 2,000 feet or to such greater depth as may be required by DEP rule. The Existing Wastewater Facility KWRU currently is permitted, pursuant to Permit FLA014591 (the "Existing Permit"), to operate a domestic wastewater facility (the "Existing Wastewater Facility" or "Facility")3/ located at 6630 Front Street, Stock Island, Florida. Stock Island is located immediately east and slightly north of Key West. By way of background, KWRU's domestic wastewater system currently consists of three elements: a collection system, which collects wastewater from serviced properties; a transmission system, which transmits wastewater from the collection system to the treatment plant; and the Existing Wastewater Facility, which treats the wastewater and then sends it either as reclaimed water for reuse as irrigation water at the Key West Golf Club, or for toilet flushing or air conditioning makeup water at other facilities specified in the Existing Permit,4/ or disposes of it as treated effluent through two underground injection wells. No modifications to the collection or transmission systems have been proposed or challenged. Thus, only the proposed modifications to the Existing Wastewater Facility are at issue in this proceeding. The Existing Wastewater Facility serves residential and commercial properties located on Stock Island, Florida, immediately adjacent to Key West in the lower Florida Keys. Specifically, the Facility treats domestic wastewater originating from approximately 1,416 existing residential connections and 216 commercial connections. The commercial connections consist of a convalescent center, a college, restaurants, recreational vehicle parks, an animal clinic, and a hospital. There are no industrial wastewater contributors to the Facility. The Facility includes a Category III, Class C wastewater treatment facility operating under the Existing Permit. It is staffed by a Class C or higher operator for six hours a day, seven days per week, in accordance with the Existing Permit and applicable DEP rules. The Facility has a design capacity and a permitted capacity5/ of .499 MGD annual average daily flow ("AADF") and consists of two treatment trains having capacities of .249 MGD and .250 MGD AADF. These treatment trains are piped together to allow operation of the Facility as a single plant. The Facility was upgraded in the mid-2000s and is capable of treating influent wastewater to AWT. However, as authorized under the Existing Permit, the Facility currently treats domestic wastewater to secondary standards, which do not impose nitrogen or phosphorous limits. Under the Existing Permit and in accordance with section 403.086(10), the Facility is not required to meet AWT standards until January 1, 2016. Vacuum and gravity collection systems collect the domestic wastewater from the properties that KWRU services. Wastewater influent from the collection systems flows through the transmission system to a splitter box at the KWRU property, where it is sent to the Facility for treatment. The Facility contains two treatment trains, each consisting of a bar screen, an equalization tank, an aeration tank, an anoxic zone, a post-aeration basin, a clarifier, a silica sand/river rock filter, and a chlorine contact chamber. The bar screens, which constitute the first step in the treatment trains, remove floatables from the wastewater stream. After passing through the bar screens, the wastewater drops into two equalization tanks. As their name indicates, the equalization tanks smooth out the peaks in wastewater flow to the Existing Wastewater Facility. Specifically, wastewater flows to the Facility in large volumes during two periods each day, morning and evening, corresponding with peak water use by the serviced properties. During these large flow volume periods, the equalization tanks fill up with sewage influent, which is meted out during lower-flow periods for treatment by the Facility. In this manner, the Facility treats roughly the same amount of wastewater per hour, which is key to the steady state operation of, and the reliable treatment of the wastewater by, the Facility. From the equalization tanks, the wastewater is directed to the three-stage bioreactor portion of the treatment process. Microorganisms are utilized at each stage to break down the waste. The first stage of the bioreactor process occurs in the aeration basins. Here, wastewater enters the fine-air zone, where it and the microbes used in this stage of the treatment process come into contact with tiny oxygen bubbles. The microorganisms use the oxygen to oxidize the waste and complete the ammonification of the wastewater. The wastewater then passes through bulkheads to the anoxic zones, where the oxygen level is extremely low. In the anoxic zones, bacteria denitrify, or remove nitrogen from, the wastewater. The wastewater is then sent to the post-aeration basins, where excess carbon is removed through oxidation. Thereafter, the wastewater is sent to the clarifiers, where the microorganisms settle out of the wastewater to form a solid precipitate on the bottom of the tank. The precipitate is plowed into a sump and returned by pump to the bioreactors, where the microorganisms are reused in the activated treatment process. When the microorganisms cease to optimally function in treating the waste, they are culled from the treatment process and sent to a digester, where they oxidize, through the endogenous decay process, to the point that they die and only their endoskeletons remain. Sludge, consisting of the endoskeletons and water, is pumped to a sand filter drying bed. The filtrate water is pumped back through the Wastewater Facility to be reused in the wastewater treatment process, while the dried endoskeletons, which are termed "biosolids," are transported offsite for disposal in a Class I landfill. The treated, clarified wastewater is pumped through sand/rock filters, then to the chlorine contact chambers where it is exposed to a minimum of 15 minutes of chlorine disinfection. As noted above, the Existing Permit authorizes the reuse of reclaimed water for, among other uses, irrigation by land application at the 100.27-acre Key West Golf Club golf course. The golf course irrigation system consists, in part, of two unlined interconnected ponds that do not directly discharge to surface waters6/ and that have a storage capacity exceeding one million gallons. KWRU sends reclaimed water to the golf course through its reclaimed water reuse system only in the quantity required to meet the course's irrigation needs. The Existing Permit imposes a minimum residual chlorine level of 1 mg/L and a maximum of 5 mg/L turbidity for the treated wastewater to be considered reclaimed water that can be reused as irrigation at the golf course or as otherwise authorized in the Existing Permit. If the treated wastewater does not meet these standards, switchover/interlock equipment at the Facility disables the power to the pumps that send the reclaimed water offsite for reuse.7/ At that point, the treated wastewater is considered treated effluent.8/ The effluent fills the effluent wet well and is piped directly to the existing underground injection wells for disposal. Pursuant to the Existing Permit, the effluent is disposed of by gravity flow through two Class V, Group 3, ten- inch underground injection wells bored to a depth of 110 feet and cased to a minimum depth of 60 feet. Collectively, the two injection wells have a maximum permitted capacity of .499 MGD AADF. As authorized by the Existing Permit, the underground injection wells discharge the effluent to Class G-III ground water within the Key Largo Limestone.9/ The underground injection wells are not the primary means of disposal for the treated wastewater, in the sense that they are used to remove effluent from the Facility only if and when reclaimed water is not needed by the golf course or the other receiving facilities, or when the treated wastewater does not meet the required residual chlorine and turbidity limits discussed above. The Existing Permit and the activities authorized thereunder are not at issue in this proceeding. Activities Authorized by the Permit at Issue The Permit at Issue proposes to authorize the construction of a new .350 MGD treatment train, which will increase the design capacity and permitted capacity of the plant from .499 MGD to .849 MGD AADF. The proposed modification of the Existing Wastewater Facility entails the addition of a 90-foot diameter tank containing an influent screen, a 105,554-gallon influent equalization tank, a 163,000-gallon aeration chamber, a 154,725-gallon post-anoxic chamber, a 35,525-gallon re-aeration zone, a 112,062-gallon clarifier, and a 317,950-gallon digester. The sand filters and chlorine contact chambers currently in use will be expanded to accommodate flows from the new treatment train, and the chlorine contact chambers will be changed to liquid bleach feed. The Permit at Issue also proposes to authorize the construction and operation of a new .499 MGD AADF underground injection well system consisting of two new Class V, Group 3 ten- inch wells, drilled to a depth of at least 110 feet and cased to a depth of at least 60 feet, which would discharge effluent to Class G-III ground water within Key Largo Limestone. When placed into service along with the two existing injection wells, the total design capacity and permitted capacity of all four underground injection wells would be .998 MGD AADF.10/ The existing reclaimed water reuse system for the Key West Golf Club or the other receiving facilities currently is authorized for a permitted flow capacity of .499 MGD AADF and a design capacity of 1 MGD AADF. The Permit at Issue would authorize the construction of a new reclaimed water reuse system having a permitted capacity of .849 MGD AADF; however, the design capacity of the system remains 1 MGD AADF, and the amount of reclaimed water sent to the golf course for reuse as irrigation is not being changed by the Permit at Issue from that currently authorized by the Existing Permit. Hereafter, the proposed modifications to the Existing Wastewater Facility that are the subject of the Permit at Issue are referred to as the "Project." The expanded facility resulting from completion of the Project is referred to as the "Expanded Wastewater Facility." The Existing Wastewater Facility treatment trains will be modified to meet the AWT standards as of January 1, 2016. Specifically, an alkalinity control system, a carbon injection system, and an alum injection will be added and certain aspects of the wastewater treatment process will be modified as necessary to meet the AWT standard. The new treatment train proposed as part of the Project will be designed to meet the AWT standards upon operation, which will not occur sooner than 2016. Accordingly, as required by section 403.086(10(d)1., all effluent from the Expanded Wastewater Treatment Facility will meet the AWT standards as of January 1, 2016. As a result of conversion of the wastewater treatment process to AWT, and even assuming all treated effluent is injected down the wells, total nitrogen loading will be decreased from 58 pounds per day to 15.9 pounds per day and total phosphorous loading will be decreased from 14.4 pounds per day to 5.3 pounds per day. This is the case even though the volume of effluent disposed of through the wells may as much as double. Only the activities comprising the Project, which are the proposed to be authorized by the Permit at Issue, are the subject of this proceeding. The Permitting Process The overarching purpose of the wastewater facility permitting process, including permitting of modifications to an existing wastewater facility, is to ensure that the wastewater facility does not discharge wastes to any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of such waters. This is accomplished by requiring the facility to be designed, constructed, and operated in accordance with applicable DEP rule standards, which incorporate industry standards. Fla. Admin. Code R. 62- 600.100(1). Similarly, the overarching purpose of the Underground Injection Well System permitting process is to protect the quality of underground sources of drinking water and prevent degradation of the quality of other aquifers adjacent to the injection zone that may be used for other purposes. This is accomplished by requiring underground injection wells to be designed, constructed, and operated in accordance with applicable DEP rule requirements and standards. Fla. Admin. Code R. 62- 528.100(1). The Wastewater Facility or Activity Permit Application Form 1, General Information, and Application Form 2A, Permit for Domestic Wastewater Treatment and Reuse or Disposal Facility, which are adopted by rule, are the forms that must be completed and submitted to DEP to receive authorization to modify existing wastewater facilities or construct new wastewater facilities. This form includes a list of requirements, some (but not necessarily all) of which apply to proposed modification of an existing wastewater facility. The form requires that a Florida- licensed P.E. certify that the engineering features of the project have been designed by the engineer in conformance with the sound engineering principles applicable to such projects, and that, in his or her professional judgment, the facility, when properly constructed, operated, and maintained, will comply with all applicable statutes and the rules. The Application to Construct/Operate/Abandon Class I, III, or V Injection Well System, which is adopted by rule, is the application form that must be completed and submitted to DEP to receive authorization to construct and operate a Class V Injection Well System. This application form includes a list of requirements, some (but not necessarily all) of which apply to a specific underground injection well construction project. The form requires that a Florida-licensed P.E. certify that the engineering features of the injection well have been designed and examined by the engineer and found to conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application. By signing and sealing the application, the P.E. certifies that, in his or her professional judgment, there is reasonable assurance that the injection well, when properly maintained and operated, will discharge effluent in compliance with all applicable statutes and rules. Once the application forms are submitted, DEP permitting staff reviews the applications and determines whether items on the forms and any materials submitted to support those items are incomplete or need clarification. In that event, staff sends the applicant a Request for Additional Information ("RAI"), requesting the applicant to provide additional information to address incomplete or unclear aspects of the application. Once the applicant has provided information sufficient to enable DEP to review the application for issuance or denial of the permit, DEP determines the applications complete and reviews the project for substantive compliance with all applicable statutory and rule permitting requirements. DEP is authorized to issue the permit, with such conditions as it may direct, if the applicant affirmatively provides reasonable assurance, based on the information provided in the application, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of DEP standards or rules proposed in the application. Fla. Admin. Code R. 62-4.070(1). If the applicant fails to provide such reasonable assurance, the permit must be denied. Conversely, if the applicant provides such reasonable assurance, the applicant is legally entitled to issuance of the permit. Engineering Design of the Project KWRU retained Weiler Engineering Corporation to design the proposed modifications to the Existing Wastewater Facility and the new underground injection well (again, collectively referred to as the "Project") and to prepare and submit the applications for the Permit at Issue to DEP. Edward Castle and Christopher Johnson prepared the applications for the Permit at Issue. As the applicant, Johnson signed the application documents as required pursuant to the application form. As the engineer of record, Castle signed and sealed the certifications in the application forms, representing that he was the engineer in responsible charge of preparing the Project's engineering documents. Castle's signature and seal on the application forms for the wastewater treatment facility expansion portion of the Project constitute his representation that he designed and examined the engineering features of the wastewater treatment facility expansion; that these features conform to sound engineering principles applicable to the Project; and that, in his professional judgment, the wastewater treatment facility expansion portion of the Project, when properly constructed, operated, and maintained, will comply with all applicable statutes and rules, including the requirement that the effluent meet the AWT standards as of January 1, 2016. Similarly, Castle's signature and seal on the application to construct the new underground injection wells constitute his representation that he designed the engineering features of these injection wells; that the injection wells conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application; and that in his professional judgment, there is reasonable assurance that the wells, when properly maintained and operated, will discharge effluent in compliance with all applicable statutes and rules, including the requirement that the effluent discharged through the injection wells meet AWT standards as of January 1, 2016. As previously noted, the design capacity of wastewater treatment portion of the Expanded Wastewater Facility is proposed to be .849 MGD AADF. Castle selected this design capacity based on historic wastewater flows at the Existing Wastewater Facility and foreseeable projected wastewater treatment capacity demand in the future.11/ Specifically, to estimate future capacity demand, Castle considered development agreements, requests for utility service, the existence of scarified property and applicable development density, wetslips, recent property sales, and estimated and proposed in-fill development on Stock Island. He projected residential development wastewater treatment demand based on historic actual flow data from the Monroe County Sanitary Wastewater Master Plan ("Master Plan"), in conformance with the Recommended Standards for Wastewater Facilities, the so- called "Ten States Standards," a wastewater systems design and planning guidance document incorporated by reference in rule 62- 600.300(4). Additionally, Castle applied the estimated sewage flows codified in Florida Department of Health rule 64E-6.008, Table I, System Design Estimated Sewage Flows ("DOH Table I"), to estimate wastewater treatment demand for projected commercial and hotel development uses. Once Castle had projected wastewater capacity demand for residential and hotel/commercial uses at buildout on Stock Island, he factored in an additional 15 percent capacity safety factor to derive the .849 MGD AADF design capacity for the Expanded Wastewater Facility. Castle chose AADF, rather than the maximum monthly average daily flow or three-month average daily flow, as the timeframe for the design capacity based on historical flow amounts to the Existing Wastewater Facility and because of insignificant seasonal variations in historical flows to the Facility.12/ This is because the population on Stock Island contributing flow to the Existing Wastewater Facility is largely comprised of non-seasonal residents and commercial operations.13/ Nonetheless, to ensure the Expanded Wastewater Facility will have adequate capacity to effectively treat wastewater to the required standards during higher flow periods that may result from non- residential seasonal occupancy in the future, Castle assumed year-round, 100 percent occupancy for the projected hotel and commercial development on Stock Island in determining the design capacity for the Expanded Wastewater Facility. Castle estimated a peak hourly flow of 1.273 MGD for the Expanded Wastewater Facility. This figure estimates the maximum flow through the facility on an hourly basis specifically to take into account the diurnal variability of wastewater flow entering the facility. By definition, the peak hourly flow is a maximum hourly flow rather than the sustained flow or volume into or through the facility. The projected maximum hourly flow of 1.273 MGD, which was determined by multiplying the annual average daily flow by a peaking factor of 1.5, is an estimate of the maximum hourly flow wastewater coming into the Expanded Wastewater Facility's equalization tanks. Importantly, it is not the volume of wastewater flow, on an annual average daily basis, that will leave the facility's equalization tanks and flow through the facility's treatment process. Put another way, the 1.273 MGD peak hourly flow is not the Expanded Wastewater Facility's design capacity. As previously noted, the permitted capacity of the wastewater treatment portion of the Expanded Facility also would be .849 MGD AADF. The permitted capacity is the amount, on an annual average daily flow basis, that the wastewater treatment portion of the Expanded Wastewater Facility is authorized to treat and discharge. This metric establishes an absolute limit, on an annual average daily basis, on the quantity of wastewater that can be treated by, and discharged from, the Expanded Wastewater Facility. Also as discussed above, once the two new underground injection wells are installed, the total design capacity of the four wells at the Expanded Wastewater Facility will be .998 MGD AADF. The two new injection wells are being added to ensure adequate disposal capacity for the .849 MGD permitted capacity and, importantly, to accommodate the peak hourly flow. The reclaimed water reuse system currently has an authorized design capacity of 1 MGD AADF, and this is not being changed by the Project, although the permitted capacity is being increased to .849 MGD AADF. As discussed in greater detail below, neither the design capacity nor the permitted capacity of the reuse system is