Findings Of Fact Petitioner Melvin J. Laney is the owner of Rodriguez Key which is located approximately one and one-half miles from Key Largo, Florida, in the Atlantic Ocean. The island consists of about 170 acres and is undeveloped. It is approximately 9/10 of a mile long and 3/10 of a mile wide. By application, dated July 31, 1978, Petitioner requested a permit from Respondent Department of Environmental Regulation (DER) to conduct specified activities incident to the establishment of a primate breeding and research farm. The proposed activities included the construction of a floating pier, filling a sunken barge which is located 100 feet from the shoreline with coral rock and riprap, constructing two buildings on stilts on the east end of the island, clearing some 8.9 acres of black mangroves to provide trails for the placement and servicing of cages, installation of prepackaged waste treatment units, and temporary cages. (Testimony of Petitioner, Exhibits 1,8) DER's South Florida branch office personnel reviewed the application and issued an intent to deny the requested permit by letter of March 8, 1979, for the reason that Petitioner had failed to obtain local approval required pursuant to Section 253.124,. F.S., and that violations of State water quality standards could be expected by the proposed project. Further, the notice noted that the project would result in adverse effects to marine productivity and wildlife population contrary to the public interest under Chapter 253. Petitioner thereupon requested a hearing. (Petition, Exhibit 6,8) Petitioner plans to bring rhesus, squirrel, and other research primates into the State for the purpose of establishing a breeding and research farm on Rodriguez Key. The primates would be owned by sponsors who would pay Petitioner to provide housing, care and associated services. The project is designed to meet the needs of researchers for the testing of vaccines and other scientific purposes. There is currently a shortage of primates in this country due to a 1978 embargo on the export of such animals by the government of India who had previously been the primary supplier of research primates. (Testimony of Petitioner, Darrow, Exhibit l) Petitioner intends to fill a partly sunken barge near the northeast shoreline with boulders and riprap, cover it with a concrete floor, and construct a floating pier approximately 130 feet long between the shore and the barge for off-loading of supplies and equipment. The project contemplates the construction of an animal care house and a residence, both to be placed on stilts which will each contain a maximum of 10,000 square feet of space. No filling or dredging is planned for either structure. This is a modification from the original permit application which called for some 3,000 cubic yards of fill at the building site. At the western end of the island, Petitioner plans to install 16 rows of prefabricated cages with 64 cages per row, which represents a total area of approximately 12.48 acres. About 4.16 acres of that area will be cleared or otherwise disrupted to place and connect the cage rows. The cages will be secured and there is little likelihood that the animals will escape. Under a current permit from the Fresh Water Game and Fish Commission, the holding cages must be constructed to withstand hurricanes, surge and wind, and provide adequate protection for the animals during such storms. They must also meet or exceed minimum pen specifications established by the Commission. The permit submitted in evidence expired on June 30, 1981. The cages will be prefabricated and placed on metal pilings which are attached to underground rock. There will be troughs located underneath a grate floor for animal wastes which will be collected and pumped to a sewage disposal system. In order to take supplies, materials, and animals to and from the cage area, Petitioner intends to clear a 20-foot wide perimeter "trail" around the island which would be attached at both ends by lateral similar trails. The total distance of the trails is approximately 9,000 feet. The need for a perimeter trail is to deliver materials on one side of the island, service the animals, and then leave by a different route for the purpose of transporting employees, ill animals, or transporting of any animal that might affect the control area for testing and conducting vaccine research. The perimeter trails are designed to be no closer than 75 feet from a red mangrove fringe border around the island. For transportation purposes, it is proposed to use gasoline powered "all terrain" wheeled vehicles which will traverse the trails along two parallel two-inch diameter cables suspended horizontally 36 to 48 inches above the ground level. The cables will be attached to concrete anchors consisting of four inch by four inch steel tubes which are placed at 100 foot intervals along the trails. The tubes will be either hand-driven into subsurface rock several inches or driven by means of a portable pile driver. The tubes will additionally be supported by a concrete block "dead man" attached to a 5/8-inch cable on either side of the tubes and placed underground. Turning platforms would be placed at trail intersections on top of the cable road so that a vehicle could drive upon the platform and execute a turn to a connecting cable road. The low pressure tread vehicles used to traverse the roads will be equipped with shoes or flanges on the inside of the tire rims to securely ride on the pretensioned cables. They will also have low pressure pneumatic tires. The vehicles will also be used in interior areas where mangroves are not present. They will ride on the ground or upon metal plates. These areas are covered with about 9,000 square feet of batis (saltwort) cover which eventually will be killed by vehicle use. Batis is important for sediment stabilization and its removal can cause siltation problems in waters surrounding the island. The need for a 20-foot swath for the cable road is explained by the fact that transport of the 17-foot cages must be accomplished by placing them sideways on the transporting vehicles in order to install and periodically provide service, repair or replacement. A soil study made in representative areas of Rodriguez Key except the west end shows that coral rock exists at levels of approximately 11 to 15 feet below the ground surface, thus necessitating the use of pilings for support purposes rather than shallow footings. Although no soil borings were taken at the west end of the island, the soil expert is of the opinion that the borings reflect general rock characteristics of the entire island. Petitioner's civil engineer who designed the current cable road system prepared several alternative methods of construction, and is of the opinion that suspension of the cables at a height of 15 feet instead of three to four feet as currently planned would be feasible except for cage servicing purposes. A further alternative that was proposed by Petitioner's engineer expert is to place the cages at the east end of the island and utilize a boardwalk constructed of an eight-foot wide precast concrete slab walkway as a boardwalk for positioning of the cages. Six inch by six inch timber posts would be driven to the hardrock layer for a minimum of ten feet to anchor the Platform. The engineer testified that this alternative would be cost effective if used in lieu of the cable road. Respondent's Environmental Specialist testified that such a modification to concentrate the project on the east end of the island would be recommended because it would eliminate the cable road and its adverse environmental consequences Rodriguez Key is almost completely vegetated by mangroves with a red mangrove fringe around the perimeter and black mangroves on the higher interior areas. Some of the red mangroves are 100 to 150 feet in height and the black mangroves range from 20 to 40 feet high. In the east center of the island is an open area of batis, and red mangroves are located in the center and west end of the island. White mangroves are also present in the south side of the island. Throughout the island, there are watermarks on trunks and prop roots ranging from four inches to six inches, and an abundant growth of brown algae. Such algae requires regular submergence to exist. No significant forms of wildlife are present on the island. Batis is a submerged species which is important for sediment stabilization. In order to clear the 20-foot wide trails with cable suspensions as low as 36 inches above ground, it will be necessary to prune or cut back a large number of mangroves to that height. However, the prop roots of the red mangroves extend above six feet in some areas. If the trees and roots are cut to a three-foot height, it is unlikely that they would survive. Red mangroves produce leaf detritus which forms a part of the food chain for marine life. Such trees are island stabilizers which provide filtration and uptake of nutrients associated with runoff and intertidal waters. The waters surrounding the island are categorized as Class III waters under State regulations. The presence of brown algae on prop roots is evidence that the island is regularly inundated to some degree. Turtle grass, which is an indicator of regular tidal flushing, is in abundance on the flats waterward of the island but not found in the interior. During a visit to the Rodriguez Key in 1981, DER personnel observed standing water across the entire island to a depth of from one inch to one foot at high tide. (Testimony of Carroll, Key, Helbling, Exhibits 6, 8) Thirteen public witnesses testified at the hearing, including residents, landowners, and representatives of housing developments in the Key Largo area. They were uniformly opposed to the proposed project for a variety of reasons. Primarily, they fear that the presence of primates on the island a short distance away from Key Largo will produce excessive noise, odor, and water pollution in the adjacent waters which are used for recreation. Additionally, some are of the opinion that their property values will decrease as a result of the activity. A District Naturalist employed by the Department of Natural Resources at the nearby Coral Reef State Park testified that her agency opposes the proposed activity due to concern that it will cause degradation of water quality in the surrounding waters and that increased boat traffic could damage the shallow coral reef beds which lie near the State park. There is also general apprehension among the nearby residents that a hurricane could destroy any facilities on Rodriguez Key and cause damage to their property. A petition signed by a large number of Key Largo residents reflects their opposition to Petitioner's use of Rodriguez Key as a primate breeding and research facility. (Testimony of public witnesses (Hearing Officer's Exhibit 2) Exhibits 9-10) There probably would be no odor problem connected with the presence of monkeys on Rodriguez Key if the cages are regularly cleaned and fecal waste is disposed of according to sanitary methods. Although primates are inclined to vocalize at feeding time or when strangers appear, they do not screech at great length and the presence of trees and other foliage would modify the sound. (Testimony of Darrow)
Recommendation That the application of Petitioner Melvin J. Laney, as modified in the above Conclusions of Law, be approved and that a permit authorizing the requested activities be issued pursuant to Chapter 403, F.S., together with water quality certification under PL-500, subject to standard conditions reasonably necessary for prevention of pollution. DONE and ENTERED this 14th day of September, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1981. COPIES FURNISHED: Ross A. McVoy, Esquire Madigan, Parker, Gatlin, Swedmark and Skelding Post Office Box 669 Tallahassee, Florida 32302 Ray Allen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
The Issue Whether the Mosquito Ditch Exemption of Section 373.4211(25), Florida Statutes, applies so as to exclude Petitioners' property adjacent to Miguel Bay in Manatee County from the permitting authority of the Department of Environmental Protection? If not, whether Petitioners are entitled to an Environmental Resources Permit from the Department?
Findings Of Fact The Property Not far from the southern terminus of the Sunshine Skyway Bridge spanning the waters where Tampa Bay and the Gulf of Mexico meet is a subdivision known as San Miguel Estates. On the western shore of Terra Ceia Island in Manatee County, it takes its name from an adjacent body of water: Miguel Bay. Miguel Bay is classified by rule of the Department of Environmental Protection as Class II surface waters meaning it has been designated usable for "Shellfish Propagation or Harvesting," Rule 62.302-400(1), Florida Administrative Code. The classification is the highest available to surface waters which are not fresh. As a part of the Terra Ceia Aquatic Preserve, Miguel Bay also enjoys the status of an Outstanding Florida Water, so designated by the Environmental Regulation Commission to confirm its worthiness to receive special protection because of natural attributes. See Rules 62- 302.200(17) and 62-302.700(9)(h)39., Florida Administrative Code. The bay surrounds the subdivision together with two bayous, Custer to the northwest and Tillette to the southeast. The mouth of Tillette Bayou is formed by Boots Point, also a part of Terra Ceia Island and the subdivision jutting into the bay directly north of the point. The bay surrounds or washes onto the shores of a number of keys: Sister, Skeet, Ed's, and Rattlesnake. Through the middle of the subdivision runs a county- maintained road: Miguel Bay Drive. It provides access to a cul- de-sac containing seven lots. Lots 2, 6, 7, and 8 are fully improved with residential structures, boat docks and elevated walkways. Lots 3 and 4 are undeveloped. An application for a permit to construct a house on Lot 3 was denied in the early part of this decade. It is uncertain whether Lot 4 is permitted for a residential structure but an application for a permit to construct a boardwalk on the property is pending. The lot owned by the petitioner and his wife, also undeveloped, is Lot 5. Consisting of approximately 5.5 acres on the south side of Miguel Bay Drive, Lot 5 is within the geographical jurisdiction of the Southwest Florida Water Management District. It contains wetlands contiguous to the bay. The wetlands have suffered various disruptions over the years. In addition, to mosquito ditches dug more than 30 years ago, a dike was built around the same time to prevent the gulf tide from flowing onto the property. Furthermore, part of the property was cleared at one time as part of an agricultural venture. On its northern side, adjacent to Miguel Bay Drive, is the property’s approximate 0.9 acres of uplands. On the opposite side of the lot, where the wetlands meet the bay, the Petitioners plan a boat basin. A section of the proposed boat channel serving the basin, where it connects to the bay, is located within the Outstanding Florida Waters boundary of the bay. The boat basin will be part of a residential project planned by Mr. and Mrs. McGinnis. In addition to an access drive and the boat basin and channel, the Petitioners plan to build a house in the middle of the lot. In the mid-1960’s, Lot 5 was ditched for mosquito control. The mosquito control ditches transect the property along two lines running roughly east-west: one, just to the south of the uplands, not too far from the road; the other, just to the north of the dike and a mean high-water line approximated by Mr. and Mrs. McGinnis’ engineer, John Benson. Valuable Mangroves Mangroves cover the bulk of the property south of the uplands. Most are normal-sized. For example, “[a]ll the mangroves up . . . at the mosquito ditch going toward the . . . street [are] huge, . . . 10, 15, 20 feet.” (Tr. 41.) The mangroves closer to San Miguel Bay, too, are normal-sized. But in a basin in the center of the property there is an acre or so of “stunted mangroves that [are] only . . . three to four feet tall." (Tr. 39.) "And that [is] very unusual . . . there [is] obviously something wrong with them.” (Tr. 40-41.) The problem for the stunted mangroves is stress in their root zone due to "anoxia in the soil, that is, lack of oxygen." (Tr. 318). The anoxia is most likely a function of location: the stunted mangroves are in a basin surrounded by the mosquito ditches. The normal-sized mangroves are not experiencing anoxia because they are better irrigated. Those alongside or in the mosquito ditches are irrigated by the water which collects in the ditches while those in the southernmost part of the property are irrigated by tidal froth from the bay. Although the property has been ditched, diked and bermed (and may have even been tilled at one time for agricultural purposes after it was cleared), the mangroves on the property serve a valuable ecological function, particularly to the bay. The height of the mangroves does not alter their ecological value because the value is largely in their root system. The entire root system of the mangroves covering over four-fifths of the property serves as a filtration base for water running off the uplands. It provides, moreover, critical habitat for commercially important species such as redfish and snook. Building a residence in the middle of this mangrove swamp, even were it to disrupt only the stunted mangroves, would cause adverse ecological impact. The adverse impact would fall heavily on the bay because it needs the natural flushing action allowed by the uninterrupted tangle of mangroves covering more than four acres of the five and one-half acre plot. At the same time, wildlife enjoy orderly habitat in the mangroves on the property. The presence of a residence and the alterations to the property, particularly the loss of well over an acre of a mangrove root-system caused by dredging and filling to support the residence, would render the remaining mangrove wetlands on the property much less supportive of the wildlife inhabiting it now and the wildlife that would otherwise inhabit it in the future. The Parties Petitioners moved to Florida from Illinois in 1991. Mel McGinnis is a double above-the-knee amputee who walks with the aid of prosthetic devices. Pamela McGinnis is a licensed real estate broker. Mr. and Mrs. McGinnis live in Palmetto where Mrs. McGinnis conducts her real estate business. The Department of Environmental Protection is the state administrative agency with permitting authority under Part IV of the Florida Water Resources Act of 1972, Chapter 373, Florida Statutes and Chapters 62-330, 62-341 and 62-343, Florida Administrative Code, as well as Section 404 of the federal Clean Water Act (33 U.S.C. 1344). Pursuant to operating agreements executed between the Department and the Southwest Florida Water Management District (SWFWMD) via the authority of Chapter 62-113, Florida Administrative Code, the Department is responsible in this case for reviewing the permit application of the Petitioners. Manasota-88, Inc., filed a petition to intervene which was granted subject to proof of standing at hearing. No proof of standing was offered, however; Manasota-88's status as an Intervenor has been rescinded and it has been dismissed as a party to the proceeding. See Paragraphs 78 - 81, below in the Conclusions of Law section of this order. Acquisition of the Property In 1993, Mel and Pamela McGinnis purchased Lot 5 in San Miguel Estates. They were attracted to the lot because of the more than 500 feet of waterfront it enjoyed on Miguel Bay. The seller of the property was the federal government. The sale was arranged through the United States Marshall’s office as part of a forfeiture proceeding. The property had been seized by federal authorities because of the illegal involvement in drug activity of its owner at the time of the seizure. Prior to a decision to make the purchase, Mr. and Mrs. McGinnis were concerned about clear title because of the property's shadowy history. They researched the matter at the county offices. Their concerns were allayed when they found no liens and discovered the property was part of a platted subdivision. They inquired whether there would be water or sewer services provided by local government. The county reported plans to put water lines in soon, a promise made good in 1994. In testimony, Mrs. McGinnis summed up the results of the pre- purchase investigation: “We really didn’t perceive [there] to be a problem.” (Tr. 22.) Plans to Develop and an Application for an ERP In 1995, the McGinnises began planning the construction of the residential structure and boat dock on Lot 5. Accompanied by their engineer, John Benson, they met on the site in August of 1995 with Ken Huntington, an environmental manager in the Environmental Resources Permitting Section of the Department. Before the meeting, the McGinnises believed the mosquito ditches to be creeks. After John Benson corrected the misimpression, Mr. Huntington indicated there was a possibility the property might qualify for a mosquito ditch exemption from environmental resource permitting. Mr. Huntington did not make a commitment, however, at this early stage of the case's development that the Department would determine the exemption applied. In fact, the Department insisted that an application for an Environmental Resources Permit be filed before a decision could be made on the exemption. Mr. and Mrs. McGinnis, on October 5, 1995, applied for the Environmental Resource Permit. The application sought authority to dredge and fill in waters of the state for the purpose of constructing a single-family residence, driveway, swimming pool and boat channel and basin. It showed the construction to have impact upon approximately 1.61 acres of wetlands. About 1.39 acres of the affected area would be cleared and filled for the construction of the home, pool, and driveway. The remainder of the area under impact (about .22 acres) would be excavated for the construction of the boat basin and channel. Two months later, in December of 1995, Mr. and Mrs. McGinnis submitted additional application materials. The submission consisted of several parts: a written statement from Larry Rhodes, the Mosquito Control Director for Manatee County from 1961-94; a proposed work order of the mosquito control district from 1966; information from their engineers; and, aerial photographs from 1960 and 1965. These materials were intended to support the assertion that Lot 5 was eligible for a mosquito control exemption from Environmental Resource Permitting. Preliminary DEP Action On April 1, 1996, a Preliminary Evaluation Letter was sent to Petitioners by the Department. The letter stated that based on site inspection, "it appears that the project cannot be recommended for approval." Petitioners' Exhibit 1-h. Cautioning that the preliminary evaluation did not represent final agency action, the letter went on to provide modifications which would reduce or compensate for the project's negative impacts. Among them, was "relocation of the proposed structure to a more landward location." Id. The letter was not preliminary in one way. It explained the Department’s final position that the project site did not qualify for the mosquito ditch exemption: As indicated in previous Department correspondence of January 19, 1996, the Department does not believe that the project meets the . . . exemption. Pursuant to 40D- 4.051(14), Florida Administrative Code, the subject exemption applies only to 'lands that have become surface waters or wetlands solely because of a mosquito control program, and which lands were neither wetlands nor other surface waters before such activities . . .' Historical aerial photographs do not support that the parcel was not previously wetlands. Id., at pg. 2. Ten days later, Mr. and Mrs. McGinnis, through their attorneys, requested a one-week extension to submit revised plans "which attempt[] to reduce the impacts in response to the issues . . . raised [by the April 1 correspondence]." Petitioners' Exhibit 1-i. In a letter dated April 17, 1996, Mr. McGinnis submitted the revised plans in the form of proposals designed by Benson Engineering and CCI Environmental Services. As a prelude to the proposed modifications it had designed, Benson Engineering wrote, We have spent considerable effort to reduce the negative impacts with out (sic) placing the development in the unacceptable upland. The location of the residence has been chosen due to the nature of the stressed mangroves. This area (approximately 1.6 acres) is characterized in a report by H. Clayton Roberson, Environmental Scientist with CCI Environmental Services, Inc. dated 29 January, 1996. The majority of the mangroves to be impacted are less than 3 feet in height, with atypical stunted growth. The current proposal reduces the impacts to only 45% of the stressed area, and only 24% impact to the total site. This 24% development ratio is also being mitigated with enhanced water circulation to the entire site, . . . Petitioners' Exhibit 1-j. In the cover letter submitting the proposed modifications, Mr. McGinnis' frustration at this point with the process was evident. At least two of the items in the letter demonstrate its depth: Property was purchased by us from the government with no disclosure by anyone or any recorded documentation that would have given us even a hint that building our home would become such a nightmare. This property is in a long established recorded subdivision, and all adjacent property owners are either built, under construction or permitted to build. Our property as submitted to you under the revised design is compatible with the surrounding neighborhood. Placement of any dwelling on the road will have a major negative impact on this parcel. I cannot stress enough the negative economic impact that would be incurred by this action. Petitioners' Exhibit 1-j. Denial On May 1, 1996, the Department issued its Notice of Denial. The notice contained five parts: I. Description of the Proposed Activity; II. Authority for Review; III. Reasons for Denial; IV. Proposed Changes; and V. Rights of Affected Parties. Part III of the notice (Reasons for Denial) cited a June 1995 site inspection. It included a description of the site: 5.5 acres, the majority of which, according to a 1952 Soil Conservation Service survey, is Tidal Swamp, and according to a 1983 Soil Survey is classified as Wulfert-Kesson Association soils. The site had been found during the inspection to be dominated by mangroves, red, black and white. Other vegetation associated with wetlands had been observed "within the subject system at the time of inspection" (Petitioners' Exhibit 1-k) as well as Marsh periwinkle, Fiddler crabs, tricolered heron, greenback heron, and snowy egret. The project was found, moreover, to result in 1.61 acres of impact to a mangrove community with wetlands in a Class II waterbody directly contiguous to an aquatic preserve. After detailing the value and significance of mangroves to habitat and water quality functions and the applicant's failure to provide reasonable assurance that the construction and operation of the activity, considering direct, secondary and cumulative impacts, would comply with the provisions of Part IV of Chapter 373 and the rules adopted thereunder, Part III of the notice recited two primary bases for the denial. First, the immediate and long-term impacts of the activity were expected to cause violations of water quality standards. Second, the project was found to be contrary to the public interest for those portions of the activity located in, on or over wetlands or other surface waters. With regard to water quality, the Department found the project did not meet standards applicable to biological integrity, transparency, and turbidity. The project was expected, furthermore, to cause: adverse water quality impacts to receiving waters and adjacent lands; adverse impacts to the value of functions provided fish, wildlife and listed species by wetlands and other surface waters; and adverse secondary impacts to water resources. With regard to the public interest test for those portions of the activity located in, on or over wetlands or other surface waters, the Department expected the project to adversely affect the conservation of fish and wildlife, including endangered or threatened species and their habitats; adversely affect navigation or the flow of water or cause harmful erosion or shoaling; adversely affect the fishing or recreational value or marine productivity in the vicinity of the project, among other adverse impacts; and fail to meet standards imposed by law. Despite the existence in the Department's opinion of numerous substantial bases for denial, the Department offered hope to Petitioners that they might yet be able to build a residential structure on Lot 5. The first of changes to the project listed in the notice that might "enable the Department to grant a permit," Petitioners' Exhibit 1-k, was for Petitioners to "[r]elocate the proposed residence to a landward location-in proximity to the existing road which would result in a significantly minimized wetland impacts." Id. Other modifications included submission of an acceptable mitigation plan and addressing cumulative impacts, perhaps by way of granting a conservation easement. In response, the McGinnises modified their proposal. But the modifications did not include moving the residence into the uplands at the northern end of the property. The Department considered the changes to the proposal but the changes did not, in the Department's view, make the project permittable. (See Tr. 155). Environmental Dispute Resolution On May 15, 1996, a few weeks from the issuance of the Department's Notice of Denial, Mel and Pamela McGinnis filed a Request for Relief under the Florida Land Use and Environmental Resolution Act, Section 70.51, et seq., Florida Statutes. The Department filed a response to the request and parties participated in a hearing and mediation in accordance with the Act. A hearing was held on September 18 and 19, 1996, before Special Master Raymond M. McLarney who referred to the event as the "first Special Master Proceeding in Property Rights with the FDEP and a landowner." Petitioners' No. 4, Special Master Summary Report, Ex. 1a, p. 1. 