The Issue Whether the rules promulgated by the Department of Environmental Regulation require the Respondent to employ the services of a state certified water system operator to operate the water systems at the two business locations involved in these proceedings.
Findings Of Fact At all times material to these proceedings, the Respondent was responsible for the operation of two water systems. One water system is located on Highway 92 West, Winter Haven, Polk County. The other water system is located on State Road 37 South, Mulberry, Polk County. The restaurant and bar business operated at the Winter Haven location is known as the Rainbow Club. Customers eat food and drink beverages prepared with water from the on site water system. The system serves at least twenty- five individuals daily, at least sixty days out of the year. The convenience store business operated in Mulberry serves ice tea, juices, and coffee to customers which is prepared with water from the on site water system. The system serves at least twenty-five individuals daily, at least sixty days out of the year. During the recent past, the Respondent retained a certified operator to meet the state requirements. He was not satisfied with the operator for the following reasons: (1) He had to show the man how to chlorinate the water. (2) The operator took the required chlorine samples from water that had not been chlorinated. (3) Visits were not made to the site as scheduled. (4) The pump at one of the establishments was harmed by the certified operator. (5) The expense of four hundred dollars a month for the testing of three sites operated by the Respondent was too much money. The Respondent wants to be able to chlorinate the water and maintain the systems himself. He has professional experience regulating the chemical balance of water in swimming pools. The samples he turned into the lab himself were good. The Respondent also wants to keep the old well next to the convenience store in Mulberry. He disagrees with the Department's request that he abandon the well because he needs it for an adjoining piece of property. This well is used for lawns, not for the convenience store business. The Department is amenable to the Respondent maintaining his own systems if he is certified to do so. The next examination is scheduled for November 1990.
Findings Of Fact By letter dated August 10, 1979, Indian River County (hereafter "County") submitted to the Department of Environmental Regulation (hereafter "Department" or "DER") applications for construction permits for the Gifford Area sewer treatment plant and collection improvements thereto, a domestic wastewater treatment and disposal system located in the County. (DER Exhibits Nos. 1 & 2). After receiving the permit applications submitted by the County, the Department's Orlando District Office requested additional information to determine whether reasonable assurances were provided that the facility would not discharge, emit or cause pollution in violation of Department standards. (Testimony of William Bostwick; testimony of Chancellor; DER Exhibits Nos. 3, 4, 5, 6, 7 & 8). The County, through its consulting engineers Sverdrup & Parcel and Associates, Inc., responded to the Department's requests for additional information. (DER Exhibits Nos. 3, 4, 5, 6, 7 & 8). The Department presented testimony of two professional engineers in its employ, Mr. William M. Bostwick and Mr. Gerald Chancellor, both of whom were accepted as expert witnesses in the field of sewage treatment technology and the processing and evaluation of permit applications for sewage treatment plants. Both witnesses testified that in their expert and professional opinion, based on their review of all plans, test results and other information submitted by the County, the applicant provided the Department with reasonable assurances that the proposed construction and operation of the sewage treatment facility and its collection system would not discharge, emit or cause pollution in violation of Department standards. (Testimony of Bostwick; testimony of Chancellor). The standards applicable to the subject construction permit applications involve (a) treatment level and (b) ambient standards of the receiving waters. The proposed system provides a minimum of ninety (90) percent treatment to incoming wastewaters. Because of the added features of surge tanks, gas chlorination, and dual blowers and motors, the ninety (90) percent minimum treatment was expected to be exceeded. (Testimony of Bostwick; testimony of Chancellor). The secondarily treated effluent from the proposed sewage treatment plant will be dispersed by spray irrigation. Because the effluent is expected to percolate to area groundwaters, the ambient groundwater standards of Section 17-3.101, Florida Administrative Code are applicable. The discharge from the facility will not cause any violation of the groundwater quality standards of the Florida Administrative Code. (Testimony of Bostwick; testimony of Chancellor; testimony of Aront). Although the design of the plant does not contemplate surfacewater discharge, if it did, it would meet the waste load allocation of Indian River County