The Issue The issue is whether Respondent Florida Power & Light Company is entitled to Permit No. 247895-007-UC for the conversion of an exploratory well to an injection well, the construction of a second injection well, and the operational testing of both wells, which are intended to inject industrial wastewater from a power plant into the Boulder Zone of the Upper Floridan Aquifer.
Findings Of Fact Applicant is Florida's largest electric utility. It provides service to over 4.4 million customer accounts in 35 counties. Applicant operates 14 electric-generating sites in Florida to satisfy its statutory obligation to furnish each person applying for service reasonably sufficient, adequate, and efficient service upon the conditions set forth by the Public Service Commission. By Final Order Approving Certification dated December 26, 2006, the Siting Board granted full and final certification to Applicant for the location, construction, and operation of the WCEC project, Units 1 and 2, to an immediate capacity of 2500 megawatts and to an ultimate capacity of 3300 megawatts (3800 megawatts, according to the Stipulation). Applicant anticipates obtaining permits for a third deep injection well and second dual zone monitoring well when the third generating unit is constructed. Units 1 and 2 at the WCEC will be combined cycle power plants that produce power by the ignition of a combination of natural gas and compressed air that force expanding air through turbines that are connected by shafts to generators. The waste heat produced by this process is recovered by steam generators that, using steam turbines, turn shafts connected to other generators, thus improving the efficiency of the power- production process. Applicant owns and operates 12 combined cycle power plants. The certification issued by the Siting Board authorizes Applicant to power the plant by natural gas or ultra-low sulfur light fuel oil, which is diesel fuel. Diesel fuel is a backup source if natural gas is unavailable. The WCEC will store 12.6 million gallons of diesel in two onsite tanks, which are segregated from the rest of the site by secondary containment in the form of reinforced concrete that contains no drains. The Final Order of the Siting Board describes, but does not itself permit, an onsite wastewater disposal process using a deep well injection system consisting of two 3200-foot deep injection wells and a dual zone monitoring well. WCEC Units 1 and 2 would be the first power units operated by Applicant to use deep well injection for the disposal of wastewater associated with the production of power. Other plants operated by Applicant use cooling ponds, such as a 6000-acre cooling pond at its power plant in Martin County. The WCEC sits on only 220 acres, so Applicant could not have constructed a sufficiently large onsite pond to accept the wastewater from the operation of Units 1 and 2. Although Applicant operates power plants on smaller sites, such as the 350-megawatt Cutler plant on 40 acres, the WCEC is a very small site given the power generating capacity of the facility. The WCEC is in west Palm Beach County 20 miles due west from the Atlantic Ocean and 25 miles southeast of Lake Okeechobee. Draining Lake Okeechobee, the L-10/L-12 canal passes immediately adjacent to the WCEC site on the south side of State Road 80, which runs along the southern border of the WCEC site. Immediately across State Road 80 from the WCEC site, about 1000 feet to the south, is the Arthur R. Marshall Loxahatchee National Wildlife Refuge (National Wildlife Refuge). The WCEC abuts a quarry operated by Palm Beach Aggregates (PBA Quarry). Already located adjacent to the WCEC is Applicant's Corbett transmission substation and high-voltage transmission lines. Petitioner Coalition is a member-based, unincorporated association that has been in existence for at least five years and serves, among other things, as an umbrella organization for other environmental organizations. As an umbrella organization, Petitioner Coalition facilitates the coordination, among these other organizations, of efforts to educate the public about the environment, assess threats to the environment, take action to protect the environment, and participate in recreational activities involving regional natural resources. Petitioner Coalition directly performs these tasks and engages in these activities, as well. Petitioner Coalition conducts monthly meetings that are attended by 15-25 persons, although it maintains a mailing list of about 400 persons, who constitute its membership. About 80-90 percent of the members of Petitioner Coalition reside in Palm Beach County; two members reside within 1.5 miles from the WCEC site. Many more members reside in the Loxahatchee and "Acreage" areas, which are not far from the National Wildlife Refuge and WCEC site. Petitioner Coalition does not charge dues, but collects donations from members and other persons. Each year, Petitioner Coalition conducts two larger conferences, which are open to the public. Members of Petitioner Coalition regularly use the L-8 canal, which borders the east side of the WCEC site. The "20-mile bend" entrance to the National Wildlife Refuge is one-half mile west of the WCEC site, and many members of the Coalition use this entrance to enter the refuge for hiking, running, biking, bird-watching, canoeing, fishing, and other outdoor activities. The vast National Wildlife Refuge forms important headwaters for the Everglades. Petitioner Tsolkas is the chairperson of Petitioner Coalition and engages in the member activities described above. Petitioner Larson resides in Loxahatchee, about 2.5 miles east of the WCEC site. She resides on a 1.63-acre lot and relies for her potable water on a well drilled about 125 feet deep into the surficial aquifer. Petitioner Christensen resides about 3 miles from the WCEC site. He has hiked and observed wildlife in the National Wildlife Refuge, as well as drawn spiritual comfort from this natural resource. As noted in the Preliminary Statement, the permitting of IW-1 and IW-2 is at issue in these cases. The proposed injection well system comprises these wells and DZMW-1, which has been permitted and is under construction. One other well is of interest in this case, Exploratory Well 1 (EW-1). On April 25, 2006, Applicant commenced the drilling of EW-1. The purpose of this project was to obtain data to determine the suitability of the WCEC for the onsite, deep well injection of non-hazardous industrial waste. For EW-1, Applicant obtained from DEP Permit No. 247895-001-UC, which was issued on January 11, 2006. Applicant intended to drill EW-1 to a depth of 3400 feet, determine that the location was suitable for an injection well system, and convert EW-1 to a dual zone monitoring well, but EW-1 instead became what could be deemed a functional alternative injection lesson (FAIL) well. The most immediate information derived from this FAIL well was that, at 2230 feet depth, a dredge zone existed at the location of EW-1. Although the bore hole initially reached 2510 feet, the well itself could not be extended deeper than 2220 feet. A dredge zone is a fracture zone of uncertain thickness in a confining unit. At the site of EW-1, the dredge zone extends through at least much of the upper half of the confining unit directly above the proposed injection. Thus, Applicant did not obtain from EW-1 a complete picture of the critical confining zone. However, Applicant obtained information, from top to bottom, about the depths of the surficial aquifer, upper and lower limits of the Upper Confining Unit, upper and lower limits of the Upper Floridan Aquifer, and depth of the point at which, near the bottom of the Upper Floridan Aquifer, total dissolved solids (TDS) exceed 10,000 mg/L. As noted in the conclusions of law, the depth at which the water crosses this TDS threshold marks the deepest extent of an underground source of drinking water (USDW). The data obtained from drilling EW-1, especially the geophysical logs, supported analysis that the top of the Upper Floridan Aquifer is 920 feet deep and the bottom is 1700 feet deep, the top of the Middle Floridan Confining Unit is 1700 feet deep and the bottom is 2005 feet deep, the base of the USDW is 1890 feet deep, and the top of a "fractured and transmissive" interval (i.e., the dredge zone) is 2005 feet and the bottom is 2240 feet deep. FPL Exhibit 13, Technical Memorandum from David McNabb, LBFH, Inc., to DEP and Applicant dated December 14, 2006, page 10. As noted below, the analysis of the data was incorrect as to the bottom of the Middle Floridan Confining Unit, probably because drilling of EW-1 did not extend past the dredge zone. Also, as noted below, later water quality testing established a slightly deeper USDW, between 1930-1941 feet deep. The unconsolidated material in a dredge zone tends to fall into the drill hole after penetration by the drill bit. The inflow of material slows the drilling because it is necessary to grind up and remove the material that has fallen into the drill hole. The small drill bit used for EW-1 meant that the grinding and removal process was slow. A dredge zone does is not necessarily indicative of vertically extensive fractures or fissures or poor confinement in the formation containing the dredge zone. Also, a dredge zone typically extends only a limited distance laterally. Thus, the significance of the dredge zone is largely restricted to the impediment that it presented to drilling. FPL Exhibit No. 13 is the EW-1 Final Report. Attachment K sets forth the pilot hole water quality field data and laboratory analysis. The TDS values are all under 10,000 mg/L. The highest TDS value is 9234 mg/L, which is at 1930 feet deep. This is the deepest point from which a pilot hole water sample was taken. FPL Exhibit No. 13, Attachment L to sets forth the data and analysis from straddle-packer testing (packer testing) Packer testing is a more elaborate testing process that involves inserting two rubber stoppers, or packers, at intervals into the well and inflating them, so as to isolate the interval between them. Prior to testing, the water is allowed to settle from the disturbance of drilling. The rate at which the water level recovers in the interval is a measure of permeability and indicates whether the packers are in a confining unit or an aquifer. Packer testing examines only the native groundwater, not the drilling-bit coolant, so it produces more reliable water-quality data than testing of pilot hole water. The deepest packer test is 1924-1941 feet, at which interval TDS are 18,696 mg/L. At 1848-1865 feet, TDS are 9664 mg/L. At 925-1055 feet, which is the only other interval tested, TDS are 4148 mg/L. After several weeks of trying unsuccessfully to penetrate past the dredge zone and given the exigencies of time, Applicant abandoned the project to drill EW-1 to a sufficient depth that it could be incorporated into an injection well system. By "Minor Modification" to Permit No. 247895-001-UC, dated August 10, 2006, DEP permitted Applicant to convert EW-1 to a monitoring well in the Upper Floridan Aquifer, which Applicant anticipates may be tapped by water supply wells on the site sometime in the future. Applicant then backplugged the pilot hole to create a monitoring interval of 1015-1100 feet depth. After successfully pressure testing EW-1, Applicant filed a Well Completion Report showing a completion date of August 22, 2006. On December 11, 2006, Applicant began drilling EW-2. Applicant chose a location 6000 feet south of EW-1 for the location of EW-2 to avoid the dredge zone that it had encountered when drilling EW-1. In an abundance of caution, though, Applicant used a larger-diameter drill bit, so that, if it encountered another dredge zone, it would be able to grind and remove the fallen materials more easily. The permit number for EW-2 is 247895-002-UC, which was issued on December 6, 2006. FPL Exhibit No. 16 is the Final Report on EW-2. Applicant successfully drilled the pilot hole at EW-2 to a depth of 3411 feet and completed drilling on May 4, 2007. The data obtained from EW-2 established the bottom of the Upper Confining Unit at 975 feet deep, the top of the Upper Floridan Aquifer at 975 feet and the bottom at 1905 feet, the base of the USDW at 1932-1959 feet, the top of the Middle Floridan Confining Unit at 1905 feet and the bottom at 2665 feet, and the top of the Lower Floridan Aquifer, which is known as the Boulder Zone in this region, at 2665 feet. The drilling, which stopped at 3411 feet, did not establish the bottom of the Boulder Zone. Because EW-2 was not permitted, at that time, as an injection well, Applicant could not inject fluids into the well to learn more of the nature of