36. Paragraph 4 of the Report Summary, bearing the heading, "Special Master's Initial Observation," states: Following completion of the hearings . . ., the Special Master concluded and communicated to the parties that the FDEP's Notice of Denial unreasonably and/or unfairly burdens use of the McGinnises['] real property. The Special Master's initial observation and conclusion was provided to the parties to serve as an indication of sufficient hardship to support modification, variances or special exceptions to applicable statutes, rules, regulations or ordinances of FDEP as applicable to the subject property, all as authorized by Section 70.51(25) of the Florida Statutes. The Special Master encouraged the parties to mediate their differences and attempt to seek a mutually- acceptable solution through the process of mediation. The parties agreed. Id., at 4. The Special Master's Report Summary reports that the result of the mediation was that "the McGinnises and FDEP reached a mutually-acceptable solution evidenced by an [attached] agreement . . . incorporated herein. The . . . solution . . . was initialed/signed on each page by authorized representatives of the parties and was accomplished in accordance with Section 70.51(19)(c) of the Act." Id., at 5. The “Initial Observation” section of the Report Summary appears to contain what would have been the Special Master’s Recommendation (that is, the conclusion that the Department’s actions “unfairly burdened the Petitioners’ use of the property”) had the Special Master not thought that the Department and the McGinnises had reached a mediated agreement. Whatever the appropriate characterization of this section of the report, the Department treated it as a recommendation. It did so when it declared the Special Master’s Report Summary null and void several months after receiving it. Null and Void On January 29, 1997, the Department received the Special Master's Report Summary. By order dated March 14, 1997, the Department rejected its "recommendations." Petitioners' Exhibit 4, Order, p. 1. Under an overarching declaration that the report summary was null and void (amounting to a declaration that the entire proceeding was null and void) the order detailed essentially four bases for the rejection: a. the hearing that led to it was not open to the public as required by the Act; the report was not timely submitted; c. the proceeding had not satisfied other requirements of the Act besides public openness and therefore was inadequate; and d. the report incorrectly concluded that the Department and the McGinnises had reached a mutually-acceptable solution. Allegations of the Petition In the body of the petition which initiated this case, Petitioners refer to the Special Master proceeding as one which led to a mediated agreement. They also make reference to the Department’s rejection of the Special Master’s recommendation. See Petition, paragraph 11, p. 3. But although they seek “[s]uch other relief as may be just and appropriate under the circumstances [of the case],” Petition, paragraph 12.c., p. 5, they do not plead in the petition that the rejection was either wrong as matter of law or action for which they specifically seek relief. Instead of challenging the Department’s rejection of a recommendation by the Special Master or the Department’s declaration that his Report Summary was null and void, the petition challenges only two decisions of the department. One is the Notice of Denial determining the Petitioners not entitled to an Environmental Resource Permit. The other is the decision that the project is not exempt from permitting because of effects caused by the mosquito control ditches. The Days of Mosquito Ditching Long before the Legislature enacted the Florida Land Use and Environmental Dispute Resolution Act to address unreasonable burdens placed on land owners by governmental regulation, local governments were confronted by issues less abstruse. The Manatee County Commission, for example, was striving to eradicate mosquito infestation along its coastline. One of the tools the county used in its efforts was ditching. Mosquito ditches were installed in uplands and fresh waters throughout Manatee County but they were excavated mainly in the salt marshes along the county’s coastline because "the biggest [mosquito] problem in Florida is coastal mosquitoes." (Tr. 105). Larry Rhodes, presently a resident of Terra Ceia and a long-time resident of the area, was the Director of Manatee County Mosquito Control at the time the mosquito ditches were dug across the McGinnis property. His tenure as director ended in 1994. It spanned a period of more than 33 years, having begun in 1961. Shortly after the commencement of Mr. Rhodes’ tenure, but prior to some of the canal construction by the developers of nearby Terra Ceia Estates, the McGinnis property was cleared almost entirely. Except for a small wet area of black mangroves, the property had been dominated by wax myrtle, guava and Brazilian Pepper, an invasive exotic in the process of pushing out the other dominant species. The clearing by the developers of Terra Ceia Estates, personally observed by Mr. Rhodes, was done at the time of installation of a system of canals. Around the canals a waterward dike was placed in order to keep the tides from Miguel Bay from inundating the property. The clearing shows up in an aerial photograph taken in 1965. Soon after the aerial was taken and developed, the mosquito ditches were excavated. Approved by the State Board of Health in 1966, the ditches were dug through the McGinnis property during that year or the next, when the mosquito ditch system in the area of San Miguel Estates was completed in 1967. As the result of the ditching, with the exception of the spoil banks where Brazilian Pepper took over, mangroves proliferated over the formerly-cleared land. Red mangroves grew "up [in] all the ditches and then black and white mangroves in other areas." (Tr.122). Maps, Aerial Photographs, and Soil Surveys The status of the property as cleared thirty-odd years ago and the subsequent generation of mangroves produced in the intervening years over most of the property, including alongside and in the mosquito ditches, did not mean necessarily that the cleared area had not been wetlands prior to the clearing activity. The Department, therefore, confronted with the Petitioners’ claim of a mosquito control exemption, set out to investigate. The investigation was necessary because entitlement to the exemption turns on whether the nature of the property as wetlands after the clearing was due solely to the excavation of the ditches. The investigation consisted of reviewing aerial photographs, maps and soil surveys and later required resort to expert opinion from outside the department. After an initial review conducted by Ken Huntington and Rose Poyner, another Department staff member, the Department contacted GIS analyst Robert P. Evans of the Southwest Florida Water Management District. As a GIS analyst, Mr. Evans’ primary functions (conducted for more than 25 years for the district) are GIS mapping and interpretation of aerial photographs. Mr. Evans reviewed a series of aerial photographs beginning with 1940 black and white photographs and ending with infrared photos from 1990. A 1940 Natural Resource Conservation Service (NRCS) photograph showed that the site of the McGinnis' proposed project consisted of mangroves that year. A copy of a 1951 NRCS aerial photo showed mangroves on the site as did a copy of a 1957 aerial photo. After review of the photos, Mr. Evans was of the opinion that the site of the proposed project was wetlands and had been so historically, that is, before the ditches approved and excavated in the mid-sixties. Rick Cantrell, the Administrator of the Wetlands Evaluation and Delineation Section of the Department, the "Administrator [of wetlands delineation] for the whole Department in the whole State of Florida," (Tr. 306), and an expert in aerial photo interpretation for purposes of wetlands delineation, also reviewed aerial photos of the site. Mr. Cantrell reached the opinion that the property had been historical wetlands, just as had Mr. Evans. In the meantime, Mr. Evans was hard at work seeking independent confirmation of his opinion. First, he reviewed United States geological surveys of the site. The 1969 revision of the 1964 edition of the Palmetto USGS Quad map of the area, based on an aerial photograph taken in 1951, shows the McGinnis project site was wetlands prior to the ditching. Not content to rely on the authoritative evidence of aerials and official federal geological survey maps, Mr. Evans sought out another source: soil surveys. These, too, confirmed the historic existence of wetlands on the site. Favored with Mr. Evans’ opinion, the Department contacted Juan Vega, a soil scientist, and asked him to use his expertise in both soil survey review and site testing to assist the inquiry. Mr. Vega agreed to look into the issues. He examined two soil surveys: a survey of Manatee County soils issued in December of 1958 by the United States Department of Agriculture's Soil Conservation Service in cooperation with a Florida Agricultural Experiment Station (Respondent's Exhibit 8) and a subsequent Soil Survey of Manatee County conducted by the federal Soil Conservation Service in cooperation with the University of Florida and other state entities (Petitioner's No. 9). The second survey, "done in '79 or '80," (Tr. 286) was a recorrelation of the first. The first survey shows the site to be tidal swamp as is all of Lot 5 with the exception of the less than one acre of uplands on the property's northern border. Vegetation in tidal swamps is usually mangroves in abundance. As one would expect from their denomination, tidal swamps are influenced by salt water tides, contain tidal soils and are generally wet. The 1979-80 survey indicated that the soil found on the site is Wulfert-Kesson Association. This soil is characterized by an accumulation of organic materials and ore black minerals on the surface, a process known as gleying. Gleying is caused by saltwater inundation and tidal effects and therefore, of course, is indicative of the presence of hydric soils in a wet area. The soil surveys led Mr. Vega to conclude that the site of the project was composed of historic wetlands. Field Testing The Department's interest in having Mr. Vega conduct soil testing on the site of the project was not fruitful. Access to the site was denied. In lieu of on-site testing, therefore, Mr. Vega conducted soil analysis nearby, a few hundred feet to the east of the proposed site. In March of 1996, he dug several holes, one near the road and others adjacent to the mangrove area of Lot 5. The soil near the road was Bradenton, "pretty much natural native soil." (Tr. 289). The soil from the other areas, buried under approximately two feet of fill, was Wulfert and Kesson, both hydric soils. There was also present a layer of muck, that is, decomposed organic material. It indicated that the soil had not been converted from uplands to wetlands but rather that the soil had been wetlands historically. The field testing conducted by Mr. Vega on the adjacent site confirmed his opinion that the site of the proposed McGinnis project was wetlands and had been so historically. Historic Wetlands The evidence on the issue of the property's status is summarized as follows: United States Geographical Survey maps indicate the area of Lot 5 in San Miguel Estates to be historic wetlands; federal soil surveys confirmed by nearby soil testing and conducted with the cooperation of the State of Florida indicate the presence of hydric soils on the lot; and aerial photographs show that mangroves existed on the site both before the clearing in the sixties and after the mosquito ditches were excavated in 1966-67. Although the proposed site contains mangroves stunted and suffering from the stress of anoxia today, and there are mangroves in and alongside the mosquito ditches dug as part of a governmental program in the 1960s which grew after the land had been cleared, Lot 5 in San Miguel Estates, with the exception of the approximate .9 of an acre alongside the road at the north end of the property, is comprised of wetlands that existed prior to the mosquito ditching activity. In short, Lot 5 is comprised of historic wetlands. The Permit Application Sovereign submerged lands would be affected by the project, a project permanent in nature. "[D]irect impact would be the excavation of the access channel from the boat basin to the water. So that last [scoop] of dirt, if you will, or piece of land separating the basin from Miguel Bay, that cut would be into the bottom of Miguel Bay, [an Outstanding Florida Water and part of the Terra Ceia Aquatic Preserve]." (Tr. 156). The proposed project would cause adverse impact to the quality of the receiving waters. The filtration function of the mangrove forest would be diminished and the boat basin would cut into the bottom of the bay within the aquatic preserve. Petitioners offered no evidence that water quality standards listed in Chapter 62-302, Florida Administrative Code, including those for biological integrity, transparency and turbidity would be met, all concerns listed by the Department in its Notice of Denial as a basis for its action on the permit application. Nor did Petitioners demonstrate that the dredging of the boat access channel in Miguel Bay would not violate ambient water quality standards, another basis for the Department's notice of denial. Any mitigation offered by Petitioners for the impacts of fill associated with construction of the access road and fill pad for the house were not adequate. "That fill will eliminate over half an acre . . . of mangroves and wetlands that are crucial to the eco system (sic) in Miguel Bay." (Tr. 157). In addition to the filtration these lost mangroves would have provided, "mangrove wetlands are vital for habitat, for fish and wildlife services." Id. Petitioners have not provided reasonable assurance that the boat basin would not create water quality violations, including dissolved oxygen concentrations falling below standards. Petitioners have not provided reasonable assurance that the proposed activity will not cause adverse secondary impacts that result from construction activities on the site. Secondary impacts include the establishment of nuisance species in disturbed areas. The property contains sufficient uplands upon which to construct the residential structure or at least enough of it to greatly minimize impact to wetlands. Siting a dock on the bay would obviate the need for the boat basin and channel. An associated boardwalk would eliminate the need to dredge wetlands populated by mangroves. Utilizing a dock and a boardwalk would save almost a quarter of an acre of wetlands from dredging. Mr. McGinnis' status as a double above-the-knee amputee may certainly be expected to create special needs, but other than to mention his disability, Petitioners made no showing that such a modification was not practicable in light of his condition. The proposed project would also present cumulative impacts to wetlands and other surface waters. There is significant development already in San Miguel Estates and there are other applications for development pending: for example, a permit application for construction of a boardwalk through wetlands submitted for the adjacent Lot 4. In sum, the project will have adverse water quality impacts, impacts to sovereignty submerged lands, secondary impacts, and cumulative impacts. Ways proposed by the Department of dramatically minimizing, reducing or preventing these impacts have not been accepted by Mr. and Mrs. McGinnis.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order denying both the mosquito ditch exemption and the Environmental Resource Permit applied for by Petitioners, Mel and Pamela McGinnis, for the project in DEP Permit File No. 412783533. DONE AND ENTERED this 17th day of April, 1998, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1998. COPIES FURNISHED: Frank E. Matthews, Esquire Kimberly A. Grippa, Esquire Hopping, Green, Sams and Smith, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526 Douglas H. MacLaughlin, Esquire T. Andrew Zodrow, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas W. Reese, Esquire 2951 61st Avenue, South St. Petersburg, Florida 33712 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The matters here presented concern the challenges by the named Petitioners to Rule Sections 17-3.061(2)(b), 17-3.111 (11), 17-3.121(14), 17-4.02(17),(19), and 17-4.28(2), Florida Administrative Code, related to definitions of "submerged lands" and "transitional zone of a submerged land" and the requirements set forth by rule provisions for permits related to dredge and fill activities in "submerged lands" and in the "transitional zone of submerged land" and water quality in Florida. The rule challenges are in keeping with the provisions of Section 120.56, Florida Statutes. Specifically, Petitioners claim that the rules are invalid exercises of delegated legislative authority. The Petitioners do not, by the challenges, question the procedures utilized in the promulgation of the subject rule provisions.
Findings Of Fact Petitioner, Baker Cut Point Company, is a corporation which owns real estate in Key Largo, Florida, and James C. Dougherty owns the company. The Respondent, State of Florida, Department of Environmental Regulation, is a governmental body which has been granted certain regulatory powers, to include the responsibility for requiring environmental permits for certain activities over which the Respondent has jurisdiction. In furtherance of that responsibility, the Respondent has promulgated the aforementioned rules which are the subject of this rules challenge case. The Petitioners have been subjected to the terms and conditions of the aforementioned rule provisions in the course of their application for environmental permits for developments in property in Key Largo, Florida, under DER File Nos. 44-21381 and 44-14356. Those matters were the subject of a Subsection 120.57(1), Florida Statutes, hearing in Division of Administrative Hearings' Cases Nos. 80-760 and 80-1055. The hearings in those cases were conducted on the dates described in this order and were held in view of the disputed material facts between the parties occasioned by the Respondent's stated intention to deny the permits based upon the Respondent's belief that the activities contemplated within the permit process would be in violation of certain regulatory provisions, to include those rule provisions which are the subject of this action. Throughout the process of permit review and the hearing de novo, and in response to the revisions to the original permit requests, the Respondent has continued to claim jurisdiction in keeping with the rule provisions at issue. The Baker Cut Point Company DER File No. 44-14356 letter of intent to deny dates from April 3, 1980, and the corresponding letter of intent to deny related to DER File No. 44-21381, James C. Dougherty, dates from May 27, 1980.
The Issue The issues are whether Respondent violated Rule 62-532.500(2)(d)1., Florida Administrative Code, by failing to seat a well casing in a rock layer or other such consolidated formation, and if so, what penalty should be imposed.
Findings Of Fact Respondent is charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries. Respondent's duties include the regulation of water wells and water well contractors. Respondent is a water well contractor. As such, he holds Water Well Contractor License No. 2215. On September 25, 1997, Petitioner issued Respondent Well Construction Permit No. 597679.01. The permit gave Petitioner permission to construct a water well, four-inches in diameter, on property owned by Rex Hobbs in Pasco County. Respondent subsequently constructed the water well on the property owned by Mr. Hobbs, using the cable tool construction method. Respondent completed construction of the well on or about October 20, 1997. After the well was constructed, Mr. Hobbs complained to Respondent on several occasions that the well was producing sand, rock, and other debris. Respondent made no attempt to repair the well. In May or June of 1998, Mr. Hobbs filed a complaint with Petitioner regarding the construction of the well on his property. Petitioner's subsequent field investigation did not reveal a significant amount of sediment in the well water. Mr. Hobbs filed a second complaint with Petitioner in the summer of 1998, insisting that the water from his well contained an excess amount of sediment. Petitioner's second field investigation revealed an abnormal amount of sediment in the well water. On July 9, 1998, Petitioner issued a Notice of Violation, advising Respondent that he had violated Rule 40D-3.037(1), Florida Administrative Code, by failing to seat the casing of the Hobbs well into a consolidated formation. Water from the Hobbs well contains sediments including sand, rock, and other debris. These sediments interfere with the operation of plumbing, appliances, and irrigation devices, which utilize water supplied by the well. The quality of the well water produced by the Hobbs water well is unacceptable. The total depth of the Hobbs well is 131 feet below land surface. The well is cased to 42 feet below land surface. The water pump is set at 84 or 86 feet below land surface. The static water level was 58.2 feet below the land surface. The geologic formation at the end of the casing of the well contains gray clay, yellow clay, limerock, and sand. The end of the casing is not seated in a layer of rock or other consolidated formation. There is no persuasive testimony to the contrary. The area in which the well is located is geologically unstable. Wells in that area generally require 84 feet of casing. Respondent admitted at the hearing that the well is producing sand and needs more "pipe." Failure to seat a well casing into a consolidated formation is a major violation under the Florida Department of Environmental Protection's Water Well Contractor Disciplinary Guidelines and Procedures Manual. Respondent has entered into three previous Consent Orders with Petitioner to resolve permitting and construction violations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order requiring Respondent to pay an administrative fine in the amount of $500 and assessing five points against his water well contractor's license. DONE AND ENTERED this 18th day of August, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1999. COPIES FURNISHED: Margaret M. Lytle, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Tony Holt 6145 Durant Road Durant, Florida 33530 E. D. Sonny Vegara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's "groundwater monitoring plan," embodied as a condition in the present operating permit, should be modified at the behest of the Department of Environmental Regulation.
Findings Of Fact On October 2, 1985, the Department issued to Charlotte County a permit to operate a Class I Sanitary landfill, pursuant to Section 403.087 and 403.707, Florida Statutes. A groundwater monitoring plan was part of that permit. One of the purposes of the groundwater monitoring plan was to detect any leachate plume of pollutants which might migrate off the site of the landfill in the groundwater. In accordance with the groundwater monitoring plan, as part of its conditions, the landfill has four monitoring wells, MW-1 - MW-4. One of those monitoring wells, MW-1, was established as a background well. Two of the monitoring wells, numbers 2 and 4, were installed as "interceptor" and "intermediate" wells. The fourth monitoring well is a "compliance well." The purpose of the background well at the landfill site is to determine the quality of the groundwater as it comes onto or enters the property subject to the operating permit. Specific condition number 2 of the monitoring plan incorporated, in the permit, required that once a year, beginning with the first quarter, sampling wells MW-1 and MW-2 should be analyzed for certain synthetic, organic compounds. Eight synthetic, organic compounds (SOCs) were tested for in accordance with Rule 17-22.104(1)(g), Florida Administrative Code. Those compounds were as follows: Trichloroethylene; Tetrachloroethylene; Carbon Tetrachloride; Vinyl Chloride; 1, 1, 1-Trichloroethane; 1, 2-Dichloroethane; Benzene; and Ethylene-dibromide. On December 9, 1985, the Department received the results of the chemical analysis performed by its laboratory in Tallahassee on the samples collected by district personnel on August 5, 1985. Those test results indicate the presence of the following compounds in well MW-1: Ethylbenzene at a concentration of 1.0 micrograms per liter, Methylenechloride at a concentration of 4.5 micrograms per liter, Trichloroethane at a concentration of 3.2 micrograms per liter, Toluene at 2 micrograms per liter, Xylene at 2.4 micrograms per liter, and Acetone at 40 micrograms per liter, as well as other "purgables" at an aggregate of 30 micrograms per liter. On the basis of this analysis, the Department informed the County that it would modify the County's groundwater monitoring plan by requiring it to monitor for "purgables", (synthetic, organic compounds) in all four wells on a quarterly basis. The original groundwater monitoring plan had required monitoring for the eight original SOCs in two of the four wells on an annual basis. This proposed modification would thus modify the conditions of the landfill operation permit held by the County. Since the samples taken on August 5, 1985, further tests have been performed on water samples taken from the four subject wells at the landfill site by both the County and the Department. On December 9, 1985, the County obtained water samples from wells MW-1 and MW-2, which were analyzed for the eight primary SOCs enumerated in the original water monitoring plan. That analysis showed the following: MW-1 1, 1, 1-Trichloroethane - 1.8 micrograms per liter MW-2 1, 1, 1-Trichloroethane - 4.1 micrograms per liter 1, 2-Dichloroethane - 1.1 micrograms per liter The Department took water samples on January 16, 1986, from all four wells. Results of the analyses for SOCs showed that as of that date, MW-1, which had been the well testing "positive," which resulted in the proposed change in the permit and monitoring plan was, on January 16, free of synthetic, organic compounds. Wells MW-2 and MW-3 were also free of purgables. The analysis of water sample from well MW-4 showed that it contained 4.67 micrograms per liter of Benzene, 1.58 micrograms per liter of Chlorobenzene, and 8.27 micrograms per liter of 1, 2- Dichloroethane. Sampling the wells MW-1 and MW-2 on March 13, 1986, the County analyzed for the complete list of "purgables" or SOCs with the result that well MW-1 was shown to contain 1.8 micrograms per liter of Ethylbenzene and 2.7 micrograms per liter of Toluene. Well MW-2 contained 1.3 micrograms per liter of Ethylbenzene and 2.0 micrograms per liter of Toluene. Almost two months later, on May 5, 1986, the Department sampled wells MW-1, MW-3 and MW-4, finding that MW-1 contained no purgables; MW-3 contained 1 microgram per liter of Methylenechloride (an isolated occurrence of this compound); and well MW-4 contained 1 microgram per liter of Chlorobenzene, 2 micrograms per liter of 1, 3-Dichlorobenzene, 10 micrograms per liter of Toluene, 2 micrograms per liter of Cis-1, 2, Dichloroethane and 6 micrograms per liter of "other purgables. Thus, it can be seen that in the August 1985 test, the first monitoring well tested, MW-1, contained SOCs. At the later test performed in December, that well contained SOCs in the form of Trichloroethane and yet on January 16, 1986, the well was free of detectable SOCs. On March 13, 1986, however, that well was shown to contain Ethylbenzene and Toluene. On the other hand, on the May 5, 1986, sample, the well contained no detectable purgable compounds. On the December 9 test, it can be seen that well MW-2 contained Trichloroethane and Dichloroethane and yet on January 16 was free of any detectable SOCs. However, on March 13, 1986, well MW-2 contained Ethylbenze and Toluene. Well MW-3 was free of SOCs at the December test, but on May 5, 1986, contained Methylenechloride, although in a very slight concentration, which could have resulted from contaminated testing equipment. Well MW-4 contained, in December, the above-noted concentrations of Benzene, Chlorobenzene, and Dichloroethane. On March 13, 1986, wells MW-3 and MW-4 were not tested. The Department's test of May 5, 1986, sampled MW-1, MW-3 and MW-4. On that date MW-4 contained Chlorobenzene, Dichlorobenzene, Toluene, Dichloroethane, and "other purgables." Thus, in consecutive samples taken and analyzed by the Department and the County since the date of its proposed modification of the groundwater monitoring plan, it has appeared that organic compounds detected in one sampling did not appear or were below the detection limits in subsequent analyses and yet showed up in other monitoring wells. It is especially significant, however, that well MW-4, which is the well farthest "down" the groundwater gradient and is indeed the compliance well for assessing whether the landfill is performing within the regulatory bounds of its operating permit has, whenever tested, demonstrated the presence of the above-noted contaminants. The fact that some wells demonstrate the presence of contaminants and on a later test, test negative for those contaminants was shown by the Department to likely occur because of variables attributable to rainfall. The amounts and occurrence of rainfall' can play a significant role in determining whether the concentrations in any amount exist in the monitoring wells and can determine in part what concentrations are found in samples from those monitoring wells. The compounds move through the soil or reside in the soil and the rainfall may cause certain compounds to be washed or leached out of the soil in varying amounts and at varying rates. Sampling shortly after a heavy rainfall might result in detection of certain compounds not detectable during a dry period or might increase the amounts detectable. The absence or slight concentrations of the subject contaminants in a well which increase with later samples would indicate that the leachate or contaminant "plume" in the groundwater is passing through that well. The down gradient well, MW-4, is the compliance well and is located down gradient from the perimeter ditch around the landfill. On both the samples taken in January and in May, that well was shown to be contaminated with SOCs as depicted above. Thus, it has been established that there are some leachate contaminant plumes moving in the groundwater through the location of that well, which establishes the likelihood that the leachate in the landfill will migrate off site by the flow of the groundwater. Thus, since DER issued the proposed modification of the monitoring plan, four additional groundwater samplings have revealed more SOCs at the landfill site. SOCs have been found in all wells at one time or another in detectable amounts. The presence or absence of SOCs and the varying amounts present at various sampling times at various wells is explained by variations in the migration rate of the contaminants due to variations in frequency and amount of rainfall percolating into and flowing through the substrate in which the wells are located. Groundwater in the area of the landfill is not well-protected from waste contamination. The landfill is located in an area where the groundwater table is one to two feet above the surface level during the wet season and only four to five feet below the surface level in the dry season. The landfill is not lined with clay or another impervious or semi-impervious material which could retard the migration of contaminants from the landfill itself into the groundwater acquifer. Because of this, ground water can migrate upward into the waste in the landfill during the wet season and the waste in the landfill can percolate into the groundwater acquifer in a downward and outward direction during the dry season. Additionally, the south and west slopes of the landfill are exposed and waste is thus exposed to the water contained in the perimeter ditch around the landfill, which water is connected hydrologically to the groundwater acquifer. The landfill is the only public solid waste disposal site in Charlotte County and thus receives all manner of waste, including some hazardous waste. Leachate contaminant plumes have already developed on the landfill site and may be in the process or may already have migrated off the site. This site is the only municipal landfill in the seven-county South Florida District of the Department where the SOCs are being detected in the groundwater. The groundwater in the area outside the landfill is designated as G-II, which is usable as a drinking water source. It is appropriate to sample the groundwater more frequently in the vicinity of such a landfill when that groundwater is designated as a drinking water supply. Although well number 1 was originally designated as a background well to check the background chemical status of the water before it migrates down gradient to the landfill site, that well, although located generally up gradient of the groundwater flow, has been shown to contain SOCs which in all probability emanated from the landfill. This is because the County has periodically added water from the landfill itself into the perimeter ditch around the landfill causing groundwater flow to move in both directions laterally from the ditch. Finally, although the Petitioner contends that some of the contamination found in the samples is a result of improper testing and contamination with laboratory solvents, the potential for laboratory contamination of the samples and sampling equipment is a possible explanation (although not proven) only for those SOCs found that are common laboratory solvents. Only Methylchloride, which occurred in one isolated sample, and the compound Toluene fit into this category of possible laboratory contaminants. The remaining SOCs found in the samples are not common laboratory solvents and therefore are present in the samples due to their presence in the groundwater itself from which the sample was taken.