a function of the irrigation application rate per acre of the golf course, and neither represent the amount of irrigation applied to the golf course per day. In determining the design capacity for the Expanded Wastewater Facility, Castle considered wastewater capacity demand for the facility through the year 2020, rather than over a 20- year period. This is because buildout of the properties on Stock Island that will contribute flow to the facility is reasonably projected to occur between 2018 and 2020. After buildout, there will be no additional properties being developed to contribute additional wastewater flows to the Expanded Wastewater Facility. The credible, persuasive evidence establishes that the proposed design capacity of .849 MGD AADF for the Expanded Wastewater Facility is appropriate under rule 62-600.200(19) and other pertinent provisions in chapter 62-600 and conforms to sound engineering principles applicable to the Expanded Wastewater Facility. The credible, persuasive evidence also establishes that the proposed permitted capacity of .849 MGD AADF for the Expanded Wastewater Facility is appropriate under rule 62- 600.200(62) and other pertinent provisions of chapter 62-600 and conforms to sound engineering principles applicable to the Expanded Wastewater Facility. The credible, persuasive evidence further establishes that the Project, when properly constructed, operated, and maintained, will comply with all applicable statutes and rules, including the requirement that the effluent meet the AWT standards as of January 1, 2016. The credible, persuasive evidence also establishes that the underground injection wells, as designed, conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application; and that there is reasonable assurance that the wells, when properly constructed, maintained, and operated, will discharge effluent in compliance with all pertinent statutes and rules, including the requirement that the effluent discharged down the injection wells meet AWT standards as of January 1, 2016. DEP Review and Proposed Issuance of the Permit at Issue The wastewater treatment facility and underground injection well applications for the Project were submitted to DEP on April 15, 2014. During DEP's review of the applications for the Project, the question arose whether the 1.273 MGD peak hourly flow stated in the permit application would trigger the so-called "deep well" requirement in section 403.086(10)(e)2. that the underground injection wells be cased to a minimum depth of 2,000 feet. DEP ultimately concluded that the term "design capacity," as used in the statute, referred to an average daily flow rate14/ over a specified period of time——here, a year——for the Expanded Wastewater Facility, rather than the transient peak hourly flow for the facility. Thus, the Expanded Wastewater Facility does not have a design capacity exceeding 1 MGD, so the deep well requirement in section 403.086(10)(e)2. does not apply to the Expanded Wastewater Facility. DEP permit review staff issued one RAI, and KWRU timely provided the requested information. Upon receipt and review of KWRU's response to the RAI, DEP deemed the application for the Permit at Issue complete. DEP staff reviewed the permit applications for compliance with applicable statutory and rule requirements and standards. DEP's review does not entail re-designing or re- engineering the project or questioning the design engineer's reasonable exercise of judgment on design matters, as long as the project is accurately designed based on sound engineering principles and will operate in accordance with the applicable permitting requirements and standards. Thus, as a matter of practice, DEP relies, to a large extent, on the design engineer's certification that the system is accurately designed according to sound engineering principles——as is appropriate and authorized pursuant to the certification provisions on the application forms, rule 62-4.050(3), and chapter 471 and Florida Board of Engineering rules.15/ Gary Maier, P.E., professional engineer supervisor III and supervisor of DEP's domestic wastewater facility permit review staff, also reviewed the applications, the Intent to Issue, and the draft Permit at Issue to ensure that the Project complied with all applicable rules and standards and that KWRU had provided reasonable assurances such that the Project should be approved. Ultimately, DEP determined that KWRU provided reasonable assurances that the relevant permit applications met the applicable statutory and rule requirements and standards. Accordingly, DEP issued a Notice of Intent to issue the Permit at Issue. Establishment of Prima Facie Entitlement to Permit at Issue The relevant portions of the permit file, including the permit applications, supporting information, and Notice of Intent to Issue for the Permit at Issue, were admitted into evidence at the final hearing. With the admission of these documents into evidence, KWRU established its prima facie case demonstrating entitlement to the Permit at Issue. See § 120.569(2)(p), Fla. Stat. Challenge to the Permit at Issue Once KWRU demonstrated prima facie entitlement to the Permit at Issue, the burden shifted to Petitioners to present evidence proving their case in opposition to the Permit at Issue. See id. To prevail in this proceeding, Petitioners bear the ultimate burden of persuasion to prove their case by a preponderance of the competent substantial evidence. Petitioners have raised numerous grounds in the Second Amended Verified Petition for Formal Administrative Hearing16/ that they contend mandate denial of the Permit at Issue. Each of these grounds is addressed below. Alleged Permit Application Deficiencies Petitioners contend that the Permit at Issue should be denied due to alleged deficiencies in the applications submitted for the Project. Capacity Analysis Report Petitioners allege that, under rule 62-600.405, KWRU was required to submit a Capacity Analysis Report ("CAR") as part of its application for the Permit at Issue and that its failure to do so renders the applications incomplete, thus requiring denial of the Permit at Issue. The purpose of a CAR is to analyze capacity at an existing wastewater facility and to apprise DEP when it becomes evident that expansion of the wastewater facility may be needed. Specifically, the CAR is performed and submitted on a periodic basis, or when certain contingencies occur, to apprise DEP of the actual flows through the facility. If the actual flows are approaching the facility's permitted capacity, the CAR serves to notify DEP that expansion of the facility may be warranted. Thus, the CAR helps ensure that the permittee recognizes the need for, and properly plans for, future expansion of the facility. In support of their contention, Petitioners presented the testimony of William Lynch, a Florida-licensed P.E., who has experience in the planning and design of wastewater treatment facilities in Florida, including the Florida Keys. Lynch testified that the most recent three-month average daily flows reported to the DEP by KWRU repeatedly exceeded 50 percent of the permitted capacity of the Existing Wastewater Facility, thereby triggering the requirement in rule 62-600.40517/ that a CAR be submitted. KWRU previously submitted an initial CAR when the Existing Wastewater Facility historically exceeded 50 percent of its permitted capacity. Thereafter, KWRU submitted an updated CAR in April 2012, as part of the renewal application for the Existing Permit that KWRU filed in October 2011. The April 2012 CAR indicated that permitted flows would not be exceeded for ten years. Thus, under rule 62-600.405(5), a subsequent updated CAR would be due at five year intervals or when the applicant applied for an operation permit or renewal of an operation permit, whichever occurred first.18/ The persuasive evidence establishes that during the period between issuance of the Existing Permit in February 2012 and submittal of the applications for the Permit at Issue in 2014, the three-month average daily flows for the Existing Facility had not exceeded 50 percent of the treatment plant's capacity and the five-year interval CAR submittal interval (which would have expired in 2017) had not yet expired, so an updated CAR was neither required nor submitted. When development on Stock Island resumed in the 2012 through 2014 timeframe following an economic recession, it became apparent from actual flow data that the Existing Wastewater Facility would need to be expanded to accommodate the wastewater flow from new development, as well as to accommodate wastewater flow from existing development being required by law to connect to a central wastewater system. Accordingly, in April 2014, KWRU submitted the applications for the Permit at Issue. As part of KWRU's applications, the design and permitted capacity of the Existing Wastewater Facility were analyzed, and future wastewater flows for the facility were projected, taking into account all relevant factors, including projected development over an appropriate planning period, new connections from existing development, and the lack of seasonal variation in historic flows. Based on this information, the proposed design and permitted capacities for the Expanded Wastewater Facility were determined. This information is precisely that which would have been required in an updated CAR. Because all pertinent information necessary to determine the design and permitted capacities for the Expanded Wastewater Facility was submitted as part of the applications for the Permit at Issue, a separate CAR was not required and, indeed, would have been redundant and pointless. It should be noted that the Permit at Issue specifically requires submittal of a CAR upon renewal, which is five years from the date of issuance. Further, the Expanded Wastewater Facility is subject to chapter 62-600, including rule 62-600.405, so KWRU would be required to submit a CAR if circumstances specified in the rule were to occur.19/ Thus, Petitioners failed to demonstrate, by a preponderance of the competent substantial evidence, that a CAR was required to be submitted as part of applications for the Permit at Issue. Accordingly, the absence of a CAR as part of the applications is not a basis for denying the Permit at Issue. Deep Injection Well Requirement Petitioners contend that the design capacity for KWRU's wells exceeds 1 MGD, so KWRU was required under section 403.086(10)(e)2. to apply for approval to install deep injection wells——i.e., wells that are cased to a minimum depth of 2,000 feet. Petitioners further contend that KWRU's failure to include an application for deep injection wells in its applications thus mandates denial of the Permit at Issue. Under section 403.086(10)(e)1., injection wells serving wastewater facilities that have a design capacity of less than 1 MGD are required to be at least 90 feet deep and cased to a minimum depth of 60 feet. Under section 403.086(1)(e)2., injection wells serving wastewater facilities having a design capacity equal to or greater than 1 MGD must be cased to a minimum depth of 2,000 feet or such greater depth as may be required by DEP rule. As previously discussed, rule 62-600.200(19) defines "design capacity" as "the average daily flow projected for the design year which serves as the basis for the sizing and design of the wastewater facilities." The rule states that the design capacity is established by the permit applicant, and that the timeframe associated with the design capacity——such as annual average daily flow, maximum monthly average daily flow, or three- month average daily flow——also is specified by the applicant. Additionally, rule 62-600.400(3)(a), which is part of DEP's Design Requirements rule for domestic wastewater facilities, reiterates that the applicant establishes both the design capacity and the timeframe used to define its selected design capacity, with the caveat that the timeframe selected must reflect seasonal variations in flow, if any. As discussed above, the credible, persuasive evidence establishes that KWRU's selected design capacity and timeframe ——here, .849 MGD AADF——accurately and appropriately addresses the projected wastewater flows that will be treated by the Expanded Wastewater Facility. As Castle credibly testified, historical flows to the Existing Wastewater Facility do not indicate substantial seasonal residential flow, consistent with the workforce population residing year-round on Stock Island. Moreover, to the extent there may be some seasonal flow variation associated with projected hotel and commercial development, Castle took that into account in determining the design capacity for the Expanded Wastewater Facility. For these reasons, Castle's selection of AADF as the design capacity metric is appropriate, conforms to sound engineering principles, and complies with applicable DEP rules. Further, as previously discussed, the 1.273 MGD peak hourly flow is exactly that——the peak or maximum flow expressed on an hourly basis——that can be processed by the Expanded Wastewater Facility. It does not constitute the design capacity of the Expanded Wastewater Facility, which, by definition, is the average flow over a specified period of time. The persuasive evidence in the record shows that the proposed design capacity of the Expanded Wastewater Facility is .849 MGD AADF, and this design capacity is appropriate and based on sound engineering principles. As such, the design capacity of the facility is less than 1 MGD, so the deep well requirement in section 403.086(10)(e)2. does not apply to the Project. Thus, Petitioners failed to demonstrate, by a preponderance of the evidence, that the deep well requirement in section 403.086(10)(e)2. applies to the Project. Accordingly, they did not establish that the Permit at Issue should be denied on the basis that KWRU did not apply for approval of deep injection wells as part of the applications for the Project. Identity of Permittee The Permit at Issue is proposed to be issued to Key West Resort Utilities Corporation, which is not an existing entity registered to do business in Florida or in any other state. Petitioners contend, and KWRU and DEP do not dispute, that a permit issued to an entity that does not legally exist cannot legally authorize any activities. Accordingly, to the extent the Permit at Issue is proposed to be issued to Key West Resort Utilities Corporation, Petitioners contend that this constitutes a basis for denying the Permit at Issue. At the hearing, DEP and KWRU presented credible evidence showing that the correct permittee is KW Resort Utilities Corp., not Key West Resort Utilities Corporation as was stated on the proposed Permit at Issue. Further, the permit applications correctly identify KWRU as the applicant for the Permit at Issue. Thus, identification of Key West Resort Utilities Corporation as the permittee on the proposed Permit at Issue was a typographical error, and the evidence establishes that this error will be corrected when the Permit at Issue is issued. If this typographical error is corrected, then the Permit at Issue should not be denied on this basis. Alleged Project Design and Engineering Deficiencies Petitioners allege that KWRU failed to provide reasonable assurance, based on a preliminary design report, plans, test results, installation of pollution control equipment, or other information, that the construction, modification, or operation of the Expanded Wastewater Facility will not discharge or cause pollution in contravention of chapter 403 and applicable DEP rules. Petitioners further allege that KWRU has undersized the design capacity of the Expanded Wastewater Facility and that the appropriate design capacity is greater than 1 MGD, thus triggering the deep well requirement in section 403.086(10)(e)2. Projected Flows to Expanded Wastewater Facility In support of their position, Petitioners presented the testimony of William Lynch, a Florida-licensed P.E., who testified that the future wastewater flows to the Expanded Wastewater Facility projected by KWRU in its applications are incorrect because they do not accurately address planned development in KWRU's service area, as required by the Ten States Standards. Lynch took the position that pursuant to the Ten States Standards, the appropriate planning horizon for the Project is at least ten years, which would require KWRU to project wastewater flow to the Expanded Wastewater Facility through approximately 2025, rather than through 2020, as projected in the applications for the Project. However, the persuasive evidence shows that KWRU utilized an appropriate planning horizon in projecting future wastewater flows to the Expanded Wastewater Facility. KWRU's facility design engineer, Castle testified, persuasively, that although the graphic submitted in the application shows the projected wastewater flows only through the year 2020, the planning horizon he used actually was infinite. This is because the projected buildout of the service area20/ to maximum wastewater flow is anticipated to occur between 2018 and 2020, and after that point, wastewater flows to the facility would remain constant. Thus, it was pointless to depict projected flows out to the year 2025——particularly since the narrative in the application describing the Project makes clear that buildout of KWRU's service area is anticipated to occur by 2020. Because the wastewater flows projected for the year 2020 accurately represent the maximum flows that the Expanded Wastewater Facility can process, the projected planning horizon to the year 2020 is appropriate for the facility, complies with the Ten States Standards, and complies with DEP rules. Lynch also asserted that the projected wastewater flows to the Expanded Wastewater Facility from development identified in the application do not accurately apply the standards in DOH Table I and that this inaccuracy further contributed to underestimation of the design capacity of the Expanded Wastewater Facility. Lynch arrived at this position by applying Table I to all identified future development——both residential and nonresidential——and considering an additional development (Key West Harbor Yacht Club) not listed in the applications. He projected that the future wastewater flow from these developments would be approximately 146,110 gallons per day——approximately 46,000 gallons per day higher than the 100,000 gallons per day that Lynch claimed KWRU projected for the planned developments on Stock Island. Based on the addition of 46,000 gallons to KWRU's proposed design capacity of .849 MGD, Lynch opined that .895 MGD is the design capacity that should have been proposed for the Expanded Wastewater Facility. However, the credible, persuasive evidence establishes that, in determining the design capacity of .849 MGD for the Expanded Wastewater Facility, Castle accurately projected the wastewater flow quantities from future development on Stock Island. Castle described in detail the process he undertook to determine the projected wastewater flows from the various land uses and locations on Stock Island through projected buildout between 2018 and 2020. Specifically, he identified planned nonresidential development on Stock Island expected to begin producing wastewater flows in 2014 and applied the DOH Table I standards to determine the projected flows for each development. To determine projected wastewater flow from future residential development on Stock Island, Castle identified approximately 40 acres of scarified or under-utilized property in KWRU's service area and applied a density of 12 equivalent dwelling units ("EDU") per acre,21/ with 167 gallons per day of wastewater flow attributable to each EDU, using actual historic wastewater flow data from the Master Plan. Additionally, for each scarified or under-utilized property having water frontage, he projected one boat slip per 35 feet of frontage and applied a 75-gallon-per-day flow for each boat slip using DOH Table I recreational vehicle flows. For years 2016 through 2019, Castle projected incremental increases in wastewater flows per year22/ to account for potential development of other currently occupied properties. The aggregate of all projected flows from the identified developments, the 40 acres and boat slips, and the incremental increases per year through buildout yielded a projected wastewater flow of .74 MGD to the Expanded Wastewater Facility by years 2018 through 2020, which represents buildout flow to the facility. Castle then added a "safety factor" of 15 percent to the projected .74 MGD wastewater flow to accommodate currently unknown future redevelopment of existing occupied properties, to reach the .849 MGD design capacity. The 46,000-gallon discrepancy between Lynch's .895 MGD design capacity calculation and Castle's .849 MGD design capacity calculation is attributable to four basic differences in how they each determined design capacity. First, Lynch used more recent development agreement and development order information that more precisely identified and quantified specific land uses than the information that KWRU had available to it at the time it prepared and submitted its application. However, the evidence did not establish that the flow information on which Lynch relied and that on which Castle relied were so appreciably different as to significantly affect the projected design capacity for the Expanded Wastewater Facility. Second, Lynch applied DOH Table I to project future wastewater flows from all future planned development on Stock Island, both residential and nonresidential, whereas Castle applied DOH Table I only to determine nonresidential development future flows, and used actual historic flow data from the Master Plan to determine residential development future flows. Castle's residential flow calculation using historical actual flow data conforms to the recommendation in section 11.242(a) of the Ten States Standards that actual flow data be used, to the extent possible, to predict future flows; thus, Castle's calculation likely more precisely projects future flow attributable to residential development on Stock Island.23/ Third, Lynch took into account