the injection zone. However, it is clear that the Boulder Zone is a highly transmissive (due to its thickness), fractured, and cavernous interval within the Lower Floridan Aquifer. These factors militate against a build-up in pressure at an injection site in the Boulder Zone. It is also clear that the Boulder Zone presents low horizontal hydraulic conductivity, which suggests that injected fluid will travel only a few feet per year. FPL Exhibit No. 16, Attachment N contains the pilot hole water quality data. The pilot hole water quality data reveals an abrupt increase in TDS from 4800 mg/L at 2030 feet to 13,000 mg/L at 2060 feet. After remaining at least 30,000 mg/L from 2100 feet to 2300 feet, TDS drops abruptly to 20,000 mg/L at 2330 feet and then drops steadily (with one minor increase) from 2330 feet to 2630 feet, where TDS falls to 9860 mg/L. TDS remains below 10,000 mg/L from 2630 feet to 2730 feet; at 2800 feet, TDS reaches 30,000 mg/L and remains at this level (with two minor exceptions) to the deepest sampling depth of 3400 feet. The pilot hole testing does not suggest that a deeper USDW occurs at 2330-2630 feet; rather, these data signal an extremely unproductive layer within the Middle Floridan Confining Unit. Applicant drilled these wells using a closed circulation system, which necessitates the introduction at specific intervals of external-source freshwater to cool the drilling bit. The rate of introduction may reach 50 gallons per minute. The EW-2 Final Report notes the "extremely unproductive nature of the test interval" sampled by the last packer test, which is noted below to be at 2624-2642 feet, where the sampled zone produced less than a quart of water per minute with 175 of water level drawdown. FPL Exhibit No. 16, page 18. If Applicant were introducing anything approaching 50 gallons per minute at this depth, the pilot hole water test was essentially of the introduced freshwater, not native groundwater. FPL Exhibit No. 16, Attachment P contains the packer test data. Applicant packer tested five intervals: 1914-1932 feet, 1959-1987 feet, 2009-2027 feet, 2169-2187 feet, and 2624-2642 feet. TDS values for each of these intervals are 8060 mg/L, 21,400 mg/L, 24,100 mg/L, 37,300 mg/L, and 32,800 mg/L.2 These results confirm the base of the USDW at around 1930 feet and confirm that no USDW exists at 2624-2642 feet. FPL Exhibit No. 16, Attachment R reports the results from the sampling of the groundwater after the withdrawal of 130,000 gallons from the bottom of EW-2. TDS is 35,000 mg/L, which is the TDS of saltwater, and pH is 8.16, which is slightly base. The sampling revealed iron, sodium, zinc, arsenic, barium, chromium, manganese, chloride, fluoride, ortho- phosphate, sulfate, cyanide, two nitrogens, and phosphorus. The water sample also tested positive for radium-226 and radium-228. FPL Exhibit No. 16, Attachment O is the Core Sample Laboratory Report. This covers multiple samples from four rock cores: one core within the Upper Floridan Aquifer, two cores within the Middle Floridan Confining Unit, and one core within the Boulder Zone. Analysis of these samples indicates the vertical hydraulic conductivity of the rock cores within each of these units. The first rock core includes three samples from three depths: 1956 feet, 1960 feet, and 1962 feet. The tested vertical hydraulic conductivities are in the range of 10-6 to 10-7 cm/second.3 According to the information obtained from drilling EW-2, these depths are the lower part of the Upper Floridan Aquifer. (According to the information obtained from drilling EW-1, which is 6000 feet to the north, these depths are in the Middle Floridan Confining Unit.) The second rock core includes three samples from three depths: 2048 feet, 2062 feet, and 2065 feet. The tested vertical hydraulic conductivities are 10-3, 10-9, and 10-8 cm/second,4 respectively, even though, according to the information obtained from drilling EW-2, these depths are all in the upper part of the Middle Floridan Confining Unit. The third rock core includes two samples at two depths: 2193 feet and 2200 feet. The tested vertical hydraulic conductivities are 10-6 and 10-4 cm/second,5 respectively. The third rock core is also in the upper part of the Middle Floridan Confining Unit. The fourth rock core includes one sample: at 2828 feet, which is 100 feet into the Boulder Zone. The tested vertical hydraulic conductivity is 10-8 cm/second.6 The rock core data evidently present an incomplete picture of the hydrogeology. For instance, although the third rock core is 200 feet down from the top of the Middle Floridan Confining Unit, it displays higher tested vertical hydraulic conductivities than those displayed by the rock core taken from the Upper Floridan Aquifer. The second lowest vertical hydraulic conductivity among rock cores is found, not in the Middle Floridan Confining Unit, but in the Boulder Zone (which militates further against upward migration of the injected fluid). However, the highest vertical conductivity among rock cores is found, not in an aquifer, but in the Middle Floridan Confining Unit, although within 50 feet of the top of this unit (suggestive perhaps of some unevenness in the top of this confining unit). Two of the three values for vertical hydraulic conductivity in the rock core of the Upper Floridan Aquifer are one to three orders of magnitude lower than the values for vertical hydraulic conductivity in the rock core 200 feet below the top of the Middle Floridan Confining Unit. All of these results are assessments of only a few feet of rock within hundreds of feet of aquifer and confining unit and do not reflect other factors, such as porosity, which is a measure of how much rock is open space. FPL Exhibit No. 16, Attachment I is the Lithologic Log for EW-2. This log reports the composition of formations, as well as porosity and permeability. For the most part, the materials above 2000 feet are limestone with moderate to high porosity that are poorly to moderately consolidated. A band of dolomite, mostly well consolidated, replaces limestone from 1670 feet to 1720 feet. After a couple of hundred feet of limestone, dolomite again predominates over limestone at about 1900 feet and extends down nearly 2200 feet, where a 70-foot band of dolomite occurs, followed by a band of predominantly limestone from 2620 feet to 2840 feet. From 2840 feet down, which is the Boulder Zone, dolomite predominates. From 2870 feet to 2910 feet, the unit is of low porosity and well consolidated. The only reports of permeability at these depths indicate poor or fairly poor permeability from 2620 feet to 2700 feet, then predominantly poor permeability with some fair permeability from 2700 feet to 2760 feet, and then fair permeability from 2760 feet to 2790 feet, which is the lowest 30 feet of the Middle Floridan Confining Unit. FPL Exhibit No. 16, Attachment D states that the pilot and reamed holes deviates only 1/4 of a degree through 3400 feet. This is important because, if the reaming for the well casing does not follow the pilot hole, the uncased pilot hole may be left as a vertical passage for water to penetrate through confining units. The construction of EW-2 includes the installation through the duration of the well of progressively smaller steel casings with the following diameters, from top to bottom: 72 inches, 60 inches, 48 inches, 36 inches, and 20 inches (which runs nearly the entire length of the well). The thickness of the casing wall is 3/8 inch, except for the final segment which is 1/2-inch thick and seamless. The inside and back of all casings, except the final casing, are encased in American Society of Testing and Material (ASTM) C150 Type 2 cement, which is suitable for use in saline water. The final casing (the 20-inch diameter) is encased only on the back. The cement on the outside of the exterior casing is added in such quantities to ensure that it forms a tight bond between the casing and the confining formation wall. To ensure the efficacy of the bonds formed by the cement, Applicant conducts temperature tests, a video survey, and radio tracer surveys. On the inside wall of the 20-inch casing, upon conversion of EW-2 to IW-1, will run a reinforced fiberglass pipe or tube. At the base, a packer isolates the fluid-filled annulus, or space, between the injection tubing and the final casing, and a corrosion inhibitor is injected into that space. No injection well using this form of tubing and packer construction has ever provided a vertical channel for water from the injecting zone (or above) to pass up through a confining bed and into an USDW. After final analysis of all of the available data, the Final Report for EW-2 concludes that the top of the Boulder Zone is at 2790 feet, the top of the Middle Floridan Confining Unit is at 2000 feet and the bottom is at 2790 feet, and the base of the USDW is 1932-1959 feet. These depths are all credited, although the top of the Middle Floridan Confining Unit is probably 100 feet deeper, so that the thickness of this unit is around 700 feet, not 800 feet. The Final Report recommends that EW-2 be converted to a Class I deep injection well, with an injection zone from 2778 feet to 3411 feet, for the disposal of non-hazardous waste from the WCEC. On March 2, 2007, Applicant submitted an application for the construction and operational testing of DZMW-1 at the site of EW-1. This application resulted in the issuance of proposed Permit No. 247895-006-UC, which, as noted above, became final when another petitioner in two other cases withdrew its challenge to the proposed permits for DZMW-1 and IW-1 and IW-2. Pending completion of the analysis of the data from EW-2, the proposed permit for DZMW-1, which is dated June 5, 2007, states that the upper monitoring zone is anticipated to be 1955-1975 feet deep, and the lower monitoring zone is anticipated to be 2160-2180 feet deep. These depths represent, respectively, conservatively deep values for the base of the USDW and the top of the Middle Floridan Confining Unit (even if it is 100 feet deeper than reported). The record contains no reports from the construction of DZMW-1, perhaps because work had not progressed very far at the time of the final hearing. On April 25, 2007, Applicant submitted the Application, which is FPL Exhibit No. 19. The Application is for approval to convert EW-2 to IW-1, construct IW-2, and operationally test both wells. Besides completed forms, the Application comprises the Supporting Information for Construction Permit Applications for a Class I Deep Injection Well System at the Florida Power & Light Company West County Energy Center (Supporting Information), one table, 11 figures, and ten attachments. As stated in the Stipulation, the Application was signed by a responsible corporate officer of Applicant, and Applicant has also satisfied all financial-responsibility requirements. As stated in the Stipulation, a public meeting on the Application took place on September 10, 2007. DEP received public comments on the Permit and submitted a written response to these comments. On September 13, 2007, DEP issued the Notice of Intent for Permit. DEP also prepared a fact sheet for the proposed Permit. Attachment F describes the construction specifications for IW-1, which, as EW-2, was largely finished at the time of the Application, and IW-2. For the conversion of EW-2 to IW-1, Applicant proposed to install 2770 feet of 16-inch diameter fiberglass reinforced pipe and fill the annular space between this tubing and the 20-inch casing with a specified solution, as well as conduct various tests of annular pressure and the injection well. For the construction of IW-2, Applicant proposed almost the same technique already described as to IW-1, although the casings were smaller in diameter, probably due to the elimination of concerns about encountering a dredge zone. The Supporting Information discusses the overall injection well system. The DZMW-1 is to monitor intervals above and below the base of the lowermost USDW at the site. DZMW-1 will be 145 feet west of EW-2 and will provide monitoring for IW-2, which, according to Figure 2, will be within 150 feet west of DZMW-1. The injection capacity of each injection well is 7.29 million gallons per day (mgd) at an injection velocity of 10 feet per second. Supporting Information, page 2. Based on projected power demands, Applicant anticipates that each operating injection well will operate at an average rate of 5 mgd. Average and maximum injection pressures will probably be 40 pounds per square inch (psi) and 50 psi. The purpose of IW-2 is to serve as a "back-up" to IW-1. Supporting Information, pages 2 and 5. Applicant is constructing two injection wells so that "when one well is out of