Recommendation Having considered the foregoing Findings of Fact and 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 the modified groundwater plan proposed by the Department in the December 18, 1985, letter to Charlotte County should be adopted into the groundwater monitoring plan for the Charlotte County landfill. DONE and ORDERED this 19th day of November 1986 in Tallahassee, Florida. P. MICHAEL RUFF 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 19th day of November 1986. APPENDIX - CASE NO. 86-0084 Petitioner's Proposed Findings of Fact 1 - 18. Accepted Rejected as not established by the evidence presented. Accepted, but dispositive of the material issues presented. Rejected as to its asserted import. Accepted, but not dispositive of the material issues presented. Accepted. Accepted. Rejected as not dispositive of the material issues presented. Accepted, but not in itself dispositive. Accepted. Accepted. Accepted, but not dispositive of the material issues presented. Accepted, except as to the last clause. Accepted. Rejected as to its asserted import. Accepted, but not dispositive of the materia issues presented. Respondent's Proposed Findings of Fact 1 - 20. Accepted. COPIES FURNISHED: Matthew G. Minter, Esquire Assistant County Attorney Charlotte County 18500 Murdock Circle Port Charlotte, Florida 33948 Douglas L. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue General Project Description 6 Economic Benefits and Cost Savings from Project 7 Fuel Cost Savings from Conversion to Orimulsion 7 Socioeconomic Impacts and Benefits of the Project 10 Project Site and Vicinity 13 Lan Use and Comprehensive Plan Consistency 14 Existing Plant and Facilities 16 Orimulsion Conversion Project; Modified and New Facilities 20 Fuels and Fuel Delivery, Storage and Transportation 20 Air Emission Controls 22 Water Uses and Treatment 24 By-Product Reuse and Disposal 24 Rail and Road Improvements 28 Surface Water Management Systems 29 Project Construction and Schedule 30 Transportation 31 Noise Impacts 34 Archaeological and Historic Sites 34 Air Emissions, Controls, and Impacts 34 Existing and Proposed Emissions 34 Best Available Control Technology for 36 Nox Air Quality Impact Analysis 45 Effect of Proposed NOx Emissions on Ozone Levels 46 Effect of Proposed NOx Emissions on Water Quality 51 Human Health Risks Associated with Proposed Air Emissions 57 Plant Water Supply and Use 59 Water Supply 59 Cooling Pond 62 Impacts of Groundwater Withdrawals and Discharges 64 Wetland Impacts and Mitigation 68 Impacts to Flora and Fauna Including Listed Species 70 Impacts of Water Withdrawals on Little Manatee River and Tampa Bay 71 Potential Impacts of Fuel Spills 75 Spill Prevention 76 Spill Mitigation 79 Ecological Effects of Orimulsion Released in Tampa Bay 87 COSAP's Comparative Ecological Risk Assessment (CERA) 90 COSAP CERA Conclusions 92 Peer Review of COSAP Research and Conclusions 92 Effects of Estrogenic Compounds Following a Spill 93 Summary of Comparative Spill Risks 95
Findings Of Fact General Project Description FPL proposes to convert its existing 1600 megawatt (MW) power plant in Manatee County, Florida (the Plant), to the use of Orimulsion. The existing Plant currently operates only on relatively expensive low-sulfur fuel oil. The conversion of the Plant to the use of Orimulsion will realize significant savings in fuel costs to FPL's customers because Orimulsion will be supplied at prices much lower than the current costs for the fuel oil burned at the Plant. As a result, the Project will allow FPL to increase the average annual capacity factor of the Plant from its historical level of 30 percent up to 87 percent. Orimulsion is a mixture of bitumen, a heavy hydrocarbon, and water. Orimulsion is produced in Venezuela and will be supplied to FPL under a 20-year contract with Bitor America Corporation (Bitor). The new fuel will be shipped by Bitor America to Tampa Bay, unloaded by FPL at an existing FPL fuel terminal at Port Manatee, and sent to the Plant via an existing pipeline. The Project will involve installation of new pollution control equipment, new combustion controls, and efficiency enhancements to the existing boilers. The air pollution control equipment will be designed and constructed by Pure Air, a partnership of Air Products and Chemicals Inc. and Mitsubishi Heavy Industries America Inc. Pure Air of Manatee, a subsidiary of Air Products and Chemicals, will operate the pollution control equipment. Other than this equipment and ancillary facilities, few changes to the existing plant itself will be required. Economic Benefits and Cost Savings from Project Fuel Cost Savings from Conversion to Orimulsion The conversion of the Plant to burn Orimulsion is the best way that FPL has found to reduce the cost of the electricity it produces and to reduce FPL's dependency on any single type of fuel. The conversion is projected to result in approximately $4.0 billion (or $1.5 billion net present value in 1998 dollars) of savings to FPL's customers over 20 years under FPL's base case, or most likely fuel price forecast. These savings represent the net amount by which FPL's savings in fuel costs ($4.4 billion) and SO2 emission allowance costs ($169 million) are projected to exceed FPL's revenue requirements for the Plant modifications over 20 years ($180 million) and increased operation and maintenance costs ($382 million). FPL sought advance approval from the Florida Public Service Commission (FPSC) of the method for recovering the costs of the Project and the method of passing through to its customers the Project's net savings. In Order No. PSC-94-1106-FOF-EI, issued September 7, 1994, the FPSC found that "FPL's plan to convert its two Manatee units to burn Orimulsion is reasonable and prudent." Under that order, the net savings from the Project will be passed on directly to FPL's customers through reduced charges in the fuel cost recovery clause portion of customers' monthly bills. These fuel savings result because Orimulsion is priced by contract equivalent to the price of coal delivered to the St. Johns River Power Park plant in Jacksonville. The price of that coal is much lower than the price of oil or natural gas that FPL purchases, and coal prices are forecast to remain low and stable in the future. It is expected that the Plant's reduced fuel cost will cause the Plant to run more often under the principle of economic dispatch by which FPL operates its generating system. Orimulsion burned at the Plant will also displace the burning of higher- priced fuels elsewhere on FPL's system, to the extent not required as a result of population growth or changes in arrangements for the purchase of power, as other units using higher-priced fuels are operated less frequently. To determine whether the Project would provide savings under extreme conditions, FPL performed what it called an "acid test" analysis which assumed that future prices of oil and gas would not continue to diverge from the price of coal and Orimulsion. Under this conservative (though unlikely) scenario, the Project would still produce approximately $655 million ($261 million net present value in 1998 dollars) of savings to FPL's customers over 20 years. The Project is a continuation of the effort that FPL began in the late 1970's to obtain a balanced fuel mix, so that future volatility in the price of oil, and events such as the oil shocks of the 1970's, would not affect the cost of electricity to FPL's customers. FPL has reduced the amount of oil-fired generation in its fuel mix from 56 percent in 1981 to 31 percent in 1994 by the addition of nuclear and coal plants to its system, as well as by obtaining firm supplies of natural gas. With the conversion of the Plant to Orimulsion, oil generation would be reduced to 9 percent of FPL's energy mix by 1999. From an economic perspective, the Plant is the best site for an Orimulsion conversion. Because of economies of scale in converting a large plant to a new fuel, and because the Plant currently burns one of the most expensive grades of fuel oil on FPL's system, conversion of the Plant maximizes the Project savings. The Plant has port access and a pipeline which facilitates the safe and economic delivery of Orimulsion. As one of the newest plants in the FPL system, the Plant will have a long time in service following conversion. It is reasonable to expect that Orimulsion will be a stable fuel source. Bitor America Corporation is a wholly-owned subsidiary of Bitor S.A., which in turn is a wholly-owned subsidiary of Petroleos de Venezuela, the national energy company of Venezuela and the fourth largest energy company in the world. Petroleos de Venezuela companies have an excellent record of contract performance. The recoverable reserves of bitumen from which Orimulsion is made exceed 40 billion metric tons, comparable to the amount of crude oil in Saudi Arabia. Fuel production facilities planned and in place in Venezuela are more than adequate to meet the needs of the Plant. The conversion of the Plant to natural gas is not a viable alternative. Such a conversion would not reduce electricity costs to FPL's customers, but instead would increase them by approximately $233 million over 20 years due to the relatively higher cost of natural gas compared to the No. 6 fuel oil currently used at the Plant. Socioeconomic Impacts and Benefits of the Project The Project will have a positive impact on the economy of Manatee and Hillsborough Counties. Construction employment will average 347 direct employees over the two-year construction period, for a direct payroll ranging from $12.5 to $17.5 million in 1996, $19.0 to $24 million in 1997, and over $2 million in the first quarter of 1998. An average of 333 indirect jobs also will be created during construction by increased expenditures of construction employees, for average indirect wages of $6.4 million a year. Operation of the Project will result in 190 new jobs with an annual payroll of about $4.5 million. This includes 40 direct permanent jobs at the Plant with an annual payroll of $1.5 to $2.0 million, and 69 additional indirect jobs with a $1.3 million annual payroll. Trucking of limestone, gypsum and fly- ash will create another 45 direct jobs and 36 indirect jobs, with a combined annual payroll of $1.5 million. FPL's property taxes paid to Manatee County government will increase by $700,000 per year and port charges paid by FPL to Port Manatee for fuel shipments through that port will more than triple, to about $2.2 million per year. Assuming that the new operations employees will be new residents to the area, the increased employment will result in approximately $203,000 of additional costs to Manatee County for community services. This compares to additional tax revenues to Manatee County from those families and the Plant of about $2,530,000 per year, for a net positive governmental revenue impact of about $2.3 million per year. Additional annual tax revenues of $108,000 to Hillsborough County are within 10 percent of the additional annual cost of services of about $119,000 per year for employees expected to reside in that County. Fuel savings from the Project will have a significant positive impact on economic activity in the state. The $4.0 billion in net savings over 20 years will generate an average of $136 million a year in increased sales or business activity in the state, $41 million a year in increased earnings, and an average of 2,056 new jobs, in addition to the local economic impacts of construction and operation of the Plant. Overall electric bill savings to tax-supported governmental customers of FPL will range from $1.75 million to $22.83 million a year, even assuming that these customers' electric consumption does not increase from 1994-95 levels. This money will be available either to fund additional governmental services, or to reduce or offset tax increases. The Project will enable FPL to be a more competitive electric utility by substantially reducing its fuel costs, which are about 99 percent of the variable costs of generation, about two-thirds of the total cost of generation, and about one-quarter of the retail price of electricity. Conversion will make the Plant cost competitive with coal-fired plants in adjacent and nearby states, with which FPL will have to compete if and when retail wheeling -- the ability of customers to choose their supplier of electric generation -- becomes a reality in Florida. In the long run, by allowing FPL to remain a low-cost provider of electricity, the Project will help keep electric generating business activity in Florida, with the associated jobs, tax revenues, and economic activity. This creates a win- win-win situation for FPL's customers, FPL's investors, and the citizens of Florida. Project Site and Vicinity The site of the Project is within the existing 9,500- acre Plant site. This site is located in the unincorporated, north-central area of Manatee County, Florida. The site is approximately 15 miles northeast of Bradenton and 25 miles southeast of Tampa. The site is located north of State Road 62 and approximately 5 miles east of both the community of Parrish and U.S. 301. Saffold Road marks the eastern boundary of the 9,500-acre site while an FPL-owned railroad line is along the western boundary of the site. The Little Manatee River flows through the northern boundary of the Plant site. Principal access to the Plant site is provided from State Road 62 which intersects with U.S. Highway 301 to the west. The FPL-owned rail line that serves the site connects to the Palmetto area, southeast of the Plant. An existing FPL fuel pipeline connects the Plant site to Port Manatee, approximately 14 miles to the northwest. Existing electrical transmission lines run east and west from the Plant site. The Project will be undertaken within a 470-acre parcel which encompasses the existing Plant and other existing facilities, including two 500,000-barrel fuel storage tanks, wastewater treatment areas, switchyards, and other buildings. The Project site also includes areas that are currently used for agriculture that may be used for storage and disposal of by- products from the new pollution control equipment. The existing 9,500-acre site includes a 4,000-acre cooling pond which provides cooling water to the power plant. A makeup water pumping station located on the Little Manatee River provides makeup water to the cooling pond. A spillway structure for emergency releases during high water levels in the pond is also located along the Little Manatee River. Other on-site facilities include various maintenance buildings, an existing electrical switchyard and an on-site rail spur. The other areas of the Plant site are used for various agricultural, cattle or timber operations. Existing land uses within 5 miles of the Plant site consist mainly of agricultural and pasture lands, interspersed with low-density residential areas and undeveloped vegetative areas. Individual residences are located on one of the two outparcels that are located within the boundaries of the Plant site, as well as along State Road 62 at the southern perimeter of the site and along Saffold Road to the northeast. FPL also owns and operates an existing fuel terminal along the eastern edge of Tampa Bay as an associated facility for the Plant. The 55-acre fuel terminal is located at Port Manatee, approximately 14 miles northwest of the Plant in the unincorporated area of northwestern Manatee County. Light and heavy industrial uses are located in the immediate area surrounding the terminal. Land Use and Comprehensive Plan Consistency The site is an appropriate location for the Project from a land use planning perspective and will not cause any adverse impact on land use. The Project involves installation of pollution control equipment at an existing power plant site that has been used for power generation since the 1970s. The area in which the Project will be undertaken is located some distance from adjacent to surrounding properties. A 350-foot landscaped buffer will be established adjacent to the nearest property west of the Project area. A landscaped buffer will also be established to screen the site from residences located to the south along State Road 62. The Project also will comply with the development standards contained in the Manatee County Land Development Code, with the exception of one aspect of the landscape standards for which FPL is seeking a variance. The Manatee County Code, Section 715.6.5, allows the County Planning Director to approve relocation of up to 30 percent of the required landscaping to another portion of the site. The requested variance would allow 100 percent of the landscaping materials normally installed as foundation plantings for new buildings and parking lots to be placed instead within the designated landscape buffers near the boundaries of the site. The variance would allow landscaping to be done where it would benefit the most people. The Project will comply with all other applicable ordinances and regulations of Manatee County, including the County noise ordinance and building codes, if the 53 conditions recommended by Manatee County are included in the certification order. The Project, if approved with the conditions proposed by Manatee County, is consistent with the goals, objectives and policies of the adopted Manatee County Comprehensive Plan with one exception relating to the wetland mitigation ratios contained in the Comprehensive Plan. The site is designated for power plant use under the Manatee County Future Land Use Map under both the agricultural rural classification and the Public/Semi-Public I uses. Objective 3.2.1 of the County's plan is to maintain and enhance water quality and quantity of Lake Manatee; the Project is consistent with the septic tank use and other policies through which the objective is to be achieved under the plan. The Project will comply with Manatee County zoning standards. The Project site also is consistent with the goals and objectives of the State Comprehensive Plan and the Comprehensive Regional Policy Plan of the Tampa Bay Regional Planning Council. Existing Plant and Facilities The Plant currently consists of two oil-fired generating units of 800 MW each, for a total generating capacity of 1600 MW. The first unit went into service in October 1976, and the second unit in December, 1977. Electricity is generated in the existing units by combusting fuel in the boilers. The heat of combustion converts water in the boiler tubes to high pressure steam. This steam drives a large steam turbine which is connected to an electrical generator. Electricity then flows out to the existing switchyard and out of the site over the existing transmission lines. The Plant currently burns low-sulfur No. 6 fuel oil with a sulfur content no greater than 1 percent. No. 6 fuel oil is principally the residue of operations in which light and medium crude oils are fractionally distilled and processed to produce gasoline, diesel fuel, and other products. As the "bottom of the barrel," No. 6 fuel oil is a heavy viscous material from which higher value products can no longer be economically recovered. The Plant is also currently permitted to burn No. 2 fuel oil, natural gas, and on-specification used oil from FPL operations. Existing controls for air emissions include several combustion techniques within the boiler to minimize formation of nitrogen oxides (NOx). Particulate matter (PM) from fuel combustion is controlled using mechanical dust collectors that use centrifugal force to remove PM from the flue gas. Emissions of sulfur compounds, such as sulfur dioxide (SO2), are controlled only by limiting the sulfur content of the fuel oil. Cooling water is continuously pumped from the cooling pond through the Plant condensers and heat exchangers that absorb the rejected energy from the steam turbine. Heated water from the condensers is discharged back into the cooling pond where the energy is dissipated to the atmosphere through evaporation. Ultimately, the cooling water circulates through the pond back to the Plant intake structure and is recirculated through the Plant condensers and heat exchangers. Water loss is continually experienced in the cooling pond as a result of evaporation. Water losses from the pond also occur due to seepage through the pond embankment and bottom and as a result of other Plant water consumptive uses. Makeup water is therefore required to maintain the pond at its design operational level. Makeup water is currently provided through a combination of rainfall and water diverted from the Little Manatee River. A system of toe drains around the perimeter of the pond also captures the seepage through the embankments and returns that water to the pond. Service water, including process water for current operation of the Plant, is primarily obtained from the cooling pond, with three existing on-site wells used as a backup source. Service water is used for various processes in the Plant, such as soot blowing from boiler surfaces and for fire protection. The Plant process water system also provides ultra-pure water for the Plant, such as for makeup to the steam and water cycles in the power generating process. The existing wastewater treatment facility for the Plant includes two lined neutralization basins, two lined solids settling basins, a drying basin, and a lined stormwater basin for collection of runoff from equipment areas. Such stormwater runoff is stored in the stormwater basin, drained through an oil/water separator and recycled to the cooling pond. Industrial wastewaters are treated either in the neutralization basins or in the solid settling basins and recycled to the cooling pond. Collected solids are periodically transferred to a drying basin where they are stored and dried prior to off-site disposal in a licensed facility. FPL receives No. 6 fuel oil for the Plant at Port Manatee, to the northwest. Fuel is stored at the existing fuel terminal near Port Manatee, transferred to the Plant via a 14- mile-long buried pipeline, and then stored in storage facilities at the Plant. At Port Manatee, vessels are moored at the port berth and unloaded through dockside unloading hoses. Fuel unloading is monitored continuously by personnel at the dock as well as operators at the terminal. Fuel is transferred from the port berth to the FPL Port Manatee terminal via a 1.7-mile, 30-inch diameter pipeline which is cathodically protected against corrosion and hydrostatically tested annually to insure its continued integrity. At the Port Manatee terminal, fuel is stored in two 500,000-barrel fuel storage tanks that are contained within earthen berms to provide secondary containment in the event of an overfill or loss of a storage tank. The four fuel storage tanks at Port Manatee and at the Plant are equipped with safety shutdowns to prevent overfilling of the tanks. The four storage tanks are cathodically protected against corrosion. Fuel is transferred from the Port Manatee terminal to two 500,000-barrel fuel storage tanks at the Plant via a 14-mile- long, 16-inch-diameter steel pipeline. The pipeline is jacketed and coated to provide corrosion resistance and also is cathodically protected by an impressed electrical current to dampen corrosion of the pipeline. The pipeline is equipped with a midpoint block valve as well as valves at the terminal and at the Plant ends of the pipeline. Both pipeline facilities are patrolled at least 26 times a year by FPL and are enrolled in the State's "One-Call" locating system to advise FPL in the event that excavation occurs near the pipelines. During all transfers of fuel, continuous monitoring of the transfers is conducted by monitoring the volumes of fuel transferred across the pipeline. Orimulsion Conversion Project Modified and New Facilities Conversion to Orimulsion will involve changes to several of the existing facilities and the installation of new equipment, principally for the control of air emissions. Enhancements to heat transfer surfaces within the existing boilers will allow them to operate more effectively and efficiently with the firing of Orimulsion. Fuels and Fuel Delivery, Storage and Transportation Orimulsion is an emulsion composed of approximately 70 percent bitumen and 30 percent water, with less than 0.65 percent additives, including a nonylphenol polyethoxylate surfactant. The surfactant in Orimulsion comprises approximately .17 percent (+/- .02 percent) by weight of Orimulsion, and may be increased in the future to as much as .2 percent (+/- .02 percent), for a maximum of .22 percent. Orimulsion is currently used as a boiler fuel in 6 power plants in England, Denmark, Japan and Canada. After conversion, FPL may use high-sulfur fuel oil (HSFO) with maximum sulfur content of 3.0 percent, as an alternative fuel at the Plant if Orimulsion is not available. Low-sulfur fuel oil will also be an alternative fuel. No. 2 fuel oil, natural gas and/or propane may be fired during unit startup. On- specification used oil from FPL operations may also be fired. Orimulsion will be transported from Venezuela to Port Manatee by Bitor America Corporation. Ownership of the Orimulsion will transfer to FPL when the fuel passes the flange between the vessel and offloading hose at Port Manatee. Following the conversion of the Plant to Orimulsion, there will be approximately 100 vessels each year delivering Orimulsion to Port Manatee, which is approximately double the number of current No. 6 fuel oil deliveries to FPL. The system used currently for delivery of No. 6 fuel oil from Port Manatee to the Plant will be used in the future for deliveries of Orimulsion. Prior to the conversion of the Plant to Orimulsion, new unloading hoses will be installed at Port Manatee and pressure tested to insure their structural integrity. All four fuel oil storage tanks will be inspected and improved through the installation of internal fiberglass liners. The 14-mile fuel delivery pipeline will be electronically inspected using a "smart pig" that will survey the wall thickness of the entire circumference of the pipeline. Following conversion, a "smart pigging" inspection program will be implemented for the 14-mile pipeline with the first inspection within 30 months and then conducted every five years. The monitoring system for the 14- mile fuel pipeline will be upgraded to incorporate a computer- based monitoring system that will be tied into FPL's leak detection system for the pipeline. This new leak detection system will lower the detection limit for the pipeline down to 25 barrels. In addition, FPL will continue to perform tank-to-tank mass balances and end-of-batch inventory reconciliation to track fuel leaving the terminal and arriving at the Plant. These measures will allow FPL to detect a leak as small as 1/64th of an inch in the pipeline. These fuel storage and transportation facilities will continue to be operated in accordance with all applicable regulations. Over the past 17 years, FPL has experienced no leaks or breaks in these pipelines. In the event a future leak or break occurs, operation of the pipeline involved will be halted immediately upon detection and the pipeline will be surveyed to locate evidence of fuel outside the pipeline. FPL would then conduct appropriate cleanup and remediation, using techniques similar to those used to clean up fuel oil spills on land. Air Emission Controls Within the boilers, the existing fuel burners will be replaced with new low-NOx burners that will control the formation of NOx during combustion. Reburn technology also will be installed in both boilers to stage the combustion process and further minimize the formation of NOx. The new low-NOx burners and reburn fuel injectors will replace the existing NOx controls for the Plant. Two electrostatic precipitators (ESPs) will be installed for each generating unit to control particulate matter (PM) resulting from fuel combustion. The ESPs remove PM by passing it through an electrical field. A negative charge is placed on the PM, causing it to migrate toward positively charged plates in the ESP. The PM collects on the surface of the plates and is periodically removed by rapping the plates, causing the layer of collected dust to shake loose and fall to compartments at the bottom of the ESP as flyash. Approximately 90 percent of the PM entering the ESP will be removed. The ESPs also will remove toxic substances from the flue gas. Following the ESPs, a flue gas desulfurization (FGD) unit, or scrubber, will remove SO2 and other sulfur compounds from the flue gas. Flue gas enters the scrubber where it meets a limestone/water slurry mixture and the limestone reacts with the SO2, forming calcium sulfate or gypsum. The water and gypsum fall into a tank at the bottom of the scrubber. The clean flue gas then passes through a mist eliminator, which recovers some of the water vapor in the flue gas. The clean flue gas then exits the Plant via the existing chimneys or stacks. The scrubber will remove 95 percent of the SO2 formed during combustion. ESPs and scrubbers are well-proven technologies that have been in use for more than 30 years. Limestone used in the scrubber will be delivered by truck to the site. It will be transferred to a receiving hopper and then into on-site limestone storage silos, which will provide three days of storage. A backup limestone storage pile, providing 30 days of supply, will also be established to insure limestone availability if deliveries are interrupted. The limestone will be processed in a ball mill, combining it with water and grinding it to a fine consistency to create the limestone slurry used in the scrubber system. Measures will be taken during delivery and transfer of limestone to control emissions of PM and fugitive dust that might be generated. These measures include covered trucks, paving of on-site roadways and use of covered transfer conveyors. The limestone will be moist when received and therefore will not be dusty. However, water sprays will be used on the open storage pile if it gets dusty from prolonged dry periods. Water Uses and Treatment The conversion to Orimulsion will increase service and process water uses within the Plant. The principal increase in such water use will be for the new pollution control equipment. Water from the groundwater wells will be used directly in the scrubber with a membrane softener system added, if needed, to treat hardness in the well water. Additional process water treatment systems will be installed, consisting primarily of an upgrade of an existing reverse osmosis plant to provide up to 500 gallons per minute of process water for use in the boiler makeup water system and in soot blowing. The existing industrial wastewater treatment system will continue to handle wastewaters produced by the converted Plant with a new wastewater treatment plant added to treat rinse and wash waters from the existing solids settling basin. Treated wastewaters from both the wastewater treatment system and the water treatment systems will be recycled to the cooling pond to the maximum extent practicable. The existing potable water treatment system and domestic wastewater treatment system will not require any changes as a result of the conversion except to extend distribution lines and service lines, respectively, to the new buildings. By-Product Reuse and Disposal Gypsum recovered from the scrubber will be dewatered, filtered, and rinsed to produce high-quality gypsum usable as the primary ingredient in wallboard or dry wall. Pure Air of Manatee has a 20-year contract for National Gypsum to use the scrubber gypsum to produce wallboard at its Tampa production plant. Use of scrubber gypsum to manufacture wallboard has occurred for many years, including use by National Gypsum. In addition to this major off-site use of gypsum, Pure Air has contracts to supply local cement manufacturers with gypsum for use in the manufacture of Portland cement. The combined capacity of the contracts is greater than the converted Plant's annual gypsum production. Flyash will be collected in the ESPs and conveyed by pneumatic conveyor system to totally enclosed silos. The flyash will then be fed into a processing facility to make commercial by- products for shipment to off-site users. Pure Air has developed several potential commercial uses for flyash with the primary market expected to be the asphalt products industry. Pure Air is seeking to sell all of the flyash to that industry. In addition, flyash may be sold for use in Portland cement manufacturing. These environmentally sound uses of flyash would add value to the ultimate products