the Key West Harbor Yacht Club flow into the Expanded Wastewater Facility, whereas KWRU did not consider this flow in projecting future flows to the facility. This omission constituted an oversight on KWRU's part, and the flow from this development should have been included in the wastewater flow projection for the facility. However, the persuasive evidence did not show that this omission constituted a significant error in KWRU's .849 MGD AADF design capacity projection.24/ Fourth, Lynch apparently misinterpreted a statement in the application referencing "such redevelopment" as referring to the known planned developments on Stock Island, which were specifically identified by name in the application, and, thus, interpreted the reference to 100,000 gallons as being the flow KWRU projected for those known, named developments. However, the persuasive evidence established that the 100,000 gallons that KWRU assigned to "such redevelopment" in its application referred not to the known, named developments identified in the application, but instead to presently unknown future development on Stock Island, which Castle took into account by including the 15 percent "safety factor" in determining design capacity. Pursuant to the foregoing, it is determined that KWRU demonstrated, by credible, persuasive evidence, that it accurately estimated future wastewater flows from projected development on Stock Island to determine an appropriate design capacity of .849 MGD AADF for the Expanded Wastewater Facility. Design Capacity Timeframe Petitioners allege that the timeframe associated with the design capacity specified by KWRU——the annual average daily flow, or AADF——is not appropriate for the Expanded Wastewater Facility because it fails to reflect seasonal flows to the facility as required by rules 62-600.200(16) and 62-600.400(3)(a). Petitioners assert that the design capacity for the facility should instead be expressed in maximum monthly average daily flow ("MMADF") to account for seasonal flows. In support, Petitioners presented the testimony of Lynch, who opined that the KWRU service area experiences seasonal flows driven by the influx of tourists to Stock Island during tourist season. Lynch based this opinion on the wastewater flow data for the Existing Wastewater Facility for the year 2014, and his calculations showing that the three-month average daily flow ("ADF") for October through December 2014 was 11 percent higher than the AADF and that the MMADF for that period was 16 percent higher than the AADF. Lynch considered this variation substantial enough to indicate seasonality, so that MMADF is the appropriate design capacity timeframe for the Expanded Wastewater Facility. Using MMADF as the design capacity timeframe, Lynch opined that the design capacity of the Expanded Wastewater Facility should be 1.04 MGD MMADF——which would trigger the deep well requirement in section 403.086(10)(e)2. Castle chose AADF as the timeframe for the Expanded Wastewater Facility design capacity because historical flow records over a period of years do not show significant seasonal variations in flow for Stock Island. Castle testified, credibly and persuasively, that while the historical flow data shows a consistent slight increase in flows from August to December, in his view, the variation is not significant enough to constitute a seasonal flow. This is consistent with the evidence establishing that Stock Island is a "bedroom community" having a mostly year- round workforce population. Lynch formulated his opinion regarding appropriate design capacity using 2014 flow data for the entire year, which was not available at the time KWRU filed its permit applications for the Project in April 2014. Although Lynch relied on more recent data, his opinion was based only on one year of data. By contrast, Castle selected AADF as the design capacity metric based on the previous five years of flow data, which showed variations in flow ranging between two percent and 12 percent on a three-month average daily flow basis. Castle credibly testified that these variations were not significant enough to indicate seasonal flows and did not closely correlate with tourist season in the Keys. Additionally, in calculating his flow projections for the Expanded Wastewater Facility, Castle assumed 100 percent year-round occupancy for residential units, so that his projected design capacity of .849 MGD necessarily took into account potential seasonal flows. Thus, to the extent there are seasonal flows, the facility simply will receive flows below the design capacity during off-season. The undersigned finds Castle's use of long-term historical flow data more reliable than Lynch's use of only one year of data in assessing whether there is flow seasonality.25/ DEP's wastewater permitting supervisor, Gary Maier, concurred that the variations in wastewater flow do not reflect a significant seasonal variation that would require the use of a smaller averaging period than AADF. Maier also observed that none of the wastewater facilities in the Florida Keys having a design capacity greater than 100,000 gallons per day has a design capacity based on MMADF. This evidences that Castle's selection of AADF as the timeframe metric conforms to the design capacity standard used for facilities of comparable size in the Florida Keys. Based on the foregoing, it is determined that KWRU's selection of AADF as the design capacity timeframe metric for the Expanded Wastewater Facility is appropriate and complies with DEP rules. Petitioners failed to demonstrate that KWRU's selection of AADF as the design capacity timeframe metric violates any applicable laws or rules. Accordingly, Petitioners did not demonstrate that the Permit at Issue should be denied on this basis. Ability of Expanded Wastewater Facility to Reliably Meet AWT Petitioners further allege that KWRU failed to provide a complete application demonstrating that the treatment processes for the Expanded Wastewater Facility will efficiently and reliably meet effluent limitations for design year flow. As discussed above, the evidence establishes that KWRU provided all of the information required for the applications for the Permit at Issue, so DEP correctly determined that the applications were complete before commencing its substantive review of the applications. Also as discussed above, Lynch opined that the proposed design capacity was undersized for the flows he projected for the Expanded Wastewater Facility. However, the persuasive evidence shows that KWRU's proposed design capacity of .849 MGD AADF is appropriate, conforms to sound engineering principles, and meets applicable statutory and rule requirements. In order to ensure that a wastewater facility functions effectively and reliably, it is important that the facility not be substantially oversized for the amount of wastewater flowing into the facility. In an over-sized facility, inconsistent timing of wastewater flow, lack of appropriate chemical environment for waste breakdown, and inadequate food supply for the microorganisms may lead to ineffective performance of the facility. A consequence of these imbalances is that undesirable microbes may populate the facility, causing incomplete solids settlement, overflow of solids downstream to the filters, and operational problems resulting in failure of the facility to treat wastewater to AWT standards. KWRU provided reasonable assurance, based on the proposed .849 MGD AADF design capacity and the other engineering features of the Project, that the Expanded Wastewater Facility is appropriately sized and will effectively and reliably treat the wastewater to AWT standards. Thus, Petitioners failed to prove that the Permit at Issue should be denied on the basis that it is undersized and will not reliably meet AWT standards. Key West Golf Club Reuse System Issues Petitioners contend that as part of the applications for the Project, KWRU proposes to send 1 MGD of reclaimed water to the golf course. Petitioners claim that, given an irrigated area of 100.27 acres and an average irrigation rate of .73 inches per acre per day, only 300,000 gallons of reclaimed water per day is accounted for by reuse as irrigation. On that basis, Petitioners allege that KWRU has not demonstrated that the 700,000 gallon-per-day balance of reclaimed water sent to the golf course will be reused for a beneficial purpose rather than being disposed. This contention is based on a misunderstanding of the structure and function of the reuse system. The 1 MGD flow stated in the permit application is the design capacity of the reuse system, which is not being changed by the Permit at Issue. Importantly, this figure does not quantify the amount of water that is or actually will be sent to the golf course or applied as irrigation to the golf course irrigated area in a single day. Rather, it represents the flow capacity to which the reuse system is designed.26/ The applications for the Permit at Issue do not propose any changes to the quantity of reclaimed water being reused, which is governed by the irrigated acreage at the golf course and the irrigation rate. These parameters are not being changed. As previously discussed, KWRU sends reclaimed water to the golf course only on an as-needed basis, where it is stored in the ponds until needed for irrigation. If the course does not need reclaimed water sent to the ponds, KWRU does not send the water. Thus, the golf course controls the amount of reclaimed water that is sent to the storage ponds. Although the permitted capacity of the reuse system is being expanded from .499 MGD AADF to .849 MGD AADF, the actual amount of reclaimed water sent to the golf course by KWRU is not anticipated to change because, as discussed above, the amount being reused for irrigation is not being changed. Since the amount of reclaimed water being reused for irrigation is not increasing, the reuse system is not being expanded. Thus, the evidence does not show that 700,000 gallons per day of reclaimed water will be sent to the golf course for disposal, inconsistent with rule 62-610.810(2), rather than being reused for a beneficial purpose.27/ Petitioners also assert that the increased permitted capacity of the reuse system constitutes a "new or expanded reuse or land application project," so that an engineering report and reuse feasibility study were required as part of the applications for the Permit at Issue, pursuant to rule 62-610.310(1). KWRU previously provided these documents when it originally applied for authorization of the reuse system. The credible, persuasive evidence shows that increasing the permitted capacity of the reuse system does not trigger the requirement to submit another engineering report or reuse feasibility study. This is because no changes to the structural components or operation of the reuse system facilities are proposed. As Castle credibly explained, and Maier confirmed, the relevant question in determining whether an engineering report is required is whether the land application rate and/or the irrigated acreage is being changed, which would increase the amount of reclaimed water being reused and, thus, would require expansion of the reuse system. As discussed, neither the irrigated area nor the irrigation application rate is proposed to change under the Project. Thus, neither an engineering report nor a reuse feasibility study are required as part of the applications for the Permit at Issue. Therefore, Petitioners failed to demonstrate that the Permit at Issue should be denied on the basis that KWRU did not submit a reuse feasibility or engineering report as part of its applications for the Permit at Issue. Alleged Surface Water Quality Violations by Injection Wells Petitioners allege that disposing of the effluent from the Expanded Wastewater Facility through the injection wells will cause or contribute to violations of surface water quality standards codified in chapter 62-302. Petitioners further allege that, as a consequence, the discharge will violate antidegradation requirements in rules 62- 4.242, 62-302.300, and 62-302.700(1), and that the wells do not comply with the underground injection control rule requirement in rule 62-528.630(7), specific to Monroe County, that the wells not cause or contribute to surface water quality violations. Regulatory Status of Surface Waters in Stock Island Vicinity A significant portion of the surface waters in the Florida Keys, including those surrounding Stock Island and Key West, are classified as Class III surface waters pursuant to rule 62-302.400. Water quality criteria adopted by rule for Class III surface waters are established to protect fish consumption, recreation, and the propagation of a healthy, well- balanced population of fish and wildlife. As previously noted, certain portions of the Florida Keys, including the surface waters surrounding Stock Island and Key West, are designated an OFW. Fla. Admin. Code R. 62- 302.700(9)(i)13. No degradation of surface water quality, other than that allowed under rules 62-4.242(2) and (3), is permitted in an OFW. See Fla. Admin. Code R. 62-302.700(1). The narrative nutrient criterion codified at rule 62- 302.530(47)(a) states: "[t]he discharge of nutrients shall be limited as needed to prevent violations of other standards contained in this chapter. Man-induced nutrient enrichment (total nitrogen or total phosphorus) shall be considered degradation in relation to the provisions of Rules 62-302.300, 62-302.700, and 62-4.242, F.A.C." The narrative nutrient criterion codified at rule 62-302.530(47)(b) states: "[i]n no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna." These criteria apply in Class III surface waters, including the surface waters in and around the Florida Keys. See Fla. Admin. Code R. 62-302.531(1). Rule 62-302.531(2) requires DEP to numerically interpret the narrative nutrient criterion for nutrients (nitrogen and phosphorus) and for nutrient response (chlorophyll- a). Where a site-specific numeric interpretation of rule 62- 302.530(47)(b) has been established, that numeric interpretation constitutes the primary standard applicable to that site. Fla. Admin. Code R. 62-302.531(2)(a). A range of natural factors affect nutrient loading for a given waterbody. Therefore, site- specific numeric interpretations of the narrative nutrient criteria generally are deemed more reliable than broadly applicable, non-site specific criteria. Estuary-specific numeric interpretations of the narrative nutrient criterion in rule 62-302.530(47)(b), consisting of nutrient values for nitrogen and phosphorus and a nutrient response value for chlorophyll-a have been adopted for many areas in the state of Florida, including the Florida Keys. These numeric interpretations——commonly referred to as "numeric nutrient criteria," or "NNCs"——are open water, area-wide averages. See Fla. Admin. Code R. 62-302.532(1). For the Florida Keys, seven Florida Keys Marine Nutrient Regions ("FKMNRs") have been identified and geographically delineated on a series of maps adopted by rule. For each of these FKMNRs, NNCs have been adopted for nitrogen, phosphorus, and chlorophyll-a. Fla. Admin. Code R. 62- 302.532(1)(g). The NNCs for the Lower Keys Region and the Back Bay Region are germane to this proceeding. For the Bay Back Region, the NNCs are .009 mg/L for phosphorus, .25 mg/L for nitrogen, and .3 µg/L for chlorophyll-a. For the Lower Keys Region, the NNCs are .008 mg/L for phosphorus, 0.21 mg/L for nitrogen, and 0.3 µg/L for chlorophyll-a. These NNCs are expressed as annual geometric means that are not to be exceeded more than once in a three-year period.28/ The area of water extending from the shoreline out to 500 meters offshore in the Florida Keys is referred to as the "Halo Zone." DEP has adopted by rule a map delineating the Halo Zone. The NNCs applicable to surface waters in each of the FKMNRs currently do not apply to the surface waters in the Halo Zone. Thus, only the narrative nutrient criteria codified at rules 62-302.530(47)(a) and (b) apply to surface waters in the Halo Zone at this time.29/ Additionally, pursuant to chapter 62-303, the Impaired Waters Rule, DEP has identified and delineated spatial assessment areas in waterbodies based on homogeneity for multiple water quality parameters.30/ These assessment areas, called "Waterbody IDs" or "WBIDs," are delineated for purposes of assessing, through water quality sampling, whether the surface waters within the WBID are impaired——that is, whether they fail to meet one or more of the applicable water quality standards due to pollutants.31/ DEP has delineated several WBIDs, identified by number, in the Halo Zone surrounding Key West and Stock Island. The Halo Zone surrounding Stock Island comprises WBID 6014B, and the Halo Zone surrounding Key West consists of WBIDs 6014A and 8073A through 8073H.32/ The Back Bay Region, which is located north of Stock Island and outside of the Halo Zone, is designated as WBID 8074. The Lower Keys Region consists of WBID 8073, which is located northwest of Stock Island and surrounding Key West outside of the Halo Zone, and WBID 8079, which is located south of Stock Island outside of the Halo Zone. Water quality monitoring, consisting of sampling for a range of parameters, is conducted at monitoring stations within each of these WBIDs. At least one monitoring station is located within each WBID. This water quality sampling is conducted according to DEP's applicable standard operating procedures. The monitoring stations have collected nutrient and nutrient response data spanning a period of years. The data collected in 1995 through 2013 are pertinent to this proceeding.33/ The Keys RAP, which was prepared in 2008 and updated in 2011, prescribes specific management activities to be implemented to restore surface water quality in the Florida Keys, including eliminating cesspits and onsite septic tank systems and connecting wastewater generators to centralized wastewater systems that treat the wastewater to AWT standards. As authorized under rule 62-303.600, DEP determined that the Keys RAP provides reasonable assurance that the restoration goals for the surface waters in the Florida Keys will be achieved by ensuring that all management activities specified in the Keys RAP would be implemented for specified waterbodies by 2015. Accordingly, in February 2012, DEP approved and adopted the Keys RAP by Secretarial Order. Current and historic water quality data show that all WBIDs in the Keys, including those in the Lower Keys Region, Back Bay Region, and Halo Zone for the surface waters surrounding Key West and Stock Island, are not impaired for nutrients——that is, that the NNCs and narrative nutrient criteria, as applicable, are being met. Pursuant to sections 403.061 and 403.067, Florida Statutes, and rule 62-303.600, DEP has classified the Florida Keys WBIDs as Category 2 under the waterbody use attainment classification scheme34/ for nutrients and nutrient response. The classification of the Keys WBIDs in this category means that sufficient water quality data are available to determine that at least one designated use is attained. Thus, as authorized by section 403.067 and rule 62-303.600(2), DEP has placed the Keys WBIDs on the "Delist List."35/ This "de-listing" action recognizes that the Florida Keys WBIDs, including those in the Halo Zone, are not impaired for nutrients and chlorophyll-a. Subsurface Geology in Vicinity of Stock Island The parties agree that, as a general proposition, the ground water and surface waters are connected to each other in the Florida Keys. However, no evidence was presented showing a specific location or locations where ground water connects to surface waters. Although it generally is undisputed that, at some point, ground water connects to surface waters, the parties disagree regarding whether, where, and how long it may take for the injected effluent to reach surface waters. Petitioners contend that due to the local geology, the injected effluent from the Existing Wastewater Facility rapidly reaches surface waters in the vicinity of Stock Island and that the increased discharge through the new injection wells will exacerbate and cause or contribute to surface water quality violations in the immediate vicinity of Stock Island and offshore. In support of this position, Petitioners presented the testimony of Scott Zednek, a Florida-licensed P.G. Zednek opined that due to the absence of subsurface sediments that would prevent upward flow to surface waters, the buoyant freshwater effluent injected down the wells will rapidly vertically migrate through the highly transmissive Key Largo Limestone and Miami Limestone to reach surface waters. To develop his opinion, Zednek reviewed a Florida Geological Survey boring log ("FGS Log") approximately one-third mile from the Existing Wastewater Treatment Facility and a Universal Engineering Services geotechnical study boring log ("UES Log") performed on the KWRU site. The FGS Log was prepared specifically to analyze the subsurface geology. The UES Log was performed as part of a geotechnical study to analyze subsurface conditions onsite specifically for the purpose of determining the load-bearing capability of the KWRU site to support a concrete water tank. As such, the FGS Log provides a more precise view of the subsurface geology in the vicinity of the KWRU site.36/ Based on the UES Log, Zednek opined that there are no confining layers underlying the KWRU site. The UES Log for the site shows N-values, generated using an ASTM-designated process for determining the resistivity or strength of the subsurface, of between two and 43 for the first 60 feet of sediment below the surface. According to Zednek, an N-value of less than 50 indicates lack of a confining layer. Further, his review of the UES Log did not show the presence of Q-layers, which may function as semi-confining layers, or aquitards, that would substantially restrict the movement of fluid, including the injected effluent.37/ Based on the UES Log, Zednek opined that the limestone underlying the site is fractured, creating vertical pathways for the injected effluent to migrate upward to the surface. Zednek testified that the