service, flows will be diverted to the operating well." Supporting Information, page 5. As authorized by the certification issued by the Siting Board, the principal water sources for WCEC Units 1 and 2 are the Upper Floridan Aquifer and the L-10/L-12 canal, as the South Florida Water Management District determines that this surface water is available for withdrawal. Applicant will also obtain potable water from Palm Beach County. WCEC Units 1 and 2 require 14.5 mgd of water. The principal water uses of the WCEC Units 1 and 2 are cooling tower water and process water, as well as potable water for use in the administration building. The cooling tower wastewater (also known as "blowdown") is the water that has cooled the power generating equipment and itself been cooled in the cooling towers. Cooling tower blowdown makes up 88 percent of the wastewater generated by the WCEC Units 1 and 2. The process water is water that has been demineralized by reverse osmosis and makes up for the water lost in the steam-generating process. The resulting wastewater is the heat recovery steam generator (HRSG) blowdown, which makes up 6.5 percent of the wastewater generated by WCEC Units 1 and 2. The power generating process recycles its cooling and process waters, but constantly removes slipstream to maintain balanced chemistry and avoid scaling from excessively base water that will damage the equipment. Another 5 percent of the wastewater generated by WCEC Units 1 and 2 will be derived from the reverse osmosis process, which generates water for the HRSG. The remaining 0.5 percent of wastewater is derived from miscellaneous wastewater streams. The Supporting Information states that an analysis of the injection fluid is not available and is not anticipated to be available prior to plant start-up. However, the Supporting Information states: "A sample of the injection fluid will be collected within the first 30 days of commercial operation of the power generating facility." FPL Exhibit No. 19, Supporting Information, page 5. FPL Exhibit No. 19, Attachment G identifies anticipated wastestreams. Based on "analytical characterization" of "historical data," Applicant will determine that the cooling tower blowdown, HRSG blowdown, demineralizer and reverse osmosis water, pretreatment wastewater, steam cycle water treatment, and miscellaneous wastewater streams are not hazardous and dispose of them into IW-1 or IW-2. Based on its vendors' "analytical characterization" of the chemicals that they supply, Applicant will determine that the cooling system water ("biocide additional chlorine, scale inhibitor, pretreatment chemicals") and leak-tracing dyes are not hazardous and dispose of them into IW-1 or IW-2. Based on "process knowledge," Applicant will determine that its treated sanitary wastewater is not hazardous and dispose of it into IW-1 or IW-2. This is the only non-industrial wastewater that Applicant proposes to inject into the injection well system, and the only wastewater whose hazardous/non-hazardous determination will be based explicitly on "process knowledge." Lastly, based on "analytical characterization" of the "wastestream," Applicant will determine whether the wastewater from the chemical cleaning of the HRSG and pre-boiler piping is hazardous. If so, Applicant will dispose of this wastewater by a licensed approved vendor. If not, Applicant will dispose of this wastewater into IW-1 or IW-2. Although an industrial wastewater, this chemical- cleaning wastewater is the only wastewater that Applicant or its agent will test and the only wastewater that Applicant anticipates may be hazardous. Attachment G adds that intermittent shock chlorine or other biocides will be used to prevent biofouling of the cooling system, and a chlorine solution will be fed into the cooling tower. A scale inhibitor, including sulfuric acid, will be added to the circulating water system to control the formation of calcium carbonate scales that can adhere to heat-transfer surfaces and impede cooling. Treated sanitary wastewater from an onsite package plant will be recycled to the cooling tower or disposed of directly through the injection well system. The chemical cleaning of the HRSG and pre-boiler piping is done during commissioning and periodically during the life of the plant. According to testimony, such cleaning, which may release chromium from the boiler tubes, is performed once every ten years. FPL Exhibit No. 19, Attachment H is the Proposed Monitor Program. For IW-1 and IW-2, at start-up, Applicant will test for primary and secondary drinking water parameters and standards. Continuously, Applicant will test these wells for flowrate and wellhead pressure. For the wastestream entering IW-1 and IW-2, Applicant will test weekly for TDS, chloride, specific conductivity, pH, and temperature. For DZMW-1, Applicant will test for primary and secondary drinking water parameters and standards prior to start-up. Continuously, Applicant will test this well for water level. Weekly, Applicant will test DZMW-1 for the five items for which it tests the wastestream plus total phosphorous, sulfate, sodium, calcium, magnesium, potassium, carbonate, and bicarbonate. After operational testing and DEP approval, Applicant will decrease the frequency of testing from weekly to monthly. The Supporting Information calculates the Area of Review by determining the "zone of endangering influence," which is the lateral area in which the buoyant forces or increased pressure in the injection zone may cause migration of the injected or formation fluid into a USDW. The Area of Review is the land overlying the zone of endangering influence. The calculations are conservative because they assume that IW-1 and IW-2 are operated at each well's maximum permitted injection rate (7.29 mgd each) for ten years. Using a 200-foot high injection zone and 20 percent porosity for the injection zone, Applicant calculated that the radius of the bubble of injected fluid, from the point of injection, would extend 7526 feet. Applicant rounded this result off to two miles. No well, besides EW-2/IW-1, penetrates to the Middle Floridan Confining Unit within two miles of the proposed injection well system. Thus, Applicant was not required to undertake any Corrective Action to preclude the possibility that such wells could allow fluid to enter the USDW. The Permit is for the conversion and operational testing of EW-2 into IW-1, construction and operational testing of IW-2, and eventual incorporation of DZMW-1 into the subject injection well system. The Permit notes that the anticipated depth of IW-2 is 3250 feet, although field data will determine the final depth required for this injection well. The Permit notes that IW-1 is 3400 feet. The Permit states that the injection level for each well will be in the Boulder Zone from about 2775 feet to the total depth of each well, which is a vertical range of around 600 feet, at last as to IW-1. The Permit states that the Class I injection well system is designed for use at the WCEC for non-hazardous wastewater, primarily cooling tower blowdown. Permit Specific Condition 1.a requires proper operation and maintenance, including adequate staffing and training and adequate laboratory and process controls. Specific Condition 1.d prohibits any injection that causes or allows movement of fluid into a USDW, except as authorized by 40 C.F.R. §§ 146.15 and 146.16.7 Permit Specific Condition 2.h specifies the requirements to convert EW-2 to IW-1. These include taking a video survey of the length of the 20-inch diameter casing, installing 2770 feet of 16-inch diameter fiberglass reinforced pipe tubing, filling the entire annulus between the fiberglass reinforced pipe tubing and the final casing with a specified solution, conducting a pressure test of the fluid-filled annulus, performing a radioactive tracer survey, and conducting a preliminary capacity injection test. Permit Specific Condition 2.i specifies the requirements to construct IW-2. These are similar to those described above in the construction of EW-2/IW-1 except that the initial casings are somewhat smaller. Permit Specific Condition 2.j requires Applicant to add DZMW-1 to this Permit, either separately under its permit number or under the Permit number. This condition requires Applicant to take samples and determine the ambient groundwater quality in both zones of the DZMW-1 prior to the injection of any fluids into IW-1 or IW-2. Four weeks prior to use of IW-1 or IW-2, Applicant must start weekly sampling of the monitoring zones. Permit Specific Condition 2.l requires packer tests in the anticipated confining zone. Permit Specific Condition 2.m provides that Applicant shall use the DZMW-1 to monitor the confinement of the injection zone from overlying aquifers. The upper zone is the compliance point as to the USDW, and the lower zone is the compliance point as to vertical movement out of the injection zone. Permit Specific Condition 2.n requires Applicant to demonstrate confinement for IW-2 by using lithologic properties, geophysical evidence, and tests performed while pumping the formation. These requirements require proof of confinement during the drilling of IW-2. Permit Specific Condition 4.g requires DEP approval, pursuant to Florida Administrative Code Rules 62-528.401(4)(c), 62-528.420(4)(c), and 62-528.605(2), of the final selection of specific injection intervals. Permit Specific Condition 4.i requires that Applicant provide certain justifications for each request of a short-term injection test for IW-1 and IW-2. Generally, justification consists of the documentation to assure that confinement above the injection zone is intact. Permit Specific Condition 5.b imposes requirements on Applicant to obtain DEP approval for operational testing. Specific Condition 5.b.1-4 requires Applicant to provide DEP with certain materials prior to the approval of DEP for the commencement of operational testing. These are generally the documentation to assure that confinement above the injection zone is intact and the results of the short-term injection test. This condition notes that, under normal operating conditions, the velocity of each injection well may not exceed ten feet per second, although, in a multiple well system, each may run at 12 feet per second when the other well is inoperative due to testing or maintenance. During the injection test, Specific Condition 5.b.1-4 requires Applicant to collect injection flow rate, injection wellhead pressure, and monitoring well pressures in both zones. Also prior to obtaining DEP approval for operational testing, Specific Condition 5.b.6 requires Applicant to submit to DEP "[i]nformation concerning the compatibility of the injected waste with fluids in the injection zone and minerals in both the injection zone and the confining zone." Specific Condition 5.b.9 requires Applicant to provide DEP with a copy of a draft operation and maintenance manual. Specific Condition 5.b.13 requires Applicant to submit to DEP background water quality data from the monitoring and injection zones and analysis of these data for primary and secondary drinking water standards and minimum criteria parameters. Specific Condition 5.c imposes requirements on Applicant prior to starting operational testing. Specific Condition 5.c requires compliance with Florida Administrative Code Rule 62-528.450(3)(a), (b), and (c), which requires, among other things, "wastestream analysis." Specific Condition 5.d imposes requirements on Applicant within 90 days of starting plant operations. This condition refers to Florida Administrative Code Rules 62-528.425(1)(a) and 62-528.450(2)(f)3 and requires a wastewater stream analysis for primary and secondary drinking water standards. Specific Condition 6 imposes requirements on Applicant during operational testing. Specific Condition 6.a.4 requires Applicant to monitor the flow to the injection well at the wellhead and to control the flow to ensure that it does not exceed the rate at which the well was tested. Pursuant to Florida Administrative Code Rule 62-528.425(1)(b), Specific Condition 6.a.5 requires Applicant to continuously monitor the injection well system by recording and totalizing devices for effluent flow rate and volume and recording devices for injection and monitoring zone pressures. Specific Condition 6.a.9 provides: "The injectate shall be non-hazardous in nature at all times, as defined in 40 CFR, Part 261 and as adopted in Chapter 26-730, F.A.C." Specific Condition 6.a.10 requires mechanical integrity prior to injection. Specific Condition 6.a.11 requires Applicant to monitor and control the pressure at the wellheads to ensure that it does not exceed 66 percent of the tested pressure on the final casing. Specific