produced. The volume of flyash to be produced at the Plant could be used entirely by three cement manufacturers within the Manatee County/Hillsborough County area. A 15-acre temporary storage area for the gypsum by- product will be constructed west of the existing Plant. The purpose of this temporary by-product storage area is to stockpile gypsum so that it can be supplied to the off-site users when the Plant is shut down for maintenance or to store it during periods when the wallboard manufacturer or cement plants may not be in operation. Normally, one to two months of gypsum will be stored in this area, which will have capacity for up to six months of gypsum production. Gypsum will be trucked to the on-site temporary by-product storage area over internal roads. It will be reclaimed as needed and transported to the various manufacturing facilities. While there are no specific agency regulations or design standards that apply to the design and operation of the temporary by-product storage area, FPL has committed that the storage area will be lined with a composite gypsum/synthetic liner designed in accordance with DEP's liner requirements for phosphogypsum management under Rule 62-673, F.A.C. The design of the storage area will comply with all of the design criteria of DEP Rule 62-673, F.A.C. Use of these design standards as a guide will insure that surface water and groundwater will be adequately protected from any impacts associated with the temporary by- product storage area. The temporary by-product storage area is outside the 100-year flood plain, is not located within 200 feet of any natural or artificial surface water body that might receive untreated surface discharges, and is not within 500 feet of an existing or approved drinking water supply. Any rainfall that contacts the stored gypsum will be collected and used as makeup water in the pollution control system and not discharged off-site. The storage area will be bermed to contain rainfall from a 100-year/24-hour storm event. Groundwater monitoring wells will be installed around the temporary by-product storage area and sampled semiannually to monitor for any possible groundwater contamination from the storage area. To insure long term operation of the converted Plant, the Project design has included a 158-acre on-site disposal area for gypsum and flyash. The long-term disposal area will only be constructed if it becomes infeasible, impracticable, or uneconomical to continue to sell the by- products or to use off- site disposal facilities. The backup by-product disposal area would be located west of the existing units and is sized to hold 100 percent of the by-products generated over a 20-year period. While no specific agency regulations or design standards apply to the backup by- product disposal area, it would be designed in accordance with the requirements of Rule 62-701, F.A.C., which establishes design standards for Class I landfills. The gypsum disposal area, designed for a full 20 years of by- product, would be approximately 100 acres with a maximum height of 115 feet above ground surface. The separate flyash disposal area would be approximately 20 acres with a maximum height of 45 feet. The other 38 acres would be used for stormwater and leachate ponds and perimeter berms and roads. The disposal areas would be divided into ten phases or cells, each holding approximately two years of ash or gypsum production from the Plant. This phasing would minimize the required construction which further minimizes environmental damage, including impacts to wetlands. A 350-foot-wide vegetated buffer would be maintained between the western edge of the disposal area and the FPL property line along the nearest outparcel. The by-product disposal area will be constructed with a double liner system to prevent impacts to groundwater. The bottom liner will be above the seasonal high groundwater table. The disposal area will have a primary leachate collection system above the upper liner and a secondary leachate collection system between the upper and lower liners. The leachate will drain to sumps in the leachate collection system and then will be pumped to two double-lined leachate ponds capable of containing a 25- year/24-hour storm event with three feet of freeboard. Any leachate collected in the ponds will be pumped for use in the pollution control equipment and not be discharged off-site. Once a disposal cell is filled, it will be closed and capped with a synthetic geomembrane and protected by about two feet of soil to prevent rainfall from leaching in and contacting the gypsum or flyash. The soil will be grassed to prevent erosion. Following closure of the disposal area, continuing maintenance and monitoring will be undertaken. Rail and Road Improvements FPL will construct new turn lanes and acceleration lanes at the intersection of the Plant entrance road and State Road 62. These roadway improvements will facilitate turning in and out of the Plant and reduce delays for through traffic on State Road 62. FPL will improve the existing rail line serving the Plant and install a new rail curve where the existing Plant spur intersects with the existing rail line north of the Plant. The existing rail line between the Plant and Palmetto will be repaired and maintained to American Railway Engineering Association Class I standards. This rail line will be used for delivery of materials during construction and maintenance of the existing units and in the future, if feasible opportunities or needs develop, to transport limestone to the site and remove gypsum and flyash from the site. Surface Water Management Systems Construction and operation of the Project will involve treatment, storage and management of surface water runoff resulting from rainfall on the Project site. A surface water management system and associated facilities, consisting of a series of swales, culverts, and treatment ponds, already exist within much of the Project site. During Project construction, the existing stormwater treatment areas will provide management of stormwater runoff and will meet the applicable regulations of SWFWMD, Manatee County and other agencies. During operation, rainfall that falls within areas that could potentially be contaminated by fuels are treated as industrial wastewater and treated in the Plant's industrial wastewater treatment system prior to discharge to the cooling pond. As part of the Project, new drainage areas with stormwater runoff that may potentially contact Orimulsion will be isolated from the existing runoff collection system and processed through a new, lined stormwater basin and a new bitumen/water separator. A new stormwater detention pond will be constructed south of the power block to capture and treat runoff from new roadways. A perimeter swale system will be constructed to serve the new railroad curve between the existing main rail line and the existing Plant spur. Rainfall within the area around the three new wells adjacent to the west bank of the cooling pond will be captured in a closed system designed to hold a 100- year/24-hour storm. At the Plant fuel terminal, the existing surface water management system will be modified to incorporate a new bitumen/water separator, in addition to the existing oil/water separator. The water will be discharged within the embankment area around the fuel storage tanks, which has the capacity to hold the rainfall from a 100-year/24-hour storm. For the 15-acre temporary gypsum storage area, a perimeter berm will contain a 100- year/24-hour rainfall within the storage area. This rainfall will be isolated from the watershed and pumped to the pollution control equipment for use as makeup water. For the 158-acre backup by- product disposal area for gypsum and flyash, rainfall that may come in contact with by-products in open cells will be pumped to a separate stormwater and leachate pond and recycled as makeup water to the pollution control equipment. Runoff from closed portions of the disposal area will be routed to new stormwater ponds, treated and pumped to the cooling pond. All of these stormwater management facilities will comply with the criteria for water quality treatment and water quantity retention prior to discharge, as established by the SWFWMD, Manatee County, the DEP and the Steam Electric Guidelines under 40 CFR Part 423. Project Construction and Schedule Construction of the Project will require approximately two years. Following permit approval, construction would commence with the relocation of existing equipment and the installation of foundations for the new pollution control equipment. During initial construction, the Plant would still be operated. For the last 90 days of construction the Plant would cease operation and FPL would undertake the boiler enhancements. This would involve installation of the new low-NOx burners and tie-in of the pollution control equipment. Pure Air will design and install the new pollution control equipment while FPL will be responsible for construction of the boiler modifications and alterations to the fuel delivery system. Construction impacts to natural areas are expected to be minor since much of the construction will be undertaken within the existing developed area of the Plant and only localized excavation, grading and levelling will be necessary. Temporary dewatering of groundwater may be necessary during construction of foundations for the pollution control equipment. Fugitive dust generated from construction traffic and excavation will be minimized by water sprinkling. Other open areas will be either paved or vegetated to reduce fugitive dust and wind erosion. Under the arrangement between FPL and Pure Air, of the total capital cost of approximately $263.54 million, approximately $83.5 million will be paid for by FPL, and $180 million, including pollution control facilities, will be paid for by Pure Air. Transportation FPL conducted traffic analyses to determine if the existing roadways in the area would operate within established levels of service based upon increased volumes of traffic associated both with construction and operation at the site. During construction, the magnitude of traffic impacts will be directly related to the number of construction employees. While peak construction employment is expected to reach 577 employees, for purposes of the traffic impact analysis it was assumed that construction employment would peak at 640 employees, representing a worst case assumption. During Plant operations, 40 new employees are expected to work at the Plant. In addition, trucks will be used to deliver limestone and remove gypsum and flyash from the site. The maximum number of trucks used for this purpose would represent 202 round trips per day, in and out of the Plant site. However, it is expected that the same trucks used to remove gypsum from the site will be used to backhaul limestone into the site. Backhauling would reduce the number of trucks for delivery of limestone and gypsum to about 60 percent of the maximum level. Existing roadways and intersections in the site vicinity are currently operating at acceptable levels of service as adopted by county and state transportation agencies. A traffic impact analysis, using conservative methodologies and assumptions, demonstrated that with the additional Project traffic, the area roadway network and intersections will continue to operate acceptably in accordance with agency standards and levels of service. All of the roadways in Manatee County and Hillsborough County that would be used for truck traffic are designated by functional classifications for truck traffic. All of these roadway segments are currently serving through traffic and truck traffic today. While Project-related traffic will comply with applicable agency standards, FPL has committed to several roadway improvements to enhance traffic-related movements in the area. FPL will construct a left-turn lane from State Road 62 into the Plant entrance, as well as a west-bound acceleration lane along State Road 62 leaving the site. These improvements will reduce delay for traffic travelling along State Road 62 past the FPL site. FPL will fund installation of a traffic signal at the intersection of State Road 62 and U.S. 301 west of the Plant site, if the Florida Department of Transportation decides that traffic signal is warranted. Project truck traffic for delivery of limestone and removal of gypsum will be limited during morning hours when school buses would be operating along the trucking haul route. In addition, FPL will install school bus stop signs and school bus shelters along the primary haul route. FPL will pay its fair share of the cost of any deterioration of area roadway surfaces caused by the Project's trucks. These improvements are beyond what would be required to comply with applicable agency standards as all of the roadway facilities are operating within agency standards. Rail delivery of limestone and removal of gypsum was considered during the original development of the Project. However, rail shipments of these products was deemed not to be feasible currently for several reasons. Investigations showed that both the gypsum that would be produced at the Plant and the limestone and limerock likely to be delivered to the Plant cannot be unloaded from conventional rail cars, based on testing of available rail car types. Several of the limestone quarries that may be used to supply limestone do not have rail access or rail facilities. Also, National Gypsum does not have rail facilities for unloading gypsum at its existing plant. Moreover, if use of rail shipments were feasible, trains hauling gypsum to the Tampa wallboard manufacturing plant would pass through 150 at-grade crossings in Manatee and Hillsborough counties and the rail route would go through downtown Tampa. Noise Impacts Noise impacts from the Project will not exceed applicable noise standards. Archaeological and Historic Sites The Project will not affect any known archaeological or historical sites. Appropriate Conditions of Certification have been proposed to protect such resources if discovered later. Air Emissions, Controls, and Impacts Existing and Proposed Emissions FPL received air construction permits for the Plant units from the Florida Department of Air and Water Pollution Control (DWPC) in 1972 and air operation permits from the Florida Department of Environmental Regulation (DER) in 1977 and 1978. FPL currently utilizes fuel quality and combustion controls to achieve existing permitted emission limits for SO2, NOx, PM, and visible emissions. The existing emission limits for SO2 and NOx are more stringent than emission limits for most power plants in Florida. Although the Plant units currently are permitted to operate at a 100 percent capacity factor (i.e., utilization rate), the units historically have operated at an average annual capacity factor of approximately 30 percent, due in large part to fuel oil costs. As a result of the conversion to Orimulsion, the Plant units are expected to operate at an annual average capacity factor of 87 percent. Despite the increase in Plant utilization, total short-term (hourly) and total annual (tons per year or "tpy") air emissions are expected to decrease in comparison to both permitted and historical levels. With installation of FGD, actual emissions of SO2 will decrease by approximately 13,000 tpy or 45 percent from historical levels. Similarly, with installation of ESPs, annual emissions of PM and toxic substances also will decrease, and visible emissions will be limited to 20 percent opacity instead of the 40 percent level authorized under existing permits. Although low-NOx burners and reburn technology will be installed on both units to achieve a reduction from the existing short-term NOx emission rate, annual emissions will increase by approximately 6,000 tpy due to increased Plant operation. Likewise, short-term emissions of carbon monoxide (CO) will decrease; but annual emissions will increase by approximately 3,500 tpy. Because the converted Plant is expected to displace other plants in FPL's generating system, it is expected that the Project also will affect air emissions on a system-wide basis. Based on an analysis of projected fuel usage and emission rates for the various units in FPL's system through the year 1999, the Project will result in system-wide reductions in air emissions of all pollutants except CO. In the first year of Project operation, for example, system-wide emissions of CO are predicted to increase by 2,607 tons; but there will be significant reductions in all other pollutants, including PM (-2,252 tons), SO2 (-48,626 tons), NOx (-10,425 tons), volatile organic compounds or "VOCs" (-109 tons), and toxics (-181 tons). The analysis made appropriate assumptions concerning other FPL permits, power purchase contracts and changes in power demand from population growth and other factors. Best Available Control Technology for NOx DEP has determined that conversion of the Plant units to fire Orimulsion constitutes a "modification" subject to review under DEP's Prevention of Significant Deterioration (PSD) regulations in Chapter 62-212, F.A.C. For modifications of existing sources, these regulations require a determination of Best Available Control Technology (BACT) for all air pollutants which will experience emission increases in excess of applicable significant emission rates. Rule 62-212.400(1)(f), F.A.C. Because NOx and CO emission increases exceed applicable significant emission rates as a result of the conversion to Orimulsion, BACT is required for those pollutants. DEP rules define "Best Available Control Technology" or "BACT" as: An emissions limitation, including a visible emission standard, based on the maximum degree of reduction of each pollutant emitted which the Department, on a case by case basis, taking into account energy, environmental, and economic impacts, and other costs, deter- mines is achievable through application of pro- duction processes and available methods, systems and techniques (including fuel cleaning or treatment or innovative fuel combustion techniques) for control of each such pollutant. Rule 62-212.200(16), F.A.C. In determining BACT, DEP must give consideration to prior BACT determinations of the U.S. Environmental Protection Agency (EPA) and any other state, all available scientific and technical material and information, and the social and economic impacts of application of such technology. Rule 62-212.410(1), F.A.C. DEP has no rule on making BACT determinations. In making BACT determinations, DEP attempts to follow EPA guidelines. Unfortunately, EPA also has not promulgated the guidelines as rules; they consist of a 1990 draft entitled EPA New Source Review Manual. To make matters worse, one reason why the EPA draft guidelines have not been adopted as rules may be that they are so complicated and confusing. It was noted by one expert practitioner in the field that it is with good reason that the design of the cover of the EPA draft guidelines is a jigsaw puzzle and, notwithstanding their official title, practitioners commonly refer to the guidelines as "the puzzle book." In accordance with EPA requirements, DEP currently uses a "top down" approach in determining BACT. Under the "top down" approach, alternative control technologies are ranked in terms of stringency. An emission limit reflecting the most stringent control alternative generally is selected as BACT unless rejected as technically or economically infeasible. Under the "top down" BACT approach, the most stringent NOx emission limit for sources similar to the Plant units is 0.17 lbs/mmBtu (pounds per million British thermal units) of heat input, using selective catalytic reduction (SCR) and combustion controls. SCR involves the injection of ammonia into the flue gas in the presence of a catalyst. The ammonia reacts with NOx on the surface of the catalyst, thereby transforming NOx into nitrogen and water. The SCR is not entirely selective; it also results in undesired reactions, including the conversion of SO2 to SO3 and the creation of ammonium sulfate and bisulfate. SCR systems require a flue gas temperature in the range of 600 to 750 degrees (F) which for some applications can be achieved between the boiler and the air preheater upstream of the ESP and FGD system. This configuration is referred to as a "front-end" SCR system. With fuels such as Orimulsion and high sulfur fuel oil which contain relatively high amounts of sulfur and vanadium, however, a front-end SCR can lead to significant problems because the vanadium in the fuel deposits on the SCR catalyst and results in an ever-increasing SO2 to SO3 conversion rate. Despite an extensive research program conducted jointly by European and American corporations involved in SCR manufacture, design, and operation, there are no available means of avoiding the ever-increasing SO2 to SO3 conversion rate when a front-end SCR is used with high-sulfur and high-vanadium fuels on utility units operated at base-load (i.e., operated continuously). Excessive SO3 created by a front-end SCR can plug the air preheater, which is a large piece of equipment approximately 45 feet in diameter. In addition, the SO3 condenses into sulfuric acid which corrodes the air preheater and ESP. There are no available means of protecting the air preheater from the excessive SO3 created by a front-end SCR system. Additional ammonia can be injected after the air preheater to neutralize the increased SO3 and thereby protect the ESP. However, additional ammonia injection causes more operational problems including ammonia slip, which can contaminate the water in the FGD and partially leave the stack as an emission, as well as an additional ash stream which would result in either higher particulate emissions or the need for a larger ESP. For these reasons, a front-end SCR system is technically infeasible for the converted Plant units, which are expected to operate base-loaded while firing Orimulsion. There was some testimony that a front-end SCR has been used on a unit which apparently has fired Orimulsion in Japan for approximately one year. However, that was a small peaking unit that could be shut down for maintenance when needed. In contrast, FPL's plans for the converted Manatee Plant units is to operate them as base-loaded units. Unlike peaking units which operate sporadically, base-loaded units operate continuously and are not out of service enough to allow for the performance of the additional maintenance required for a front-end SCR system. For that reason, a front-end SCR is not technically feasible for base-loaded units firing Orimulsion. Under a "back-end" design in which the SCR system is located downstream of the air preheater, ESP and FGD, the operational problems associated with the front-end system are avoided because the ESP removes vanadium, and the FGD removes sulfur from the flue gas. However, there are significant energy, environmental, and economic disadvantages to a back-end system. A back-end system would require installation of additional fans to overcome significant pressure loss and either duct burners or steam heat exchangers to reheat the flue gas to achieve the temperature necessary for the catalytic reaction. Approximately 6.72 percent of the energy generated by the boilers would have to be used to power this additional equipment--the approximate equivalent of the electrical use of 30,000 homes. In addition to higher energy consumption, a back-end system would result in secondary emissions from the burning of additional fuel and increased capital and operating costs. The EPA guidelines seem to say that both average and incremental cost effectiveness should be used to evaluate particular control options. Average cost compares the total amount of pollutant reduction from a combination of technologies to the cost of those technologies. Incremental cost effectiveness assesses the cost of adding a technology to emissions already controlled to some extent by other technologies. Of the two analyses, DEP believes that incremental cost effectiveness is the better accepted engineering practice, and there is a larger incremental cost database that can be used for making project-to-project comparisons. For these reasons, DEP relies more on the incremental cost effectiveness analysis. In prior BACT determinations for NOx emissions, DEP has viewed incremental costs in the range of $4,000 per ton of NOx removed as economically viable. By comparison, DEP has considered incremental costs in the range of $5,000 per ton of NOx removed to be unacceptable in determining BACT for NOx. The total capital costs of a back-end SCR system are on the order of $80 million to $100 million per unit. When capital costs are considered with operational costs and annualized over time, the total per-unit cost of a back-end SCR system ranges from $27 to 29 million per year. Unlike SCR, which reduces NOx that has already formed in the boiler, low-NOx burners minimize the formation of NOx by reducing the temperature and amount of time that nitrogen and oxygen have to react in the boiler. For the converted Plant units, low-NOx burners are capable of achieving a NOx emission rate of 0.27 lbs/mmBtu or lower at a total capital cost of approximately $5 million per unit. Operating costs are low, and the incremental cost effectiveness of low NOx burners used to achieve a .27 lbs/mmBtu emissions rate is only about $670 per ton removed. When compared to use of low-NOx burners at a 0.27 lbs/mmBtu NOx emissions rate, the incremental cost of adding a back-end SCR to achieve a 0.17 lbs/mmBtu rate is in the range of $8,000 to $9,000 per ton of NOx removed, which is well in excess of costs previously found to be too high in prior BACT determinations. Shortly before the start of the final hearing, FPL agreed to add reburn, another combustion control technology, on one unit as a test to ascertain if it could further reduce NOx emissions during the generating process; if so, FPL agreed to add the technology to the other unit as well. However, FPL still maintained that the BACT emissions limit should be set at .27 lbs/mmBtu. By the end of the hearing, a stipulation was entered into among FPL, DEP, EPC and Pinellas County that reburn technology also will be installed on both units to achieve a NOx emissions limit of no greater than 0.23 lbs/mmBtu (30-day rolling average) while firing Orimulsion. In addition, it was stipulated by those parties that DEP may modify the NOx emissions limit if it is determined that a rate lower than 0.23 lbs/mmBtu can be practicably and consistently achieved based upon the results of a six-month test program to be developed by a NOx Emissions Reduction Team consisting of representatives from FPL, the low- NOx burner supplier, FPL's reburn technology consultant, DEP, Pinellas County, Manatee County and EPC. The evidence was somewhat confusing as to the capital and operating costs of the reburn technology. It appears that the capital cost would be approximately an additional $8 million per unit, making the total capital cost of the combination of low NOx burners and the reburn technology approximately $13 million per unit. The evidence did not specify the operating costs. However, the evidence was that incremental evaluation of the addition of back-end SCR using the lower .23 lbs/mmBtu emissions limit would result in SCR being even less cost-effective--more on the order of $15,000 per ton of NOx removed. There is some indication that, while BACT emission limits for SCR systems have been set at .17 lbs/mmBtu, the technology actually might be capable of achieving emission reductions on the order of .10 lbs/mmBtu. If the lower emissions rate is assumed, SCR would look more cost effective. However, no calculations were made based on the lower emissions rate, and there was no competent evidence on which a finding could be made that, for purposes of determining BACT, the cost-effectiveness of back-end SCR should be assessed based on the lower emissions limit. The evidence was that the .10 lbs/mmBtu was a design emissions rate for certain SCR equipment; the evidence called into question the ability of SCR to achieve a continuous emission rate of .10 lbs/mmBtu. Although DEP has declined to give much weight to consideration of the average cost of NOx removal, some evidence was introduced at hearing on the average cost of reducing NOx emissions at the converted Manatee Plant using a combination of low NOx burners and back-end SCR. Under an average cost effectiveness analysis, the emissions limit determined to be achievable by a combination of control technologies is compared to what EPA calls the "realistic upper bound" uncontrolled emissions rate. Using an "upper bound" emissions rate of .58 lbs/mmBtu, and an emissions limit of .17 lbs/mmBtu, one witness found the average cost of reducing NOx emissions at the converted Manatee Plant using a combination of low NOx burners and back-end SCR to be on the order of just $2,000 per ton removed. But the use of .58 lbs/mmBtu as the "upper bound" number was based on incomplete and to some extent inaccurate information. FPL and DEP presented evidence that the actual average cost per ton of NOx removed is more on the order of $4,300. These analyses used .395 (or .4) lbs/mmBtu as the "upper bound" starting point. This starting point was based on more complete and more accurate information, but there seems to be room for argument as to the most suitable starting point. There also was evidence of an earlier FPL calculation that average cost per ton of NOx removed is approximately $2,900. However, the evidence was not clear as to the assumptions used in this calculation. Although DEP has declined to give much weight to consideration of the average cost of NOx removal, there was some indication that other states do. Pennsylvania was said to use average cost of $4,000 per ton of NOx removed as a benchmark for determining the economic feasibility of BACT emissions limits, and Wisconsin was said to use $6,000. However, the evidence was not clear as to how those states make BACT determinations for NOx emissions. In light of the excessive incremental costs of SCR for the converted Plant units, imposition of SCR is not warranted. Although concerns have been raised about the potential effect of NOx emissions on ozone levels and nitrogen deposition in the Tampa Bay area, as discussed infra, NOx emissions from the converted Plant units are not expected to have a significant impact on either ozone levels or water quality. Moreover, the evidence was not clear that such environmental impacts would be significantly different whether or not SCR is installed on the converted Plant units. Based upon a case-by-case consideration of the energy, environmental, economic, and other factors discussed above, a NOx emission rate of 0.23 lbs/mmBtu based upon use of low-NOx burners and reburn technology constitutes BACT for the converted Plant units when firing Orimulsion. For CO emissions from the converted Plant units, BACT is an emissions limit of 0.325 lbs/mmBtu based upon use of combustion controls. Other than combustion controls, there are no feasible means of controlling CO emissions from fossil fuel- fired steam electric generating units. Air Quality Impact Analysis Ambient air quality impact analyses demonstrate that emissions resulting from maximum operation of the converted Plant will comply with applicable ambient air quality standards and PSD increments for CO and NO2. Because the NO2 analyses were based upon a NOx emissions rate of 0.3 lbs/mmBtu, actual impacts on ambient NO2 concentrations are expected to be lower in light of the subsequently agreed-upon NOx emissions rate of 0.23 lbs/mmBtu. Although ambient impact analyses are not required for SO2 and PM because emissions will be below significant emission rates, FPL also performed air dispersion modeling demonstrating compliance with ambient air quality standards for those pollutants. Additional impact analyses demonstrate that projected emissions of SO2, NOx, and CO will have no adverse impact on soils, vegetation, wildlife, or visibility in the vicinity of the Plant. Likewise, the results of air dispersion modeling demonstrate that projected emissions will not adversely impact air quality related values (AQRVs), such as vegetation, soils, wildlife, and visibility, in the Chassahowitzka National Wilderness Area which is the PSD Class I area closest to the Plant. Effect of Proposed NOx Emissions on Ozone Levels Ambient air quality analyses for ozone typically are not required for sources, such as the Plant, which are located