Key Largo Limestone, into which the effluent is injected, is very porous and highly transmissive, facilitating rapid migration once the effluent is injected. Based on his review of the FGS Log, Zednek testified that a Q-layer first appears at approximately 62 feet below the ground surface——below the depth of the injection wells' casing—— so it would not act as a confining layer for the injected effluent. Zednek further observed that this Q-layer is only 1.5 centimeters thick. In his experience, this thickness is not sufficient to create a confining or semi-confining layer. Zednek thus opined that the subsurface geology at the KWRU site will enable and facilitate vertical migration of the injected effluent to surface waters. Zednek also noted the proximity of the Safe Harbor channel cut. He opined that the injected effluent likely would horizontally migrate through the highly transmissive Key Largo Limestone,38/ then vertically migrate to surface waters through the "path of least resistance" at the Safe Harbor channel cut. As further support for his opinion, Zednek cited an interim report summarizing results of a subsurface dye tracer study performed for the Florida Keys Aqueduct Authority regional wastewater treatment facility. The study's purpose was to determine whether the subsurface geology at the Cudjoe Key location was sufficiently confining to prevent vertical migration of the injected effluent from shallow injection wells proposed at that facility. According to Zednek, the interim report showed that the subsurface at the injection site was not sufficiently confining to prevent the injected effluent from rapidly vertically migrating to surface waters. Petitioners also presented the testimony of John Paul, Ph.D., in support of their contention that the injected effluent from the Expanded Wastewater Facility would rapidly rise through the subsurface limestone up into surface waters. Dr. Paul testified regarding viral tracer studies he had conducted at Long Key, approximately 65 miles east-northeast of Stock Island, and at the Saddlebunch Keys, located approximately 20 miles east- northeast of Stock Island. In conducting these studies, Paul injected bacteriophage viruses into Class V wells and tracked their movement into surface waters. In the Long Key study, the injected viruses moved through the subsurface limestone to the south-southeast and appeared in surface waters in deep canals on the ocean side of U.S. 1 approximately 53 hours after injection. In the Saddlebunch Keys study, the viruses also appeared in surface waters some distance south-southeast of the location at which they were injected.39/ Paul acknowledged that when the viruses appeared in surface waters, they were detected at a concentration of one trillionth (.0000000000001 or 1 x 10-12) less than the concentration in which they had been injected, indicating significant dilution by ground water and/or surface waters. He also acknowledged that canals dredged to depths shallower than the injected depth may not facilitate rapid migration of the injected effluent to surface waters. In rebuttal, KWRU presented the testimony of Michael Alfieri, a Florida-licensed P.G. who specializes in hydrogeology. Alfieri examined the FGS Log and UES Log, and also reviewed the detailed lithology logs and photographs for the FGS Log. Based on his review of this information, Alfieri opined that the FGS Log indicates the presence of semi-confining layers that function as aquitards in the first 60 feet of subsurface sediment. Alfieri noted that the existence of an aquitard depends on the nature of the geologic materials present at that location, so that N-values do not perfectly correlate with the presence or absence of confining layers. Thus, a carbonate silt or clay having an N-value of only two may better function as an aquitard than a porous, transmissive limestone having an N-value of 50, and silts or clays having a thickness as little as one centimeter may function as an aquitard to significantly impede fluid flow.40/ Based on his review of the FGS Log and the detailed lithology log descriptions and photographs for the FGS Log, Alfieri observed four laminated calcrete zones, six Q-zones, and chalky limestone within the first 60 feet——all of which would function as aquitards to impede the vertical movement of the effluent.41/ Thus, according to Alfieri, the effluent is anticipated to migrate laterally from the injection wells below these confining layers before migrating through a vertical pathway to reach surface waters at an unknown location. To predict the likely migration pathway for the effluent, Alfieri conducted hydrological modeling using a simplistic SEAWAT computer model. He used horizontal and vertical transmissivity values for the subsurface strata derived from geological studies previously conducted in the Florida Keys. Although these studies indicate greater horizontal than vertical transmissivity, Alfieri assumed equal vertical and horizontal transmissivity for modeling purposes——necessarily yielding more conservative results than would be anticipated to occur in real life. Accordingly, the modeling results showed more rapid vertical migration than would be anticipated in real life when the Q-zones and calcrete layers depicted in the FGS Log are considered. Even with these conservative assumptions, the modeling results showed the injected effluent migrating horizontally at least a mile offshore42/ before migrating upward to surface waters. The persuasive evidence shows that the injected effluent will be confined to the subsurface and will travel laterally a substantial distance before rising to surface waters at some unknown location or locations offshore. Thus, the credible, persuasive evidence does not support the conclusion that the effluent will rapidly rise to the surface waters in the nearshore area in the vicinity of the KWRU site.43/ Narrative Nutrient Criteria Petitioners allege that the effluent injected down the wells into the ground water will reach surface waters, causing or contributing to a violation of the narrative nutrient criteria for surface waters codified in rules 62-302.530(47)(a) and (b).44/ In support, Petitioners presented the testimony of James Fourqurean, Ph.D., who has extensive experience in research on Florida Keys aquatic ecosystems in their healthy and imbalanced states. Dr. Fourqurean described these ecosystems in their healthy state and in their nutrient-enriched state. Florida Keys nearshore ecosystems normally are oligotrophic, which means they are nutrient-limited. Thus, they do not normally exhibit high chlorophyll-a levels and microalgae counts. When nutrient levels in the Florida Keys ecosystems increase——whether by increasing the concentration of nutrients in discharges or by increasing the volume of water containing nutrients——primary production, i.e., plant growth, increases. Seagrass communities are phosphorus-limited, so that when these communities are exposed to phosphorus-enriched water, the phosphorus is rapidly absorbed from the water column and is stored in the benthos.45/ This phosphorus capture initially leads to increased seagrass abundance, but as phosphorus enrichment continues, the community species composition rapidly shifts to favoring seaweed and microscopic algae, ultimately damaging or destroying the seagrass community. Coral reef communities similarly are nitrogen-limited. Thus, when coral reef communities are exposed to nitrogen- enriched water, they shift to algae-dominated communities——again, damaging or destroying the coral reef communities. Based on historical aerial photographs of the area surrounding Safe Harbor and his experience studying seagrasses in the Florida Keys, Fourqurean concluded that the natural seagrass populations in the entire Florida Keys National Marine Sanctuary area, which includes the Stock Island area, are experiencing ecological imbalance. On the basis of the water quality sampling he conducted in and around Safe Harbor, Fourqurean opined that the imbalance is the result of man-induced nutrient enrichment. However, he did not engage in field studies in and around Safe Harbor, so could not cite specific examples where seagrasses had been replaced by algal-dominated communities in that area. Fourqurean noted that human waste contains high concentrations of phosphorus and nitrogen. In his view, because the effluent from the Existing Wastewater Facility contains phosphorous, it necessarily constitutes a source of phosphorous in the surface waters in Safe Harbor, even though it is injected into ground water. However, he acknowledged the existence of numerous other sources of nitrogen and phosphorus in the Safe Harbor vicinity, including septic tanks, boat cleaning operations and pump outs, and storm water runoff. He further acknowledged that he did not know where or when effluent from the Existing Wastewater Facility (and, by extension, the Expanded Wastewater Facility) may reach surface waters. Fourqurean acknowledged that the Permit at Issue would authorize the injection of effluent treated to AWT standards into ground water, rather than directly to surface waters, and he further acknowledged that the total phosphorus and nitrogen loading from the Expanded Wastewater Facility would substantially decrease as a result of conversion to AWT, even though the volume of effluent discharged down the wells may as much as double. He remained concerned that the Expanded Wastewater Facility may contribute phosphorus——even in very small quantities——to surface waters, causing imbalance to seagrass communities. He also opined that when saline ground water and the fresher effluent mix, the resulting brackish solution would dissolve the calcium carbonate comprising the subsurface limestone, releasing stored phosphorus that would eventually reach surface waters and negatively affect nearshore seagrass communities, However, he acknowledged that depending on subsurface physical conditions and flow paths of the effluent, phosphorous, nitrogen, or both, may be completely removed prior to the effluent reaching surface waters. He further acknowledged that seagrass community health in the Florida Keys National Marine Sanctuary has improved in the last two years and that water quality also has improved, reversing a ten-year decline. This is consistent with replacement of onsite septic tanks by central wastewater treatment systems in the Florida Keys. On rebuttal, KWRU presented the testimony of William Precht, who has extensive experience with Florida Keys geology and aquatic communities. Precht confirmed the existence of numerous sources of significant nutrient enrichment in the Safe Harbor vicinity other than the Existing Wastewater Facility, and noted that these sources must be taken into account when analyzing nutrient enrichment in Safe Harbor. He testified that raw wastewater is particularly deleterious to benthic communities. Thus, connecting wastewater generators that currently use septic tanks to central wastewater treatment systems can significantly improve water quality. Precht observed that Fourqurean's single-day sampling in the Safe Harbor area provided information regarding variability in nutrient concentrations, but characterized Fourqurean's conclusion that the Existing Wastewater Facility was the source of the nutrients as "unscientific" because it was based on supposition rather than on testing. He opined that the limited data set gathered over a one-day period could not reliably identify the source of nutrient enrichment in Safe Harbor. Precht testified that flushing capability is a key influence on nutrient concentration in surface waters. The further from a natural marine environment that water quality testing is performed, the more likely water quality will be poor due to nutrient enrichment from land-based sources. Given the configuration of Safe Harbor, water quality would be poorest in the interior dead-end canals and would steadily improve as one moved into more open water and flushing increased, with the highest water quality in open waters outside the canal system. Precht opined that the presence of noxious benthic plant life in the Safe Harbor vicinity may be attributable the destruction of seagrass communities in the area by historical dredging, rather than due to nutrient enrichment. Based on the reduction in total nitrogen and total phosphorus loading as a result of implementing AWT, Precht opined that the proposed discharge will not negatively affect the biological communities in the Safe Harbor vicinity. He further opined that due to the rapid uptake of phosphorus in the marine environment and due to denitrification that occurs in ground water and in marine surface waters, there is little chance that any nutrient loading that may result from the injected effluent would cause damage to the coral reef environment. Also on rebuttal, Alfieri persuasively testified that although phosphate release does occur when freshwater is injected into limestone that formed in a saline environment, this process gradually occurs over "geologic time"——that is, over millions of years. Therefore, he did not anticipate a significant release of phosphate from the subsurface limestone as a result of the effluent discharge. Also, limestone rapidly absorbs phosphorous, so phosphorus in the injected effluent would be absorbed quickly by the subsurface limestone.46/ Further, in any event, the effluent will be diluted by at least seven orders of magnitude——that is, one hundred millionth (.00000001)——of the injected concentration by the ground water, and/or by surface waters (assuming the effluent eventually reaches surface waters). As discussed above, the Keys RAP was prepared in 2008 and updated in 2011. The Keys RAP prescribes specific management activities to be implemented to restore surface water quality in the Florida Keys, including eliminating cesspits and onsite septic tank systems and connecting wastewater generators to centralized wastewater systems that treat the wastewater to AWT standards. Pursuant to the Impaired Waters Rule and DEP's adoption of the Keys RAP, activities that are consistent with the Keys RAP are considered to provide reasonable assurance that the narrative nutrient criterion in rule 62-302.530(47)(b) will be met. As discussed above, the Project will expand a centralized wastewater treatment plant that will accept, and treat to AWT standards, wastewater generated by development on Stock Island——including development that currently relies on onsite septic tanks for wastewater disposal. The Project is consistent with the Keys RAP, so there is reasonable assurance that the Project will meet the narrative nutrient criterion in rule 62-302.530(47)(b). The persuasive evidence shows that the Project will not cause or contribute to alterations of nutrient concentrations in water bodies so as to cause an imbalance in natural populations of aquatic flora or fauna. Thus, Petitioners failed to show that the Project will cause or contribute to violation of the narrative nutrient criterion in rule 62-302.530(47)(b). Further, for the reasons discussed below, it also is determined that the Project will not violate the narrative nutrient criterion codified at rule 62-302.530(47)(a). Numeric Nutrient Criteria Petitioners also allege that the effluent will cause or contribute to violation of the estuary-specific numeric interpretations of the narrative nutrient criteria for the Back Bay nutrient region, codified at rule 62-302.532(1)(g)1., and the Lower Keys nutrient region, codified at rule 62-302.532(1)(g)3. In support, Petitioners cite the results of surface water sampling performed by Fourqurean in the Safe Harbor area showing high levels of nitrogen, phosphorus, and chlorophyll-a. Petitioners contend that these high nutrient levels evidence that the existing injection wells already are causing or contributing to surface water quality violations in the waters surrounding Stock Island, and that the increased effluent discharge from the proposed new injection wells will exacerbate this situation, further causing or contributing to violations of surface water quality standards. In preparing his opinion regarding the effect of the proposed injection wells on surface water quality, Fourqurean sampled surface water quality on one day at nine stations located in the vicinity of Stock Island, ranging from shallow waters inside the Safe Harbor basin to deeper waters offshore. Samples were collected at the surface and at a depth of one meter below the surface following the standard operating procedures for water quality sampling established by the Florida Keys Water Quality Protection Program. Fourqurean testified that the samples collected at the stations inside the Safe Harbor basin and near the shore of Stock Island showed very high levels of chlorophyll-a, evidencing that these areas are dominated by microalgae and, thus, are eutrophic. Additionally, the samples collected inside the Safe Harbor basin exhibited very high phosphorus concentrations—— almost three times greater than the estuary-specific numeric nutrient criterion for phosphorus. Phosphorus concentrations correspondingly decreased as samples were collected outside of the basin and offshore. Nitrogen concentrations followed a similar pattern in the sampling that Fourqurean conducted inside and outside of the Safe Harbor basin. According to Fourqurean, the high nutrient concentrations in the samples taken in Safe Harbor, when compared to the lower concentrations in samples taken outside of Safe Harbor, evidence the existence of a large source of phosphorous and nitrogen in Safe Harbor——in his view, the Existing Wastewater Facility. However, Fourqurean acknowledged that there are many potential nutrient enrichment sources on Stock Island, including fishing operations, boat sewage pump-outs, and direct discharges of storm water to surface waters. He further acknowledged that the specific source of phosphorus and nitrogen in the surface waters surrounding Stock Island cannot be identified. He did not opine as to the relative amounts of nutrients in surface waters that he believes are being contributed by the Existing Wastewater Facility or that will be contributed by the Expanded Wastewater Facility, as compared to other nutrient sources in the Safe Harbor area. He also acknowledged that a scientifically-valid water quality study would require more than a single day of sampling.47/ Kenneth Weaver, environmental administrator for DEP's Standards Development Section,48/ credibly and persuasively testified, and the water quality data for nutrients and chlorophyll-a collected in the WBIDs surrounding Key West and Stock Island show, that the surface waters in these WBIDs meet the applicable NNCs.49/ Historical water quality data also show that since 2008, the surface waters in these WBIDs continuously have met the baseline concentrations on which the NNCs were established and adopted. Even with the increased volume of wastewater treated by the Expanded Wastewater Facility, implementation of the AWT standard by the facility's wastewater treatment trains will substantially reduce the amount of total nitrogen and total phosphorus discharged into ground water through the injection wells. Specifically, for total nitrogen, the concentration will be reduced from 13.92 mg/L to 2.25 mg/L, and the total amount of nitrogen loading will be reduced from 58 to 15.9 pounds per day, representing a total net reduction of 72.4 percent in the discharge of total nitrogen. For total phosphorus, the concentration will be reduced from 3.47 mg/L to .75 mg/L, and the total amount of phosphorus loading will be reduced from 14.4 to 5.3 pounds per day, representing a total net reduction of 63.3 percent in the discharge of total phosphorus.50/ Weaver addressed the effects of these projected nutrient discharge concentrations on the surface waters in WBIDs 8074 and 8079, which comprise the portions of the Lower Keys Region and Back Bay Region closest to the KWRU site. He opined that, because these regions are currently meeting the applicable NNCs for nitrogen and phosphorus, and because KWRU's implementation of AWT will result in substantial reduction of total nitrogen and phosphorus loading, the NNCs will continue to be met in these regions——even in a "worst-case" scenario that assumes all of the treated effluent from the Expanded Wastewater Facility is disposed of through the injection wells and reaches the surface. The persuasive evidence shows that the Project will not cause or contribute to violations of the applicable numeric nutrient criteria. Thus, Petitioners failed to show that the Project will cause or contribute to violation of the applicable numeric nutrient criteria in rule 62-302.532(1)(g)1. and 3. Surface Water "Free-From" Standards Petitioners allege that the effluent contains iron and copper above detection limits, as well as personal care products and pharmaceuticals, and that these constituents violate rules 62-302.500(1)(a)5. and 62-302.530(61). Rule 62- 302.500(1)(a)5. requires all surface waters of the state to be free from domestic, industrial, agricultural, or other man- induced non-thermal components of discharges which, alone or in combination with other components of discharges (whether thermal or non-thermal), are present in concentrations which are carcinogenic, mutagenic, or teratogenic to human beings or to significant, locally occurring wildlife or aquatic species, unless specific standards for such components are established by rule. Rule 62-302.530(61) effectively requires surface waters to be free from substances in concentrations which injure, are chronically toxic to, or produce adverse physiological or behavioral response in humans, animals, or plants. These rules collectively comprise the "free-from" standards for surface waters. Petitioners presented no evidence to substantiate the allegation that the effluent from the Expanded Wastewater Facility will contain pharmaceuticals or personal care products. However, even assuming these constituents were present in the effluent, Petitioners did not present evidence showing that they are carcinogenic; mutagenic; or teratogenic to human beings or to significant, locally