Condition 6.a.13 requires Applicant to monitor the injection system and submit monthly operating reports to DEP concerning the flow, volume, and wellhead pressure of the injection well; chemical characteristics of the wastewater stream in terms of TDS, chloride, specific conductance, three types of nitrogen, phosphorous, pH, and sulfate; physical characteristics of the monitoring well, including daily and monthly maximum, minimum, and average pressures; and chemical characteristics of the upper and lower monitoring zones in terms of, weekly, the items listed above plus total coliform and field temperature and, monthly, sodium, calcium, potassium, magnesium, iron and bicarbonate. Specific Condition 6.a.13.c provides that, after at least six months of weekly monitoring of the monitoring zones, Applicant may, based on a showing of groundwater stability, request that DEP reduce the monitoring frequency to monthly. Specific Condition 6.a.19 requires Applicant to submit annually to DEP a wastewater stream analysis for primary and secondary drinking water standards and minimum criteria, as identified on a list attached to the permit. The list identifies 95 primary drinking water items, including chromium, and 17 secondary drinking water items, including pH. The list also identifies 24 municipal wastewater items, such as ammonia, several volatile organics, two pesticides, biological oxygen demand, and temperature, which presumably are added because the wastewater will include effluent from Applicant's onsite package plant. Petitioners have identified two relevant issues. The first issue concerns the integrity of the Middle Floridan Confining Unit in its present state and after construction of the wells (i.e., well integrity), so as to prevent the injected fluids from migrating upward into the USDW. The second issue concerns the composition and volume/pressure of the wastewater stream (i.e., whether it will meet the Permit criterion prohibiting hazardous wastes and, even if the injected fluids meet this criterion, whether the fluids, in terms of their composition and volume/pressure, will adversely affect the Boulder Zone and the bottom of the Middle Floridan Confining Unit). Applicant has provided reasonable assurance that the bottom of the Upper Floridan Aquifer is about 2000-2100 feet deep, and the USDW is in the lower reaches of the Upper Floridan Aquifer at around 1950 feet deep. The water samples from the packer test preclude the existence of a deeper USDW. Applicant has provided reasonable assurance that the Middle Floridan Confining Unit extends from no deeper than 2100 feet to about 2800 feet deep, for a minimum thickness of 700 feet. Applicant has also provided reasonable assurance that the injecting zone will be in the Boulder Zone of the Lower Floridan Aquifer, and the confining unit of the Middle Floridan Confining Unit will prevent the upward migration of the injected fluids into the Upper Floridan Aquifer and, thus, the USDW. The Middle Floridan Confining Unit is not homogenous. At places, it is fractured. At other places, it exhibits greater permeability and porosity than it does elsewhere. But, at the location of the proposed injection well system, the 700- foot thick Middle Floridan Confining Unit is ample insurance against upward migration of the injected fluids. DEP Program Manager for Underground Injection Control for the relevant district is Joseph May. Mr. May testified that he gets "nervous" when confining zones are only 300 feet thick, "antsy" when they are only 200 feet thick, and skeptical of the eligibility for a deep well injection permit when the confining zones are less than 200 feet thick. These are not rule criteria, nor did Mr. May intend them to be, but these values are useful in these cases, if only to suggest the suitability of this relatively thick confining unit to prevent the upward migration of injected fluids. Other factors, of course, contribute to the efficacy of the confining unit. First, the Boulder Zone is highly transmissive, a function of the vast thickness of this zone. The characteristic tends to reduce the effect of pressure at the point of injection, relieving the force of pressure that might otherwise drive the injected fluid up through hundreds of feet of confining unit. On the other hand, the thickness of the Boulder Zone and low horizontal hydraulic conductivities suggest that the injected fluids will not travel far within the Boulder Zone, so the likelihood of the injected fluid's encountering a chimney is diminished over time. And, as time passes, the fluids will take on the characteristics of the native fluids in the Boulder Zone to the point that they are indistinguishable from these native fluids. This is particularly important as to TDS; as the differential in TDS between the injected and native fluids decreases, so will the buoyancy of the injected fluids. Nor will the injected fluid be especially buoyant. After five cycles, according to FPL Exhibit No. 25, the water drawn from the Upper Floridan Aquifer will have 24,505 mg/L of TDS, which is close to the TDS level of the native groundwater in the Boulder Zone. After five cycles, according to FPL Exhibit No. 24, the water drawn from the L-10/L-12 canal will have 4605 mg/L of TDS, so it will be buoyant, but many times less buoyant than if not recycled at the power plant. Petitioners rely on the failures of other deep injection wells as a basis for contending that Applicant has failed to provide reasonable assurance in this case as to the integrity of the confining unit. In an interesting turn, they rely on a recent work by one of Applicant's expert witnesses, Dr. Thomas Missimer. Dr. Missimer is a prominent licensed geologist with many years' field experience in Florida's geology and hydrogeology. Dr. Missimer recently co-authored (with Robert G. Malivea and Weixing Guo) an article, "Vertical Migration of Municipal Wastewater in Deep Injection Well Systems, South Florida, USA," published in Hydrogeology Journal (2007) 15: 1387-96. The focus of this article is on the vertical migration of municipal wastewater injectate. This low salinity, high density injection fluid is buoyant relative to the high salinity, low density water of the Boulder Zone of the Lower Floridan Aquifer, where the fluid is injected. In the article, Dr. Missimer states that southeastern Florida hosts 32 active Class I injection wells. Based on his review of the data, he finds that injected wastewater has migrated upward into the USDW at three sites: one in Palm Beach County and two in Dade County. Dr. Missimer finds that injected wastewater has migrated upward into the monitor zone below the USDW at another seven sites, all in Broward and Palm Beach counties. Dr. Missimer emphasizes that municipal wastewater is susceptible to upward migration due to its greater buoyancy than the saline water native to the Boulder Zone. Dr. Missimer characterizes the Boulder Zone as an area of high transmissivity that has received injected fluid wastes since 1943. A consequence of this high transmissivity is that the Boulder Zone "allows for minimal increases in pressure during injection." Coalition Exhibit No. 2, page 1391. Dr. Missimer notes that vertical hydraulic conductivities in the Middle Floridan Confining Unit vary by eight orders of magnitude with the dolostones having lower vertical hydraulic conductivities than the limestones. However, the main point of the article is to account for the fact that predicted vertical hydraulic conductivities in some failed injection wells, based on analyzed rates from core plug data, understated the actual migration rate of injected fluids by four orders of magnitude. Coalition Exhibit No. 2, page 1393.8 Dr. Missimer finds that enhanced vertical hydraulic conductivity in the Middle Floridan Confining Unit is likely due to fracturing in zones that may have a limited horizontal extent, creating a chimney through which buoyant injected fluid can migrate up relatively quickly. Suggesting that well- construction problems and possibly regional tectonic effects may have contributed to this fracturing, Dr. Missimer concludes: "The focus of confinement analysis should, therefore, be on the extent and distribution of fracturing rather than analyses of the properties of the rock matrix." Coalition Exhibit No. 2, page 1395. Most difficult for Petitioners' contentions is the testimony of Dr. Missimer concerning the thickness of the Middle Floridan Confining Unit at the subject site and the absence of fracturing in this unit, based on the sonic logs from EW-2/IW-1. Dr. Missimer testified that, based on the sonic logs in particular, there is over 700 feet of unfractured confining unit over the injection zone, and he has a "high level of confidence" that no material fracturing exists to undermine the integrity of this confining unit. Logically, the possibility of a relevant fracture decreases with the thickness of the confining unit. Nor does the construction of IW-1 and IW-2 provide a chimney through which the injected fluids can escape the Boulder Zone and migrate into the USDW. In no respect do the construction plans for IW-2 or construction or conversion plans for IW-1 depart from the requirements of DEP's rules or sound engineering and construction practices. These matters have been adequately addressed above. In particular, the DEP-imposed requirement to monitor and document the absence of any deviation in the orientation of well from the bore hole promises to eliminate a likely cause of past problems in the construction of deep wells. Finally, as to the integrity of the Middle Floridan Confining Unit, Petitioners contend that tectonic forces from blasting at the PBA Quarry threaten the integrity of the wells.9 Applicant purchased the WCEC site from the owner-operator of the PBA Quarry, which is an active limestone-mining operation on land adjacent to the WCEC site. In connection with the purchase, Applicant entered into a blasting agreement with the owner-operator of the PBA Quarry. This agreement imposes certain requirements on the owner-operator concerning the maximum size of blasts, minimum separation distances from the power plant (5000 feet starting June 1, 2006, and 7500 feet starting June 1, 2007), and coordination and notification provisions. Although Applicant has no experience with power plants located in close proximity to blasting operations, for two reasons, Applicant has provided reasonable assurance that the nearby blasting will not damage the injection wells (or either confining unit). First, as noted by the Black & Veatch geotechnical engineer retained by Applicant to examine the effects of blasting on the WCEC, excessive vibration, from any source, trips relays that protect equipment from damage due to excessive vibration. The most sensitive equipment at the plant will be the large rotating steam turbines. The Black & Veatch geotechnical engineer noted that the level of vibration that will trip these relays is much less than the amount that could cause any structural damage. These relays will effectively protect the injection wells from damage from blasting. Long before vibration from blasting could threaten the integrity of these wells (and certainly the Middle Floridan Confining Unit), the relays would trip, and Applicant would need to deal with the blasting before restarting the turbines. Second, Dr. Missimer examined the work of the Black & Veatch geotechnical engineer as to the extent of vibrations from blasting at the PBA Quarry. Explaining that the economics of blasting necessitates the use of just enough explosive material to loosen the substance to be mined, Dr. Missimer testified that the explosive forces dissipate in intensity and magnitude very quickly from the point of detonation. The maximum depth of the mining is 60 feet. Agreeing with the Black & Veatch analysis, Dr. Missimer determined that the force of blasting would be spent by 10,000 feet, and the nearest blasting will be 14,000 feet from the wells. Dr. Missimer noted that mining typically is allowed to within 500 feet of public supply wells, which are not built to the standards of Applicant's injection wells, and he has not found any documented reports of blasting-induced damage to such wells. Dr. Missimer testified that the force of the PBA Quarry blasting would not affect the Middle Floridan Confining Unit either. Lastly, Petitioners focus on the composition and volume/pressure of the injected fluids. These are important matters for two reasons. Excessive pressures or corrosive elements in the injected fluids could undermine the integrity of the Middle Floridan Confining Unit at the location of the injection wells. Also, the injection of hazardous waste, in addition to violating the