which permits discharge to surfacewaters. When the treated waste leaves the sprinkler head, it will meet secondary water treatment standards. (Testimony of Bostwick; testimony of Chancellor). In the course of evaluating a permit application for a wastewater treatment plant, the Department considers only Chapter 403, Florida Statutes, and its implementing rules and regulations and does not consider local issues relating to zoning, the propriety of expenditure of public funds or the like. (Testimony of Bostwick). There is presently no state standard regulating permissible levels of viruses in effluent discharged to either surface of groundwaters. Large numbers of viruses exist in the effluent discharged from spray irrigation treatment plants which operate at a ninety (90) percent treatment level. The viruses contained in the discharge remain viable as they percolate through the soil. The greatest concern exists when humans are in physical contact with such discharge. However, the present sewage treatment facility in its existing condition is a greater threat to public health than the proposed spray irrigation system. (Testimony of Dr. Welling, Petitioner's Exhibits Nos. 1, 2 & 3). Research concerning viral standards for effluent discharge is in an experimental stage. The Department is examining this question for possible future rule drafting. Neither the federal government nor any state, with the exception of Maryland, has adopted viral standards. (Testimony of Welling) The design of Use Gifford plant contemplates a series of perimeter monitoring wells through which groundwater samples can be attained and tested for compliance with groundwater standards end the presence of viruses. (Testimony of Aront) The plant will spray irrigate effluent at the rate of one (1) inch per week. Although surface run off is not expected, any that occurs due to heavy rains, etc., will be discharged into a perimeter ditch surrounding the plant. The plant design is formulated to retain effluent on site. (Testimony of Chancellor). There are four (4) different types of soil on the site with a water permeability of moderately rapid to very rapid. These soils have a percolation rate which makes the site suited for the intended purpose provided surface drainage is obtained. On a conservative basis the site could accept up to fourteen (14) inches of water per day or ninety-eight (98) inches per week. (Testimony of Connell; testimony of Eng; DER Exhibit No. 6). The parties stipulated prior to the hearing to the following: The project complies with local zoning laws; and The applicable provisions of law are Sections 403.086, 403.087, 403.088, Florida Statutes, and Rules 17-3.091, 17-4.03, 17-4.07 and 17-4.26, Florida Administrative Code.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department issue a construction permit to the County on condition that sample effluent from the monitoring wells on the subject facility be regularly analyzed for compliance with Department rules and the existence of infectious viruses. DONE and ENTERED this 3rd day of March, 1980, at Tallahassee, Florida 32301. SHARYN SMITH Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 COPIES FURNISHED: Sherman N. Smith, Jr., Esquire Post Office Box 1030 Vero Beach, Florida 32960 George G. Collins, Jr., Esquire Post Office Box 3686 Vero Beach, Florida 32960 Segundo J. Fernandez, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Petitioner's application for a Class B waste water treatment plant operator was received by Respondent on September 20, 1991. Ms. Setchfield who is in charge of reviewing and approving and/or denying all applications, reviewed Petitioner's application. Based on the documentary evidence submitted by Petitioner, he was given constructive credit for 58 months and actual credits received was 27.6 months for a total credit time of 85.6 months. To receive credit for educational experience, an applicant must demonstrate that his major area of study is in science or biology. Alternatively, an applicant may receive credit provided he furnish Respondent a transcript which would delineate the areas of his studies he successfully completed and the credits received. However, in such instances, an applicant only receives partial credit. Petitioner has been advised (by Respondent) that if he furnish a copy of his transcript, it will be reviewed and if it demonstrates that he is entitled to credit for courses he successfully completed, he would be awarded such credit. Petitioner steadfastly refuses to provide a transcript to Respondent. To be eligible for certification as a Class B waste water treatment plant operator, an applicant must demonstrate, at minimum, that he/she has the required minimum of 96 months total creditable time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent enter a Final Order denying Petitioner's application for certification as a Class B waste water treatment plant operator, as he has failed to satisfy the minimum total time requirement for such certification. 1/ DONE and ENTERED this 29th Tallahassee, Leon County, Florida. day of May, 1992, in 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 29th day of May, 1992.