occurring wildlife or aquatic species; or that they are injurious or chronically toxic to, or produce adverse physiological or behavioral response, in humans, animals, or plants. Petitioners did not present evidence showing that the effluent contains copper and iron in quantities that violate any applicable surface water quality standards, including the surface water "free-from" standards. Paul testified, based on sampling he conducted at domestic wastewater outfalls discharging directly to surface waters, that effluent treated to AWT standards often contains pathogenic bacteria and viruses that constitute threats to human health. On this basis, he opined that even though the effluent from the Expanded Wastewater Facility is treated to AWT, it may contain pathogenic constituents that are harmful to human health. However, as previously discussed, the evidence shows that the effluent discharged through KWRU's injection wells will be substantially diluted by groundwater, and also by surface waters to the extent it reaches surface waters at some unknown location. Accordingly, the results of Paul's pathogen studies cannot be extrapolated to conclude that KWRU's effluent also will contain pathogenic bacteria and viruses in such amounts as to constitute a threat to human health. Petitioners failed to show that the effluent disposed of in the injection wells will cause or contribute to violations of the surface water quality standards in rules 62- 302.500(1)(a)5. and 62-302.530(61). Dilution to Meet Surface Water Quality Standards Petitioners allege that KWRU is relying on dilution of the effluent in order to meet surface water quality standards without having been permitted for a mixing zone, in violation of rule 62-302.500(1)(c).51/ This contention lacks merit. As discussed in detail above, the credible, persuasive evidence establishes that the effluent discharged through the injection wells will not violate water quality standards for and parameters, including for nutrients, and will not cause or contribute to the violation of water quality standards. The credible, persuasive evidence establishes that once injected, the effluent will horizontally migrate a considerable distance before it may migrate vertically to reach surface waters. The parties generally agree that ground water and surface waters are "connected" in the Florida Keys. To that point, although it appears likely that at some point the effluent will reach surface water, the evidence does not establish that is an absolute certainty. Nonetheless, even assuming the effluent would reach surface waters at some unknown location and time, the persuasive evidence shows that it would be so substantially diluted by the ground water that it would neither cause nor contribute to violations of surface water quality standards. Further, the persuasive evidence, consisting of Weaver's "worst case" analysis of nutrient loading from the effluent discharge, which assumed no dilution by ground water, establishes that even if the effluent——which will be treated to AWT standards——were discharged directly into surface waters, it would meet the applicable nutrient criteria. Finally, Petitioners' claim assumes that the effluent will be discharged into surface waters. However, as discussed above and in greater detail below, to the extent the effluent ultimately may be discharged to surface waters, such discharge would be indirect, so would not be subject to statutory and rule provisions requiring establishment of a mixing zone. For these reasons, Petitioners failed to prove that KWRU violated any applicable law or rule by not requesting and obtaining a mixing zone for the discharge of the effluent through the injection wells. Class V Injection Wells in Monroe County Petitioners also allege that issuance of the Permit at Issue violates rule 62-528.630(7), which requires all Class V Group 3 domestic wastewater injection wells in Monroe County to provide reasonable assurance that operation of the well will not cause or contribute to a violation of surface waters standards as defined in chapter 62-302. As discussed above, the credible, persuasive evidence establishes that the operation of the wells as authorized under the Permit at Issue will not cause or contribute to violations of surface water quality standards codified in chapter 62-302. Accordingly, Petitioners failed to prove that the Permit at Issue should be denied on the basis that it violates rule 62-528.630(7). Antidegradation Petitioners contend that the Permit at Issue must be denied because KWRU failed to provide reasonable assurance that the injection of effluent will not violate the antidegradation requirements applicable to surface waters codified at rules 62- 4.242, 62-302.300, 62-302.530(47)(a), and 62-302.700(1). This contention lacks merit. As more fully discussed below, the antidegradation requirements in these rules apply only to a direct discharge to surface waters, which is not present in this case. Here, the evidence clearly establishes that the injection wells do not directly discharge effluent into surface waters. It is undisputed that the effluent will be injected from the wells into Class III ground water, where it will migrate through the subsurface strata. Although it is likely that, due to a "connection" between ground water and surface waters, the effluent ultimately will reach surface waters at some unknown location or locations at some unknown time, this constitutes an indirect discharge, which is specifically excluded from the term "discharge of a pollutant." Fla. Admin. Code R. 62-620.200(13). However, even if the antidegradation rules did apply to the discharge of the effluent through the injection wells, Petitioners failed to prove that the discharge would degrade surface waters. As discussed above, the credible, persuasive evidence establishes that the surface waters in the Florida Keys, including those in and around Stock Island and Key West, currently meet the narrative and/or nutrient criteria, as applicable, and that effluent discharged through the injection wells will be treated to AWT standards, substantially reducing the facility's total nutrient loading below current levels. Thus, the credible, persuasive evidence established that, even in a "worst-case" scenario, which assumes no dilution of the effluent by ground or surface waters, the effluent still would not cause or contribute to a violation of the narrative or numeric nutrient criteria. As discussed above, the credible, persuasive evidence showed that, in fact, the effluent will be very substantially diluted by the ground water into which it is injected, and will be further diluted if and when it ultimately reaches surface waters. For these reasons, Petitioners failed to prove that KWRU did not provide reasonable assurance that the disposal of the effluent through the injection wells would not degrade surface waters, in violation of rules 62-4.242, 62-302.300, 62- 302.530(47)(a), and 62-302.700(1). Alleged Violation of Ground Water Standards Petitioners allege that KWRU did not provide reasonable assurance that the injection wells would not violate applicable ground water standards. Petitioners further allege that there is an underground drinking water source under Stock Island. In that case, more stringent ground water quality and injection well rule standards would apply to operation of the injection wells. Petitioners did not present any credible, persuasive evidence to support these allegations. The persuasive evidence establishes that although there is a fresh water lens under Stock Island, it is not classified as an underground source of drinking water52/ due to its substantial variability in horizontal and vertical extent, which renders the salinity levels highly variable. Thus, the ground water at Stock Island is classified as Class G-III ground water which is non-potable ground water having a total dissolved solids content of 10,000 mg/L or greater, or having a total dissolved solids content of 3,000 to 10,000 mg/L and having been determined to have no reasonable potential as a future source of drinking water or designated by rule as an exempted aquifer. Only the minimum criteria for ground water, known as the "free-from" standards, apply to Class G-III ground water. Fla. Admin. Code R. 62-520.430(1). These criteria require that at all times and in all places, ground water be free from discharge components in concentrations that are carcinogenic, teratogenic, mutagenic, or toxic to humans; acutely toxic within surface waters affected by ground water; pose a serious danger to the public health, safety, or welfare; create or constitute a nuisance; or impair the reasonable and beneficial use of adjacent waters. Fla. Admin. Code R. 62-520.400. There is no evidentiary basis on which to infer that the effluent from Expanded Wastewater Facility that is disposed through the injection wells will violate the free-from standards KWRU's many years of effluent monitoring at the Existing Wastewater Facility show that the effluent does not violate these standards. Further, David Rhodes, a Florida-licensed P.G. employed by DEP, credibly testified that a violation of the free- from standards necessarily would entail the presence of toxic materials in KWRU's effluent and that there would be immediate and dramatic effects on the flora and fauna at the golf course, where reclaimed water is reused for irrigation. Since such effects never have occurred, it is reasonable to infer that the effluent from the Expanded Wastewater Facility will not violate the free-from standards.53/ Additionally, as previously addressed, the credible, persuasive evidence demonstrates that no surface water quality violations will result from installation and operation of the injection wells as part of the Expanded Wastewater Facility. Accordingly, the reasonable and beneficial use of adjacent waters will not be impaired due as a result of the injection wells. Petitioners also claim that due to inadequate treatment by the Expanded Wastewater Facility, the effluent disposed in the injection wells will contain unacceptably high levels of bacteria and viruses. The persuasive evidence establishes that KWRU provides high-level disinfection prior to injecting the effluent or sending the reclaimed water for reuse at the golf course. Historical monitoring data shows that KWRU's effluent complies with applicable microbial standards, and unrebutted evidence consisting of quality-related beach closure data for the Florida Keys, gathered as part of the Department of Health's Healthy Beaches monitoring program, indicates that no beach closings in the Florida Keys ever have been attributed to KWRU's Existing Wastewater Facility. Petitioners did not prove that KWRU failed to provide reasonable assurance that operation of the injection wells authorized as part of the Project will not result in violations of applicable ground water standards. To the contrary, KWRU provided reasonable assurance that the effluent from the Expanded Wastewater Facility disposed in the injection wells authorized as part of the Project will not violate any applicable ground water standards. Alleged Water Quality Violations Due to Reuse System Petitioners allege that KWRU did not provide reasonable assurance that the storage of up to 1 MGD of reclaimed water in the reuse system storage ponds on the Key West Golf Club golf course will not cause or contribute to a violation of surface water quality standards and ground water standards. Specifically, Petitioners posit that, because the ponds are unlined, reclaimed water from the Expanded Wastewater Facility will leach from the ponds into the ground water and reach surface waters, violating surface water quality standards and ground water standards and negatively impacting human health through high levels of microbial pathogens, pharmaceuticals, and personal care products. Petitioners further allege that discharge of reclaimed water from the ponds into the ground water could mobilize constituents of concern from the Key West Landfill and a closed waste-to-energy facility, both of which are near the golf course, ultimately resulting in surface water quality standards and ground water violations. In support of these contentions, Petitioners presented the testimony of Scott Zednek, who testified that the reclaimed water, which is fresher than the surrounding ground water, may leach from the ponds into the ground water, and thereafter potentially may reach surface waters. According to Zednek, this leaching could occur because the ponds are unlined. Additionally, Zednek opined that, because there is a closed landfill near the golf course, the reclaimed water leaching from the reuse system ponds could mobilize and spread contaminants from the landfill. The persuasive evidence demonstrates that storage of the reclaimed water in the reuse system ponds will not result in violations of ground water standards or surface water quality standards. Although the golf course ponds are unlined in the sense that a high-density polyethylene or impermeable clay liner has not been installed on the bottom and sides of the ponds, over the years, marl has formed on the bottom and sides of the ponds, creating an aquitard that substantially confines the reclaimed water to the ponds, rather than allowing it to readily leach into the ground water. Further, the reclaimed water generally is less saline than the ground water underlying the course, so tends to "float" on top of, rather than readily mixing with, the denser, more saline ground water. Additionally, the evidence shows that years of historical ground water monitoring data obtained through monitoring wells on the golf course near the reuse system ponds showed no ground water standards violations as a result of storing reclaimed water from KWRU in the ponds.54/ Because the amount of reclaimed water being sent to the reuse storage ponds is not being changed by the Project, and the nutrient levels in the reclaimed water are being through AWT, there is no factual basis from which to infer that storage of the reclaimed water in the pond will result in violations of ground water standards or surface water quality standards. The persuasive evidence also does not support Zednek's view that reclaimed water leaching into the ground water from the storage ponds will mobilize pollutants under the nearby landfill. As discussed above, the persuasive evidence establishes that, due to the aquitard, there will be very little leaching of reclaimed water into the ground water, and even if such leaching did occur, there would be very little mixing of the reclaimed water with the more saline ground water. As such, there is no demonstrated factual basis on which to infer that reclaimed water will flow under, and mobilize and spread pollutants from, the landfill. Further, the evidence establishes that the predominant ground water flow direction under Stock Island is to the south- southeast. Since the landfill is located north of the reuse system ponds, any reclaimed water that did enter ground water would flow south-southeast, away from the landfill. Zednek also opined that if the storage ponds overflowed, the reclaimed water could run off into surface waters, resulting in surface water quality violations. However, the evidence establishes that KWRU will only send as much reclaimed water to the reuse storage ponds as the Key West Golf Club requests, so any assertion that the ponds will overflow is speculative. Further, even if the ponds were to overflow, Petitioners did not show that the reclaimed water would flow into surface waters, or that it would violate surface water quality standards if it were to flow into surface waters. Petitioners did not prove that KWRU failed to provide reasonable assurance that the storage of reclaimed water in the reuse system storage ponds at the Key West Golf Club will not violate any ground water standards. Stated another way, KWRU provided reasonable assurance that the storage of reclaimed water in the reuse system ponds at the Key West Golf Club golf course will not cause or contribute to violations of ground water standards or surface water quality standards. Applicability of AWT to Existing Wastewater Facility Commencing January 1, 2016, the two new treatment trains authorized by the Permit at Issue must meet the AWT standards. These treatment trains are authorized to treat wastewater to specified secondary standards through December 31, 2015. Petitioners assert that the Permit at Issue must be denied because the two new treatment trains should be required to meet AWT standards immediately upon operation, and that allowing the new treatment trains to meet secondary standards through December 31, 2015, violates section 403.806(10) and rule 62- 620.620(4). Sections 403.086(10)(c) and (d) expressly impose the AWT standards on all new or expanded domestic wastewater discharges after December 31, 2015. Accordingly, the Permit at Issue is completely consistent with the statute. Further, the Permit at Issue does not violate rule 62- 620.602(4). That rule requires a wastewater facility permit applicant to make certain specified demonstrations when a permit is renewed, revised, or reissued having a less stringent effluent limitation than contained in a previous permit. Although the Existing Permit states that the Existing Wastewater Facility has been modified to meet the AWT standards, it further states: "[t]he extended aeration process will be switched to the AWT nutrient removal system prior to January 1, 2016." The clear import of this statement is that the AWT standards are not required to be met until January 1, 2016, consistent with section 403.806(10). Because the Permit at Issue also requires the new treatment trains to meet the AWT standards commencing on January 1, 2016, the Permit at Issue does not impose a less stringent effluent limitation than that imposed by the Existing Permit; accordingly, KWRU is not required to make the so-called "anti-backsliding" demonstrations set forth in rule 62- 620.620(4). Furthermore, it is undisputed that the new treatment trains will not be constructed and operational before January 1, 2016; thus, as a practical matter, the new treatment trains must meet the AWT standards immediately upon going into operation. Thus, Petitioners have not shown that the Permit at Issue should be denied on the basis that it violates section 403.806(10) and rule 62-620.620(4). Petitioners' Standing As noted above, Petitioner Halloran, resides in Key West, Florida. His residence fronts on the water and he owns a boat. Halloran and his family use and enjoy the waters around Key West for swimming, fishing, kayaking, and other in-water recreational uses, eat local-caught seafood, and engage in nature photography. Halloran also owns rental properties that front on the water, and he owns and rents out dock space for houseboat mooring. He is a member of Last Stand. Halloran has challenged the Permit at Issue because he is concerned that the increased discharge of effluent from the Project down the injection wells will degrade the waters around Key West where he and his family engage in in-water recreational uses. He also is concerned that the increased effluent discharge, particularly nutrients, will harm the seagrasses, coral reefs, and the benthic communities in the waters around Key West. Halloran read the initial petition prepared and filed in this proceeding, and he skimmed the Amended Petition specifically to determine the changes from the initial Petition.55/ He acknowledges that he does not completely recall the entire contents of the initial petition or the Amended Petition. Petitioner Last Stand is a not-for-profit corporation incorporated under Florida law. Naja Girard D'Albissin, a member of the Board of Directors of Last Stand, appeared on behalf of Last Stand. D'Albissin testified that Last Stand currently has approximately 105 members. Last Stand's mission is to promote, preserve, and protect the quality of life in Key West and the Florida Keys, with particular emphasis on protecting the natural environment. Last Stand historically has engaged in environmental advocacy directed toward governmental entities and engaged in litigation opposing activities that its members believe would harm the natural environment. In July 2014, Last Stand's Board of Directors voted to challenge the Permit at Issue. Respondent DEP stipulated that 52 members of Last Stand spend time or reside in Monroe County, 50 members enjoy the waters and natural environment of the Florida Keys, and 50 members believe that their use and enjoyment of the natural environment and economic interests in Monroe County will be adversely affected by the Project. Last Stand tendered, for admission into evidence, affidavits of some of its members attesting to the substantial interests they contend will be injured by the Project. However, Last Stand had refused to allow Respondents to engage in discovery regarding these members' alleged substantial interests; accordingly, the undersigned did not allow these members to testify at the final hearing.56/ The affidavits were excluded from admission into evidence as unsupported hearsay. See § 120.57(1)(c), Fla. Stat. Entitlement to Permit at Issue KWRU met its burden under section 120.569(2)(p) to present a prima facie case demonstrating entitlement to the Permit at Issue by entering into evidence the applications and supporting materials for the Permit at Issue for the Project. Additionally, KWRU presented persuasive, competent, and substantial evidence beyond that necessary to meet its burden under section 120.569(2)(p) to demonstrate its entitlement to the Permit at Issue. Petitioners did not meet their burden of persuasion under section 120.569(2)(p) in this proceeding to demonstrate that the Project does not meet all applicable statutory and rule requirements. Furthermore, on rebuttal, KWRU and DEP thoroughly addressed and rebutted the grounds that Petitioners allege justify denial of the Permit at Issue. The persuasive evidence demonstrates that the Project meets all applicable statutory and rule requirements. Accordingly, KWRU is entitled to issuance of the Permit at Issue.