Permit, would intensify the consequence of an upward migration of injected fluids. More than once, testimony in support of reasonable assurance justifiably emphasized the common characteristics of the injected fluids and the native groundwater. Notwithstanding its confidence in the integrity of the Middle Floridan Confining Unit at the location of IW-1 and IW-2 and the high transmissivity of the Boulder Zone, DEP has imposed, based on the law, significant restrictions on Applicant in terms of the injection fluids. In all but two respects, Petitioner's concerns as to the composition and volume/pressure of the injected fluids are misplaced because Applicant and the Permit provide reasonable assurance that the composition and volume/pressure of the injected fluids will comply with applicable law and will not cause any injected fluids to migrate up into the USDW. The two exceptions, for different reasons, are minor and easily corrected. In general, Petitioners' evidence failed to reveal any flaws in the analysis of the experts of Applicant that the pressures in the injection zone will adversely affect the Boulder Zone. However, one issue concerning volume/pressure arises due to what appears to be inadvertence in drafting the Permit. Applicant has applied for approval of two injection wells because it needs one well to serve as a back-up to the other well, not to operate both wells simultaneously. The reliability of the WCEC to produce power is dependent on, among other things, the ability of Applicant to dispose of vast volumes of wastewater produced daily by plant operations. Applicant has not previously predicated the uninterrupted operation of one of its many power plants on the operation of an injection well, so it understandably sought the comfort of redundancy: if one injection well goes out of service, the other well can be activated, and the plant can continue operating without interruption. Applicant has proposed an injection well system with a single-well capacity (although that could be achieved by both wells operating simultaneously at a combined rate not to exceed the permitted rate of a single well). Applicant intends for the proposed injection well system to pump at a rate of 10 feet per second, not 20 feet per second--or 12 feet per second during emergencies, not 24 feet per second. The 10/12 feet per second pumping rate is consistent with the testimony of Applicant's primary expert on this point. David McNabb, a licensed geologist retained by Applicant, testified that the Boulder Zone could receive water at the rate of 10 feet per second or 12 feet per second during emergencies. Mr. McNabb added that, during the injection test, Applicant would operate only one well at a time. He also calculated the zone of endangering influence using the maximum pumping rate of 10 feet per second, not 20 feet per second. Mr. McNabb specifically confirmed during cross-examination that only one well would be pumping at a time. However, the Permit implies the injection well system is approved for 20 feet per second, as did Mr. May's testimony at one point. The confusion arises for two reasons. First, the Permit nowhere explicitly sets the maximum rate for the injection well system or the two injection wells individually. Second, Permit Specific Condition 5.b.4 states that each well may be tested at 12 feet per second (which is approved by a DEP rule cited below) "since, in a multiple well system, this can be allowed when one of the other injection wells is inoperable due to planned testing or maintenance." It is in this explanation that the problem arises. The explanation implies that an emergency arises when a well requires service and Applicant can no longer obtain a combined rate of 20 feet per second out of both wells, so it may then at least obtain 12 feet per second out of the well that remains operative. The subject injection well system will be a multiple well system, but with only one well operating at a time (or both wells operating at the permitted rate of a single well). The DEP rule, quoted below, allows the increased rate of 12 feet per second for testing, maintenance, or emergencies. In the system proposed by Applicant, the servicing of the other well is not an emergency and does not justify operating the activated well at 12 feet per second. This condition is not an emergency because Applicant always intended that the other well, and its 10 feet per second capacity (12 feet per second in an emergency) serve in a backup capacity. This is a minor problem that is easily corrected by adding language to the Permit specifying that the maximum rate of pumping is 10 feet per second (12 feet in an emergency) whether one or both injections are pumping at any given time and the unavailability of one of the wells is not an emergency that would allow pumping at the rate of 12 feet per second. The other issue concerning the composition of the wastewater is more substantial theoretically, but not practically on the facts of these cases. This issue involves how Applicant is to determine that the wastewater disposed into the injection wells is free of hazardous waste. Except as to hazardous waste, there is no issue as to the composition of the injected fluids or wastewater. Applicant will strive to maintain neutrality in the recycled cooling and process waters to avoid damage to the plant equipment. Too acidic, the water will induce corrosion. Too base, the water will induce scaling. Dr. Missimer testified that the injecting fluid would likely be neutral and not affect the formations into which it comes into contact. Applicant intends to use descalers, which are necessarily acidic, but Dr. Missimer testified that, in the unlikely event that somewhat more acidic water were injected into the Boulder Zone, the predominantly dolomitic Middle Floridan Confining Unit and Boulder Zone would withstand acidity better than would the limestone that prevails at subsurface higher elevations. Nor is the problem here an omission of the prohibition against injecting hazardous waste. Unlike the situation with the maximum pumping rate, the Permit addresses hazardous waste and flatly prohibits its injection into the injection wells. The problem is whether this prohibition, even if coupled with Applicant's succinct description in Attachment G of its approach to hazardous-waste determinations, provides reasonable assurance that this provision of the Permit will work. If reasonable assurance were satisfied by a mere restatement of the requirements of law, this Permit could have been shortened to: "Applicant may inject wastewater pursuant to law." Or, perhaps a little more generously, the Permit could be reduced to a minor restatement of Specific Condition 1.d: "Pursuant to law, Applicant may inject wastewater, but not so that it causes or allows the movement of fluid into an USDW." Essentially, the Permit addresses hazardous wastes by prohibiting them. The lone provision in the Permit concerning hazardous waste is Specific Condition 6.a.9, which states bravely: "The injectate shall be non-hazardous in nature at all times " The incorporation of Attachment G into the Permit would provide reasonable assurance of actual testing of the chemical cleaning residue and probably of the cooling system water and leak-tracing dyes, which is based on vendors' representations, but would not provide any assurance as to the other wastestreams. Process knowledge of sanitary wastewater treatment, if based on Applicant's knowledge, means little given the fact that Applicant is a power company. For the remaining wastestreams, unidentified analysis of undisclosed "historical data" means nothing and, thus, provides no assurance whatsoever. For all of these wastestreams, including the chemical cleaning wastestream, reasonable assurance requires a plan for periodically obtaining reliable data and conducting valid analysis, or obtaining such data and analysis from other parties such as reliable vendors or governmental agencies; the implementation of such a plan; and the documentation of the implementation, including the recordation of the data sources relied on, the analytic processes undertaken and by whom, the resulting determination as to whether a discrete wastestream is a hazardous waste, and the manner of disposition of any such hazardous waste. The procedures described in the preceding paragraph provide reasonable assurance because, although consistent with DEP's evident reliance on permittees to self-police as to hazardous wastes, they supply reasonably broad guidelines for how permittees are to discharge their hazardous-waste responsibilities, thus improving the likelihood of effective compliance, and some reasonable basis for enforcement, in the event of noncompliance. At present, the Permit's treatment of hazardous wastes leaves Applicant largely on its own and little, if any, opportunity for effective monitoring and enforcement by DEP, given that the wastewater, once injected, is 3000 feet under the surface of the earth where, under the facts of these cases, it will remain for geologic time. For several reasons, the deficiencies in the Permit concerning hazardous waste appear more consequential than they are in reality, based on the present record. First, the source water for the WCEC is not likely to produce hazardous waste. The Upper Floridan Aquifer contains only one substance that is on the hazardous waste list, as it is presently constituted, and the substance does not approach the concentration required for listing. The L-10/L-12 canal contains several listed substances, but, as Dr. Missimer pointed out, the concentrations, even after five cycles through the plant, are several orders of magnitude below the concentrations that are necessary for listing. Although the composition of the canal water, which drains Lake Okeechobee, is far more variable than the composition of the Upper Floridan Aquifer, neither source presents a real risk of introducing hazardous waste into the wastestream to be injected into the Boulder Zone. Additionally, the Permit already requires extensive water-quality testing of the wastewater, although not as extensive as would be necessary to rule out, on the basis of laboratory testing alone, the presence of any hazardous waste in the wastewater. Second, Applicant does have considerable knowledge, if not of sanitary wastewater treatment processes, of the process involved in the production of energy. For those relatively few components that come into direct contact with cooling or process water, reasonable assurance as to hazardous wastes does not require much from Applicant. Initially and when introducing new equipment that comes into contact with the wastestream, Applicant may easily document, based on vendors' representations, that the substances contributed from these components into the wastewater are not listed or, if listed, are not contributed at rates approaching the listed concentrations. For wastewater from the package plant, Applicant may undertake the same process, again relying on the expertise of vendors or other parties, unless Applicant can demonstrate expertise in sanitary wastewater that it has not demonstrated in this record. Third, the volume of water to be disposed of daily is vast. Aside from the depth of the wells and the difficult-to- conceive vastness of the Lower Florida Aquifer, the fact that best describes the scale of this project is the vertical height of the injecting zone, which will be at least 200 feet high, or the height of a 20-story building. From this scale, one can infer the scale of the amount of wastewater that Applicant will be disposing of daily. This is not to suggest that a little hazardous waste is not especially important given the vastness of scale of this project. Rather, it is to acknowledge that it is extremely unlikely that these high volumes of wastewater, at the moment of entry into the injection well, would ever contain a hazardous waste due to the fact that the characteristic wastes, listed for toxicity, are expressed in concentrations, although the wastes may reach listed concentrations at early points, such as in the boiler immediately after chemical cleaning or in the package plant. For these three reasons, the failure of the Permit to provide reasonable assurance as to hazardous wastes is a minor deficiency, more of theoretical than actual importance, and is easily remedied by a few Permit additions, whose phrasing is properly left to the discretion of DEP.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order issuing Permit No. 247895-007-UC or issuing Permit No. 247895-007-UC with the recommended revisions. DONE AND ENTERED this 3rd day of March, 2008, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 3rd day of March, 2008.