The Issue The issue is whether Respondent HBJ Investments, Inc. is entitled to an environmental resource permit to facilitate the construction of the Betty Jones Spa on property adjacent to property owned by Petitioner.
Findings Of Fact On November 17, 1998, Respondent HBJ Investments, Inc. (Applicant) filed an application (Application) with the South Florida Water Management District (District) for an environmental resource permit (ERP). The Application is for a Standard General (minor systems) ERP. The Application states that the proposed surface water management system is to serve a 11,564 square foot health spa with associated infrastructure improvements, such as parking, utilities, landscaping, and a stormwater detention facility. Section H of the Application responds to form questions that are intended to determine whether an application meets the requirements of a standard general ERP for a minor surface water system. Among the threshold requirements is that the proposed discharges from the site "will meet State water quality standards, and the surface water management system will meet the applicable technical criteria for stormwater management in the Basis of Review." Another threshold requirement is that the proposed activities will not cause significant adverse impacts individually or cumulatively. The Application states that the water quality treatment system will be on-line detention with effluent filtration. The Application and related documents describe the system in greater detail. The system consists of drains, inlets, a swale, an underground vault to provide effluent filtration through a sand filter and perforated pipe, an internal oil and grease skimmer, a control box, and a 15-inch diameter reinforced concrete pipe providing outfall from the vault. By Notice of Final Agency Action for Approval dated February 4, 1999, the District proposed the issuance of a "Standard General for Minor Surface Water Management Systems" ERP for the construction, operation, and maintenance of the proposed system (Permit). Permit Specific Condition 2 requires: "The discharges from this system shall meet state water quality standards as set forth in Chapter 62-302 and Rule 62-4.242, F.A.C., for class waters equivalent to the receiving waters." Permit Specific Condition 8 requires, for vault systems, that the system become dry within 72 hours after a rainfall event. Permit Specific Condition 9 requires the operation and maintenance entity to submit inspection reports for inspections to be performed every 18 months. Permit Specific Condition 10 requires a water quality monitoring program for systems, such as the proposed system, using an internal oil and grease skimmer. This condition obligates HBJ to take three samples during each of the first two annual rainy seasons following the commencement of operation of the system. The monitoring must take place immediately after rainfall events of sufficient magnitude to cause a discharge from the outfall structure. If the discharged water does not meet water quality standards for oil and grease, as established by Rule 62.302.510(3)(k), Florida Administrative Code, then the permittee must alter the system to attain compliance for this water quality parameter. The subject parcel is bounded by Fourth Avenue South on the north, First Street South on the east, Second Street South on the west, and an unnamed alley on the south. This site is just south of Al Lang Field. In its present state, the parcel is nearly entirely pervious surface. Some of the stormwater flowing onto the parcel percolates into the soils, and the remainder flows into City of Saint Petersburg stormwater sewers, from which it is carried about two city blocks to Tampa Bay, where it is discharged. The parcel was formerly used for single-family residential housing, but is now mostly cleared. The runoff from the site presently carries mostly sediments. After the proposed construction, 79 percent of the parcel would consist of impervious surface. Although small areas of the developed parcel might remain vegetated, and thus add nutrients into the runoff, the primary change in the runoff will consist of the addition of automobile-related contaminants, including, but not limited to, oil and grease. HBJ's engineer designed the proposed surface water management system to treat the first one-half inch of stormwater runoff. The engineer's report notes, in a letter dated November 13, 1998, that siltation in the vault reduces storage volume, so it is "required that cleaning be done every six (6) months." The report suggests the removal of grass clippings from the parking area, so that they are not transported to the retention vault. The report suggests that the underdrain system should be backflushed periodically, and the control structure should be checked monthly and all debris cleared. In general, the system would collect runoff from the roof downspouts and parking area. The system would provide treatment of the first 1/2 inch of runoff by capturing it in the vault, where it would filter through a layer of several cubic feet of sand before