in areas that are in attainment of the ozone standard. However, because the Plant is located within a mile of the Hillsborough County/Manatee County line, and not far from Pinellas County, and because Hillsborough County and Pinellas County are in the process of being redesignated from nonattainment to attainment for ozone, concerns have been raised regarding the potential effect of proposed NOx emissions on ozone levels. Ozone formation is a complex process involving precursor pollutants such as NOx and VOCs (volatile organic compounds). There is no direct relationship between increased NOx or VOC emissions and increased ozone levels. Depending upon conditions in the particular area in question, NOx reductions may or may not benefit ambient ozone levels. The impact of a NOx emissions point source, such as the Manatee Plant, on ozone levels is difficult to predict. There are no EPA-recommended models to analyze the effect of NOx emissions from a particular source on ozone concentrations, but other models and tools that are available can be used to try to assess whether a particular source may have a significant impact on ozone formation in a particular urban area. FPL used the models suggested by DEP. To assess the impact of projected NOx emissions on ozone formation, FPL first utilized the Empirical Kinetics Modeling Approach (EKMA), which DEP used in support of the ozone redesignation request submitted to EPA for the Tampa Bay area. The EKMA model is not a dispersion model designed for use in predicting ozone impact of a NOx emissions point source, such as the Manatee Plant. It essentially evenly distributes NOx and VOC's within a certain volume of air, such as the air over the Hillsborough/Pinellas nonattainment zone, and models the totality of what occurs within the airshed. It also does not account for either other additions from outside the zone being modeled or components of the air mass leaving the zone being modeled. FPL essentially adjusted the model by adding the NOx emissions from the converted Manatee Plant. It is a relatively crude model used primarily for screening purposes. Because of the difficulty in predicting the impact of the converted Manatee Plant, and the limitations of the EKMA model, DEP requested that FPL also use the Reactive Plume Model (RPM) to further assess the effect of the projected emissions on ozone concentrations in Hillsborough and Pinellas counties. The RPM model also has its limitations and is not approved by the EPA for predicting ozone concentrations resulting from a point source. The RPM models ozone precursor reactions resulting from the point source being studied that occur within the plume. It is clear that, as a result of the complex nature of the ozone precursor reactions, significant ozone formation also will occur "off-plume." RPM attempts to account for this ozone formation as well. In any event, it is not clear how "off-plume" reactions would be affected by the point source being evaluated. Like the EKMA model, the RPM model used by FPL also did not account for either additions from outside the zone being modeled or components of the air mass leaving the zone being modeled. FPL did not attempt to predict future additional sources of ozone precursors and run either the EKMA model or the RPM model assuming impacts from those additional sources. The evidence was that this exercise would have been difficult if not impossible to undertake. It is not clear whether, with new air pollution regulations, NOx levels will increase or decrease, and it is difficult to predict where new source will originate. (The same probably could be said for VOC's.) For these reasons, such an exercise, if undertaken, would have been of questionable predictive value. Despite its limitations, the RPM model does provide additional useful information in attempting to assess the impact of the converted Manatee Plant on ozone formation, and it is the only other reasonably available tool. Better models or "observation-based approaches" that might be effective for purposes of point source permitting have not been developed yet. An Urban Air Shed Model (UASM) would provide useful additional information, but UASM's are extremely complex and typically are conducted by a consortium of governments and universities for entire metropolitan areas. UASM's take years to complete and cost hundreds of thousands of dollars. It is not reasonable to require FPL to finance and conduct such a study in this case. Although there are limitations to the EKMA and RPM models, FPL has done more to analyze potential impacts of NOx emissions, using the reasonably available tools, than any other applicant in the history of Florida's air permitting program. The EKMA and RPM modeling indicate that NOx emissions from the converted Plant will not have a significant impact on ozone levels in the Tampa Bay area. Based on these modeling analyses, FPL has provided reasonable assurances that the Project will not cause or contribute to a violation of the ozone standard. By notice published in the Federal Register on December 7, 1995, EPA proposed to redesignate the Hillsborough/Pinellas county area as attainment for ozone. Under the proposal, EPA would approve the redesignation request and maintenance plan jointly submitted by DEP, Pinellas County, and Hillsborough County. The Orimulsion Conversion Project itself will not trigger any specific action under the maintenance plan because the Manatee Plant is located outside of Hillsborough and Pinellas counties. There are two "triggers" for a response under the maintenance plan. The first would be a violation of the ozone ambient air quality standards in the two-county area, i.e., the fourth maximum daily value greater than .12 parts per million (ppm). The only recorded exceedances since 1990 occurred on June 10, 1995. The second "trigger" has two conditions: the first is an increase in the inventory of NOx or VOC emissions in the inventory update years 1994, 1997 or 2000 exceeding 5 percent over the levels recorded in 1990, a year in which there were no ozone violations; the second would be the a design value for the update year of greater than .114 ppm (compared to the ambient air standard of .12 ppm). While the 1994 inventory of NOx emissions was between 7 and 8 percent over the 1990 inventory, no maximum concentrations over the "design value" have been recorded. (The 1995 inventory was not available at the time of the hearing.) Recognizing the limitations of the EKMA and RPM modeling, it nonetheless is not expected that emissions from the Project will trigger any action under the maintenance plan. If an ozone violation or other specific contingencies occur in the future, however, the maintenance plan would require the state to undertake rulemaking to implement corrective action. Such corrective action could include imposition of Reasonably Available Control Technology (RACT) for existing sources of NOx in the region and expansion of NOx and/or VOC control strategies to adjacent counties. FPL also has agreed to further minimize NOx emissions during the "ozone season," which generally lasts from May 15 through September 15. Under the stipulation between FPL, DEP, EPC and Pinellas County, daily NOx emissions from the Plant shall not exceed 42.23 tons during the ozone season when Orimulsion is fired. This daily cap is more restrictive than a 30-day rolling average. As incentive to further reduce NOx emissions, FPL will pay annually, to a trust fund jointly administered by Manatee, Pinellas, and Hillsborough Counties to benefit air quality in the region, $200 per ton of NOx emitted from both Plant units, on a daily basis, in excess of 38.6 tons per day during the ozone season. Effect of Proposed NOx Emissions on Water Quality The Plant is located within the watershed of Tampa Bay, a large estuary comprised of four major segments including Old Tampa Bay, Hillsborough Bay, Middle Tampa Bay, and Lower Tampa Bay, and other embayments including Cockroach Bay and Little Cockroach Bay in the Cockroach Bay Aquatic Preserve, which is designated as an Outstanding Florida Water (OFW). The Little Manatee River, another OFW, also is part of the Tampa Bay watershed. Because Tampa Bay is located in a phosphate-rich area, phosphorus levels in the bay are extremely high. Due to high phosphorus levels, nitrogen is considered the limiting nutrient in Tampa Bay. Major sources of nitrogen to Tampa Bay include nonpoint runoff (i.e., materials that run off the land surface and are carried through riverine systems into the bay), atmospheric deposition both on the surface of the bay and within the watershed, point sources (e.g., discharges from wastewater treatment systems and industrial facilities), and internal sources within the bay itself. Although there are ongoing studies, including the Tampa Bay Atmospheric Deposition Study, to better quantify actual deposition in the Tampa Bay area, available analyses indicate that atmospheric deposition is an important source of nitrogen loading to Tampa Bay. The water quality of Tampa Bay varies from "good" in Lower Tampa Bay to "fair" in portions of Hillsborough Bay which historically have had water quality problems such as high levels of chlorophyll a. The water quality of Cockroach Bay reflects the water quality in adjacent Middle Tampa Bay, which has been characterized as "poor" during certain times of the year due to relatively high chlorophyll a levels. Due to nutrient inputs and other factors such as dredge and fill activities, prop-scarring from motor boats, and other physical activities, portions of Tampa Bay, including Cockroach Bay, have experienced significant losses in historical seagrass coverage. In recent years, however, seagrass coverage has increased in Tampa Bay overall. Lake Manatee is another water body of potential concern located near the Plant within the Tampa Bay watershed. Lake Manatee is a man-made lake which supplies drinking water to Manatee County, Sarasota County, and various municipalities. Based upon its trophic state index of 50 to 60 for the past few years, Lake Manatee has water quality in the upper end of the "good" range. However, Manatee County treats Lake Manatee with copper sulfate to prevent blooms of blue-green algae which can create taste and odor problems in the water. Studies have determined that nitrogen is the limiting nutrient of Lake Manatee and that nitrogen levels have increased. Due to high color levels and other factors, however, Lake Manatee appears to be a dystrophic system in which primary nutrients, such as phosphorus and nitrogen, are not responsible for most of the plant growth. In fact, the most recent study of Lake Manatee water quality indicates that algal growth there has a stronger correlation to temperature and specific conductance than to total nitrogen. In addition, the blue-green algae associated with taste and odor problems in lake water have the ability to "fix" nitrogen from the atmosphere and, therefore, have a competitive advantage over other algae in the absence of external nitrogen inputs. To assess potential impacts of the Project on water quality in the Tampa Bay area, the effect of proposed NOx emissions on nitrogen deposition in the Tampa Bay watershed was calculated using the best tools reasonably available. Assuming a NOx emissions rate of 0.23 lbs/mmBtu following the conversion to Orimulsion as proposed with the stipulated conditions of certification, the Plant's contribution will be 1.25 percent of the total nitrogen deposition in the watershed. Based upon consideration of background deposition in more pristine locations in Florida and local deposition within the Tampa Bay area, as well as a comparison of current and projected emissions from the Plant with regional NOx emissions, NOx emissions from the converted Plant will result in a less than 0.8 percent increase in nitrogen deposition throughout the Tampa Bay watershed. Additionally, the estimated increase in nitrogen deposition was apportioned among the various segments of the watershed based upon the results of dispersion modeling. Atmospheric nitrogen can reach Tampa Bay and other water bodies through direct deposition on the water surface as well as "indirect deposition" and subsequent runoff from land surfaces within the various segments of the watershed. Due to soil absorption and plant uptake, however, not all atmospheric nitrogen deposited within the watershed ultimately reaches Tampa Bay. Using the Project's calculated impact on nitrogen deposition and conservative runoff coefficients for the "indirect deposition" component, nitrogen loading budgets were calculated for Tampa Bay and its various segments, as well as Lake Manatee. Existing nitrogen loadings are on the order of 3,000 metric tpy for Tampa Bay and 300 metric tpy for Lake Manatee. In comparison, the increase in nitrogen loadings attributable to the Project is on the order of 21 metric tpy (or 0.69 percent) for Tampa Bay and 1.2 metric tpy (or 0.39 percent) for Lake Manatee. In light of the existing loading to these systems, the predicted increases attributable to the Project are insignificant. Because these loading analyses are based upon a NOx emissions rate of 0.27 lbs/mmBtu, actual impacts on nitrogen loading are expected to be less in light of the lower 0.23 lbs/mmBtu emissions rate subsequently agreed upon in the stipulation between FPL, DEP, Pinellas County and EPC. Although nitrogen within the water column will deposit in the sediments, increased nitrogen loadings will not have an extended cumulative effect over time because the amount of nitrogen available to the system ultimately reaches equilibrium as a result of a continual burial process. Additionally, other processes, such as denitrification, decrease the amount of nitrogen in the sediments. Accordingly, marginal increases in atmospheric deposition of nitrogen have only marginal effects on sedimentary nitrogen concentrations and internal loadings. To assess the Project's impact on biological activity in surface waters in the vicinity of the Plant, laboratory tests were performed on water samples collected within the Lower Tampa Bay, Lake Manatee, Cockroach Bay, the Little Manatee River, the Manatee River, and Lake Manatee utilizing the algal assay procedure (AAP). AAP is a procedure developed and recommended by EPA to determine the effect of increased nitrogen loadings on algal growth within receiving marine or freshwater systems. Under the AAP, water samples taken from the field are spiked with varying levels of nitrogen as well as algae with a given growth potential. After the spiked samples are set aside for five to seven days, algal growth is measured and comparisons between the spiked and control samples are made to determine the effect of the nitrogen additions. In each of the AAPs performed, no statistically significant increase in algal growth was noted with nitrogen additions up to 10 times the amount anticipated from the Project. FPL provided reasonable assurances that nitrogen loadings attributable to the converted Plant will not have a significant adverse impact on water quality or biological activity in any marine, estuarine, or aquatic systems in the Tampa Bay area. The evidence indicates that the impact is likely to be so small that it will be difficult to measure and distinguish from natural fluctuation in nitrogen levels. For the same reason, FPL has provided reasonable assurances that, when considered in conjunction with nitrogen loadings of the same order from other NOx emission sources which have been permitted but have not begun operation in the Tampa Bay area, the Project will not cause or contribute to an imbalance in natural populations of aquatic flora and fauna or a dominance of nuisance species in Tampa Bay, including Cockroach Bay. Likewise, because nitrogen loadings from the Plant are not expected to have a significant adverse impact on algal growth, such loadings are not expected to impact other flora, other trophic levels, such as seagrasses or fisheries production, or transparency levels in Tampa Bay. In their case, Manasota-88 and MCSOBA presented two expert witnesses who generally opined that 20 tons of additional nitrogen would be detrimental to Tampa Bay, would cause an imbalance of aquatic flora and fauna in violation of DEP's nutrient rule, as well as violations of DEP's transparency and nuisance rules, and that nitrogen loading to Tampa Bay has the potential to be a cumulative problem. The expert witnesses presented by Manasota-88 and MCSOBA did not perform or make reference to any studies or other analyses that contradict the analyses performed by FPL's expert witnesses related to nitrogen deposition impacts. Theirs was more of a qualitative evaluation. Clearly, seagrass coverage in Tampa Bay and Cockroach Bay has declined due in large part to shading from algal growth resulting from nitrogen. It follows logically, in their opinion, that adding 21 tons of nitrogen a year to current and future levels cannot help, but can only hurt, even if the impact is too small to measure. They urge that DEP should prohibit any increases in nitrogen loading to Tampa Bay, in accordance with the recommendations resulting from the federally-funded National Estuaries Program (NEP) study of Tampa Bay, including any increases from atmospheric deposition. Regulatory links between air emissions and water quality criteria are developing through the policy of management. But DEP historically has not regulated atmospheric deposition of nitrogen to surface waters, and ecosystem management has not yet matured to the point where DEP is ready to begin regulating atmospheric deposition of nitrogen as a surface water discharge subject to surface water quality permit review. If it does, it is possible that some recommendations of the NEP Tampa Bay study on nitrogen loading to Tampa Bay could be achieved through new surface water quality permit review of nitrogen loading through atmospheric deposition. Such regulation may result higher power generating costs from stricter NOx emissions limits, but it may be determined that those costs would be lower than the costs of trying to rehabilitate water bodies after nitrogen has been deposited and loaded into them. In the absence of such regulation, however, FPL nonetheless has provided reasonable assurances that nitrogen deposition resulting from NOx emissions from the converted Plant will not have any meaningful or measurable impact on water quality, biological activity, or transparency in any marine, estuarine, or aquatic system in the Tampa Bay area. Human Health Risks Associated with Proposed Air Emissions Despite increased plant utilization, there will be no increase in either short term or annual emissions of any hazardous air pollutants (HAPs) or other "air toxics" as a result of the conversion to Orimulsion. To assess potential health- related impacts of Project emissions, air dispersion modeling was conducted to predict ambient concentrations of HAPs and other air toxics. The predicted ambient concentrations for all HAPs and air toxics except vanadium are below ambient reference concentrations (ARCs), which are conservative screening values established for various air toxics in DEP guidelines. Predicted concentrations of vanadium exceed the ARC for the 24-hour averaging period at the maximum point of impact within the plant site, but the exceedance is very small (i.e., at the third decimal place), and the ARC is between 100 and 1000 times lower than any exposure level shown to cause effects in humans. Moreover, vanadium is not bioaccumulative and does not have any interactive effect with other substances. Accordingly, the proposed level of vanadium emissions does not pose a significant threat to human health. Although there is no regulatory requirement for a formal risk assessment, a multi-pathway risk assessment was performed to evaluate potential human health impacts of air emissions from the converted Plant. Whereas the ARCs established by DEP address only the inhalation pathway of exposure, the multi-pathway risk assessment considered the cumulative effect of oral and dermal exposure in addition to inhalation exposure to all pollutants emitted from the converted Plant. Utilizing conservative assumptions, the multi- pathway risk assessment analyzed potential exposures to residential and occupational populations, including potentially sensitive populations such as children and persons who live and work near the Plant. Based upon the results of the multi-pathway risk assessment and other analyses, the health risks from operation of the Plant while firing either oil or Orimulsion are negligible. Compared to historical operation with No. 6 fuel oil, future operations following conversion to Orimulsion would provide a benefit from a toxicological and risk assessment standpoint. Plant Water Supply and Use Water Supply FPL is currently withdrawing water from the Little Manatee River under a valid Permit Agreement entered with the SWFWMD in 1973 and amended in 1975. As part of the Project, FPL will significantly reduce the amount of water it is allowed to withdraw from the Little Manatee River. Maximum allowed withdrawals for the 16-year period 1978-1993 could have been up to an average of 28.4 million gallons per day (MGD) under the Permit Agreement. By way of comparison, if the stipulated Conditions of Certification had been in effect during the same 16-year period, withdrawals would have been approximately 9.4 MGD (average) if FPL had used the full 10 percent maximum allowable withdrawals. Following the conversion to Orimulsion, the Plant will have similar requirements for cooling and process water but at increased quantities over historical levels of use. The existing Permit Agreement between FPL and the SWFWMD would allow FPL to obtain sufficient water for all its Project needs under its currently authorized withdrawals from the Little Manatee River. Rather than obtaining all the needed water from the Little Manatee River, however, the additional 9.5 MGD of water needed for the Project above historical levels will be supplied through the use of 5 million gallons per day of reclaimed water from local wastewater treatment facilities, or equivalent sources of water, and 4.36 MGD of groundwater from existing permitted sources. The order of priority for meeting the Plant's water needs following conversion to Orimulsion will be: (1) 5 MGD of reclaimed treated wastewater delivered to the cooling pond; (2) existing permitted groundwater withdrawals of 4.36 MGD for use in either the cooling pond or directly in the plant's process water systems; and (3) the use of withdrawals from the Little Manatee River, up to 10 percent of the daily flow, to meet the remaining water needs of the plant. Predicted diversions from the Little Manatee River would average approximately 8.3 MGD. This is approximately the same as historical diversions from the River since 1974 (including the "big gulp" to fill the cooling pond initially), compared to the approximately 6.4 MGD withdrawn during the 16-year period 1978-1993. The stipulated Conditions of Certification provide for reclaimed water to be used following conversion to Orimulsion will be treated wastewater supplied by the Manatee Agricultural Reuse Supply (MARS) system or other reclaimed water source. (At the time of the final hearing, negotiation of the terms of FPL's use of MARS reuse water had not yet been completed.) FPL will be able to take this treated wastewater during periods of time when farmers will not need such water for agricultural uses. Thus, deliveries to FPL could range between 2 MGD and 14 MGD. FPL's use of reclaimed water from MARS would allow the County to expand that program by providing a baseload amount of water to be taken by FPL from that system. This would allow Manatee County to avoid having to build other storage facilities for treated wastewater. FPL will install three new groundwater wells west of the cooling pond to obtain 4.36 million gallons per day of groundwater from the Floridan aquifer for use in the Plant following conversion to Orimulsion. These new wells will be constructed to meet current SWFWMD well construction standards and replace older wells that do not meet current standards. The new wells would lessen the existing impacts on the upper aquifers by preventing the exchange of contaminants between the aquifers. This quantity of water represents amounts already permitted for use both at the Plant site for plant use and on-site agricultural operations and at adjacent agricultural operations. An additional 2.7 MGD of reclaimed water will be supplied to the adjacent agricultural operations to replace the existing, permitted, off-site groundwater withdrawals that are being transferred to FPL's use. Withdrawals from the Little Manatee River will be made using the computerized withdrawal system operated by FPL under a diversion schedule that allows increased withdrawals as river flow increases. This system is controlled by using river stage height as an indicator of river flow rate. This system allows FPL to respond quickly to changes in river elevation when making withdrawals. This system will be reprogrammed to the new diversion curves to prevent withdrawals above 10 percent of the river flow on a daily basis. Withdrawals from the Little Manatee River under the proposed Conditions of Certification would not occur when the flow in the Little Manatee River is below 40 cubic feet per second (cfs). Forty (40) cfs is the minimum flow level established by the SWFWMD to protect the ecology of the Little Manatee River. The pumps can withdraw no more than 190 cfs. If the water level in the cooling pond falls below 62 feet above mean sea level (msl), FPL is authorized by the proposed Conditions of Certification to request approval from SWFWMD to increase withdrawals above 10 percent of stream flow from the Little Manatee River to restore the pond water level to 63 feet above msl. Such withdrawals would be made in accordance with three "emergency diversion curves" that limit withdrawals from the River on a seasonal basis with higher withdrawals during the wet season. The three sources of water to be used by the Plant following conversion to Orimulsion represent the lowest overall quality of water suitable for operation of the Plant. Withdrawals of groundwater and surface water from the Little Manatee River are regulated by Chapter 373, F.S., and Chapter 40D-2, F.A.C. The proposed withdrawals do not interfere with existing legal users, are reasonable-beneficial uses, are in the public interest, and otherwise comply with all applicable requirements of those chapters. Cooling Pond FPL performed analyses of the cooling pond's thermal performance and predictions of future water quality in the cooling pond, following conversion to Orimulsion and increased utilization of the Plant. A computer-based energy balance model demonstrated that the pond would operate within the desired temperature limits, and maximum water levels. Water quality in the cooling pond following 20 years of operation was also predicted using several computer models. Water quality concentrations after 20 years were predicted with a mass balance model simulating various water inflows to the pond and evaporation rates from the pond. These results were then evaluated using a metal speciation model called MINTEQ which predicted precipitation of various chemical constituents and predicted final water quality in the pond. These results were used to evaluate impacts to groundwaters. Currently, the Plant site has three existing, permitted surface water discharges to the Little Manatee River: cooling pond discharges resulting from excessive rain events; discharges which occur during spillway gate tests performed as part of FPL's cooling pond embankment safety program; and (3) overflows which may occur during loss of power or malfunction in the sump pumps in the toe drain system of the pond. Following conversion to Orimulsion, several of these permitted discharges to the Little Manatee River will be eliminated. First, the cooling pond will be operated to contain significant rain events up to a 100-year/24-hour storm event. To accomplish this, the cooling pond level will be maintained at a lower elevation below the spillway crest to allow sufficient freeboard to hold such a storm. While FPL will continue to conduct annual spillway gate tests as part of its safety program for the cooling pond, the gate tests will be conducted in a manner to insure that there will be no discharges to the Little Manatee River. New power sources will be provided to the sump pumps in the toe drain system to increase the reliability of power and to minimize overflows from those sumps. Impacts of Groundwater Withdrawals and Discharges The Project may result in impacts to groundwater resources as a result of discharges from the cooling pond and from groundwater withdrawals. FPL evaluated the potential impacts of these activities on groundwater levels and quality. To serve the Project, FPL proposes to install three new groundwater wells to replace existing permitted wells that serve adjacent agricultural operations. The 4.36 MGD of authorized withdrawals from the existing agricultural wells will be reallocated to the new FPL wells, and the agricultural water use will be met using treated wastewater. FPL conducted modeling of the withdrawals from the three proposed wells to identify the drawdown of groundwater levels in the area. FPL utilized a computer model known as MODFLO to evaluate withdrawals for a period of 20 years. Water levels in the three aquifers underlying the Plant site and in nearby existing wells will not be significantly impacted by the relocation of the withdrawals, effects on surface water bodies such as wetlands that are in and connected to the surficial aquifer will be insignificant, and the proposed pumping will not cause a drawdown of more than one foot below any wetland at or near the Plant site. Although it is not clear exactly how much of permitted capacity is being withdrawn from the existing wells that would be replaced by the three new wells proposed by FPL, FPL gave reasonable assurances that the net impact of the three replacement wells will be negligible and will not cause movement of the saltwater interface in the area around the Project. Groundwater at the site is classified as G-II groundwater. Based on the water quality modeling of the cooling pond, six constituents present in the cooling pond and in the seepage from the pond in the surficial aquifer would be above FDEP's groundwater standards. Only one of these constituents - sodium - would exceed primary drinking water standards; the other five constituents are all secondary standards. The cooling pond is an "existing installation" for purposes of groundwater discharges under Rule 62-522.200, F.A.C., because FPL had a completed application for a discharge permit on file with DEP as of January 1, 1983, and because the cooling pond was reasonably expected to release contaminants into the groundwater on or before July 1, 1982. Groundwater discharges from the cooling pond and other existing installations must meet primary drinking water standards at the boundary of the zone of discharge (ZOD) and are exempt from meeting secondary groundwater standards. (Rule 62-520.520, F.A.C.) Under Rule 62-520.200(23), F.A.C., ZODs are allowed to provide an "opportunity for the treatment, mixture or dispersion of wastes into groundwaters" both vertically and horizontally under the installation. Under the stipulated Conditions of Certification, the existing cooling pond will have a ZOD "horizontally to FPL's property line, and vertically to the bottom of an aquifer within the Arcadia Formation, the top of which aquifer is not higher than 50 feet below the surficial aquifer, and not lower than the top of the Tampa Member of the Hawthorne Group as defined in [Florida Geological Series] Bulletin No. 59" (which is a point vertically within the confining unit underlying the surficial aquifer and above the intermediate aquifer). The final compliance point for the vertical depth of the ZOD will be determined during the DEP's review of the groundwater monitoring plan submitted following certification. This ZOD represents a vertical expansion of the ZOD granted under current FDEP permits. The current ZOD extends to the base of the surficial aquifer; the expanded ZOD would extend into, but not through, the confining unit below the surficial aquifer. The reason for the expanded ZOD is the change in water quality in the cooling pond resulting from the use of reclaimed water as a source of makeup