The Issue The issues in this case are whether Respondent violated Subsection 458.331(1)(t), Florida Statutes (2002),1 and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is the state department charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes (2007). At all times material to the Amended Administrative Complaint, Dr. Brignoni was licensed to practice medicine in the State of Florida pursuant to Chapter 458, Florida Statutes, having been issued license number ME 59140. Dr. Brignoni is board-certified in obstetrics and gynecology. On September 5, 2002, patient C.W. presented to Dr. Brignoni, who diagnosed her with severe dysplasia, vulvar intraepithelial neoplasia. Dr. Brignoni recommended that C.W. undergo a wide local excision of vulva/vaginal lesion. On September 12, 2002, C.W. went to Charlotte Regional Medical Center for Dr. Brignoni to perform the wide local excision of vulvar intraepithelial neoplasia. Prior to the surgery, Dr. Brignoni had issued a card which indicated the supplies and instruments that he would need for a procedure such as the one that he was going to perform on C.W. The card is kept at Charlotte Regional Medical Center so that the supplies and instruments can be prepared and available at the time the procedure is scheduled to be performed. The card called for acetic acid to be supplied for the procedure, but no strength was specified. Acetic acid is commonly used during gynecological procedures to highlight abnormal areas. In the instant case, it would be used to highlight the lesion that was to be excised. When acetic acid is used for such a purpose, the acceptable concentration is approximately three-to-five-percent. Typically, when Dr. Brignoni arrives in the operating room to perform a procedure, all liquids and instruments required for the procedure are prepared and ready for use. A surgical technician is responsible for assembling the liquids and instruments needed for the procedure. When Dr. Brignoni began the excision on September 12, 2002, the surgical technician had not placed any acetic acid on the cart which housed the supplies and instruments needed for the procedure. Dr. Brignoni requested that acetic acid be obtained, and the circulating nurse went to the pharmacy to procure the acid. Dr. Brignoni did not request any specific concentration of acetic acid. The circulating nurse came back with a bottle of 100 percent acetic acid and decanted the acid into a container which she gave to the surgical technician. Dr. Brignoni took a piece of gauze saturated with the 100 percent acetic acid and swabbed the vulva area. He immediately noticed that area was peeling. This was not the reaction that would have occurred using a three-to-five-percent solution. Dr. Brignoni asked the surgical staff what solution did they give him, and he was shown the bottle containing a 100 percent concentration of acetic acid. Upon learning that he had applied 100 percent acetic acid to C.W.’s vulva area, Dr. Brignoni irrigated the area with over a liter of sterile water. He determined that he could proceed with the procedure, which he did. Prior to proceeding with the procedure, he did not consult with a physician familiar with chemical burns in determining whether it was appropriate to continue with the procedure. Dr. Brignoni did check with an emergency room physician after the procedure to confirm that he treated the burn correctly by irrigating with sterile water. As a result of the use of 100 percent acetic acid rather than a three-to-five-percent solution, C.W. experienced second degree burns in the area of her vulva and buttock. The normal time for the healing of a wide local excision of the vulva area is four to six weeks. C.W. healed in approximately eight weeks. Edward J. Zelnick, M.D., testified as an expert for the Department. Dr. Zelnick was licensed to practice medicine in Florida in 1975 and is board-certified by the American Board of Obstetrics and Gynecology. Currently, Dr. Zelnick is the chief executive officer and clinical researcher at Horizon Institute for Clinical Research. The last time that Dr. Zelnick performed a surgical procedure was in 1998. James Orr, M.D., testified as an expert for Dr. Brignoni. Dr. Orr has been board-certified in obstetrics and gynecology and gynecologic oncology since 1984. Currently, he is the medical director of Lee Cancer Center at Lee Memorial Hospital in Fort Myers, Florida, and is the director of Gynecologic Oncology and Gynecologic Oncology Research at Lee Cancer Center. He is a former associate professor of Obstetrics and Gynecology at the University of Alabama Birmingham School of Medicine and a clinical professor in the Department of Obstetrics and Gynecology at the University of South Florida. Dr. Orr has performed wide local excisions of the vulva area hundreds of times, and teaches this procedure to residents and medical students. It is Dr. Orr’s opinion that it is not standard procedure for a surgeon to specify the concentration of acetic acid for such a procedure. The normal strength of acetic acid used in a wide local excision of the vulva area is understood to be three-to-five-percent, and the standard-of-care requires a physician to simply ask for acetic acid without specifying the concentration. Dr. Orr’s opinion is credited. It was Dr. Orr’s opinion that Dr. Brignoni correctly irrigated the area after the application of the acetic acid and that there was no reason for Dr. Brignoni to stop the procedure after the irrigation. The biggest risk to the patient would have been stopping the procedure and putting the patient under anesthesia for a second time. Dr. Orr’s opinion is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Brignoni did not violate Subsection 458.331(1)(t), Florida Statutes, and dismissing the Amended Administrative Complaint against Dr. Brignoni. DONE AND ENTERED this 23rd day of April, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 23rd day of April, 2008.
The Issue The issues are whether the Respondent, a licensed physician, violated section 456.072(1)(bb), Florida Statutes (2013),1/ by mistakenly injecting a one-percent solution of Xylocaine® into an unintended site on a patient’s left hip in advance of performing a right-side trochanteric bursa steroid injection; and, if so, the appropriate penalty.
Findings Of Fact The Petitioner is the state agency charged with regulating the practice of medicine in Florida under section 20.43 and chapters 456 and 458, Florida Statutes (2017). The Respondent is a board-certified anesthesiologist but no longer practices in that specialty, but instead practices pain management medicine in Sarasota. She has been licensed as a physician in Florida since August 15, 2006, and has not been disciplined by any state licensing board. L.S. is one of the Respondent’s pain management patients. In August 2013, she was 50 years old, stood 5’8” tall and weighed 310 pounds. She was considered morbidly obese and suffered from multiple medical issues, including recurring trochanter bursa pain in her right hip. The Respondent proposed a procedure involving the injection of steroidal fluid into the right trochanter bursa sac, guided by fluoroscopy, to reduce inflammation and alleviate the patient’s pain. During this procedure, contrast dye is first injected into the site to enable the physician to use fluoroscopy to visualize and guide the placement of the relatively large-gaged needle into the bursa sac within the hip joint and injection of steroidal fluid into the bursa sac. The patient agreed to the proposed procedure but did not want to be awake while it was being performed. It was agreed and arranged that, instead of being performed at the Respondent’s office, as it normally would have been done, the procedure would be done at the Intercoastal Medical Group Ambulatory Surgery Center under deep sedation administered by Intercoastal’s staff (not by the Respondent). It also was decided and planned that the Respondent would administer a local numbing agent, using a smaller syringe and needle, to reduce post-operative pain from the bursa injection. When used for this purpose, particularly when the patient is going to be sedated for the procedure, the numbing agent can be administered either before or after the bursa injection. In this case, because the patient had a great fear of injections, it was decided to administer the numbing agent before the bursa injection. The procedure was scheduled for August 16, 2013. That morning, the patient met the Respondent in the pre-operative holding area at Intercoastal. The patient’s systems and medical history were reviewed again, and she consented to the right trochanter bursa steroid injection and the anesthesia. An identification band was affixed to the patient, and the injection site was identified and marked by the Respondent. Intravenous (IV) saline was started and oxygen was provided by nasal cannula. Pre-bursa injection medications of Robinul and Versed were given through the IV as a push. The Intercoastal anesthesiologist evaluated the patient and pronounced her capable of safely undergoing the injection under monitored anesthesia care. The patient was then transported to the operating room on a stretcher. The operating team included the Respondent, a certified registered nurse anesthetist (CRNA) who would administer the anesthesia under the supervision of the anesthesiologist, a circulating nurse, and a radiology technician. All but the Respondent were on staff at Intercoastal. Anesthesia monitors were placed, and the patient’s identity, injection site, and consents were confirmed. An anesthesia safety check was completed, and the patient was assessed for a difficult airway or aspiration risk. The team reviewed the plan and determined they were ready to proceed. The patient rolled onto the operating table from the stretcher, so that she was in a prone (face-down) position. The Respondent was positioned to the patient’s right side, where the equipment needed for the bursa injection was located. The patient’s identity, consents, and injection site were re-verified. A “time-out” was performed before proceeding with the administration of propofol. See Fla. Admin. Code R. 64B8-9.007(2)(b). The team verbally re-confirmed the patient’s identity, the intended procedure, and the injection site. After the “time-out,” the CRNA administered the propofol. In very short order, it was noted that the patient’s oxygen saturation had decreased, and she was having difficulty breathing. Immediate action was taken to resuscitate the patient. The propofol was discontinued, the stretcher was repositioned next to the operating table, the patient was rolled back over onto the stretcher in a supine (face-up) position, and oxygen was given. After a short time, the patient’s breathing and oxygen saturation returned to normal. The Respondent explained to the patient what had happened, and it was decided by all, including the patient, to proceed. The team preferred to use the operating table because it would be easier to use the fluoroscope there than on the stretcher. However, because of the apneic event that resulted shortly after the patient was rolled onto the operating table into a prone position the first time, the team decided not to repeat that maneuver. Instead, the team attempted to slide the patient back onto the operating table while remaining in a supine position. Due to the still partially sedated patient’s weight, the team decided it would be too difficult and unsafe to try to slide her onto the operating table. Ultimately, the team decided to leave the patient on the stretcher in a supine position. With the patient still on the stretcher in a supine position, the Respondent cleaned an unintended site on the patient’s left hip, which was then facing her and the injection equipment, draped the unintended site, and began to inject it subcutaneously with Xylocaine® one-percent solution as a local numbing agent. Before more than 0.5 of the 5 milliliters of the intended dose in the syringe was injected, the Respondent realized her mistake and withdrew the needle. She told the patient what happened and asked if the patient wanted her to proceed with the intended right trochanter bursa injection. The patient said yes, and the Respondent moved to the intended right side, injected 5 milliliters of the numbing agent at the intended site, and proceeded with the intended bursa injection. The Respondent documented the procedure accurately. Notwithstanding what happened, the patient still thinks very highly of the Respondent, continues to be the Respondent’s patient, and does not want the Respondent to suffer any license discipline as a result. She does, however, want it noted in her patient records for future reference that she overreacts to propofol and that care should be taken not to overdose her if it ever is used on her again. No license discipline against any of the Intercoastal staff has resulted from this incident. However, both the Respondent and Intercoastal have changed their operative procedures to require a second “time-out” if an emergency intervenes and interrupts an ongoing procedure, as happened in this case. This is the kind of safe practice improvements that can come from “near misses” and “close calls.” The Petitioner’s expert witness, Dr. Kevin Chaitoff, testified that the incident resulted in a violation of section 456.072(1)(bb). The Respondent called two experts, Dr. Jean- Louis Horn and Albert Wu, who testified that it did not. The Respondent and her experts contend that a trochanter bursa injection is not a surgery or the kind of procedure that must be reported if done, or attempted, on the wrong side or site. They also contend that the Respondent’s injection of some numbing agent at the wrong side or site in this case was not a wrong side/site procedure, or attempted procedure, because all other preparation was done for the procedure planned for and ultimately done on the intended right hip. In their view, what happened in this case should be chalked up as a “close call” or “near miss” that does not have to be reported, and should not result in discipline, because it would have a chilling effect, discourage reporting, and hinder safety improvements. The testimony of the Respondent and her experts also was based, in part, on their position that the subcutaneous injection of numbing agent was not preparation of the patient, but was something they called “pre-preparation.” Their testimony seems to beg the question, if that were just “pre-preparation,” what would qualify as preparation? Their testimony did not answer this question, but it does not have to be answered to resolve this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final finding the Respondent not guilty of violating section 456.072(1)(bb) and dismissing the Second Amended Administrative Complaint. DONE AND ENTERED this 17th day of November, 2017, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 17th day of November, 2017.