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 approving the issuance of Domestic Wastewater Facility Permit FLA014951-012-DWIP and UIC Permits 18490-020 and 18490-021. DONE AND ENTERED this 15th day of January, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2016.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Tamaron wastewater treatment facility (facility), located at 3800 Gatewood Drive, Sarasota, Florida, serves the Tamaron residential subdivision which was originally developed by U. S. Homes Corporation in 1976. The subdivision presently consists of 499 homes and was completely built out in the mid-1980's. The facility was originally owned and operated by U. S. Homes Corporation. Tamaron Utilities, a nonprofit entity comprised of the 499 homeowners, acquired the facility in November, 1987. At that time, the facility's existing operating permit was transferred to Tamaron Utilities. The facility is overseen by an elected board of volunteer homeowners. The Department is the agency of the State of Florida that is authorized to regulate domestic wastewater treatment and disposal facilities and permit their construction and operation. It is the successor agency to the Department of Environmental Regulation. By letter dated November 10, 1987, the Department notified Tamaron of the requirements of Chapter 87-303, Laws of Florida (Grizzle-Figg Amendment), which amended Section 403.086, Florida Statutes, and of the Department's intention to modify Tamaron's operating permit to incorporate a schedule of compliance with Section 403.086, Florida Statutes, as amended by Chapter 87-303, Laws of Florida. On August 23, 1988, an operating permit (D058-141783), which contained secondary water treatment requirements, was issued to the facility. Specific condition 7 of the permit required that the facility be in compliance with the Grizzle-Figg Amendment by October, 1990, or eliminate discharge to surface waters. On September 5, 1990, Tamaron filed an application with the Department to renew its domestic waste water treatment and disposal systems operation permit. Tamaron did not consider its facility as discharging waste into one of the specifically named water bodies set forth in the Grizzle-Figg Amendment or to "water tributary thereto" and thereby required to meet the advanced waste treatment criteria set forth in the Grizzle-Figg Amendment. However, in an abundance of caution, Tamaron proceeded to bring its facility into compliance with the advanced waste treatment criteria as set forth in the Grizzle-Figg Amendment. After numerous requests for additional information and several meetings between Tamaron and the Department, the Department issued its Notice of Permit Denial on April 9, 1991, asserting that Tamaron had not provided: (a) reasonable assurance that the requirements of Section 403.086(1)(c), Florida Statutes, mandating advanced waste treatment (AWT) before discharge to certain designated surface waters, would be met and; (b) reasonable assurance that the discharge to those certain designated surface waters would result in minimal negative impact as required by Section 403.086(5)(a), Florida Statutes. The facility continues to operate under its secondary treatment permit No. DO58-141783. The facility consists of a wastewater treatment plant designed for secondary treatment, with tertiary filtration. The design capacity of the facility is 155,000 gallons per day (0.155MGD) with actual flows of slightly over 100,000 gallons per day (0.100MGD+). Three percolation ponds surround the facility comprising the primary effluent disposal method for the facility. The Tamaron subdivision has a series of excavated surface water bodies (stormwater lakes), hydraulically connected, which eventually discharge at the northeast corner of the subdivision into Phillippi Creek. The direct path of surface water flow is from the subdivision's stormwater lakes to Phillippi Creek. These stormwater lakes are in multiple ownership. Under Department policy, stormwater systems permitted by the Department, its predecessor DER, or a water management district solely as stormwater treatment facilities under Chapter 17-25, Florida Administrative Code, are not considered "waters of the State". However, stormwater systems built prior to Chapter 17-25, Florida Administrative Code, permitting requirements, were considered "waters of the State" if they discharge more frequently than a twenty five year, twenty-four hour storm event. See Petitioner's exhibits 13 & 15. Tamaron's stormwater system was built prior to Chapter 17-25, Florida Administrative Code, permitting requirements, and was designed to discharge at a ten year, twenty-four hour storm event which is more frequent than a twenty five year, twenty-four hour storm event. Discharge of water into Phillippi Creek from the subdivision's stormwater lakes is fairly frequent; however, the volume of the discharge is low. Phillippi Creek is a natural surface water which eventually flows into Roberts Bay. Roberts Bay is a specifically named water body in the Grizzle-Figg Amendment (Section 403.086(1)(c), Florida Statutes). Since September, 1989, Tamaron has retained William Murchie, P.E. of AM Engineering, to evaluate the design and operation of the facility in order to comply with appropriate regulatory requirements. The facility provides biological treatment through a contact stabilization utilizing an activated sludge. This process typically provides high quality advanced secondary biological treatment. A chemical feed tank system utilizing ferrous sulfate was added to the facility several years ago to chemically precipitate out total phosphorus to meet the advanced waste treatment requirements. High-level disinfection is achieved in the large chlorine contact chamber and through two tertiary filters. At the design flow of 0.155MGD, the chlorine contact chamber provides nearly 80 minutes of contact time, while actual contact time for existing flows, not including time in filters, is calculated at 110 minutes. Upon leaving the chlorine contact chamber and the biological treatment components of the facility, the chlorinated effluent is directed through two tertiary filters to reduce the biochemical oxygen demand (BOD) and total suspended solids (TSS). After the tertiary filters, the effluent passes through the sample block where it is sampled for TSS, BOD and chlorine and is then piped sequentially into the first, second and third percolation ponds. The percolation ponds span two acres and provide residence time of 35 to 45 days, during which time the effluent is further biologically treated and nitrogen is reduced. From the percolation ponds, the effluent is pumped into a low pressure system which uniformly distributes effluent over two nitrogen reduction filters. The nitrogen reduction filters are located north of the plant and are immediately adjacent to one of the subdivision's stormwater lakes. The nitrogen reduction filters consist of deep sand beds covered with Bermuda grass to provide high nitrogen uptake. The irrigation of the two nitrogen reduction filters is alternated every half day. These nitrogen reduction systems were modified in October/November, 1990, by adding 3 to 3 1/2 feet of clean sand with a permeability rate of 28 feet per day, planting Bermuda grass, and installing an irrigation/distribution system. These filters replaced two sand pits with shallow layers of very coarse sand, after initial testing demonstrated the sand pits to be inadequate in removing nutrients consistent with statutory requirements. In January, 1992, an underdrain system utilizing perforated pipe was installed in the nitrogen reduction filters to create an aerobic zone and to provide a representative sample port after nutrient reduction in the filters. This sample port, used for the biweekly monitoring, consists of a single solid pipe, that collects effluent from the perforated pipes, with a tap to prevent discharge into the adjacent stormwater lake, except during sampling events. The biweekly sampling event results in effluent being discharged from the pipe for approximately 30 minutes to flush the pipe so as to get a proper sample. The underdrain sampling port at the nitrogen reduction filters replaced two earlier monitor wells between the nitrogen reduction filter and the stormwater pond, which proved ineffective because of their location. The perforated underdrains are situated in filter bed sand of medium grain size with a permeability rate 100 feet per day and located below 3 - 3 1/2 feet of clean sand with a permeability rate of 28 feet per day and above very permeable layers of sand, stone and coarse shell. (See Tamaron's exhibit 23 and Department's exhibit 14) The very permeable layers of sand, coarse shell, the perforated pipe and the single solid pipe are all located above the ground water table. Since the perforated pipe and sample port are both located above the ground water level and the surface of the adjacent stormwater lake, it is unlikely that the effluent sample taken from the sample port would be influenced by the ground water or a back flow of water from the adjacent stormwater lake. The coarse shell layer situated below the nitrogen reduction filters extends to the edge of the adjacent stormwater lake. Therefore, the effluent, other than the effluent trapped in the perforated pipe and carried to the sample port, that is irrigated onto the nitrogen reduction filters passes through the sand and into the coarse shell layer. The effluent is then transported laterally through the coarse shell layer to the underground edge of the adjacent stormwater lake where there is a subsurface discharge into the adjacent stormwater lake. Since the discharge to the stormwater lakes is primarily subsurface in nature, the logical compliance point to measure effluent parameters would be the underground sample port which collects the effluent prior to subsurface discharge into the stormwater lake. See Petitioner's exhibit 15. The direction of ground water flow at the facility is towards the north to the adjacent stormwater lakes as evidenced by the hydraulic gradient of the site determined using ground water table elevations. The location for sampling effluent from the facility for compliance with secondary standards was described in Specific Condition 5 of Tamaron's previous permit No. D058-141783 dated August 23, 1988. Specific Condition 5 states that the discharge from the chlorine contact chamber shall be sampled in accordance with Chapter 17-19, Florida Administrative Code, (now Chapter 17-601, Florida Administrative Code), for compliance with the stated secondary limits. The facility's tertiary filters are located after the chlorine contact chamber. Tamaron samples effluent for compliance with secondary standards (BOD,TSS, chlorine) at the sampling box after disinfection and tertiary filtration. Tertiary filtration is designed to achieve a more efficient removal of TSS and BOD. The resulting effluent is usually of higher quality than secondarily treated effluent. A secondary plant with tertiary filtration is referred to as an "advanced secondary treatment" plant. Data presented by Tamaron titled Tamaron 1991-1993 Data On FDER Permit Compliance (Tamaron's exhibit 17, page 1 of 2) shows reported values, sampled after tertiary filtration at the sample box, which suggest that secondary treatment parameters, including fecal coliform, are not being exceeded. The data actually shows a very high removal rate for the parameters sampled. The United States Environmental Protection Agency issued a National Pollutant Discharge Elimination System (NPDES) permit, number FL0042811, to Tamaron for the facility with an effective date of June 1, 1991, which authorized Tamaron to discharge from the facility to the receiving waters named Phillippi Creek to Roberts Bay in accordance with the effluent limitation, monitoring requirements and other conditions set forth in the permit. Since the facility was located in the Grizzle-Figg Amendment area of Florida certain changes were made from the draft permit to the final permit. Those changes appear in the Amendment To The Statement Of Basis At The Time Of Final Permit Issuance which is made a part of the final permit. The amendment provides for changes in Part I, Effluent Limitations and Monitoring Requirements. These changes, among other things, require that the Grizzle-Figg Amendment annual limits of 5 mg/l BOD, 5mg/l TSS, 3mg/l total nitrogen and 1mg/l total phosphorus be added to the effluent limits to adequately maintain water quality standards, and added monitoring requirements and measurement frequency regulations to give the basis for permit limits and conditions in accordance with Chapters 17-302, 17-600 and 17-601, Florida Administrative Code. Data presented by Tamaron titled Tamaron 1991-1993 Data On NPDES Permit Compliance (Tamaron's exhibit 17, page 2 of 2) show reported values sampled after nitrogen reduction filters which suggest that the maximum values for AWT parameters, including fecal coliform, are not being exceeded, particularly after January, 1992, when Tamaron began sampling effluent collected by the perforated underdrains at the sample port. Tamaron has been monitoring and reporting compliance under its final NPDES permit and providing copies to the Department. There was no evidence that Tamaron was ever in violation of its NPDES permit. Tamaron submitted documentation to the Department with its permit application that demonstrated high-level disinfection within the facility was being achieved. However, TSS was being sampled after the application of the disinfectant. Using this procedure, the facility continued to achieve high- level disinfection until the permit denial. After the permit denial, the facility resumed basic disinfection which was required under Tamaron's permit for secondary treatment. This same data indicates that there was compliance with the requirements for fecal coliform. The record is not clear as to the frequency and number of samples taken to provide the data for reporting compliance with the NPDES permit and the data presented in Petitioner's exhibit 17, page 2 of 2. However, there was no evidence, other than sampling for TSS after the disinfectant was added, that Tamaron was not complying with its NPDES Permit that required, among other things, that the monitoring requirements and measurement frequency of the Department's rules and regulations be followed by Tamaron. Tamaron has modified and upgraded the facility in order to achieve a treatment process which will produce effluent of a quality for discharge under the Grizzle-Figg Amendment. Tamaron has provided reasonable assurances, although not absolute assurance, that the facility can comply with the discharge permit requirements of Chapter 403, Florida Statutes, including Section 403.086, Florida Statutes, notwithstanding the testimony of Jay Thabaraj to the contrary concerning Tamaron's sampling technique and its method of obtaining high-level disinfection which can be addressed as a specific condition, if necessary. Studies conducted by the Tamaron's engineer included in Petitioner's exhibit 21 indicates that there was no adverse impact to the stormwater lakes from the facility's wastewater treatment and disposal system. Tamaron has provided reasonable assurances that the point of discharge is a reasonably access point, where such discharge results only in minimal negative impact.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Tamaron an operating permit for its facility as secondary treatment facility. In the alternative, that the Department enter a final order granting Tamaron an operating permit for its facility that requires compliance with the advanced waste treatment criteria set forth in Section 403.086(4), Florida Statutes, that, in addition to any general or specific conditions that are normally required, contains specific conditions that: (a) contains specific instructions on sampling technique, sampling frequency and reporting as set forth in Rule 17- 740(1)(b)2., Florida Administrative Code, and (b) sets forth compliance with high-level disinfection, with a time limit for compliance, that accomplishes the intent of the rule, if not the strict letter of the rule, without total redesign of the facility. DONE AND ENTERED this 3rd day of May, 1994, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2968 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, Tamaron's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(5,6); 5(6); 6(7); 8(12); 10(8); 11-12(13-25,38); 13(31-34); 14(8); 15(13); 16(14); 17-18(15); 19(36); 20(16); 21(17); 22(18); 23(19); 24(20); 25(21);26(22); 32(32,7); 33(33); 34(32,32); 36(31); 39-40(34); 41(36); 42- 43(34); 44(35); 47(4); and 51(10). Proposed findings of fact 27-31, and 35 are conclusions of law rather than findings of fact.. Proposed findings of fact 45, 46, 48-50, 56, 57, 59, and 61-72 are arguments rather than findings of fact. Proposed findings of fact 7, 9, 37, 38, 52-55, 58 and 60 are neither material nor relevant. Respondent, Department's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1,6); 2(2); 3(4,10); 5(9); 6(9,10); 8(11); 9-17(18-27); 18(8); 19(13); 20(5); 21(17); 22(30); 23(31); 24(14); 25(17); 26(18-23); 27(34); and 32(35,38). Proposed finding of fact 4 is neither material nor relevant but see Findings of Fact 18-25. Proposed findings of fact 7, 31 and 33 are arguments rather than findings of fact. Proposed findings of fact 28-30 are conclusions of law rather than findings of fact. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Charles G. Stephens, Esquire C. Robinson Hall, Esquire Enterprise Plaza, Suite 1516 101 E. Kennedy Blvd. Tampa, Florida 33602 Francine Ffolkes, Esquire Office of General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The Petitioner is a utility regulated by the Commission that is in the business of acquiring and operating water and sewer systems in Florida, principally in Central Florida. It now operates 39 systems, of which at least 30 water systems and 5 sewer systems are located in Orange, Lake and Seminole counties. In this case, the Central Florida Division has one water system in Lake County (Picciola Island) , two water systems in Orange County (Daetwyler Shores and Lake Conway), three water systems and one sewer system in Seminole County (Bretton Woods/Druid Hills, Dol Ray Manor, and both water and sewer in Chuluota; these systems serve 949 water customers and 98 sewer customers. Southern commenced operating these systems in the spring of 1978, purchased them from Central Florida Utilities, Inc. in October, 1978 and applied to the Commission for a transfer, which application is still pending. (Docket 780278- WS; Hearing Examiner's Recommended Order approving the transfer was filed January 29, 1979) Notwithstanding customer complaints of the quality of the water service (low or fluctuating pressure, excess chlorine, sediment, no noticed interruptions and lack of fire protection capabilities) and Southern's admission of the general disrepair of the systems at the time of the purchase, the systems are in compliance with governmental standards. The utility has spent $52,000 since the test year on repair and upgrading with another $87,000 necessary to complete the required projects, of which $25,000 is for governmentally mandated improvements to the Chuluota wastewater system. The Petitioner's use of the purchase price of $215,800 for the facilities involved in the seven systems as the amount of plant in service as of June 30, 1978, rather than Respondent's use of the 1977 annual reports of the prior owner, is appropriate because: it follows past FPSC decisions on this subject with respect to this utility; the purchase price was considerably less than FPSC's estimated replacement cost of over $800,000; the purchase was an arms-length transaction; the books of the prior owner were considered unreliable; and, following complete integration of operations with Petitioner's other systems in Lake, Orange and Seminole counties, the customers should obtain the best possible service at the lowest rates obtainable. Alternatively, the Utility is entitled to an acquisition adjustment that achieves the same rate base as using the purchase price. Petitioner's rate bases using a 12-month average, rather than the preferred 13-month average, are as follows: Water Sewer Average test year plant $178,305 $ 62,242 Mandated additions 25,000 Accumulated depreciation (1,833) (623) CIAC (net of amortization) (6,703) Working Capital 11,241 1,801 Income tax lag (776) (370) $180,234 $ 89,050 The capital structure and rate of return is as stipulated by the parties as follows: WEIGHTED TYPE AMOUNT RATIO COST COST Common Stock $1,882,055 60.44 14.0 percent 8.46 Long Term Debt 1,037,372 33.31 8.89 2.96 Cost Free 194,768 6.25 0 0 TOTAL $3,114,195 100.00 11.42 perc. Rate of Return The above rate bases and rate of return provide an authorized constructed net operating income from water service of $20,583 and from sewer service of $10,170. This results in the following constructed statement of operations for year ended June 30, 1979: Water Sewer Operating Revenue $122,993 $29,085 Operating Expense Operation 84,760 12,346 Maintenance 4,103 2,065 Depreciation 3,531 1,245 Taxes, other than income 6,138 1,409 Income taxes 3,878 1,850 Total $102,410 $18,915 Net Operating Income $ 20,583 $10,170 It is noted that the above revenue requirement is more than the interim authorized revenue of $97,184 for water and $17,640 for sewer. The staff proposed that the rate structure should be changed from the present block structure far water and flat rate for sewer to a base facility charge for both water and sewer. This concept is appropriate since it serves to conserve water and insures that each customer pays his fair share of the costs of providing service. No evidence opposing this type rate structure was presented.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Southern States Utilities, Inc., Central Florida Division, be granted and that the utility be authorized to file new tariffs to be approved by the Florida Public Service Commission that would have provided for the test year ending June 30, 1979 annual gross revenues of $122,993 for water service and $29,085 far sewer service. It is further RECOMMENDED that the utility be required to implement rates for fire protection service in Belle Isle and a base facility charge in structuring water and sewer rates. It is further RECOMMENDED that the refund bond be returned to utility. DONE and ORDERED this 24th day of October, 1980, in Tallahassee, Florida. H. E. SMITHERS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1980. COPIES FURNISHED: Kenneth H. Myers, Esquire 1428 Brickell Avenue Miami, Florida 33131 William H. Harrold, Esquire 101 E. Gaines Street Tallahassee, Florida 32301 Sam Owens, Esquire 101 E. Washington Street Orlando, Florida 32801 Steve Tribble, Clerk Florida Public Service Commission 101 E. Gaines Street Tallahassee, Florida 32301 Robert T. Mann, Chairman Public Service Commission 101 E. Gaines Street Tallahassee, Florida 32301
Findings Of Fact Respondent, Lois Green, is a resident of Florida and owns the property known as the Nichols Post Office located on Highway 676 in Nichols, Polk County, Florida. There is one employee stationed at the post office and members of the public use the post office for U.S. mail purposes. On October 11, 1990, Petitioner advised Respondent that the source of water that she used to supply the post office building did not comply with the requirements of the Florida Administrative Code. Thereafter, on September 23, 1991, Petitioner issued an Administrative Complaint to Respondent, advising of Petitioner's notice of intent to assess a fine of $100.00 per day until the corrections were made or for 30 days, whichever occurred first. At the hearing, Petitioner orally amended paragraph 4 of the Administrative Complaint to change the reference "December 22, 1989" to "October 4, 1990." Following service of the Administrative Complaint on Respondent and for 30 days thereafter, the water source for the post office building was a well located behind the post office on Respondent's property. In approximately December of 1991, Respondent disconnected the well which was presently serving the post office and connected to another well located adjacent to the property which supplied a residential home. The well which provided water to the post office was originally drilled as an irrigation well. The well head was located approximately 50 ft. to the closest septic tank and restroom pipe outlets. That well had no raw sample taps or a pressure tank with an inlet or outlet. Additionally, there was no surface protection pad nor were quarterly bacteriological samples taken to measure the water quality samples. Finally, the well was not approved by Petitioner prior to placing it into use by Respondent. Sometime subsequent to 30 days after Petitioner issued the Administrative Complaint to Respondent, Respondent abandoned the well without notifying the Petitioner and connected to a residential well which also contravenes the setback requirements contained in Chapter 17, Florida Administrative Code. Specifically, that well is approximately 30 ft. from the on-site sewage disposal system (septic tank) and is in violation of Rule 17- 555.302, Florida Administrative Code, formerly Rule 17-22.615(2), Florida Administrative Code. Petitioner's agent, Mark Fallah, during times material, was employed in Petitioner's Code Enforcement Section and was charged with investigating the problems surrounding Respondent's supply of water to the Nichols Post Office. Throughout the course of employee Fallah's involvement with the investigation of this matter, there have been several proposals and counter-proposals which have been exchanged by and between Petitioner and Respondent. Petitioner's agent Fallah attempted to see if a variance could be obtained whereby Respondent could continue to use the then existing well despite the fact, however, that it was in violation of the setback requirements. Additionally, Fallah attempted to get Respondent to make certain minor changes and modifications to the existing well which were not successful. Throughout the course of the parties negotiations in an effort to resolve this matter, there has been certain concessions made by both sides; however, the well which supplies the post office is a water system which is noncompliant with applicable statutory and rule requirements. Petitioner, through its employee Fallah, checked with a local well drilling company, Dunham Well Drilling Company, to obtain an estimate for a well. That company gave an estimate of approximately $2,000.00 to $3,500.00 to install a water supply system to the post office which would comply with Petitioner's requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the total amount of $3,000.00 of which amount $2,500.00 shall be suspended pending Respondent's initiation of a plan to construct and install a water well system to provide the Nichols Post Office which complies with Petitioner's requirements enunciated in Chapters 403 and 381, Florida Statutes and Rule Chapter 17, Florida Administrative Code. In the event that Respondent fails to initiate a plan of correction and complete the installation of the well within sixty (60) days of the date of Petitioner's entry of its Final Order, then Petitioner shall be authorized to impose the full administrative penalty of $3,000.00 without further administrative proceedings. Respondent shall submit to Petitioner the five hundred dollar ($500.00) administrative fine within thirty (30) days from the entry of Petitioner's Final Order. DONE and ENTERED this 22 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of April, 1992. COPIES FURNISHED: Raymond R. Deckert, Esquire Asst District Legal Counsel HRS District VI Legal Office 4000 W Dr Martin Luther King Jr Blvd Tampa, Fl 33614 Mygnon Evans, Esquire 5600 US Highway 98 N Lakeland, Fl 33809 Richard S. Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700 John Slye, Esquire General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700
The Issue The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
Findings Of Fact On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface. On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit. On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's. Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility. Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean "permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act." Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations: Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L These standards are frequently referred to as the "10-10-10-1 Standard." In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard. Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively. On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules. The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation. The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L. The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires. Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively. Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well. Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well. In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported dilution rates on the range of seven orders of magnitude, i.e., 10 million times. After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods. The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations. Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility. The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine. Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth. Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria. Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition. The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit. PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending. Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health. Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2000. COPIES FURNISHED: Francine Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Evan Goldenberg, Esquire White & Case, LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-5309 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact The Department of Agriculture and Consumer Services (Petitioner) is charged with the administration and enforcement of Chapter 500, Florida Statutes, together with the rules promulgated thereunder, relating to food and water sanitation within the State of Florida. Wima Corporation (Respondent) is a water vending machine operator and is located at 4252 Northwest 55th Street, Coconut Creek, Florida. The president of Respondent is Donald Epstein. Respondent has been in the water vending business since 1980 and has never received any notification that its water has caused anyone to become ill. Respondent is the owner and operator of a water vending machine, Identification Tag No. 5890 (Machine ID Tag No. 5890), located at Lyons Amoco, Lyons Road and Glades Road, Boca Raton, Florida. Machine ID Tag No. 5890 dispenses drinking water, potable water that originates from an approved municipal provider and is processed by reverse osmosis. The drinking water is sold to the general public. Approximately 20 to 50 vends per day are dispensed from Machine ID Tag No. 5890 to the general public who provide their own container for collecting the water. A vend is one gallon of water. On March 3, 1997, one of Petitioner's sanitation and safety inspectors (inspector) collected a vended water sample from Machine ID Tag No. 5890. The inspector collected the first "slug" of water from the spout of Machine ID Tag No. 5890 the same as a paying public consumer. The first "slug" of water is the first water that the first paying public consumer would receive from Machine ID Tag No. 5890. Petitioner's inspector collected 100 ml of water in a sanitary container, sealed the container, and immediately packed the container in ice in order to refrigerate the water sample. The water sample remained in the custody and control of Petitioner's inspector until it was shipped, packed in ice, to Tallahassee, Florida, via Greyhound Bus, for analysis by Petitioner's food laboratory. The shipping process was in accordance with protocol established by Petitioner. On March 4, 1997, the water sample was received by the Petitioner's food laboratory for analysis. The sample remained in the custody and control of the laboratory staff. The analysis of the water sample was initiated within 30 hours of collection. Upon analysis, the water sample was found to contain 21 coliforms per 100 ml. Florida's safe water standards require a total absence (zero) coliforms. The water sample was contaminated with coliforms and was not appropriate for human consumption. The analysis was performed in accordance with the protocol established by Petitioner. By certified letter, return receipt, dated March 17, 1997, Respondent was notified, among other things; that the water sample was adulterated; that ID Tag No. 5890 was required to be cleaned and sanitized; and that another sample was required to be taken. After the analysis of the water sample showed adulteration, Respondent's president contacted an independent laboratory, Spectrum Laboratories, Inc., (Spectrum), approved by Petitioner, and requested that an analysis of the dispensed water by Machine ID Tag No. 5890. Spectrum forwarded the necessary items to Respondent's president in order for him to obtain a water sample and informed him of the procedure and process in obtaining the sample. On March 19, 1997, Respondent's president obtained the water sample in accordance with Spectrum's instructions and forwarded the sample to Spectrum. On March 20, 1997, Spectrum performed an analysis of the water sample and found no coliforms. On or about March 24, 1997, Respondent's president forwarded the results of Spectrum's analysis to Petitioner. On March 25, 1997, a second vended water sample was taken by Petitioner's same inspector from Machine ID Tag No. 5890, using the same procedure and process as before. Also, the water sample was shipped for analysis to Petitioner's food laboratory in Tallahassee using the same procedure and process. The collection and shipping procedure and process were again in accordance with protocol established by Petitioner. On March 26, 1997, the second water sample was received by the Petitioner's food laboratory for analysis. Upon analysis, the second water sample was found to contain 18 coliforms per 100 ml. The water sample was contaminated with coliforms and was not appropriate for human consumption. The analysis was again performed in accordance with the protocol established by Petitioner. By certified letter, return receipt, dated April 10, 1997, Respondent was notified, among other things, that the second water sample was adulterated; that Machine ID Tag No. 5890 would be taken out of service until the source of the contamination was found; and that Machine ID Tag No. 5890 would be immediately placed under a "Stop Use" order. By Stop Use Order dated April 11, 1997, Respondent was notified, among other things, that Machine ID Tag No. 5890 could not be used. Respondent was further notified that Machine ID Tag No. 5890 could resume being used after a showing of no contamination from a water sample taken by Petitioner's inspector and analyzed by Petitioner's food laboratory. Respondent cooperated fully with Petitioner in correcting the problem. Respondent complied with all of Petitioner's requests. On April 16, 1997, a third vended water sample was collected by Petitioner's inspector from Machine ID Tag No. 5890. The same collection procedure and process were followed as in the previous two collections. The same procedure and process were followed in forwarding the water sample to Petitioner's food laboratory as in the previous two collections. All procedures and processes were in accordance with protocol established by Petitioner. On April 17, 1997, Petitioner's food laboratory performed an analysis of the third water sample. The analysis was performed in accordance with the protocol established by Petitioner. Petitioner's laboratory found no coliforms. The water sample was not contaminated and was appropriate for human consumption. Respondent was notified of the results of Petitioner's third analysis. Petitioner permitted the use of Machine ID Tag No. 5890 to resume.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order: Finding that the Wima Corporation violated Subsections 500.459(4)(f), and 500.04(1), Florida Statutes (1995), and Rule 5K-9.005, Florida Administrative Code. Imposing a $500 administrative fine against Wima Corporation. DONE AND ENTERED this 7th day of April, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1998.