water for the cooling pond. The expanded ZOD will not extend beyond FPL's property boundaries. ZOD's normally are not set within a confining layer. However, some confining layers contain aquifer units that are large enough for ground water monitoring purposes. Properly located and installed, a groundwater monitoring well tapping a suitable aquifer unit within a confining layer will not constitute a risk of contamination of the underlying aquifer units. FPL analyzed impacts of groundwater discharges from the cooling pond on groundwater in the vicinity of the Plant site laterally and vertically. Based on these evaluations, there will be no exceedance of either primary or secondary groundwater quality standards at the lateral edge of the ZOD at FPL's property line for the 20-year life of the Project. There also will be no violation of groundwater quality standards at the bottom edge of the ZOD. The groundwater discharge will not significantly impair any designated use of receiving groundwater or any surface water nor will it result in a violation of any applicable groundwater standard outside the ZOD. At the edge of the Little Manatee River, there will be no exceedance of either primary or secondary maximum contaminant levels. Discharges to groundwater from the cooling pond will comply with Class G-II groundwater standards and with applicable surface water standards at the edge of the proposed ZOD. The ZODs for other existing on-site facilities, including the solids settling basin, the neutralization basin, and the sanitary drainfield, will extend horizontally to FPL's property line and vertically to the base of the surficial aquifer underlying those facilities. Other sources of potential discharge to groundwater are two former locations of underground fuel tanks, since removed, that are currently in the process of assessment and clean up. The contamination is not migrating and does not represent a threat to groundwater resources at, or beyond the boundaries of, the Plant site. Wetland Impacts and Mitigation Jurisdictional wetlands in the Project area, rail curve construction area and the by- product storage and disposal areas were delineated under a binding jurisdictional declaratory statement issued by the DEP on May 10, 1995. For the total Project, approximately 18.18 acres of State jurisdictional wetlands will be impacted, of which approximately 16.5 are jurisdictional to SWFWMD. Construction at the Plant site, temporary by-product storage area and the rail curve will impact approximately 0.68 acre of jurisdictional wetlands, which are primarily ditches. Construction of the backup by-product disposal area will impact approximately 17.5 acres of mostly highly disturbed, low-quality wetlands located in tomato fields adjacent to the Plant site. The Project has been designed and sited to avoid and minimize wetland impacts. Proposed wetland activities will have minimal adverse ecological or other effects. Using an ecosystems approach to mitigation, FPL has proposed the preservation, enhancement and restoration of a 129.6-acre area located on the northern site boundary. The mitigation area contains seven high-quality upland and wetland ecological communities, including over one-third mile of the Little Manatee River. The mitigation area is located within an extensive corridor of lands considered to have important ecological resource values and targeted by SWFWMD and Hillsborough County for potential acquisition. FPL's activities within the mitigation area will include, among other things, removal of exotic species, planting of native species in disturbed and eroded areas, and protection and management of the site as a wildlife habitat area. Based on a habitat function evaluation, the estimated value of the mitigation area compared to the impacted wetlands is 15 to 1. The proposed mitigation will provide environmental benefits beyond required mitigation and will be more than sufficient to offset all adverse effects caused by the wetland activities. Although the backup by-product disposal area is unlikely to be constructed, the stipulated Conditions of Certification require FPL to provide mitigation for the impacts at that site regardless of whether the backup by-product disposal area is ever constructed. In addition to the 129.6-acre area provided as mitigation for wetland and other impacts, FPL will preserve an environmentally sensitive area near Tampa Bay and 30-foot upland buffers adjacent to the Little Manatee River. FPL has also offered to convey to SWFWMD additional lands along the Little Manatee River within the Save Our Rivers Program area. The Project complies with all applicable requirements for permitting wetlands impacts, including sufficient mitigation for such impacts, provided in Chapters 403 and 373, F.S., and Chapters 62-312, 62-340, and 40D-4, F.A.C. Wetland activities are in compliance with the Manatee County Comprehensive Plan and Land Development Code, so long as the County's recommended variance from strict replacement mitigation required in the Plan and Code is included in the certification. The variance would allow the quality of the existing wetlands and uplands to be enhanced, and there would be assured preservation of wetlands to a greater degree than would normally be required. Creation of wetlands to replace impacted wetlands on strict numerical ratios and exact type-for-type basis may not always be successful. FPL's proposed enhancement and preservation of a large portion of riverine and uplands ecosystem is the preferred approach. Impacts to Flora and Fauna including Listed Species There will be no significant impacts to wildlife or plants, including listed species, from the Project. The mitigation proposed by FPL will more than compensate for any minimal effects on wildlife and plants, including listed species. Extensive ecological surveys were conducted on foot from early 1994 until September 1995 to determine wildlife and plant usage. Ninety percent of FPL's entire property was surveyed and the Project area was surveyed in detail along transects. In addition, scientific literature was reviewed to determine the likelihood of occurrence of species listed by the GFC and the U.S. Fish and Wildlife Service (USFWS). Only one listed wildlife species, the American alligator, which occasionally uses portions of the site, was observed. The alligator is given the lowest protection level, that of species of special concern, by the GFC and is listed as threatened by USFWS because of similarity to another protected species. Given the low habitat value resulting from the agricultural and industrial uses in the Project area, no other listed wildlife species was determined to have a high probability of occurrence. As requested by the GFC, prior to construction FPL will again conduct wildlife surveys for listed species and provide the results to the GFC. Impacts of Water Withdrawals on Little Manatee River and Tampa Bay The Little Manatee River is one of the most studied rivers in Florida, and extensive scientific literature is available on the River. The River is subject to tidal influence and is an estuarine system for approximately 10 miles from its mouth. In addition, the River is very responsive to rainfall and its freshwater flows vary greatly during the year and between years, ranging from very low flow to flows of thousands of cubic feet per second (cfs). This flow pattern results in extreme fluctuations in salinity in the estuary. The flora and fauna of the estuarine zone of the River are well adapted to the fluctuations in flow and salinity. In fact, many saltwater animal species rely on their tolerance to extreme conditions to use the low salinity estuarine habitat of the River, which is rich in food sources and low in predators, as a nursery. The Plant's existing withdrawals from the Little Manatee River have not caused adverse impacts to the ecology of the Little Manatee River or Tampa Bay. SWFWMD permitting requirements contain a presumption that withdrawals of up to 10 percent of daily flow from a stream will not cause unacceptable environmental impacts. See Chapter 40D-2, F.A.C., Part B, Basis of Review for Water Use Permit Applications, 4.2.C.2. FPL and SWFWMD provided unrebutted expert testimony and evidence that the proposed withdrawals of water from the Little Manatee River, including the emergency withdrawals which may exceed 10 percent of flow, will have no adverse impacts on the flora and fauna and water quality of the River and Tampa Bay. Using extensive environmental data collected by SWFWMD and other agencies, salinity in the River was modeled and extensively analyzed for three withdrawal scenarios for the 16- year period, 1978-1993: historical (existing) FPL withdrawals; proposed withdrawals following conversion; and river flows as if no withdrawals had ever taken place. For the three withdrawal scenarios, these analyses included the frequency of occurrence and the duration, of various salinity concentrations for a number of locations along the River. Following the conversion of the Plant to Orimulsion, minimal, temporary changes in salinity will occur only in areas which naturally experience extreme fluctuations in salinity. Because withdrawals will be prohibited when River flow is below 40 cfs, when salinity moves farthest upstream, the withdrawals of freshwater will not cause saltwater to move upstream into areas of the River which have always been fresh. Estuarine organisms thrive within two interrelated habitats: (1) a dynamic salinity- concentration habitat which shifts up- and downstream with tides and freshwater flows; and (2) a static physical habitat containing vegetation preferred by estuarine organisms. Productivity is highest for organisms during periods when their preferred dynamic salinity habitat overlaps their preferred vegetative habitat. Salinity of ten parts per thousand (10 ppt) is generally considered to be a significant boundary of the estuarine low salinity nursery habitat; it includes the part of the river where salinity is sometimes but not always less than 10 ppt. The proposed withdrawals will not affect the location of the dynamic salinity habitat. In fact, salinity areas of less than the 10 ppt salinity boundary of concern will be affected less under the proposed withdrawals than they have been under the historical withdrawals. Static vegetative habitats in the estuarine portions of the Little Manatee River generally fall into three zones comprised of plants whose success depends upon prevailing salinity concentrations. The first, most-saline zone, nearest the River's mouth, is dominated by mangroves. The second zone, which generally comprises the low-salinity nursery, is dominated by juncus (black needlerush) and the third is dominated by tidal freshwater species. Because the durations of salinity concentrations in the River will not be significantly altered by the proposed withdrawals, the boundaries of these static vegetative habitats will not be affected. Modelling and analyses were also undertaken to predict the relationship between salinity and location of maximum population abundance ("AMAX") for four representative fish species found in the Little Manatee River. Results showed that the minimal changes in salinity caused by the proposed withdrawals, including emergency withdrawals, may cause minimal, temporary population shifts but will not result in movement of fishes outside the ranges where they presently commonly occur. Moreover, since the fisheries within the River are not affected, the withdrawals will not affect the productivity of the regional fisheries in the River or Tampa Bay. The Little Manatee River contributes a small fraction (10.7 percent) of total annual freshwater flows into Tampa Bay. These annual average freshwater flows may be reduced by .003 percent by the proposed withdrawals, based on analysis of data for the 20-year period 1973-1993. The proposed withdrawals will have an insignificant effect on freshwater inputs to Tampa Bay. Moreover, any impacts on salinity levels in Tampa Bay from the proposed withdrawals will be limited to the area around the mouth of the River and will not affect biological resources in Cockroach Bay or the rest of Tampa Bay. FPL also analyzed the potential effect on riverine vegetation from any lowering of water levels in the Little Manatee River due to the proposed withdrawals. Vegetation and its water sources and needs were analyzed at representative cross sections of the upper and lower River. Results showed that the proposed withdrawals will have no effect on riverine vegetation due to changes in water levels. Riverine plants in the upper, narrow channelized freshwater portion of the River, where the withdrawals are made, are very tolerant of extremes in water availability, from drought to floods. As an example of the most extreme predicted effect from the proposed withdrawals, the water in the vicinity of the USGA gauging station at U.S. Highway 301 near the Manatee Plant would not reach the lowest river bank level (scarp), on average, five more days during the year (i.e., 91.34 percent of the days in the year) than without any withdrawals (when it would be below the first scarp 89.9 percent of the days in the year), difference of just 1.44 percent. Differences would be only 0.48 percent for the next scarp and even less for the remaining three scarps. This difference in water level would have no effect on riverine plants because they are naturally adapted to endure many weeks of drought. Similarly, there will be no impacts on vegetation in the lower portion of the River. This area is tidally influenced and the cross section analyzed was 700 feet wide compared to the 90-foot-wide channelized upper River cross section. Thus, given the huge volume of water in the lower River, the impact of the proposed withdrawals on water levels in this area would be too small to measure and too insignificant to have any effect on the vegetation. Due to their high tolerance, the estuarine flora and fauna in the River will not be affected by minimal additional fluctuations in salinity and flow. The proposed withdrawals from the Little Manatee River will result in flow and salinity fluctuations which are within existing natural ranges. Potential Impacts of Fuel Spills FPL adopted a three-pronged approach in addressing the potential for Orimulsion spills in Tampa Bay, i.e., spill prevention, spill mitigation, and understanding the ecological effects of any Orimulsion which may be released into the environment. Spill Prevention FPL and Bitor America Corporation, the fuel supplier, have put significant effort into preventing an Orimulsion spill. In the United States, there is presently a risk of a 1,000-barrel or larger fuel spill for every 10,000 port calls. The two major causes of major spills are groundings and collisions. Bitor America Corporation has committed to numerous management practices which constitute safety measures in excess of regulatory requirements to minimize the potential for spills. These additional safety measures include: All vessels and vessel owners used to transport Orimulsion from Venezuela to Port Manatee will be screened using a vetting system to eliminate the possibility of substandard ships and crews being used to transport Orimulsion into Port Manatee. Criteria to be used in screening vessels and vessel owners include limiting vessel age to no more than 10 years, requiring pumps and equipment on board to be specifically designed for Orimulsion, requiring vessels to be classified and crews to be licensed by the best classification societies, ensuring the vessels have in excess of $500 million insurance to cover accidents with a financially capable insurance company (this is in addition to the $250 million insurance Bitor America carries on the fuel for spills), limiting the crew to two languages, and requiring the vessel to have a proven safety record and adequate operational and safety management procedures. All vessels will be required to have double hulls with average compartment sizes no larger than 40,000 barrels. Use of double-hulled vessels will reduce the risk of a spill from a grounding by about 90 percent and from a collision by about 29 percent. Use of compartmentalized vessels will prevent the entire cargo from being released to the environment in the event of a rupture. All vessels will be required to have 20,000 barrels of empty cargo capacity on board. This would allow the transfer of Orimulsion from one compartment to another in case of an accident. Each vessel will have on board a Vessel Information Positioning System (VIPS) for Tampa Bay which will show where the vessel is in relation to other vessels and to the shipping channel during its transit of Tampa Bay. While VIPS is not yet in place, it is expected to be in operation by 1998. VIPS will be funded by users, and Bitor America Corporation has committed to being a user of the system once it is in place. All vessels will be required to maintain a course at least 10 miles off the Florida coast prior to turning into Tampa Bay, rather than the 3-mile clearance required by the U.S. Coast Guard. This requirement will keep vessels away from shallow water, thus reducing the risk of groundings. Prior to turning into the Egmont Key Channel and entering Tampa Bay, the vessels will be required to have at least three miles of visibility. Just west of Egmont Key, the vessel's emergency tow lines will be deployed for use by a tugboat, if necessary. Each vessel's entrance into the channel will be timed so it reaches the Turning Point into the Port Manatee channel at high tide and slack water. This requirement will provide maximum water depth and minimum current influence for the vessel when making the turn from the Tampa Bay channel into the Port Manatee channel. From Mullet Key to Port Manatee, a floating safety zone will be observed for all vessels carrying Orimulsion to the Plant. The floating safety zone, which will be enforced by the U. S. Coast Guard, will prevent other vessels from being within 1,000 yards of the front or rear of the vessel carrying Orimulsion and from being within 200 yards on either side of the vessel. This will effectively make the shipping channel a one- way channel for Orimulsion-carrying vessels. As vessels pass Egmont Key, they will take on two 4,000 horsepower escort tractor-type tugs which will escort the vessel through the channel using the floating safety zone. The U. S. Coast Guard has determined that escort tugs are an effective means of minimizing the chance of a grounding as a result of the vessel's loss of steering or power. At the Turning Point from the Tampa Bay channel to the Port Manatee channel, the vessel will become attached to the escort tugs through its deployed tow lines and will be assisted into the docking area. A weakness of FPL's SCA is that it is not clear to what extent Bitor's commitments are enforceable by the Siting Board. Bitor is not a co-applicant. None of Bitor's commitments are made part of the conditions of certification, and many of them are neither in the SCA nor in the sufficiency responses. To be made enforceable at least against FPL, they should be made part of the conditions of certification. FPL will also exceed regulatory requirements during offloading of Orimulsion by utilizing a secondary hose containment sleeve, or its equivalent, for its offloading hoses to minimize the probability and volume of any spills during offloading at Port Manatee. This secondary containment should effectively contain any Orimulsion that may be released as a result of a leak from connections in the offloading hose or a burst offloading hose. With the management practices to which Bitor America Corporation and FPL have committed for the transport and offloading of Orimulsion, the risk of a 1,000-barrel or larger spill occurring has been reduced to once every 77,000 port calls. Although the number of port calls for fuel delivery to the Plant will approximately double after the conversion to Orimulsion, the risk of a spill occurring in any given year will nevertheless be reduced to about one-fourth the present risk. Spill Mitigation While offloading Orimulsion from vessels at Port Manatee, FPL will comply with all applicable federal, state and local regulatory requirements. For example, FPL will provide booming at the dock on either side of the offloading hose, either in the form of a booming gate system or a deep-skirted boom between the dock and the vessel. The transport of Orimulsion from Venezuela to Port Manatee will also comply with all applicable requirements of the U.S. Oil Pollution Act of 1990 (OPA '90). Bitor America Corporation and its sister company, PDV Marina-Venfleet, have prepared a spill contingency plan which will be used by vessels carrying Orimulsion into Tampa Bay. This plan has been approved by the U. S. Coast Guard. Bitor America Corporation also has adopted a corporate spill response plan which offers technical information on Orimulsion spills to assist its customers or vessel owners in the event of an accident. An atlas of sensitive environments in Tampa Bay has also been assembled by contractors to Bitor America Corporation which identifies strategies for responding to an Orimulsion spill in the area of each sensitive habitat in Tampa Bay. While Bitor America is satisfied with the equipment for responding to Orimulsion spills which it has identified in its spill response plans, it is constantly looking for new equipment. As new equipment is identified and demonstrated to be effective in responding to an Orimulsion spill, Bitor America Corporation will modify its plans to include the new equipment. FPL has three spill response plans which would potentially have application to a spill of Orimulsion -- the FPL Port Manatee Terminal Oil Spill Response Plan, the Manatee Plant Oil Spill Response Plan, and FPL's Corporate Oil Spill Response Plan. Each of these plans has received all necessary regulatory approvals, and FPL could lawfully bring Orimulsion into Port Manatee under the current version of these plans. Nevertheless, FPL will expand its plans to include the recently developed Orimulsion-specific spill response tools and strategies before Orimulsion is delivered to Port Manatee for the Plant. Those updates will be reviewed and approved by the Coast Guard, the U. S. Environmental Protection Agency, and the U. S. Department of Transportation to ensure the revisions meet applicable regulatory requirements. The FPL Port Manatee Terminal Oil Spill Response Plan applies to the offloading hose, the transfer piping from the dock to the terminal, the on-site storage tanks at the terminal, and the transfer and piping system to the Plant. The Manatee Plant Oil Spill Response Plan applies to the on-site storage of fuel at the Plant and the piping to the Plant's boilers. FPL's Corporate Spill Response Plan is supported by a corporate response team that has been established to respond to spills that are beyond the capabilities of the local on-site team. FPL has developed a 2-volume oil spill contingency planning system. Volume 1 consists of the appropriate facility's oil spill response plan, e.g., the plans for the FPL Port Manatee Terminal or the Plant; Volume 2 consists of the corporate response plan. FPL's corporate response team includes approximately 40 positions, typically with two individuals trained for each position at all times. The team members participate in annual training exercises and are on-call 24 hours a day, every day of the year. In the event of a spill, response is directed utilizing a unified command concept, in which decisions to guide response operations are jointly made by the FPL incident commander, the U.S. Coast Guard on-scene coordinator, and the Florida on-scene coordinator. Typically, the U. S. Coast Guard on-scene coordinator is the Captain of the Port, and the Florida on-scene coordinator is the manager for emergency response from the Department of Environmental Protection. The U. S. Coast Guard on-scene coordinator has the authority to take over the spill and direct all response operations if deemed necessary. FPL's spill response methodologies which would be followed in the event of an Orimulsion spill have been successfully employed historically by FPL and the oil industry. In the event of an Orimulsion spill in the Tampa Bay area, FPL should be able to assemble its crews and equipment and begin recovery activities within four hours. This response time is achieved in FPL's annual spill response drills. Orimulsion and No. 6 fuel oil react differently when released in seawater such as that found in Tampa Bay. When No. 6 fuel oil is released in seawater, a very large fraction of the mass almost immediately forms a slick and float to the surface. Underneath the slick, a relatively low fraction of the mass dissolves in the water. By contrast, when Orimulsion is released in seawater, its components disperse in the water column almost immediately. In a shallow, dynamic system such as Tampa Bay, even at low salinity levels, Orimulsion components would be well- mixed throughout the water column. Other processes which affect the fate of Orimulsion and No. 6 fuel oil in seawater such as Tampa Bay include vertical motion (buoyancy), dispersion (both lateral and vertical), dissolution, sedimentation (absorption of fuel particles onto sediments), biodegradation (including chemical and photolytic degradation), entrainment, coalescence and evaporation. All of these processes were incorporated as parameters into a 3- dimensional fates model, known as SIMAP, to predict the movement of Orimulsion and No. 6 fuel oil released in Tampa Bay. SIMAP, which stands for "Spill Impact Mapping," includes a series of 2- and 3- dimensional fates models which evaluate trajectories, transport and weathering of the constituents of spilled fuels. One SIMAP model runs multiple times to provide a probable distribution of fate. SIMAP has been enhanced based on the results of peer- reviewed scientific research to include algorithms for the fates processes affecting the constituents of Orimulsion so that it now has the capability of evaluating the fate of Orimulsion spills. SIMAP is capable of accurately predicting the fate of Orimulsion accidentally spilled in the Tampa Bay environment, including the concentrations of its constituents in 3- dimensional space and time. Several Orimulsion-specific spill response tools and strategies have also been developed and would be used in the event a spill of Orimulsion were ever to occur in Tampa Bay, including Port Manatee. The Ori-Boom, a boom with a 10-foot-deep skirt, has been developed and tested for use in responding to spills of Orimulsion. The 10-foot skirt on Ori-Boom is five layers thick, and includes an outer covering of ballistic material for strength, inner layers of geotextile, and an inner core filter which allows water but not bitumen to pass through. The ability of water, but not bitumen particles, to pass through the skirt of the Ori-Boom has been demonstrated in tests. The Grizzly skimmer has also been developed and tested for use in responding to spills of Orimulsion. The ability of the Grizzly skimmer to remove coalesced bitumen from the surface of the water has been successfully demonstrated. The tests of the capability of the Ori-Boom, the Grizzly skimmer, and other equipment useful in the recovery of Orimulsion were observed by numerous government officials, including representatives of the U. S. Coast Guard and the Florida Department of Environmental Protection. Conventional absorbents, such as oil snares, pom-poms, or filament absorbents, have proven to be very effective in recovery of bitumen particles. These materials are typically used to "polish up" the water by removing fugitive particles after a skimmer, such as the Grizzly skimmer, has removed the bulk of the bitumen. Five thousand feet of Ori-Boom and two Grizzly skimmers will be staged at Port Manatee for use in responding to spills of Orimulsion. Additionally, conventional oil spill equipment which can be used in responding to an Orimulsion spill will be staged at Port Manatee, such as 8,700 feet of conventional 18-inch skirted boom, 200 feet of 36-inch skirted boom, absorbent materials, and 3 shallow-draft boats. FPL also has a stockpile of oil spill response equipment, including approximately 6,100 feet of 36-inch skirted boom, loaded in six semi-trailers in West Palm Beach which can be delivered to any of FPL's facilities. Altogether, FPL has approximately 40,000 feet of conventional skirted boom which could be used to keep bitumen out of the sensitive habitats in Tampa Bay. There is also a stockpile of oil spill response materials at each of FPL's power plants and fuel terminals. Moreover, the Coast Guard, various contractors and cooperatives, and other terminal operators have conventional booms located in the Tampa Bay area which would be effective in responding to an Orimulsion spill in shallow waters. All of the materials staged for use in response to fuel spills is periodically inspected and maintained in good operating condition to ensure its availability in the event of a spill, as required by OPA '90. SIMAP will be incorporated into FPL's spill response plans. In the event Orimulsion is ever spilled in Tampa Bay, the 3-dimensional fates model in SIMAP would be an effective tool to assist in response efforts by predicting the direction and movement of the spill plume. This information would aid the spill response managers in time-critical decisions on where it is most appropriate to deploy a containment boom around the bitumen plume and exclusion boom to protect sensitive habitats. To obtain predictive results quickly for use in developing spill response strategies, the user of SIMAP can control several model parameters, such as the number of Lagrangian particles tracking the various fuel components, the length of the time-step between calculations, and the length of the model run. In a spill event, SIMAP would be run initially using data files on hand which most closely resemble the actual environmental conditions at the scene of the spill. Such a model run could be accomplished in a few minutes. As realtime information becomes available following a spill, SIMAP would be rerun to provide more refined output on spill movement and direction. As a spill response tool, SIMAP can be used to predict the movement of Orimulsion to allow the response teams to deploy protective equipment around sensitive habitats. SIMAP can also be used to direct water column sampling efforts to locate the largest concentration of the spill plume prior to deployment of the containment boom. Since currents are more predictive than winds, SIMAP is more capable of predicting the movement of Orimulsion in the water column than the movement of No. 6 fuel oil as a surface slick. In the event of an Orimulsion spill, deep-skirted boom (with the skirt in a furled position) could be towed to the site by two boats and placed in the path of the spill plume. The two ends of the boom would then be connected and the skirt unfurled to create a cylinder around the largest portion of the bitumen plume. Once the Ori- Boom has encircled the bitumen, it will be allowed to float and drift with the current along with the bitumen, thus keeping the large concentration of bitumen surrounded by the boom. Then shear pumps would be operated inside the cylinder to force coalescence and surfacing of the bitumen. As the bitumen surfaces, Grizzly skimmers would be used to remove the bitumen from the water. Sensitive habitats which are expected to be in the path of the spill plume would be protected by placing exclusion boom in front of the habitats. It is an accepted spill response strategy to identify sensitive habitats, prioritize those habitats as to their sensitivity, and protect the most sensitive habitats first. To facilitate the protection of sensitive habitats, FPL and Bitor America Corporation would use the atlas of sensitive environments in Tampa Bay which identifies the location and type of sensitive habitats, prioritizes those habitats as to their sensitivity, and specifies the most appropriate response strategies to protect each particular sensitive habitat. This atlas of sensitive environments in Tampa Bay will be incorporated into FPL's spill response plans. Since Orimulsion spilled in Tampa Bay would move back and forth with tidal currents, rather than rapidly moving with the wind to shore as does a No. 6 fuel oil surface slick, more time would be available in the event of an Orimulsion spill to plan response strategies. The spill response technologies, strategies