Findings Of Fact Brevard applied for a permit to construct a Class I exploratory injection well at the site of the existing South Beaches Domestic Wastewater Treatment Plant, located on U.S. Highway A1A, one mile south of Melbourne Beach, Florida. The exploratory injection well is required to determine if the hydrologic characteristics of the Melbourne Beach area are suitable for deep well disposal of treated domestic waste water. The application proposes that an exploratory well be constructed to meet the Class I standard of Chapter 17-28, Florida Administrative Code, so that it can ultimately be used as a Class I injection well if the required testing indicates the hydrologic formations of the area are suitable for deep well disposal of treated domestic effluent. It is anticipated that a suitable zone for injection bay be found at approximately 3,000 feet below ground level. The conditions required by the Department for issuance of a construction permit would not authorize testing or operation of the well. Once the well is constructed, further approval from the Department is required prior to testing. If the Department authorizes testing, the well will he tested with water from the Indian River. If the test results are favorable, Brevard must then apply for an operation permit authorizing injection of treated effluent. Further Department review will occur prior to issuance of an operation permit. The evidence presented by Brevard and the Department establishes that the design specifications for the exploratory well satisfy the appropriate standards for a Class I exploratory well. The Amended Petition for Hearing raised a number of concerns which were adequately addressed by Brevard and the Department: The Petitioner failed to establish that the documents comprising the application contain false and mis- leading information. The maps and photographs submitted by Brevard adequately depict exist- ing residences, roads, public water systems and water wells. Although well #061 does not appear in the list of owners on the well inven- tory, it clearly appears next to that list on the actual map showing wells within the area of study. Such a clerical error does not draw into question the integrity of Brevard's data. The purpose of constructing and then testing an exploratory well is to determine if the hydrologic environment is suitable for deep well disposal of treated domestic waste water; obviously, it is impossible for Brevard to demon- strate the feasibility of deep well injection until the required testing has been completed. The application and accompanying documents adequately address the design specifications and life expectancy of the proposed well. The application and special conditions of the Department's draft permit provide sufficiently for monitoring during the con- struction and any later testing of the well. The application and the Department's draft permit adequately address the possibility of fluid discharge to surface and ground waters during construction and any later testing of the well. Existing knowledge of the geologic formations in the Brevard County area makes it extremely unlikely that construction and testing of the well could cause an earthquake) Deep well disposal of domestic effluent has been utilized in South Florida for years and has not yet caused an earthquake. No credible evidence was presented by the Petitioner to indicate that an earthquake could result from deep well injection activities in Brevard County. It is important to note that the design specifications and conditions of Brevard's proposal were reviewed and negotiated with the Technical Advisory Committee over a period of many months. Appropriate technical staff from the Department's St. Johns River District office, Brevard County, the St. Johns River Water Management District, and the United States Environmental Protection Agency participated on that Committee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered issuing a permit to Brevard County to construct the Class I exploratory well proposed in its application. DONE and RECOMMENDED this 22nd day of November, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1983. COPIES FURNISHED: Jeanne Whiteside 10520 South Tropical Trail Merritt Island, Florida 32952 Kenneth C. Crooks, Esquire Post Office Pox 37 Titusville, Florida 32781-0037 Dennis R. Erdley, Esquire Department of Environmental Regulation Twin Towers Office Building 2660 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact On October 15, 1982, Hal Thomas Reid Associates applied for a septic tank permit to serve a 16-room motel. On February 2, 1983, this application was amended to a 5,800 gallon septic tank to serve a 32-unit condominium and office. The lot on which this drain field is to be located is 70 feet by 100 feet. When the application was filed, the lot was inspected by the Citrus County Health Department. The elevation of the land averaged 2.5 to 2.9 feet above mean sea level. The 10-year flood plane in this area is 4.9 feet. Occasional high tides inundate this area; however, the water drains off rapidly and no one testified that water ever remained standing as long as seven consecutive days. Usually the water drains off in less than 24 hours. On March 1, 1983, an extremely high tide flooded this area and roads in the vicinity to a depth of approximately one foot. This water remained on the site less than 24 hours. The site is not located adjacent to state waters, is not an area designated as wetlands, and is without the dredge and fill permitting jurisdiction of the United States Army Corps of Engineers and the Florida Department of Environmental Regulation (Exhibits 20 and 21). By adding five feet of fill to the site, the bottom of the gravel below the drain pipes will be above the 10-year flood plane. The drain field capacity is adequate to handle the flow from 33 bathrooms of residential units. In approving this permit, the Citrus County Health Department used the 150 gallons per day discharge for residential units rather than the 100 gallons per day discharge from a motel unit. The water table at this location is two feet above mean sea level. This is determined by the elevation reached at high tides for 14 consecutive days. As a condition to Citrus County withdrawing as an intervenor in these proceedings, Applicant agrees: To revegetate and restore any alleged wetlands affected by the permit to a like or similar condition; To install three shallow draft monitor wells around the drain field towards the wetlands area adjacent to the site and towards Woods 'n Waters subdivision, establish an existing level of bacteria count prior to the activation of the septic tank, and to monitor said wells through the Citrus County Health Department on a quarterly basis; and In the event any monitor wells shall test at an unsatisfactory level, Applicant will forthwith correct this condition to the satis- faction of the Citrus County Health Department. This application meets all of the code requirements of Chapter 10D-6, Florida Administrative Code.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner violated Florida Administrative Code Rules 64E-6.022(1)(b)2, 64E-6.022(1)(d), and 64E-6.022(1)(p) by making repairs to an on-site sewage disposal system without a permit, and by missing required inspections of the system, as outlined in the citation issued by the Respondent Agency dated August 29, 2005.
Findings Of Fact The State of Florida, Department of Health and Duval County Health Department (Department) is an Agency of the State of Florida, charged with enforcing the statutory and regulatory provisions regarding septic tank and drain field installations and repairs, in Florida, in accordance with Section 381.0065, Florida Statutes, and Florida Administrative Code Rule Chapter 64E-6. The Petitioner is the qualifying registered septic tank contractor for All Florida Septic Tank Service, Inc. (All Florida). He holds registration number SR00011389. He has 15 years of experience in the field of septic tank system construction and repair. All repairs of on-site sewage treatment and disposal systems (septic systems), are required to be performed under the supervision and control of a registered septic tank contractor. Mr. David Adeeb is president of United Properties of North Florida, Inc. He owned property (a residence) at 375 North Cahoon Road, in Duval County Florida. He was informed by his tenants at that residence that the septic tank and drain field were malfunctioning and needed to be repaired or replaced, sometime in April 2004. He therefore contacted All Florida, asking them to inspect the septic system at that residence and advise what repairs might be needed. He was advised by some representative of All Florida that the drain field needed to be replaced and was quoted a price of $2,000.00. All Florida requested that payment be made before the work was performed. Since Mr. Adeeb was out-of-town at the time he asked his tenant to temporarily pay All Florida for the cost of the repairs and/or installation, which they agreed to do. All Florida then issued a contract/proposal to United Properties on April 12, 2004. It was signed by a representative of All Florida, Michael Carver. Mr. Carver was an employee of All Florida. The contract/proposal indicated that a 360 square foot drain field would be installed at 375 Cahoon Road, for a price of $2,000.00, to be paid in cash. The contract/proposal was on All Florida letterhead and included a warranty. Mr. Adeeb was told by his tenant that the Petitioner, who is personally known to that tenant, was on the property while the work was being performed. No one applied for a permit to make any repairs to the septic system and the work was completed without a permit being obtained. Some five months later the system began leaking sewage from the new drain field. It had malfunctioned. Mr. Adeeb therefore again called All Florida to demand that they repair any malfunctions pursuant to the warranty. All Florida informed Mr. Adeeb that a new drain field with a mounded system and pump was needed. When Mr. Adeeb told a representative of All Florida that they had just replaced the drain field in April of that year, he was told that another $2,000.00 would be required to correct the drain field problem. Mr. Adeeb had just recently entered into a contract to sell the property at 375 Cahoon Road so, time being of the essence in closing the sale of the property, he felt he had no choice but to ask All Florida to go ahead with the repair work on the system which All Florida had been asked by him to repair five months previously in April of 2004. After the new system was installed Mr. Adeeb found that a permit had never been obtained for the first drain field work which he had requested from All Florida and that All Florida had done the work incorrectly. Mr. Adeeb objected to paying another $2,000.00 for the second repair job, performed in approximately September of 2004 and after much discussion with All Florida's representatives agreed to pay $1,000.00 dollars for the second stint of repair work. He made the payment and he received a warranty from All Florida for one year, good through September 22, 2005. The warranty was signed by Mr. Wayne Joyner, operations manager for All Florida. Mr. Joyner is also the qualifying registered septic tank contractor for AA Septic Tank Service, Inc., apparently a second corporation domiciled at the same facility and address as All Florida Septic Service, Inc. In May of 2005 Mr. Adeeb was again contacted by the now former tenant who had purchased the property from Mr. Adeeb. He was thus informed that the system had failed again and sewage was leaking onto the surface of the property from the drain field. Mr. Adeeb again contacted All Florida on May 23, 2005. A representative of All Florida informed him that he should fax a copy of the paid receipt and the warranty to them and that they would take care of the problem. On June 20, 2005, the home owner again contacted Mr. Adeeb and told him that no one from All Florida had repaired the drain field as yet. A faxed copy of the paid receipt and warranty was requested once again by All Florida. After numerous phone calls with representatives of All Florida, Mr. Adeeb was told that the problem was not due to All Florida's repair work and that Mr. Adeeb would need to get someone else to repair the system. The Petitioner, James L. Smith, the registered qualifying septic tank contractor for All Florida, testified that Michael Carver had performed the initial repair job in April of 2004 for Mr. Adeeb without the knowledge of the Petitioner or All Florida. He claims that Michael Carver never worked for All Florida. He introduced into evidence a letter purported to be from Michael Carver which was dated September 30, 2005, but signed on October 5, 2005. That letter states that Mr. Carver performed the first drain field repair job without the knowledge of All Florida and that he had created the receipt form which was apparently given to either the tenants at the residence in question, or to Mr. Adeeb, on All Florida letterhead without the knowledge of any officer, employee, or representative of All Florida. That letter, however, was not authenticated because Mr. Carver was not present at the hearing and could not be examined concerning it, or the details of Mr. Carver's involvement with the initial repair project. Moreover, the Petitioner was unable to explain how Mr. Carver would have known about the job at all if he had never worked for All Florida. This is because Mr. Adeeb established that in obtaining all of the repair work during 2004-2005 he had only contacted representatives of All Florida. He had never had contact with Mr. Carver. The Petitioner denied ever telling counsel for the Department in a telephone conversation that Michael Carver had worked for him during the week (i.e. All Florida) but that he let Mr. Carver do "side jobs" on his own on weekends. He claimed that Mr. Carver did the job in question in April of 2004 because the tenants knew him personally and arranged for him to do the work. The testimony of Mr. Adeeb and the Department's evidence in the form of its composite exhibit, is accepted as more credible than the self-serving testimony of the Petitioner, and it is found that All Florida and the Petitioner were responsible for the repair jobs at issue in this case because Mr. Adeeb contracted with All Florida for the work in question. Even if the initial job was performed by Mr. Carver, it is determined that he did so as employee or agent of All Florida and the Petitioner. Under the authority cited herein the Petitioner was responsible, as the qualifying, registered septic system contractor for All Florida, with performance and supervision of the work in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Respondent Department finding that the violations charged have been established and that a fine of $2,500.00 dollars be imposed for the violations. DONE AND ENTERED this 30th day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 30th day of March, 2006. COPIES FURNISHED: James L. Smith 8300 West Beaver Street Jacksonville, Florida 32220 Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues are whether Petitioner's substantial interests are determined by the issuance of the subject variance to Respondent Advanced Drainage Systems, Inc. (ADS) for the sale of an alternative drainfield system in Florida and whether, pursuant to section 120.542, Florida Statutes, on the grounds of substantial hardship or unfairness, ADS is entitled to this variance from three provisions of Florida Administrative Code Rule 64E-6.009(7) that, as to onsite sewage treatment and disposal systems (OSTDSs), require innovative system testing and prohibit an alternative drainfield system with an area smaller than the area required for a mineral-aggregate drainfield.