The Issue Whether the rules promulgated by the Department of Environmental Regulation require the Respondent to employ the services of a state certified water system operator to operate the water systems at the two business locations involved in these proceedings.
Findings Of Fact At all times material to these proceedings, the Respondent was responsible for the operation of two water systems. One water system is located on Highway 92 West, Winter Haven, Polk County. The other water system is located on State Road 37 South, Mulberry, Polk County. The restaurant and bar business operated at the Winter Haven location is known as the Rainbow Club. Customers eat food and drink beverages prepared with water from the on site water system. The system serves at least twenty- five individuals daily, at least sixty days out of the year. The convenience store business operated in Mulberry serves ice tea, juices, and coffee to customers which is prepared with water from the on site water system. The system serves at least twenty-five individuals daily, at least sixty days out of the year. During the recent past, the Respondent retained a certified operator to meet the state requirements. He was not satisfied with the operator for the following reasons: (1) He had to show the man how to chlorinate the water. (2) The operator took the required chlorine samples from water that had not been chlorinated. (3) Visits were not made to the site as scheduled. (4) The pump at one of the establishments was harmed by the certified operator. (5) The expense of four hundred dollars a month for the testing of three sites operated by the Respondent was too much money. The Respondent wants to be able to chlorinate the water and maintain the systems himself. He has professional experience regulating the chemical balance of water in swimming pools. The samples he turned into the lab himself were good. The Respondent also wants to keep the old well next to the convenience store in Mulberry. He disagrees with the Department's request that he abandon the well because he needs it for an adjoining piece of property. This well is used for lawns, not for the convenience store business. The Department is amenable to the Respondent maintaining his own systems if he is certified to do so. The next examination is scheduled for November 1990.
Findings Of Fact This case involves the Department's attempt to purchase and utilize eight water quality data transmitter/display/logger units to measure parameters of pH, conductivity, DO (dissolved oxygen), temperature, depth, salinity, an option for oxygen reduction potential, and an option for ammonia measurement simultaneously in either fresh water or salt water for a period of up to 48 hours. The Department mailed ITB No. 93-03, entitled Water Quality Data Transmitter/Display/Data Logger Unit, on October 7, 1992. The term "parameter" refers to specific measurements such a pH, dissolved oxygen, conductivity, depth, and temperature, those measurements that were called for in the ITB. The term calibration refers to adjusting the measurements by a comparison to a standard. Calibration is performed to compensate for drift or shift in measurements, usually over a period of time. ITB No. 93-03 contained the following specifications for the desired equipment under "special Conditions and Specifications": Water Quality Data Transmitter/Sonde - for use in both fresh and saltwater with automatic temperature compensation. Include temperature, conductivity, dissolved oxygen, depth, and low ionic pH system. Must be able to calculate or determine salinity and DO percent saturation. Must have option of adding additional probes, e.g. ORP and Ammonia. - 8 units. Water Resistant Digital Display/Data Logger Must be programmable for unattended data measurements for all parameters in item no. 1 above at various intervals (e.g. every 15, 30, 60 minute) and have the capability of logging all such data. - 8 units. Calibration/Maintenance Kits - Calibration for all parameters in item 1 must be simple, requiring 5 minutes or less for each parameter. - 8 units. Stirrer Units (if needed) - 8 units. PC compatible Software and Cable for data down loading - 8 units. Sonde to Logger/Display Unit Cable - at least 50 feet. - 8 units. Unattended Monitoring - Must be able to log and maintain water quality data file for a sampling frequency of 15 minute intervals over at least a 48 hour period while in an unattended mode of operation - 8 units. Field Carrying Case for Sonde and Display/Logger Unit - 8 units. User Manuals - 8 Units. Probe weights (if needed) - 8 units. ITB No. 93-03 specified the following warranty and delivery requirement: Must carry 2-year warranty on Sonde, Display/Logger Units, Stirrers, and Cables. Warranty service must be provided within two weeks of notification or, if extended repair period is required, then loaner units must be made available at no cost to DER during the warranty period. Delivery must be within 45 days of bid award. Petitioner Solomat's bid of $50,086.32 was the lowest when bids were opened on October 23, 1992. The company's written equipment specifications provided by the Petitioner to the Department were similar or superior to the written specifications provided with the competing bid responses. They were submitted in compliance with "General Condition" No. 7, page 1 of the ITB, which required submission of full specifications. Dr. Wayne Magley, on behalf of the Department, requested that Petitioner demonstrate the equipment it was offering in its bid response because the Department was not familiar with the Petitioner nor its equipment. After the bid opening, and before award in November 1992, Petitioner demonstrated its existing MPM4803 production unit for the Department in Florida, along with the 803PS sonde. A sonde is a multiparameter probe. The 803PS sonde was capable of being plugged into the existing MPM4803, and the WP4007 and WP803 data logger units then under development by Solomat. Petitioner agreed to modify its software for the MPM4803 to add the ability to read out in milligrams per liter (MG/L), a capability not mentioned in the ITB specifications or in Solomat's company specifications. This software modification contributed to the Department's subsequent calibration troubles because, according to Mr. Stonier, the modification of the unit software rendered Solomat's "how to" manual less accurate, detailed, and specific than it would have been for the unmodified software. The Petitioner amended its bid offering by letter dated November 5, 1992, to include, in addition to its October 20, 1992 bid response, the following: Stainless Steel Relief Cables with each unit Display D.O. readings in MG/L. A day of On-Site training from a Solomat factory representative A day of training at each local site from Geometrics. The ITB had only called for a water resistent product, but during this same pre-contract award period, Department personnel expressed a need to hose off the equipment. Hosing off the equipment would require a waterproof unit, so Petitioner offered the option to upgrade to new instruments slated for development and sale in April or May of 1993. In so offering, Solomat's representative described to Department personnel a WP4007 unit then under development. Solomat also had its WP803 unit under development. The WP803 also was intended to be developed to be waterproof. The WP803 was not part of Petitioner's additional offers to the Department in November 1992. Although Mr. Stonier asserted at formal hearing that Solomat's November 1992 upgrade offer was not integral to the finalized November 1992 bid award, he conceded that the Solomat offer was, "something Solomat was obliged to provide." In fact, this offer was reduced to writing. In response to the Department's concerns about hosing off the units, the Petitioner also promised a latex boot to protect the probe on the MPM4803 unit. This offer also was reduced to writing. The Petitioner further amended its bid response by letter dated November 10, 1992, to include, in addition to its October 20, 1992 bid offering and its November 5, 1992 enlargement of that offer, the following: Both versions of the weighting bracket will be provided with each unit. Two year warranty will cover any damage due to immersion or intrusion by salt air. Bottom latex boot will be supplied in addition to latex cover which you saw displayed today. A wrist strap will accompany each unit. Any further software (CS4) or Eprom updates will be available at no charge. SOLOMAT will extend the option to upgrade any or all of the instruments, with our new, fully waterproof version WP4007, within the next year at no charge. We will ship demo MPM 4803, fully preprogrammed, to be received by D.E.R. prior to November 18, 1992. Petitioner knew via the original ITB specifications and by the further discussions that took place in November 1992 after the bid opening and prior to the final award and purchase order that the Department was concerned about the ruggedness, watertightness, and use of the eight instruments in the field for extended periods in various conditions and types of water. No. 1 and No. 7 of the ITB "Special Conditions" specifications clearly stated that the Department wanted to leave the units on site for 48 hours in varying types of water. At formal hearing, Mr. Stonier admitted he knew in November 1992 that was what the Department wanted to do even if the ITB were confusing. The Petitioner knew that the Department would be utilizing the water quality monitoring equipment under diverse conditions in the field because Mr. Stonier's November 12, 1992 letter to the Department provided as follows: The D.E.R.'s application includes the tough everyday use in varied environments that demands the ruggedness and reliability that the Solomat instruments have been designed and are each tested for. Mr. Stonier testified at formal hearing that it was understood in November 1992 . . that the units were going to be carried out on site into various types of measurement situations, . . . and that the probes would be -- the 803PS sonde would be submerged, and samples would be recorded. And these instruments are certainly designed to do that. in fact, they're designed where they can be left out on-site for longer periods of time. The Department accepted the Petitioner's October 20, 1992 bid as amended by its November 5 and 10, 1992 letters, and in reliance on those letters. Although the ITB contained no definition of "accuracy", the Department's acceptance of Petitioner's bid also included reliance on Solomat's equipment specifications regarding equipment accuracy submitted by Petitioner in its response to "General Condition" No. 7, page 1 of the ITB. The bid acceptance and subsequent purchase order occurred on or about November 20, 1992. The purchase order is not in evidence. In January 1993, Petitioner delivered eight MPM4803 units and eight 803PS sonde units to the Department in response to the bid award/purchase order. This model was equipped with a latex boot, but the Department complained about the waterproof ability of the boots, and Petitioner promised to provide wider latex boots. Petitioner's training representative provided one day of training in Tallahassee and one day of training in Orlando in early February, 1993. Petitioner's training representative encountered difficulty in demonstrating how to calibrate the equipment at the February 1993 Tallahassee training session which he was unable to resolve prior to calling Petitioner's U.S. headquarters for technical assistance. Beginning in early February 1993, Department personnel repeatedly encountered problems in calibrating the Petitioner's equipment. Calibration problems were encountered in trying to follow the manuals provided by the Petitioner despite some additional written instructions beyond the original faulty manual (see Finding of Fact 11) and despite oral instructions by telephone. There also were continuing problems with the pH sensor, with conductivity, and with DO (dissolved oxygen). Beginning in February 1993, Department personnel repeatedly encountered problems with Petitioner's equipment's inability to stay calibrated and to take accurate measurements resulting from excessive drift. Solomat employees perceived the Department users as unsophisticated and slow to understand how to use the Solomat equipment, and as preferring the earlier models of similar units with which they were more familiar and which had been developed by competitive vendors. Indeed, some documented user errors included Department personnel failing to remove probe guards on sensors. Some OC3 dissolved oxygen sensors in the 803PS sonde had to be replaced by Solomat due to user error in installing them without the 0-ring so that water could seep in and damage the equipment or with two 0-rings so that there was no contact between the electrode and the probe sonde. However, these types of human error did not significantly affect valid tests showing calibration drift and accuracy reading problems. It is noted that P-5 (Loxahatchee notes), an August 24, 1993 28 day "short informal report" relied upon by Petitioner to show that some persistant, open-minded Department users could learn to correctly calibrate the MPM4803 data loggers/803PS sondes and that good data could be gathered over more than 48 hours, contains on its first page the comment, "Stabilities were very good except DO; it is unclear whether this was due to probe response drift or improper calibration by Solomat representatives." Department personnel tracked their problems with the Petitioner's MPM4803 equipment's failure to take accurate measurements by sampling at field sites which have been consistently tested by Department personnel with other equipment over a period of years so that they had a background of data for comparison for any given parameter. When they were unable to account for significant drifts of calibration and even negative readings in some parameters on Petitioner's products, Department personnel then used other vendors' water quality monitoring equipment to confirm that the Petitioner's equipment was not giving consistently accurate measurements. Although Petitioner's witnesses testified concerning their perception that such methods of comparison lacked accuracy and fairness, they offered no better field tests as an alternative. Petitioner's concerns mostly centered around other vendor's meters also sometimes registering outside ITB or company specifications. However, in fact, the Department was making some of its assessments based upon calibration and post-calibration readings on the same Solomat meter each time. In light of the testimony of John Kent Edwards that in his District, he personally calibrated the Petitioner's units every morning in the laboratory before they went out in the field and that careful post calibration procedures on the same meters still demonstrated significant drift; the testimony of Mr. Edwards and Louis They that standard calibration solution or calibration solutions prepared fresh by a chemist were used in calibrating Petitioner's units to eliminate variables of that sort; the admission by Don Roos to Department personnel in July 1993 that it could take five minutes to stabilize DO on the low end and on the high end (see Finding of Fact 36); the acknowledgement by Peter Ebersold that it is possible that DO and pH drift would violate ITB specifications and Petitioner's own equipment specifications over more than 24 hours in dirty water; Dr. Saffel's uncontradicted testimony that the calibration on all Petitioner's units provided to the Department were written only for generic water, not water as bioactive as some of Florida's water, and that Petitioner's units' long term stability of calibration depends very strongly on the purity of the water being measured; and Wayne Magley's testimony that a subsequent Winkler Titration test in the laboratory verified the other vendors' scores but not Petitioner's scores while showing that Petitioner's units were working correctly, and that statistical correlations of all the meters were done, it is found that the Department's testing procedure is probative and persuasive that the MPM4803 units were not meeting certain specifications encompassed in the bid award/purchase order. The Petitioner's assertion that low ionization cables threw off all calculations is in the nature of a nonsequitur, since this type of cable was agreed upon in the amended bid responses, became part of the parties' contract, and Petitioner was required to provide workable units under that agreement. Petitioner's assertion that the conversion of readings to MG/L was the problem falls in the same category. During 1993, both parties made repeated good-faith attempts to resolve the calibration and instrument accuracy problems, with the Department informally telephoning Petitioner for assistance and sharing information among the Department's Tallahassee office and district personnel. By a June 9, 1993 letter, the Department provided Petitioner its data showing its employees were not able to get consistent, reasonable readings with the Solomat units. In June 1993, Wayne Magley, on behalf of the Department, asked the Petitioner to provide additional on-site assistance because Department personnel were still unable to resolve problems with calibrating and using Petitioner's equipment despite Petitioner rendering helpful technical advice when called by Department personnel. Dr. Magley specifically asked for Don Roos because of Mr. Roos' history of being extremely knowledgeable about the equipment and rendering helpful technical advice when called. In July 1993, Don Roos and Peter Ebersold came to Florida to provide assistance at the Department headquarters in Tallahassee and Orlando District office. During the Tallahassee visit, Mr. Roos admitted that it could take up to five minutes for DO to stabilize before it could be calibrated for low end and five minutes for DO to stabilize for high end, for a total time in excess of 10 minutes for one parameter. This calibration time violates the Department's bid specification that each parameter must be calculated in five minutes or less. Misters Roos and Ebersold observed Department staff calibrating the MPM4803 with the 803PS sonde during their July 1993 visit to Tallahassee and did not have any criticism of the Department staff's calibration process. Petitioner diagnosed a problem with its MPM4803 units as being that some Department users were inadvertently recalibrating temperature and misinterpreting "error" message prompts, thus throwing all the readings off. Therefore, Solomat made a change to eliminate "temperature" from the recalibration cycle and changed the Eproms on the Department's units to simplify the procedure. Despite trying to get the wider latex boots for the MPM4803 units until July 1993, Petitioner was unable to obtain wider latex boots and at that point gave up trying to get the required improved boots for the MPM4803 units, in anticipation of being able to upgrade the Department to newer units. The Petitioner reiterated in correspondence as late as August 3, 1993 that the Department would be receiving an upgrade from the MPM4803 to the WP4007 units, stating, "[t]he exchange of your MPM4803s with the new WP4007 waterproof dataloggers will occur near the end of the year." Dr. Saffell testified that the Department was promised an upgrade on his authority. By a November 15, 1993 letter, the Department reported to Petitioner that most of its employees still could not calibrate for each parameter within the five minutes or less as required by the ITB specifications and still had difficulty getting consistent readings. The Department wanted to return the units for refund. By a December 7, 1995 letter, the Department notified Petitioner that it intended to find Petitioner in default of the bid contract including failing to provide the promised upgraded units in any timely fashion despite Petitioner's promise to do so within a year of its November 10, 1992 bid amendment and because the Petitioner's equipment could not be consistently calibrated in five minutes or less for each parameter as required by the bid specifications. The Petitioner also had never supplied the latex boot as agreed. It is clear that as of the December 7, 