and plans FPL and Bitor America have identified for responding to any Orimulsion spill that might occur in Tampa Bay are comparable to those which would apply to a spill of No. 6 fuel oil, the current fuel used at the Plant and brought into Port Manatee. Ecological Effects of Orimulsion Released in Tampa Bay Tampa Bay is the largest estuary system in the State of Florida. It is roughly 60 kilometers long and the typical width is on the order of 10 kilometers. Tampa Bay is a relatively shallow system, with a mean depth of about 3.7 meters. The shipping channel which traverses Tampa Bay is approximately 15 meters deep and 122 meters wide. Prior to the early 1900's, Tampa Bay was dominated in its marine productivity by seagrass. Because of human activities since that time, however, the current spatial extent of seagrasses is about 15 percent of the overall Bay. Changes in bathymetry and erosional losses in Tampa Bay preclude the reestablishment of seagrasses in some of their former range absent extraordinary measures to restore former bay bottom. Tampa Bay's primary productivity now comes from phytoplankton in the system. Notwithstanding the loss of seagrass, Tampa Bay is an extremely diverse estuarine system, providing habitat to approximately 250 species of fish, 1200 species of invertebrates, and 200 species of macro-algae. The mangrove systems and marsh grasses on the shoreline area, as well as the remaining seagrasses, provide part of the energetic base for the Tampa Bay system and structurally provide habitat critical as nursery grounds for many species of fish and invertebrates. To gain an understanding of the ecological effects of an Orimulsion spill in Tampa Bay, FPL commissioned the University of Miami, Rosenstiel School of Marine and Atmospheric Sciences, to coordinate a study of the comparative ecological effects from a release into the environment of Orimulsion and No. 6 fuel oil, the fuel currently used at the Plant. The study was called the "Comparative Oil/Orimulsion Spill Assessment Program" (COSAP). COSAP involved independent, peer-reviewed scientific research conducted by scientists at several institutions, including the University of Miami, Florida International University, University of Massachusetts, University of North Texas and the University of South Florida. FPL provided the sponsorship and defined the nature of the problem on which study was desired, but had no role in conducting the research or in the conclusions drawn from that research. COSAP included research on fuel characterization, chemical and physical weathering, and toxicological studies for selected flora and fauna indigenous to Tampa Bay for both Orimulsion and No. 6 fuel oil. COSAP also included the identification of resources and ecosystems at risk, hydrodynamic modeling, and fate and transport modeling for Tampa Bay. The COSAP research was integrated into a comparative ecological risk assessment (CERA) in which the existing ecological risk of No. 6 fuel oil being released in the Tampa Bay environment was compared to the ecological risk which would exist from a similar-sized spill of Orimulsion in that environment. The different reactions of Orimulsion and No. 6 fuel oil in seawater were significant in assessing the comparative ecological risks because with No. 6 fuel oil, the slick effects and the movement of the slick by wind forces had to be considered. With Orimulsion and the dissolved component of No. 6 fuel oil, the tide and currents within the waterbody largely control the movement of the components. Under COSAP, toxicity tests were conducted on mangroves, seagrasses, and important fish and invertebrate species actually found in Tampa Bay, in addition to the typically- utilized surrogate laboratory species. This is a significant advancement beyond what is normally done in an ecological risk assessment. Historically, fuel oil spills have had varying degrees of impact on seagrasses and mangroves. Chronic toxicity tests demonstrated that Orimulsion would not cause widespread mortality of the seagrass beds or mangrove components of Tampa Bay. Toxicologically, the aromatics from No. 6 fuel oil were found to be a thousandfold more toxic to fish and invertebrate species than the components of Orimulsion at similar concentrations. In the event of a spill, however, the concentration of Orimulsion components in the water column would be approximately a thousandfold greater than the concentration of No. 6 fuel oil aromatics. To evaluate the comparative risk of No. 6 fuel oil and Orimulsion released in Tampa Bay, one must consider both the concentrations to which organisms would be exposed and the relative toxicities. COSAP's Comparative Ecological Risk Assessment (CERA) To incorporate both exposure concentrations and relative toxicities in the COSAP CERA, the researchers used a scenario-consequence analysis. That is, hypothetical sets of conditions were defined to identify a range of conditions that might occur under different types of spill conditions in Tampa Bay. Then the fate, transport, exposure and ecological effects of both a No. 6 fuel oil spill and an Orimulsion spill for these scenarios were evaluated and compared. The scenarios developed for the CERA included four locations: (1) Egmont Key, the location of a major fuel oil spill in 1993; (2) the Skyway Bridge, the location of a collision which caused a portion of the former bridge to collapse; (3) the Turning Point, the 90 degree turn from the main shipping channel into the shipping channel which leads into Port Manatee; and (4) the Port Manatee facility where offloading occurs. The volume of the spills in the scenario-consequence analysis was 10,000 barrels, except for the Port Manatee facility scenarios for which the spill volume was presumed to be 1,000 barrels. Scenarios covered both wet and dry seasons. For the summer scenarios (the wet season), a relatively wet year and a relatively dry year were included. For each season and location, scenarios were chosen at four different start times to represent the range of combinations of wind and tidal events. Altogether, the CERA analysis included 96 scenarios. Each scenario was modeled using a hydrodynamic model developed by the National Oceanic and Atmospheric Administration (NOAA) National Ocean Survey and further calibrated by the University of Miami researchers to the Tampa Bay system. Output from this hydrodynamic model was input to the 3-dimensional fate and transport model, SIMAP. For each scenario, movement of the various components of No. 6 fuel oil or Orimulsion was simulated for five different layers within Tampa Bay. Hourly concentrations were output and transferred to a Datagraphic Information System. The outputs were then integrated over time until concentrations were below the level where significant ecological effects would occur. Exposures (a combination of concentration, time, and component) were then graphically displayed using a scaling methodology and overlaid on the distribution of species in Tampa Bay, allowing for a direct comparison of toxicological effects. In assessing the comparative ecological risks of Orimulsion and No.6 fuel oil, numerous conservative design parameters and assumptions were used for the CERA. For example, the most sensitive life stages of the most sensitive species were utilized, maximum exposure times were assumed even for organisms which could swim out of the affected area after a spill, and a large spill volume was assumed. COSAP CERA Conclusions While an Orimulsion spill would have greater water column effects than a similar- sized spill of No. 6 fuel oil, the No. 6 fuel oil spill would have the added oil slick formation and associated shoreline impacts which are not anticipated from an Orimulsion spill. Overall, the risk to the Tampa Bay ecosystem from a spill of Orimulsion is essentially comparable to the existing risk of a No. 6 fuel oil spill of similar size. The risks from a spill of Orimulsion would not be significantly greater than, nor significantly less than, the risks to the Tampa Bay ecosystem from a similar-sized spill of No. 6 fuel oil. Peer Review of COSAP Research and Conclusions A Science Advisory Panel provided independent scientific peer review of the COSAP research and conclusions. The Panel included leading scientists in the fields of ecological risk assessments, spills of oil in the marine environment, coastal systems, and several representatives of state and federal regulatory agencies. The Science Advisory Panel was involved in a meeting at the inception of COSAP to discuss the overall research goals and objectives, the structure of the research program, and the specific protocols for the toxicological experiments. The Panel also examined the models and statistical approaches to be used for the study. The Panel specifically addressed the issue of the applicability and appropriateness of the ecological risk assessment paradigm, and participated in the development of the scenarios used in the CERA. The Panel reviewed an interim technical support document and provided detailed comments on all components of the research at that time prior to development of the CERA report. The Science Advisory Panel approved the use of the ecological risk assessment framework, the experimental components, the experimental design, the statistical analyses, the scaling methodology, and the conclusions reached in the CERA. Effects of Estrogenic Compounds Following a Spill The Orimulsion to be used at the Plant will include no more than .22 percent nonylphenol polyethoxylate surfactant. The surfactant allows the bitumen particles to remain emulsified in the water, forming a stable emulsion. Hundreds of millions of pounds of nonylphenol polyethoxylate surfactants are used annually in the United States in domestic and industrial products, such as soaps and detergents. Globally, more than a half billion pounds of nonylphenol polyethoxylate surfactants are used annually. Nonylphenol polyethoxylates released in an aquatic environment are broken down by actions of bacteria and sunlight. The final degradation products would be carbon dioxide and water. The warm temperature, intense sunlight and seawater in Tampa Bay would increase the speed of the surfactant's degradation process. Neither the surfactant in Orimulsion nor its intermediate degradation products are expected to persist for more than 30 to 45 days in Tampa Bay, if a spill occurs. Both No. 6 fuel oil and Orimulsion may result in compounds which mimic estrogen being released in the environment following a spill. The polycyclic aromatic hydrocarbons (PAHs) in No. 6 fuel oil are suspected to have such estrogenic properties. Similarly, some of the intermediate breakdown products of the nonylphenol polyethoxylate surfactant in Orimulsion are suspected to have estrogenic effects. Whether there are ecological consequences of such estrogenic compounds when released in the environment has not been established. To the extent marine organisms are exposed to any of the intermediate degradation products of Orimulsion's surfactant during the 30 to 45 days they may persist in Tampa Bay, once the exposure is removed the organisms are able to purge their systems of those compounds. Consequently, no long-term bioaccumulation of these compounds is expected. The surfactant and any effects it may have when released in the environment should not persist for long periods of time due to rapid degradation and the ability of marine organisms to purge their systems of the degradation products after the exposure is removed. Summary of Comparative Spill Risks Given the comparable ecological risks to Tampa Bay of Orimulsion and No. 6 fuel oil, the comparable spill response capabilities for the two fuels, and the substantially lower risk of a spill of Orimulsion than that for No. 6 fuel oil being delivered to the Plant, overall the risk to Tampa Bay will be significantly reduced after the conversion of the Plant to Orimulsion from that which currently exists from the transport of No. 6 fuel oil. Moreover, the conversion of the Plant to Orimulsion will reduce the risk of transfer- related fuel spills statewide. Every time there is a transfer of fuel from one fuel-holding tank to another, whether that holding tank is on a ship or barge, or is part of a terminal or refinery, there is a risk of a transfer- related spill. Deliveries of fuel oil to FPL's plants require from one to three transfers in Florida, depending on whether the terminal at the receiving port is connected directly to the electrical generating plant by pipeline (as at the Plant) or whether fuel must be transferred from the terminal to the plant by barge. Because the conversion to Orimulsion will increase the utilization of the Plant, and reduce the utilization of other FPL plants that burn higher cost oil, it will reduce the number of deliveries and transfers of fuel oil to other FPL plants within the State. This will reduce the number of FPL's annual fuel transfer operations in Florida by 14 percent, from 635 before the conversion to 548 following the conversion. This translates directly into a reduced probability of fuel spills. In addition, over 80 percent of the No. 6 fuel oil burned in Florida is refined at Gulf Coast plants. There are opportunities for transfer spills when fuel ultimately destined for FPL is delivered to and shipped from those refineries. These opportunities for Gulf Coast spills are eliminated with Orimulsion, which is transferred only once, off the coast of Venezuela, before it reaches the receiving terminal at Port Manatee.
Conclusions Burden of Proof 97 Summary of Conclusions 98 Inapplicable Surface Water Quality Permitting Criteria 102 Statues and Rules on Surface Water Discharges 103 Rejection of Similar Arguments in NYDEC Case 105 Outstanding Florida Waters 107 Federal Certification 110 Ecosystem Management 111 Legal and Permit Agreement Covers Surface Water Withdrawals from the Little Manatee River 112 Cooling Pond Groundwater Discharges 117 Secondary Impacts 118 Air emissions (nitrogen and ozone) 120 Salt Water intrusion and associated groundwater "pollution" 122 Groundwater discharges from cooling pond 123 Impacts to residents from truck traffic 123 Cumulative Impacts 124 Ground Water Quality Standards 127 Vertical Extension of ZOD is Consistent with DEP Rules 127 FPL Retains Exemption from Secondary Groundwater Standard 132 BACT Review 133 Availability of Variances 135 RECOMMENDATION 137 APPENDIX 138 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA SITING BOARD IN RE: FLORIDA POWER & LIGHT COMPANY, MANATEE ORIMULSION DOAH Case No. 94-5675EPP PROJECT, APPLICATION NO. 94-35. /
Recommendation Based on the entire record of this proceeding and the foregoing findings of fact and conclusions of law, it is recommended that the Siting Board enter a final order that: Grants Florida Power & Light Company certification pursuant to Chapter 403, Part II, F.S., for the construction and operation of the Manatee Orimulsion Conversion Project subject to the Conditions of Certification filed on January 17, 1996, modified to add Bitor's commitments set out in Finding of Fact 189; and Grants variances from the Manatee County Comprehensive Plan and Land Development Code for wetland mitigation ratios and from the Manatee County Land Development Code for location of required landscaping. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of February, 1996. J. LAWRENCE JOHNSTON, 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 19th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5675EPP To comply with the requirements of Section 120.59(2), F.S. (1995), as construed by the decision in Harbor Island Beach Club, Ltd., v. Dept. of Natural Resources, 476 So. 2d 1350 (Fla. 1st DCA 1985), the following rulings are made on the parties' proposed findings of fact: FPL/DEP/SWFWMD Proposed Findings of Fact. All of the proposed findings of fact proposed by these parties have been reviewed. This review has included consideration of the response to the proposed findings filed by Manasota-88 and MCSOBA. This review reveals that most of the proposed findings of these parties were proven by a preponderance of the evidence and, except as follows, they have been accepted. 3. Last sentence clarified to reflect that, while there will be few other changes to the plant itself, there will be severally significant changes to the project area as a result of conversion to Orimulsion. 12. First sentence, rejected as only proof of a reasonable expectation is possible; otherwise, accepted. 75. Last sentence, "significantly" rejected as argument; otherwise, accepted. 82. Last sentence rejected as irrelevant; otherwise, accepted. 84.-85. In part, conclusions of law; otherwise, accepted. 86. Fourth sentence, rejected as contrary to the evidence in that both analyses should be conducted; otherwise, accepted. Rejected as contrary to the evidence to the extent that it implies that the Preserve is an embayment; otherwise, accepted. Last sentence, rejected as contrary to the evidence to the extent that it implies that the recent increase is uniform throughout the bay, as opposed to in parts of the bay and overall; otherwise, accepted. 106. Rejected as not proven that there will be no cumulative effect over time; otherwise, accepted and accepted in its entirety if it means only that an equilibrium will be reached at some point in time. 108. "Will not," in first two sentences, rejected as not proven; otherwise, accepted and accepted that reasonable assurances were provided. 110. "Demonstrated," in second sentence, rejected as not proven; otherwise, accepted and accepted that reasonable assurances were provided. 126. "Will not cause," in second sentence, rejected as not proven; otherwise, accepted and accepted that reasonable assurances were provided. 128.-130. In part, conclusions of law; otherwise, accepted. In part, conclusions of law; otherwise, accepted. 154. "1.44 percent of the time" clarified; otherwise, accepted. 159. Rejected in part in that Bitor's commitments are not part of the stipulated Conditions of Certification; otherwise, accepted. 161. Rejected in part in that Bitor's commitments are not part of the stipulated Conditions of Certification; otherwise, accepted. Manasota-88/MCSOBA Proposed Findings of Fact. Much of what is proposed by Manasota-88 and MCSOBA as findings of fact actually are conclusions of law. Proposed findings of fact numbered 4 through 203 actually are labeled "Findings Concerning Applicable Laws; most of these propose conclusions of law (although a few proposed findings of fact, mostly related to agency policy, are included.) Many of the other proposed findings of fact numbered 204 through 435 also actually propose conclusions of law. Even as construed by the decision in Harbor Island Beach Club, supra, Section 120.59(2), does not require rulings on proposed conclusions of law. 1.-2. Accepted. Subordinate and unnecessary. (94-5675EPP covers all permits, etc., from all agencies, except for the PSD and NPDES permits.) Conclusion of law. 5.-6. Accepted. Subordinate and unnecessary. 7.-18. Conclusions of law. Subpara. b., rejected as not supported by any evidence; rest, conclusions of law. Rejected as not supported by any evidence. 21.-24. Conclusions of law. 25. Accepted that DEP attempts to follow the guidelines, but they are not clear and are susceptible to different interpretations. 26.-48. Conclusions of law. 49. Accepted but irrelevant or argument. 50.-58. Conclusions of law. 59.-60. In part, conclusion of law; otherwise, accepted but conclusion of law, and either irrelevant or argument. 61. Conclusion of law. 62.-63. Accepted. Accepted but irrelevant because it is not regulated as a discharge. In part, conclusion of law; to the extent that it seeks to establish agency policy, rejected as contrary to the greater weight of evidence; otherwise, accepted. 66.-68. Conclusion of law; to the extent that it seeks to establish agency policy, rejected as contrary to the evidence. 69.-70. Conclusion of law. 71.-72. In part, conclusion of law; otherwise, accepted. 73.-77. Conclusions of law. 78.-79. Conclusion of law; to the extent that it seeks to establish agency policy, rejected as contrary to the greater weight of evidence. Conclusion of law. In part, conclusion of law; otherwise, rejected as contrary to the greater weight of evidence. 82.-86. Conclusions of law. 87. Accepted (but DEP does not issue such permits per se. 88.-90. Conclusions of law. 91. In part, conclusion of law; to the extent that it refers to agency policy, accepted. 92.-96. Conclusions of law. 97.-98. Accepted. 99.-114. Conclusions of law. 115. Rejected as contrary to the evidence. 116.-120. Conclusions of law. 121.-123. Accepted. 124.-126. Rejected as contrary to the evidence. 127. In part, conclusion of law; otherwise, ejected as contrary to the evidence. 128.-131. Accepted. Rejected as contrary to the evidence (as to "any other form of record evidence"). Conclusion of law. Last sentence, accepted; otherwise, conclusion of law. Rejected as contrary to the greater weight of evidence (that DEP uses "two different non-rule policy interpretations.) First sentence, rejected as contrary to the greater weight of evidence; second, conclusion of law. 137.-142. Conclusions of law. 143. Rejected as contrary to the greater weight of evidence. 144.-145. Subparagraphs, accepted; rest, conclusions of law. Conclusion of law. Accepted. 148.-150. Conclusions of law. 151.-153. Accepted (but as to 153, only sodium is a primary standard.) 154. Rejected as not clear from the evidence what is "common regulatory practice." 155.-157. Conclusions of law. 158.-159. Rejected as contrary to the greater weight of the evidence (that DEP was "deviating from the common regulatory practice.") 160.-168. Conclusions of law. 169. Rejected as contrary to the greater weight of the evidence. 170.-172. Conclusions of law. 173. In part, conclusion of law; otherwise, rejected as contrary to the greater weight of the evidence (that salt water intrusion results). 174.-179. Conclusions of law. 180.-181. Accepted. 182.-190. Conclusions of law. 191. Accepted. 192.-193. Conclusions of law. Rejected as contrary to the greater weight of the evidence. Accepted. 196.-203. Conclusions of law. 204. "Very sensitive" rejected as argument not supported by evidence; otherwise, accepted. 205.-211. Accepted. 212.-213. Rejected as contrary to the evidence that excessive nitrogen is the only cause; otherwise, accepted. 214.-216. Accepted. Rejected as contrary to the greater weight of the evidence as to all of Tampa Bay; accepted as to parts of the bay. "At least 10 percent," rejected as contrary to the evidence; also, the TBNEP proposal is not clear from the evidence in the record. (Cf. Garrity, T. 2110-2111.) Rejected as contrary to the greater weight of the evidence. (The estimate was calculated using a .27 lbs/mmBtuM emission rate.) 220.-221. Accepted. (Variation primarily is driven by rainfall.) Rejected as contrary to the greater weight of the evidence. (The witness's estimate, which was very rough, was referring to atmospheric deposition, not nitrogen loading; the two are different, and the percentage increase of the former actually is higher than the actual percentage increase in the former resulting from the Orimulsion conversion project.) First clause (the premise), accepted; second (the conclusion), rejected as contrary to the greater weight of the evidence. (Ozone may affect "dry deposition"; but much more atmospheric deposition is "wet deposition," which can vary by an order of magnitude depending on rainfall.) 224.-225. Rejected as contrary to the greater weight of the evidence. (The witness was referring to atmospheric deposition, not total nitrogen loading. See 222., above.) Rejected as contrary to the greater weight of the evidence. Accepted. (However, while there might be some longer term impacts from sedimentation, those affects will be marginal, first because the impacts themselves are marginal, and second because nitrogen entering the sediments also will be subject to denitrification through biological and chemical processes and to burial over time.) 228.-229. Conclusions of law; also, subpara. c., rejected as contrary to the greater weight of the evidence. Accepted in the general sense that it is 21 tons in the wrong direction. However, the "detrimental effect" was not measurable. Accepted. (It is not clear what "water quality levels" are meant. F.A.C. Rule 62-302.530(48)(b) speaks for itself. Presumably, "water quality levels" refers to nitrogen loadings.) To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence. Conclusion of law whether the rule applies. In any event, rejected as contrary to the greater weight of the evidence that "no evidence" was presented. Rejected. First, conclusion of law whether air emissions are a "proposed discharge," and whether the "clearly in the public" test applies. Second, assuming that the test applies, and that it raises a mixed question of law and fact (not a pure question of law), neither of the witnesses cited were in a position to give competent testimony on the issue. Accepted. (There was no evidence as to where in the bay the violations occur.) Conclusion of law; also, subparagraphs a. and d., rejected as contrary to the greater weight of the evidence. Conclusion of law; also, subpara. c., rejected as contrary to the greater weight of the evidence. Accepted. (It is not clear what "ambient water quality levels" are meant. F.A.C. Rule 62-302.530(48)(b) speaks for itself. Presumably, "ambient water quality levels" refers to nitrogen loadings.) To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence. 240.-241. Rejected as contrary to the greater weight of the evidence. (There was no indication of what the witness meant by "nuisance condition." Compare testimony to F.A.C. Rules 62- 302.500(1)(c) and 62-302.530(47). Accepted (assuming reference is being made to atmospheric deposition. See 222., above.) Rejected as contrary to the greater weight of the evidence. (TBNEP projection was hearsay.) 244.-245. Rejected as contrary to the greater weight of the evidence. 246.-249. Accepted. 250. Rejected as contrary to the greater weight of the evidence. ("Trophic," not "tropic," state index.) 251.-253. Accepted. 254.-255. Rejected as contrary to the greater weight of the evidence. Accepted. (It is not clear what "water quality levels" are meant, or what "nuisance standard" is meant. In any event, both F.A.C. Rules 62-302.500(1)(c) and 62-302.530(47) speak for themselves. Presumably, "water quality levels" refers to nitrogen loadings.) To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. (The rule was judged not to apply.) Rejected as contrary to the greater weight of the evidence. (Other parameters were "reviewed" in the sense that they were considered along with salinity, but only salinity was studied in detail.) 260.-262 Accepted (but, as to 261., the extent of "further degradation" of water quality required to degrade biological productivity is not specified, so fact is not useful.) Accepted, but a conclusion of law whether it is "foreseeable" for purposes of "cumulative effects." Rejected as contrary to the greater weight of the evidence. (The evidence was 5 percent of the months.) Rejected as contrary to the greater weight of the evidence. (The option was considered and rejected.) Otherwise, accepted. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. (The evidence was it was 6, but it is changing.) Accepted but so general and speculative as not to be useful. 269.-270. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. (While absolute certainty does not appear to be possible at this time, DEP seems to have made this determination based on the best information available.) Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as to RPM; accepted as to EKMA. 275.-278. Accepted. Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as contrary to the greater weight of the evidence. (While absolute certainty does not appear to be possible at this time, it is believed based on the best information available that the Tampa Bay airshed is VOC-limited.) Conclusion of law. 283.-284. Accepted. Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as contrary to the greater weight of the evidence. 288.-289. To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. Accepted. The evidence is not clear that the expansion is "foreseeable." 293.-296. Accepted. 297. Rejected as contrary to the greater weight of the evidence. (42.23 is an absolute maximum per day; there also is a maximum 30-day rolling average.) 298.-299. Rejected as inaccurate calculation. 300.-301. Accepted. 302. Rejected as contrary to the greater weight of the evidence. (Emissions from the Manatee Plant were not part of the Hillsborough/Pinellas inventory of stationary sources.) 303.-304. Accepted. 305. Rejected as contrary to the greater weight of the evidence. See 298.-299. and 302., above. 306.-307. Accepted. 308.-309. Rejected as contrary to the greater weight of the evidence. See 302., above. Accepted. Rejected as contrary to the greater weight of the evidence. (There was circumstantial evidence, but a "correlation" was not determined.) Rejected as contrary to the greater weight of the evidence. Not clear from the evidence, especially without a corresponding VOC reduction. Also, so general as to be of little usefulness. 314.-315. Accepted. 316. Rejected as contrary to the greater weight of the evidence. (The evidence was that, at the time of the hearing, the SWUCA was a proposed rule and that the proposed withdrawals are in the Eastern Tampa Bay WUCA.) 317.-318. See 316., above; otherwise, accepted. The Floridan was not specified; otherwise, accepted. Accepted, assuming "sources" and "uses" mean the same thing. See 316., above. Accepted. Accepted (although specific reference only was to the former FPL wells.) Rejected as not supported by evidence on which a finding of fact could be made. 325.-326. Rejected. (These appear to be conclusions of law, although the intended legal significance of "straight transfer" is not made clear.) 327. Conclusion of law. 328.-329. Rejected as contrary to the greater weight of the evidence. 330. See 316., above. 331.-332. Rejected as contrary to the greater weight of the evidence. See 316., above. Rejected as contrary to the greater weight of the evidence. (The explanation was that the SWFWMD regulations allow it.) 335.-337. Rejected as contrary to the greater weight of the evidence. 338. Accepted. (That is why the ZOD was expanded vertically.) 339.-341. Rejected as contrary to the greater weight of the evidence. 342. Cumulative. 343.-344. Rejected as contrary to the greater weight of the evidence. Unintelligible. Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as contrary to the greater weight of the evidence. See 346., above. Rejected as contrary to the greater weight of the evidence. Rejected as not supported by any evidence. Rejected. Not a legal requirement. 352.-353. Cumulative. 354. Rejected as not supported by any evidence. 354.(Number 2) Not clear what is meant by "water communities." An oil spill will affect the surface and shore more; Orimulsion would affect the water column and bottom more, especially in deeper water. 355.-356. Accepted. Rejected as contrary to the greater weight of the evidence. Rejected as not clear from the evidence what the impact on property values will be. Also, not subject to determination in this case. Rejected. F.A.C. Rule 60Q-2.031(3). Not subject to determination in this case. Rejected. Subpara. a., rejected as contrary to the greater weight of the evidence. Subpara. c., unclear what is being referenced. Also, effect on government jurisdictions other than Manatee County not subject to determination in this case. Rejected as not supported by any evidence. Rejected as contrary to the greater weight of the evidence. (As to c., no evidence as to what is meant or how it would help.) Rejected as contrary to the greater weight of the evidence. (However, as proposed, Bitor is the responsible party.) Rejected as contrary to the greater weight of the evidence that these methods are "reasonable." (As to d., the rule does not apply.) Rejected as not supported by any evidence that this alternative is "reasonable." 367.-368. Rejected as contrary to the greater weight of the evidence. Unintelligible. Conclusion of law. Accepted. 372.-377. Conclusions of law. 378.-379. Accepted. 380.-383. Conclusions of law. 384. Accepted. 385.-386. Conclusions of law. 387. Accepted. 388.-389. Conclusion of law. Accepted. Rejected as not supported by any evidence. 392.-395. Conclusions of law. 396. Rejected as contrary to the greater weight of the evidence. 397.-398. To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence as to "foreseeable cumulative" impacts; also no evidence that foreseeable cumulative impacts "justify higher than normal BACT." Conclusion of law. Rejected as contrary to the greater weight of the evidence. (DEP tries to follow it, but it is complicated and difficult to apply.) Rejected as not supported by the evidence. (The only evidence was that EPA suggested that DEP give proper consideration to the claims of some SCR manufacturers that their technology achieves .10 lbs/mmBtum.) Accepted. 403.-404. Accepted (assuming reference is made to average costs.) Accepted. Rejected as contrary to the greater weight of the evidence. (There also were other factors.) Accepted. (However, the initial application has been modified in many respects during the course of these proceedings.) Accepted. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence that it is BACT or that it was the only calculation making those emissions rate assumptions. Accepted. (Incremental cost calculations also are recommended.) 412.-414. Conclusions of law. 415. Accepted. 416.-418. Rejected as not supported by facts on which findings of fact can be made. 419. Accepted. (However, that was just one of several calculations and not FPL's final calculation.) 420. Rejected as not clear from the evidence that both calculations used .395 lbs/mmBtum. 421.-422. Accepted. 423.-426. Rejected as contrary to the greater weight of the evidence. (As to 425., it is not technically feasible for this application, so it cannot be economically feasible; where technically feasible, it has been shown to be economically feasible as well.) 427. Accepted (although it varies from year to year.) 428. Rejected as not supported by any evidence. 429. Accepted (but vanadium content is not high enough to create problems of technical feasibility.) 430.-435. Cumulative. Conclusions of law. Manatee County Proposed Findings of Fact. 1.-10. Accepted. Rejected as contrary to the evidence and to proposed finding 12 that it is the only required variance. Accepted. To the extent that accepted proposed findings are not contained in the Findings of Fact, there were considered to be subordinate, irrelevant or otherwise unnecessary. COPIES FURNISHED: Peter C. Cunningham, Esquire Carolyn S. Raepple, Esquire Kathleen L. Blizzard, Esquire Douglas S. Roberts, Esquire Gary V. Perko, Esquire Hopping Green Sams and Smith, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Charles T. "Chip" Collette, Esquire Twin Towers Office Building Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 H. Hamilton Rice, Esquire Mark P. Barnebey, Esquire Jeffrey N. Steinsnyder, Esquire Richard Tschantz, Esquire 2379 Broad Street Brooksville, Florida 34609-6899 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712 Roger S. Tucker, Esquire General Counsel Tampa Bay Regional Planning Council 9455 Koger Boulevard St. Petersburg, Florida 33702-2491 Preston T. Robertson, Esquire Assistant General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Bridgett A. Ffolkes, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