Findings Of Fact In the mid-1990s, Petitioner developed a drainfield system known as a Multi-Pipe System (MPS) as an alternative to the standard mineral-aggregate drainfield. The MPS consists of nine, eleven, or thirteen banded pipes constructed of four-inch, corrugated, high-density polyethylene tubing. Installed downgradient from a septic tank, the MPS retains the effluent from the septic tank long enough for the oxygen in the soil to treat the effluent's anerobic bacteria. After retaining the effluent long enough for this treatment to take place, the MPS releases the effluent so it can percolate deeper into the ground below the bottom of the drainfield. Marketed as a space-saving alternative to a mineral- aggregate drainfield, the drainfield area of the MPS is less than the minimum drainfield area specified by rule 64E-6.008 for a standard mineral-aggregate drainfield. For this reason, Petitioner sought DOH's approval of the MPS as an alternative drainfield system under rule 64E-6.009 (Alternative System or, more specifically, Alternative Drainfield System). In addition to being a proposed Alternative System, the MPS was also an "innovative system," as referenced in rule 64E-6.009(7), so DOH required Petitioner to conduct over two years' innovative system testing and submit to DOH the empirical data obtained from this testing. Petitioner did so, and DOH approved the MPS, with its reduced-size drainfield area, for sale and installation in Florida. A relatively small company, Petitioner entered into a license agreement with ADS in 2001 for the latter to produce and market the MPS in Florida. ADS subsequently sold at least 10,000 MPSs from 2001 until 2011 when the license agreement terminated. After Petitioner's patent on the MPS expired in 2014, ADS sought approval from DOH to market its own version of the MPS known as the Septic Stack. The Petition, Revised Petition, and Variance Order have been described above in the Preliminary Statement. DOH published notice of its receipt of the Petition in the Florida Administrative Register. Although DOH did not publish notice of its receipt of the Revised Petition, it did publish notice of the Variance Order in the Florida Administrative Register. The Variance Order provides persons whose substantial interests are determined by the proposed order a point of entry for requesting an administrative hearing on material issues of fact. Nothing in the record suggests that a third party had any right or opportunity to participate in the free-form agency proceeding that preceded the issuance of the Variance Order. Like the MPS, the Septic Stack is a space-saving alternative to the standard mineral-aggregate drainfield. The Septic Stack also consists of nine, eleven, or thirteen banded pipes constructed of four-inch, corrugated, high-density polyethylene tubing. Over the years, the thousands of MPSs that have been installed in Florida have proved that this Alternative Drainfield System operates adequately by protecting public health and the water resources of Florida. Although there is some dispute between Petitioner and ADS as to the specifications of the MPS that Petitioner licensed ADS to sell for installation in Florida, the MPS that ADS manufactured and that was installed in Florida is identical to the Septic Stack in terms of the perforated area punched into each length of pipe, an important feature in the proper performance of these Alternative Drainfield Systems. A small difference exists between the Septic Stack and the MPS in terms of the width of the straps holding the tubing in place during and after installation. Although the proper performance of these two Alternative Drainfield Systems requires that the pipes remain banded together, the small difference in the width of the banding straps is immaterial to their performance. The Septic Stack is the functional equivalent of the MPS. Because the MPS has adequately protected public health and the water resources, which are the relevant statutory purposes, as stated in the Conclusions of Law, the proposed variance would achieve the purpose of the statute by other means than those means set forth in the rule provisions from which the variance is sought. Consideration of hardship and fairness issues is complicated by the fact that, as discussed in the Conclusions of Law, the Septic Stack is not an innovative system, so it is not subject to innovative system testing under rule 64E-6.009(7) and 64E-6.009(7)(a)4. The following two paragraphs are necessarily conditional, assuming, for the sake of discussion, that DOH had properly determined that the Septic Stack requires a variance from the rule requiring innovative system testing. In this conditional case, requiring ADS to provide empirical data from innovative system testing would not produce a substantial hardship or be unfair to ADS by affecting it in a manner significantly different from the way that these rule provisions affect similarly situated persons that are subject to the rule. ADS has argued that the application of the rule would result in a substantial financial hardship. The record does not include an approximate cost of innovative system testing. If DOH had determined that the Septic Stack were not the functional equivalent of the MPS, the difference between these two Alternative Drainfield Systems would necessarily have been very slight, so any innovative element of the Septic Stack would not have required extensive or costly testing. Additionally, the record includes nothing about the net worth or revenues of ADS. There is thus no basis whatsoever for determining that innovative system testing itself would present a substantial financial hardship for ADS. ADS claims that the time required for innovative system testing would present a substantial financial hardship. The record does not indicate how long such testing would take. Again, if DOH had determined that the Septic Stack were not the functional equivalent of the MPS, the difference between these two Alternative Drainfield Systems would necessarily have been very slight, so any innovative element of the Septic Stack would not have required lengthy testing. It is thus impossible to estimate lost sales resulting from innovative system testing, nor is it possible to determine whether the lost profits, if any, from these sales would present a substantial financial hardship to ADS, given the absence of any evidence of the net worth or revenues of ADS. The record contains no indication of other hardships, such as technical or legal, resulting from requiring ADS to conduct innovative system testing. As explained in the Conclusions of Law, by proposing to grant ADS a variance from rule 64E-6.009(7) and (7)(a)4., DOH misapplies these two poorly worded rule provisions. But DOH's misapplication of these rule provisions does not create a statutorily recognized substantial legal hardship. The solution is not for DOH to misinterpret its rules and then grant variances due to the legal hardship arising from its misinterpretation; the solution is for DOH to acknowledge that the innovative system testing provisions of rule 64E-6.009(7) and (7)(a)4. do not apply to the Septic Stack because the Septic Stack is not an innovative system. ADS has argued that application of the innovative system testing provisions of rule 64E-6.009(7) and 64E-6.009(7)(a)4. would be unfair. But, as to these two rule provisions, the record fails to identify any person similarly situated to ADS or, thus, any difference in the impact of the rule on such a hypothetical person compared to the impact of the rule on ADS. The only other drainfield manufacturer identified in this case is Petitioner. The correct application of the relevant provisions of rule 64E-6.009(7) and (7)(a)4. required Petitioner to conduct innovative system testing and submit the empirical data to DOH because the MPS was an innovative system at the time--exactly what would be expected of ADS, if the Septic Stack were in fact an innovative system. Likewise, the application of rule 64E-6.009(7)(d) to the Septic Stack would not result in a substantial hardship of any sort, but it would be unfair. As noted in the Preliminary Statement, this rule provision prohibits the use of an alternative drainfield with an area smaller than the area required for a mineral-aggregate drainfield. As approved by DOH, the MPS drainfield is smaller than the area of a mineral- aggregate drainfield. The Septic Stack is functionally equivalent to the MPS, so the literal application of this rule to ADS's Septic Stack, but not to Petitioner's MPS, affects ADS in a manner significantly different from the way it affects Petitioner. Lastly, Petitioner has proved that its economic interests will suffer an injury in fact from the Variance Order. The proof of economic injury is straightforward. The addition of a competitor marketing a functionally equivalent Alternative Drainfield System in Florida will reduce Petitioner's sales in Florida. From the evidence produced by ADS in terms of lost sales resulting from the delay that would have resulted from innovative system testing,9/ Petitioner's economic injuries would not be insubstantial if ADS markets the Septic Stack in Florida. Petitioner has failed to prove any injury to any environmental interests, of which Petitioner has demonstrated none.
Recommendation It is RECOMMENDED that Department of Health enter a final order determining that Advanced Drainage Systems, Inc. is entitled to a variance from rule 64E-6.009(7)(d) in accordance with the formula set forth in the Variance Order, but not from rules 64E-6.009(7) and (7)(a)4. as to innovative systems.21/ DONE AND ENTERED this 19th day of December, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 19th day of December, 2014.
The Issue The issue in this case is whether the Petitioner has the actual experience required for certification as a Class B domestic wastewater treatment plant operator.
Findings Of Fact By application filed September 16, 1991, James H. Redden applied for certification as a Class B domestic wastewater treatment plant operator. At the time of the application, Mr. Redden was employed as a laboratory technician at a Class B Collier County regional wastewater treatment facility. From August 15, 1978, to July 31, 1989, Mr. Redden was employed at the Colgate-Palmolive Company facility at Jeffersonville, Indiana. The Colgate-Palmolive treatment facility is an Indiana Class D industrial wastewater treatment plant. Mr. Redden is certified by the State of Indiana as a Class D industrial wastewater treatment plant operator. During his employment at the Jeffersonville facility, Mr. Redden held positions as an associate chemist, senior chemist/plant microbiologist, and wastewater treatment plant supervisor. His duties included daily operations and supervision of personnel, scheduling and performance of maintenance activities, budgeting, ordering, materials balance, sludge management, laboratory analysis, quality assurance and quality control programs, and compliance with various state and federal reporting requirements. Mr. Redden has no experience either in the operation of a drinking water or domestic wastewater treatment plant, or at a DER-permitted industrial wastewater treatment plant.
Recommendation Based on the foregoing, it is hereby: RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of James H. Redden for certification as a Class B wastewater treatment plant operator. DONE and RECOMMENDED this 9th day of April, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 9th day of April, 1992. APPENDIX The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner: The Petitioner did not file a proposed recommended order. Respondent: The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2-4. Rejected, unnecessary. COPIES FURNISHED: Carol Browner, Secretary Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 James H. Redden 1362 Chesapeake, Avenue Naples, Florida 33962 Francine M. Ffolkes, Esq. Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32399