1993 letter, Petitioner was in default on the foregoing three elements of its contract with the Department. By letter dated December 13, 1993, Petitioner notified the Department that it still wished to provide the instrument upgrade. In this letter, Petitioner unilaterally changed the model it was going to provide from the WP4007 to the WP803, on its own assessment that the WP4007 had too many options and a more user friendly unit would be less confusing to Department users. The WP4007 features which are not on the WP803s were not part of the original ITB specifications. The WP803, like the WP4007, was intended to be waterproof. Solomat's specifications for the WP803 were intended to exceed those of other vendors for comparable machinery. Despite Solomat's best intentions to have both the WP4007 and the WP803 models fully developed and ready for the market in April or May of 1993, neither the WP4007 nor the WP803 was released in the United States until February or March 1994. By letter dated December 21, 1993, the Department gave Petitioner until February 1, 1994, to correct its failed performance under the contract by supplying eight replacement units that met the specifications agreed upon back in November 1992. No mention was made of what model unit would be necessary, however the Petitioner was notified that the replacement units had to be provided to the Department for testing and that the units had to be acceptable to the Department after testing by February 1, 1994 in order for Petitioner to avoid being found in default of the bid contract. The Department did not, in this letter, or at any other time, specifically agree to accept the WP803 upgrade instead of the promised WP4007 upgrade, but specified that a failure to supply eight upgraded units and have them timely accepted by the agency would result in default. Petitioner responded that it would provide two prototypes or preproduction units to test in January and try to meet the Department's February 1, 1994 deadline for delivery of eight upgraded units. The Department allowed Solomat until February 15, 1994 to exchange eight satisfactory upgraded units for the eight MPM4803s originally supplied. Petitioner delivered two WP803 preproduction units and provided some training in January 1994. WP4007 preproduction units could have been provided but were not. Because development had lagged behind marketing, Petitioner had inventory of neither WP803 nor WP4007 production units. The Department conducted testing, some of which could be considered limited field use, on January 18-20, 1994 on the prototype or preproduction WP803 units with Petitioner's representatives present. Petitioner's representatives did not criticize Department personnel's calibration procedures. On January 28, 1994, the Department provided the Petitioner a written summary of its findings as a result of the testing which included a four-point conclusion that the new units did not meet bid specifications. Petitioner's witness conceded the following: The circuit boards on the preproduction WP803 units tested in January 1994 had been assembled by hand. The internal programming on the Eprom was not fully debugged. There were problems with the conductivity linearizations. Petitioner attempted to interface those instruments with the 803PS sondes the Department already possessed and the modifications did not work. Petitioner did not intend these prototype WP803s to be used in the field because, among the foregoing problems, they were not fully waterproof. Petitioner's review of the Department's test data in February 1994 on the prototypes convinced the company that there were problems that went beyond mere user problems. Some parameters were acceptable but results were not reliable for all parameters. The testimony of John Kent Edwards, Louis They, and Wayne Magley together with Petitioner's assessment is sufficient to establish that despite a fair test, calibration drift for Petitioner's preproduction WP803 units tested on January 18-20, 1994 failed quality assurance levels and did not meet certain specifications of the contract. The Department eventually extended the February 1, 1994 deadline until February 21, 1994. The Department conducted additional testing on the WP803 production units supplied by the Petitioner prior to February 21, 1994. Wayne Magley set up and calibrated three of the production units received. One machine had an immediate hardware failure. Over a week, he did a series of calibrations and post-calibrations in the laboratory and one field trip. Despite employing calibration methodology to give Petitioner the benefit of the doubt and even accounting for low ionic strengths, the "five minutes for calibration of each parameter" specification could not be met. Problems with accurate readings remained even when Petitioner's instruments were tested against each other. Department testing on the WP803 production units demonstrated that they also failed to meet either the ITB specifications or the company specifications provided by the Petitioner as part of its bid. By a March 3, 1994 letter, the Department notified Petitioner it was declaring a default, pursuant to Rule 60A-1.006 (3) F.A.C. By mid-February, Petitioner had not supplied more than four production level WP803s. The Department instructed Solomat not to ship any more units because Department tests on the first four made the Department not want to progress further. Petitioner did not send the additional WP803 production units. The Department ended up with four MPM4803 production units, four WP803 production units and four 803PS sondes. Solomat has four 803PS sondes at its Connecticut office marked, "DEP property." In August 1994, Petitioner provided its production level WP803 data logger and 803PS sonde to U.S. Testing Labs which performed an independent evaluation to determine if the problems that the Department had experienced were with the units or with the users. Daniel Cooke, Ph.D., was in charge of the test. He, like the Department, had some initial start up difficulty, including learning how to calibrate with oral instructions over the telephone beyond the printed December 1993 instruction manual; a loose connection that Petitioner had to repair; and conductivity adjustments that Solomat had to make. As a result, he aborted the first test on his own and aborted the second try at a test at the request of Solomat. He found he was able to calibrate with the June 1994 instruction manual Petitioner created after the Department had claimed a default. His test results also showed that: 1) high DO was outside of specification throughout the test; 2) conductivity was outside of specification throughout the test; 3) salinity was outside of specification throughout the test; and 4) all parameters were outside of Petitioner's specifications at times during the testing. Petitioner's witness conceded that there could be some drift over the period of a week in the field, some small drift over two hours even in the lab calibrations and DO and pH drift could violate the ITB's "48 hours" specification, dependent upon the pollution of the water in the field. A few months before formal hearing, Petitioner revised its own company specifications to define more realistic tolerances under actual field conditions as 24 hours and two weeks after calibration. The Department represented that it has not yet gone to the next bidder or established a timetable and assumed any costs of reletting the ITB, as contemplated by Rule 60A-1.006(3) F.A.C., because it has no money to do so. Accordingly, there is no evidence of cost of reprocurement which the Department seeks to assess against Solomat (TR-12-13)
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a final order that (1) determines Petitioner to be in default of its contract; (2) orders Petitioner to reimburse the Department $50,086.32 as refunded contract monies, without any additional cover costs; (3) orders Petitioner to pay to the Department, on or before the date payment of the contract monies is made by Petitioner, an amount equal to the actual cost of contracting with the next lowest bidder or the cost of reprocurement or the costs attendant upon replacement purchase on the open market in an amount either stipulated between the parties or as estimated upon past agency experience in letting the original bid/contract; (4) provides for the return of all equipment to Petitioner upon satisfaction of the requirements of paragraphs 2-3; and (5) provides for the removal of the agency decertification upon the satisfaction of the requirements of paragraphs 2-3. RECOMMENDED this 2nd day of August, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1995. APPENDIX TO RECOMMENDED ORDER 94-1682 The following constitute specific rulings, pursuant to 5120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: 1, 9, 12-14, 16-18, 21-25, 29-31, 48, 50, 53, 64, 68, 71-72, 80-81, 83-87, 89-90, 93, 94, 96, 101-102, 123, 127-128, 130, 133, 136, 146, 148, 149, and 153 Substantially accepted except for unnecessary, subordinate, and/or cumulative material which has been interspersed therein and except for legal argument and proposed conclusions of law for which a ruling under s. 120.59(2) F.S. is not required. 2 Covered in the preliminary statement. 3-8, 10, 27, 61, 82, 91-92 99-100, 112, 115, 117, 121-122, 125, 139-140, 142-143 Rejected as immaterial or non-dispositive of any material issue of fact. 11, 19-20, 28, 51-52, 54-55, 63, 73-78, 107-108, 124, 134-135, 137 Rejected as subordinate to the facts as found. 62, 65-67, 88, 98, 103-106, 113-114, 116, 118, 126, 129, 131-132, 138, 141, 144-145, 147 Rejected as out of context, misleading, and/or as they are stated, these proposals are not supported by the greater weight of the credible competent evidence of record. 15, 26, 49, 56-60, 69-70, 79, 95, 97, 119-120, 150-152 Rejected as stated because not proven as stated. Same material substantially covered in the recommended order 32-47 Rejected in part as misleading and/or not supported by the greater weight of the credible competent record evidence; otherwise rejected because it is non-dispositive in that it is selectively culled opinion testimony. There were two aborted tries to do the test before the final data was run; all raw data (including the aborted tries) had been turned over to Solomat, so that additional inquiry of Daniel Cooke, the witness, was limited. Rejected further because it does not reach the dispositive material facts that Solomat did not supply the items called for in their negotiated/modified contract. This was ultimately a laboratory test with a new manual, not a field test with the old manual and the specifications were ultimately modified. Same material substantially covered in the recommended order. 109-111, 154 Substantially rejected as mere legal argument or as a conclusion of law not requiring a ruling pursuant to s. 120.59(2) F.S. Otherwise covered in the Conclusions of Law. Respondent' s PFOF: 1-6, 9-17, 19-29, 31-39, 41-43 Substantially accepted except for unnecessary, subordinate, and/or cumulative material which has been interspersed therein and except for legal argument and proposed conclusions of law for which a ruling under s. 120.59(2) F.S. is not required. 18, Rejected as subordinate to the facts as found 7-8, 30, Rejected as immaterial or non-dispositive of any material issue of fact. 40, 45 Substantially rejected as mere legal argument or as a conclusion of law not requiring a ruling pursuant to s. 120. 59(2) F.S. Otherwise covered in the Conclusions of Law. 44 Covered in the preliminary statement. COPIES FURNISHED: Robert S. Cohen, Esquire Pennington and Haben, P.A. Post Office Box 10095 Tallahassee, Florida 32301 Candi E. Culbreath, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Blvd. Tallahassee, Florida 32399 Kenneth Plante Department of Environmental Protection General Counsel 3900 Commonwealth Blvd. Tallahassee, Florida 32399
The Issue The issue posed herein is whether or not the Respondent, Arthur M. Jones, Jr.'s Wastewater Treatment Plant Operator's license should be suspended or revoked based on conduct set forth hereinafter in detail based on allegations as set forth in the Petitioner's Administrative Complaint filed January 31, 1979.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the documentary evidence received, the following relevant facts are found. Respondent, Arthur M. Jones, Jr., is a duly certified Class C Wastewater Treatment Plant Operator, certified pursuant to Chapter 17-16, Florida Administrative Code. Respondent holds license No. 793 originally issued by the Florida Department of Health and Rehabilitative Services on May 13, 1971. The responsibility for certification of wastewater treatment plant operators was transferred to the Florida Department of Pollution Control by Executive Order 72-75. The Florida Department of Environmental Regulation is the successor agency to the Florida Department of Pollution Control by virtue of Chapter 75- 22, Laws of Florida, and is authorized by Section 403.101, Florida Statutes, to issue and revoke operators' certificates pursuant to its rules and Chapter 120, Florida Statutes. At all times material to this complaint, Respondent was employed by the Duval County School Board in Jacksonville, Florida. At all times material, Respondent was employed by the School Board as a School Sewer/Water Plant Mechanic, a position requiring certification by the Department as a Wastewater Treatment Plant Operator. In his capacity as a School Sewer/Water Plant Mechanic and Class C Operator, Respondent was responsible for the operation, supervision, maintenance and collection of influent and effluent samples from various Duval County schools. Persons responsible for the operation, supervision, maintenance and collection of influent and effluent samples must be licensed and certified by the Department as a Wastewater Treatment Plant Operator. Additionally, Respondent, in his capacity as a School Sewer/Water Plant Mechanic and Certified Class C Wastewater Treatment Plant Operator, was responsible for the proper collection of composite samples of raw sewage and the treated effluent from each such plant. According to instructions given the Respondent, a composite sample was to be taken by filling one-third of a sample bottle at two-hour intervals until the bottle was full. The composite sample of raw sewage was to be taken from the influent line and the composite sample of treated final sewage was to be taken from the effluent line. After the collection process, Respondent was responsible for properly and accurately labeling the composite samples and for depositing them in a refrigeration unit at School No. 98. The composite samples are then picked up at School No. 98 by authorized personnel for laboratory analysis to determine whether sewage is being adequately treated. The complaint, in summary fashion, alleged that the Respondent on or about February 15 and March 15, 1978, completely filled a raw sample bottle from the filter bed rather than from the influent line of the plant at School No. 94. That sample was submitted as a composite sample and placed in the refrigeration unit for pickup and analysis by laboratory personnel. Additionally, the complaint alleges that on February 15, 1978, at School No. 82, Respondent filled raw and final sample bottles for Schools Nos. 82, 64, 83 and 153, none of which were a proper composite sample. The samples, it is alleged, were all taken from School No. 82. The complaint alleges that similar acts occurred on March 15, 1978; on April 4, 1978 and April 11, 1978, all of which acts "constitute gross neglect and fraud in the performance of duties as an operator of a wastewater plant." Based thereon, the Petitioner seeks revocation of the Respondent's Class C Wastewater Treatment Plant Operator's license. L. L. Masters is Respondent's foreman and is in charge of the wastewater treatment plant facilities. Masters is Respondent's immediate supervisor. On March 15, 1978, Foreman Masters assigned Respondent the duties of taking composite samples of Schools 94, 64, 83, 82 and 159. Evidence reveals that Foreman Masters arrived at School 82 at 9:00 o'clock a.m. and departed at 2:00 p.m. Evidence also reveals that Foreman Masters had a clear view of the entire wastewater treatment plant and that it was impossible for the Respondent to enter and leave the treatment plant in a manner whereby composite samples could be collected without Foreman Masters seeing him. In this regard, Respondent's work orders reflect that he reported having arrived at School 82 at 10:40 a.m. and departed at 12:10 p.m. (Petitioner's Exhibits 5, 6, 7 and 8.) On April 4, 1978, Respondent was assigned to collect composite samples from Schools 72, 233, 76 and 208. (Petitioner's Exhibit 9.) Foreman Masters observed Respondent on April 4, 1978, with employee Carl Casey. Masters went to School 77 at 8:30 and Respondent was not there, although he had given a dispatcher a routing which would have taken him to School 76. When Foreman Masters noted that Respondent had not arrived at School 76 by 8:30 a.m., he took employee Carl Casey to School 233 and left Casey at School 233 while he returned to School 76. The Respondent was not there and Masters drove to School 208 where the Respondent arrived at approximately 9:30 a.m. It suffices to say that the Respondent then left for School 233 and arrived there at 10:30. From approximately 10:45 to 11:45, the Respondent was in the wastewater treatment area of School 233 and took three samples from the effluent line and three samples from the influent line at School 233 from the period 10:30 a.m. through 11:45 a.m. (Petitioner's Exhibits 9, 10 and 11.) Employee Pat Wilson testified that he accompanied Respondent on February 15, 1978, and that all samples were taken from the filter beds of Schools 98 and 82. Detective Jack C. Adams of the Jacksonville Police Department was assigned to the surveillance of Respondent on April 11, 1978. Detective Adams credibly testified that the Respondent did not take composite samples from the assigned schools as reflected by the work orders submitted by Respondent Respondent appeared and testified that one of the events for which he had been charged occurred as alleged; however, he testified that inasmuch as he questioned the procedures, he was of the opinion that since no harm was done, and since no school experienced problems, he is not guilty of gross neglect and fraud in the performance of his duties as an operator of a wastewater treatment plant as alleged. The evidence herein reveals that the Respondent was instructed as to the proper procedures for testing, collecting and preserving composite raw and final samples from wastewater treatment plants by his employer. He testified that he had attended a seminar wherein the instructions for such procedures were outlined to him and that he was given a manual on the methods for collecting raw and final samples. Barry McAlister, a certification officer for the Department, testified that Class C operators are instructed as to the proper procedures for collecting samples. Additionally, he testified that the submitting agencies rely heavily on the operators to properly collect samples which are submitted for analysis. Chapters 17-19.04, Florida Administrative Code, additionally set forth the sampling and testing methods for collection and preservation of composite samples. Although there was some conflicting testimony respecting the adherence to the procedures uniformly by the various wastewater treatment plant operators employed by the School Board, the undersigned is of the opinion that the Respondent was not at liberty to select and choose the manner within which he would collect composite samples for analysis by his employer in view of outstanding instructions which were in effect during his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Respondent, Arthur M. Jones, Jr.'s license as a Class C Wastewater Treatment Plant Operator be suspended for a period of two (2) years. RECOMMENDED this 28th day of September, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Silvia Morell Alderman, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Reed Tallahassee, Florida 32301 Joseph S. Farley, Jr., Esquire Mahon, Mahon & Farley 350 East Adams Street Jacksonville, Florida 32202