Findings Of Fact The Respondent Debra Flynn has submitted an application to the DER to construct a dock extending 190 feet waterward of the mean high water line of waters of the state, which would also extend 80 feet landward of the mean high water line through a transitional wetland area. The landward extent of the dock will completely span the DER's wetland jurisdiction at the project site. A raised "pad" of fill upon which the applicant's house would be constructed and a filled driveway, although originally a part of this application, has been altered in design by the applicant such that those two items have been removed from the geographical extent of the DER's jurisdiction and those two items in the proposed project are no longer at issue. The applicant's lot is approximately 300 feet deep by 100 feet wide. This lot is one of many similarly sized lots which border Niles Channel on the east and Nyles Road on the west, on Summerland Key. These lots vary in nature from tidally inundated mangrove wetlands to a combination of upland and transitional wetlands fringed by mangroves along the water's edge. The portion of the applicant's lot nearest to Nyles Road is primarily characterized by upland vegetation extending approximately 75 to 100 feet in an easterly direction from the road. The elevation gradually decreases toward the waterfront of the lot on Niles Channel, with buttonwood (Conocarpus erecta), dropseed (Sporobolus sp.), key grass (Monanthochloe littoralis), and sea daisy (Borrichia sp.) being the dominant species over most of the applicant's lot. Over the northern side of the property adjacent to adjoining lot 34, a pocket of black mangroves (Avicennia germinans) extends inland, nearly to the upland area described above. As the lot elevation drops toward the shoreline, mangrove growth occurs more frequently, culminating in a dense mangrove fringe bordering Niles Channel. This mangrove fringe becomes well established some 30 feet landward of the approximate mean high water line, being dominated by black and white mangroves. Waterward of the mean high water line, red mangroves dominate for a distance of approximately 30 feet out into Niles Channel. The landward portion of the dock would have only minimal environmental impacts on the transitional wetlands as established by DER's expert witness Meyer and witness Kephart. No contradictory evidence was submitted in this regard. The bottom of Niles Channel extending 65 feet waterward of the mangrove fringe area is characterized by a hard caprock substrate covered with somewhat coarse sediments and loose algaes. In addition to the loose algae, the bottom, attached marine life communities are characterized by red, brown and green algae, sponges, anemones and hard corals. Waterward of this initial 65 foot zone, a relatively narrow zone of seagrasses is encountered. This zone of seagrass extends about 15 to 20 feet in width, forming a somewhat broken, noncontinuous band extending from north to south across the front of the property. Within this seagrass band, the primary growth is turtlegrass (Thalassia testudinum). There are smaller amounts of Cuban shoalweed (Halodule wrightii). Continuing waterward of this seagrass growth, the vegetative bottom coverage decreases with sandy patches becoming larger and more frequent. The bottom profile also becomes more rough and irregular, characterized by the presence of dissolved limerock holes as well as outcroppings. These holes and outcroppings provide excellent habitat for shelter-dependent fish and invertebrate species, such as spiny lobster and stone crabs. The area constitutes-prime nursery habitat for spiny lobsters and stone crabs. Water depth where the dock, as originally proposed, would terminate, which is in the area of the lobster and crab habitat, is approximately one and one-half to two feet deep at mean low water. The dock as presently proposed would extend some 30 feet beyond that area, or about 160 feet from the waterward edge of the shoreline mangrove fringe, or 190 feet from the mean high water line. Thus, the dock as presently proposed would terminate in a flat or sandy area which is somewhat deeper or about two to two and one-half feet deep at mean low water. Termination of the dock at that point, with boat traffic involved with the dock beginning and ending at that point will result in less likelihood of damage to the lobster and crab and other more fragile marine life habitat which occurs landward of the 190 foot termination point. At this point, the dominant marine species are patchy growths of red algae (Laurencia sp.). These growths are less susceptible to damage from prop-wash and wakes of boats than are the more landward areas characterized by turtlegrass, Cuban shoalweed and the "hole and outcrop" nursery habitat area for fish, lobsters and stone crabs. The physical and biological characteristics of the water bottom at this 190 foot distance offshore are more compatible with boat usage. The bottom here is characterized by hard caprock close to the surface, with a shallow overlying layer of inorganic, coarse-grained sediment consisting primarily of pulverized rock. There are very little or no seagrasses at this point. The applicant's boat draws approximately 12 inches of water underway and 18 inches at rest, and the dock is for the private use of the applicant only. The water depth at the termination point of the dock effectively precludes the applicant from navigating to and from the proposed dock with a significantly larger, more powerful boat and thus the physical characteristics of the water depth and hard bottom existing at the dock site themselves effectively limit the likelihood of harmful prop scouring or boat grounding damage. Impacts on water quality caused by the installation and operation of the proposed dock to the extent of its use by the applicant's private boat only, will be minimal. Some turbidity and disruption of marine life will inevitably occur during construction, but this will have no serious impact on either water quality or marine resources. The dock, as it is proposed to be constructed, will be at least three feet above mean high water level. It will be sufficiently narrow in width so as to preclude significant shading of seagrasses from sunlight and resultant death or damage to the seagrass beds between the end of the dock and the mean high water line, such that no water quality violation or harm to these marine resources will ensue. The proposed construction will not eliminate valuable marine resources in Niles Channel and will have no immediate or long-term adverse impact on the quantity or quality of the State's natural marine resources through the loss of habitat in the Niles Channel area involved. Because of the varying amounts of wetlands encompassed in the lots in the Niles Channel subdivision, it is unlikely that all of the lots in the area will be developed, or that a great number of docks similar to the proposed dock will be constructed. The Petitioner's expert witness, Mr. Robertson, established that less than half of the lots in this subdivision are suitable for or likely to be developed. The Petitioner's own witness, Fahrer, also established that Monroe County is planning to restrict development in this area through their zoning power. Accordingly, there is no reasonable expectation that many similar docks will be constructed in the Niles Channel area. Further, the recent amendments to the DER's organic statutes and related rules which took effect on October 1, 1984 mandate consideration of additional restrictive criteria involving effects of such projects on wildlife habitat, which will further serve to restrict development along the shoreline in this area. The shoreline in this subdivision is essentially undeveloped, with only one other dock presently in place, which is longer and extends further into Niles Channel than does the proposed dock. Although there was testimony by witnesses for Petitioner that the proposed dock would entail bone fishermen having to navigate out and around the dock, this testimony does not establish the premise that the dock will pose a serious impediment to navigation. The proposed dock may add slightly to the disruption of some recreational fishing navigation, however, since the adjacent property has the longer dock already in place, any disruption caused by this proposed shorter dock will not be significant and will not be contrary to the public interest in terms of navigation impediment.
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 the State of Florida, Department of Environmental Regulation grant the application of Debra Flynn for a dock construction permit in accordance with the conditions delineated above. DONE and ENTERED this 9th day of April, 1985 in Tallahassee, Florida. P. MICHAEL RUFF 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 9th day of April, 1985. COPIES FURNISHED: Douglas H. MacLaughlin, Esq. James L. Torres, Legal Intern Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 James Hendricks, Esq. 317 Whitehead Street Key West, Florida 33040 Joel L. Beardsley Route 2, Box 441 Summerland Key, Florida 33042 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Petitioner SFWMD is a public corporation of Florida. It is charged with the responsibility of issuing permits and enforcing orders relating to surface water management within its jurisdictional boundaries. Respondents Hubschman, as trustees, have full rights of ownership in 1,280 contiguous acres located in Sections 17 and 20, Township 47 South, Range 26 East, Lee County, Florida. These lands are known as Bonita Farms I and II. They are located within the jurisdictional boundaries of SFWMD. In their pre- developed state, these lands could generally be categorized as marsh and wetlands with cypress forest and some uplands in the northern half of the project area. After deciding to develop the acreage for use as pasture and farmland for small vegetable crops, Respondents Hubschman applied for a surface water management permit from SFWMD. The purpose of the permit was to allow the construction and operation of a water management system that would serve both farms. A system was designed to drain water off both parcels through a 62-acre retention area into a natural slough system which runs water into Kehl Canal. In order to create the system, the Respondents Hubschman had the following facilities designed for the site: internal ditches, dikes, pumps, a retention area and control structures. On April 15, 1982, SFWMD issued Surface Water Management Permit No. 36- 00315-S, and Respondents Hubschman were allowed to proceed with their proposed construction plan. A modification to the permit was issued on April 14, 1983. The retention area was enlarged from 62 acres to 88 acres by relocating the perimeter dike. The outfall structure was revised in that the two pumps and the weir were to be replaced by three 18" CMP culverts that would discharge the drained water by gravity flow from the retention area through the slough into Kehl Canal. The duration of the construction phase of its permit was a three-year period, unless the construction of the permitted project discharge structure or equivalent had been completed prior to that date. After the close of the three-year period, there was a dispute between the Respondents and SFWMD as to whether the permit had expired. The controversy was resolved through a compromise agreement. An application for the reissuance of Permit No. 36-00315-S was filed on October 13, 1986. Instead of reissuing Permit No. 36-00315-S, as requested by Respondents Hubschman, SFWMD decided to issue a new permit on May 14, 1987. As part of the processing procedures, SFWMD again reviewed and approved the entire surface water management system designed to serve the 1,280 acres of land proposed by Respondents. Because the additional work proposed for Section 17, the northern section was limited at this stage of development to the selective clearing of additional upland areas to create more improved pasture, the new permit directed attention to Section 20, the southern section of the land. The new permit advised the Respondents that if they wanted to propose additional development to Section 17, they were required to seek a modification of this new permit, Surface Water Management Permit No. 36-00764-S, to include those changes. The Respondents applied for a modification of Permit No. 36-00764-S on July 30, 1987. The proposed modification sought to change the status of the development of Section 17 from improved pasture to small vegetable farmland on 639 acres. The surface water management system plan was modified to drain water in Section 17 to the reservoir on Section 20. The water would be directed via a series of lateral ditches and swales. A six foot high dike and one 27,000 GPM pump were also required. Two additional 18" CMP culverts were required at the discharge facilities to accommodate the increased outflow. The Modification of Permit No. 36-00764-S was approved and issued on June 16, 1988. The original Permit NO. 36-00764-S and its modification are similar to a contract novation because the new permits substituted new obligations between the parties for the old ones under Permit No. 36-00315-S. Based upon this approach to the situation, SFWMD allowed the construction work completed under Permit No. 36-00315-S prior to the Stop Work Order of August 27, 1986, to vest. The completion of the berm around the reservoir in Section 20, as set forth in the letter from Elizabeth D. Ross, attorney for SFWMD, on September 19, 1986, was also allowed to vest. However, if the vested matters were changed in the subsequent permits, they became revisions. The revisions take precedence over the vested matters. Otherwise, completed construction under Permit No. 36- 00764-S as modified, and post Stop Work Order construction remains in effect perpetually for the operation portion of the permit. In order to determine with certainty what was permitted when the Notice of Violation was issued on December 20, 1988, the parties would have to look to the project work actually completed on August 27, 1986, the specific construction approved by SFWMD after that date, the subsequent Surface Water Management Permit No. 36-00764-S issued May 14, 1987, and its Modification issued June 16, 1988. The substantial compliance determination issued by Richard A. Rogers, P.E., Resource Control Department dated September 24, 1987, should also be considered as authorized activity. The Notice of Violation dated December 20, 1988, was issued to Respondent Samuel Hubschman, Trustee. He was advised that recent routine inspections indicate that current on-site activity was in violation of Special Conditions 2,3,4,7,14, 17 & 23 of Permit No. 36-00764-S (issued 5/14/87) and Special Conditions 5,16 & 22 of 36-00315-S (modified 6/16/88). A meeting to resolve these issued was suggested by SFWMD. Respondent Hubschman agreed to attend the meeting through his consultants. Both parties elected to attempt resolution of the Notice of Violation controversy through negotiations in a meeting scheduled for January 5, 1989. To demonstrate their sincerity, the parties agreed not to bring attorneys to the meeting. During the meeting, the parties resolved the controversy by agreeing to the following: SFWMD would no longer consider the project to be in violation of Florida law if the Respondents submitted certain items that would cause SFWMD to issue certain permits and modify others. The Respondents would promptly file an application for a dewatering permit so that the governing board could issue the permit at its March 9, 1989 meeting. The Respondent's contractor would make no field changes in the mitigation or excavation areas without first obtaining appropriate permit modification from SFWMD. Small jockey pumps were to be installed to pump water from the internal water management system into certain cypress and/or mitigation areas for the sole purpose of establishing wetland vegetation within the areas. Respondents were to apply for a modification of Permit No. 36-00764-S, as currently modified, to allow a single phase of mining for the entire affected area. The perimeter dike was to be made structurally adequate. Respondents were to submit an alternative proposal for the disposal of cap rock within ninety days. In the meantime, the contractor could continue to bury the cap rock within the mitigation areas. Both parties demonstrated their reliance on the settlement reached in the meeting by their subsequent actions towards completing and processing the applications for permit modifications and additional permits. Although the noted violations were not cured by these actions, the parties intended to reach a cure or to mitigate for present permit violations through new permit conditions. The preliminary staff review of the Respondents' application for modification of Permit No. 36-00764-S, as currently modified, was completed by March 31, 1989. The following information was requested by SFWMD staff: Revised engineering calculations which reflect that the permitted discharge structure is five 18" CMP culverts. An explanation as to why the 6.3 acre maidencane/juncus marsh designated as a preserve area and the adjacent western preserve area were excavated and otherwise disturbed by project activities. The scrapedown methodology for the replanting of mitigation areas. The Respondents' plans for the area delineated on the plans as pine, which is currently permitted as part of a cypress preservation area. Dike certification and reservoir certification. The above-listed information was required to be returned to the SFWMD within ninety days from the date of the written request. At the close of the ninety days, the information was not received. A second request for a response within thirty days was submitted by SFWMD on August 4, 1989. In September 1989, the Respondents attempted to comply with SFWMD's second request for information. Communications continued in regard to the filed application for modification of Permit No. 36-00764-S, as currently modified, into December 1989. After the thirty days expired for the response to the second request for information dated August 4, 1989, SFWMD filed the Administrative Complaint in these proceedings. After the second request for information, a partial response was received from Respondent Hubschman's consultants. The application continues to go through the review process. It has not yet been deemed complete by SFWMD. As part of the resolution of the Notice of Violation dated December 20, 1988, SFWMD issued permit No. 36-01023-W to Respondent Hubschman for construction dewatering, excavation of an irrigation pond, and water storage at the site. The permit was issued on March 9, 1989. Special condition No. 20 of this permit requires a 200-feet setback from the cypress mitigation area and the irrigation pond being dewatered. The setback is shown on Exhibit 10 of the Bonita Farms Dewatering Application which was made part of the permit. A copy of the permit was attached to the Administrative Complaint. No evidence was submitted by SFWMD regarding alleged violations of Special condition No. 20 which were allegedly observed and documented after the permit was issued, before the filing of the Administrative Complaint Respondent Bob Cadenhead is the contractor hired by Respondents Hubschman to construct the surface water management system. There was no evidence presented to show the connection of another party, Respondent, Cadenhead & Sons Construction, to the project.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Surface Water Management Permit No. 36-00315-S be deemed to have vested as to all construction activity completed under the permit which was not addressed in the subsequent permit issued by SFWMD. The completion of the berm, as set forth in Attorney Ross' September 19, 1986 letter, should also be allowed to vest. That Permit No. 36-00764-S and its later modification be ordered to supercede the prior permit in all matters specifically addressed. That the parties be held to their prior agreements to resolve pending permit violations through the permit modification process. That the alleged dewatering violation in paragraph 19 of the Administrative Complaint be dismissed for lack of evidence. That a specific deadline be set to reasonably complete pending application modifications. That all future enforcement action specifically comply with Rule 40E- 1.612, Florida Administrative Code, and remain separate from any permit or permit modification applications. That the parties create a new, active permit file with current drawings and a specific construction schedule. That the Administrative Complaint and Order filed in these proceedings be dismissed. That future agreements be reduced to writing and signed by the proper parties before they are relied upon by either party. DONE and ENTERED this 9th day of November, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5737 Petitioner's Proposed Findings of Fact are addressed as follows: Rejected. Irrelevant. Accepted. See HO number 4. Accepted. See HO number 3. Accepted. Rejected. Improper summary. Accepted. See HO number 6. Rejected. Improper opinion testimony. Rejected. Irrelevant. Argumentative. Rejected. Legal argument. Accepted. See HO number 5. Rejected. Legal argument. Rejected. Contrary to fact. See HO number 15. Rejected. Contrary to fact. See HO number 15. The argument presented in this paragraph is overly punctilious. It ignores the detrimental reliance of opposing parties to the agreement. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Legal argument and improper opinion. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Matters presented were either not ripe for these proceedings or not proved at hearing. See HO number 16-number 20 and HO number 23. Rejected. Contrary to fact and law. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings as separate from the Notice of Violation. Irrelevant. Accepted as fact, resolved by agreement. Rejected. Improper opinion testimony. Rejected. Improper opinion testimony. Rejected. Irrelevant. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. Accepted. Rejected. See HO number 15. Rejected. Cumulative. Rejected. See HO number 11-number 12. Contrary to fact. Accepted. See HO number 9. Accepted. Accepted. See HO number 16-number 20. Rejected. Matter is still pending. See HO number 16-number 20. Rejected. Resolved through agreement. See HO number 15. Rejected. Matter is still pending. See HO number 16- number 20. Rejected. Legal argument. Rejected. Not in pleadings. Irrelevant. Rejected. Irrelevant. Accepted. See HO number 21. Accepted. Accepted. Rejected. Speculative. Respondent's Proposed Findings of Fact are addressed as follows: Accepted. See HO number 13. Rejected. See HO number 23. Contrary to fact and pleadings. Accepted. See HO number 14. Accepted. See HO number 15. Accepted. See HO number 15. Accepted. See HO number 20. Accepted. Rejected. Argumentative. See HO number 20. Accepted. See HO number 4-number 7. Rejected. Contrary to fact. The permit modifica- tion specifically required replacement of a pump with 3 culverts. See HO number 5. Accepted. See HO number 5. Accepted. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. Rejected. Contrary to fact. See HO number 7 and number 11. Rejected. Contrary to fact. See HO number 11. Accepted. Accepted. Rejected. See HO number 15. Additional matters were agreed upon which were not reflected in the letter. This is an incomplete summary. Rejected. Irrelevant. Rejected. Irrelevant to these proceedings. Rejected. Contrary to fact. Accepted. Accepted. Rejected. Contrary to fact. See HO number 8 and number 9. Rejected. See HO number 8 and number 9. Contrary to fact. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Accepted. See HO number 23. Rejected. Contrary to fact. Accepted. COPIES FURNISHED: John J. Fumero, Esquire Office of General Counsel South Florida Water Management District Post Office Box 24680 West Palm Beach, FL 33416-4680 Kenneth G. Oertel, Esquire OERTEL HOFFMAN FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, FL 32314-6507 Russell Schropp, Esquire HENDERSON FRANKLIN STARNES & HOLT, P.A. 1715 Monroe Street Fort Myers, Florida 33902 John R. Wodraska, Executive Director South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680
Findings Of Fact Respondent, Lois Green, is a resident of Florida and owns the property known as the Nichols Post Office located on Highway 676 in Nichols, Polk County, Florida. There is one employee stationed at the post office and members of the public use the post office for U.S. mail purposes. On October 11, 1990, Petitioner advised Respondent that the source of water that she used to supply the post office building did not comply with the requirements of the Florida Administrative Code. Thereafter, on September 23, 1991, Petitioner issued an Administrative Complaint to Respondent, advising of Petitioner's notice of intent to assess a fine of $100.00 per day until the corrections were made or for 30 days, whichever occurred first. At the hearing, Petitioner orally amended paragraph 4 of the Administrative Complaint to change the reference "December 22, 1989" to "October 4, 1990." Following service of the Administrative Complaint on Respondent and for 30 days thereafter, the water source for the post office building was a well located behind the post office on Respondent's property. In approximately December of 1991, Respondent disconnected the well which was presently serving the post office and connected to another well located adjacent to the property which supplied a residential home. The well which provided water to the post office was originally drilled as an irrigation well. The well head was located approximately 50 ft. to the closest septic tank and restroom pipe outlets. That well had no raw sample taps or a pressure tank with an inlet or outlet. Additionally, there was no surface protection pad nor were quarterly bacteriological samples taken to measure the water quality samples. Finally, the well was not approved by Petitioner prior to placing it into use by Respondent. Sometime subsequent to 30 days after Petitioner issued the Administrative Complaint to Respondent, Respondent abandoned the well without notifying the Petitioner and connected to a residential well which also contravenes the setback requirements contained in Chapter 17, Florida Administrative Code. Specifically, that well is approximately 30 ft. from the on-site sewage disposal system (septic tank) and is in violation of Rule 17- 555.302, Florida Administrative Code, formerly Rule 17-22.615(2), Florida Administrative Code. Petitioner's agent, Mark Fallah, during times material, was employed in Petitioner's Code Enforcement Section and was charged with investigating the problems surrounding Respondent's supply of water to the Nichols Post Office. Throughout the course of employee Fallah's involvement with the investigation of this matter, there have been several proposals and counter-proposals which have been exchanged by and between Petitioner and Respondent. Petitioner's agent Fallah attempted to see if a variance could be obtained whereby Respondent could continue to use the then existing well despite the fact, however, that it was in violation of the setback requirements. Additionally, Fallah attempted to get Respondent to make certain minor changes and modifications to the existing well which were not successful. Throughout the course of the parties negotiations in an effort to resolve this matter, there has been certain concessions made by both sides; however, the well which supplies the post office is a water system which is noncompliant with applicable statutory and rule requirements. Petitioner, through its employee Fallah, checked with a local well drilling company, Dunham Well Drilling Company, to obtain an estimate for a well. That company gave an estimate of approximately $2,000.00 to $3,500.00 to install a water supply system to the post office which would comply with Petitioner's requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the total amount of $3,000.00 of which amount $2,500.00 shall be suspended pending Respondent's initiation of a plan to construct and install a water well system to provide the Nichols Post Office which complies with Petitioner's requirements enunciated in Chapters 403 and 381, Florida Statutes and Rule Chapter 17, Florida Administrative Code. In the event that Respondent fails to initiate a plan of correction and complete the installation of the well within sixty (60) days of the date of Petitioner's entry of its Final Order, then Petitioner shall be authorized to impose the full administrative penalty of $3,000.00 without further administrative proceedings. Respondent shall submit to Petitioner the five hundred dollar ($500.00) administrative fine within thirty (30) days from the entry of Petitioner's Final Order. DONE and ENTERED this 22 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of April, 1992. COPIES FURNISHED: Raymond R. Deckert, Esquire Asst District Legal Counsel HRS District VI Legal Office 4000 W Dr Martin Luther King Jr Blvd Tampa, Fl 33614 Mygnon Evans, Esquire 5600 US Highway 98 N Lakeland, Fl 33809 Richard S. Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700 John Slye, Esquire General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700