entering a perforated pipe leading to the City stormwater sewer. Runoff from rainfall in excess of the first 1/2 inch would receive little, if any, treatment. It is implicit that the first 1/2 inch of rainfall contains the first flush of contaminants from impervious surfaces. Nothing in the record specifies the efficacy of treatment provided by this standard, although it obviously is less than 100 percent efficient because of the higher standard imposed upon systems discharging into Outstanding Florida Waters (OFW). However, a pre- and post-development analysis of the runoff from the subject parcel would reveal an unknown additional volume of runoff from the developed site, due to the replacement of pervious surface with impervious surface. It is unclear whether the developed site would generate a reduced volume of sediments in this increased volume of runoff. Although little vegetated surface would exist post-development, the record does not reveal the extent to which the pre-development pervious area fails to capture the sediments prior to their entering the City stormwater system. More problematic are the automobile-related contaminants, such as oil and grease, that will be introduced into the runoff by the developed site. Presumably, the runoff from the undeveloped site contains few, if any, such contaminants. Thus, any automobile-related contaminants discharged from the surface water management system would likely be an increase from the amount of such contaminants presently discharged from the site. The runoff from the developed site would enter the City of Saint Petersburg stormwater sewer system and would be released in the nearby Tampa Bay. The record does not disclose the stormwater sewer line transporting the discharge, nor the outfall of the line into Tampa Bay. By stipulation, the parties agreed that Tampa Bay is an OFW and that discharge from the developed site would enter the City of Saint Petersburg stormwater sewer system. Tampa Bay is classified as Class II waters, which are approved for shellfish harvesting. The record does not disclose the point of discharge of the City stormwater line that would receive discharge from the developed site. However, the proximity of the site to Tampa Bay strongly suggests that the outfall would be in Tampa Bay, and it is only slightly less probable that the outfall would be at a point in the bay in the immediate vicinity of the site. The record suggests that the waters of Tampa Bay likely to receive the discharge from the site are impaired. For example, water quality conditions mandated the closing of "Lower Tampa Bay" to shellfish harvesting, for an unstated period of time, effective at sunset on July 5, 1999. Also, the Department of Environmental Protection listed two bayous in the immediate vicinity of the site as noncompliant with federal water quality standards due to excessive coliform bacteria counts and nutrients and insufficient levels of dissolved oxygen. The Basis of Review (BOR) is a document adopted by the District. It contains specific "criteria" for permitting. However, as BOR Section 1.3 explains, the goal of these criteria is to meet District water resource objectives, and the criteria are "flexible." Alternative methods of meeting "overall objectives" may be acceptable, depending upon the "magnitude of specific or cumulative impacts." The criteria, which are flexible, are the means by which the District assures that it meets its objectives, which are not flexible. BOR Section 3.1.0 recognizes that "a wide array of biological, physical and chemical factors affect the functioning of any wetland or other surface water community. Maintenance of water quality standards in applicable wetlands and other surface waters is critical to their ability to provide many of these functions." BOR Section 3.1.0 elaborates: "It is the intent of the Governing Board [of the District] that the criteria in subsections 3.2 through 3.2.8 be implemented in a manner which achieves a programmatic goal and a project permitting goal of no net loss of wetlands or other surface water functions." BOR Section 3.1.1 requires that an applicant provide "reasonable assurance" of several things. BOR Section 3.1.1(a) requires that "a regulated activity will not adversely impact the value of functions provided to fish, wildlife and listed species, including aquatic and wetland dependent species, by wetlands and other surface waters and other water related resources of the District. (paragraph 40D-4.301(1)(d), F.A.C.) (see subsection 3.2.2)." BOR Section 3.1.1(c) provides that: a regulated activity will not adversely affect the quality of receiving waters such that the water quality standards set forth in Chapters 62-3, 62-4, 62-302, 62-520, 62-522 and 62-550, F.A.C., including any antidegradation provisions of Sections 62-4.242(1)(a) and (b), 62-4.242(2) and (3), and 62-302.300 and any special standards for Outstanding Florida Waters . . . set forth in sections 62-4.242(2) and (3), F.A.C., will be violated (paragraph 40D-4.301(1)(e), F.A.C.). BOR Section 3.1.1(d) provides that "a regulated activity . . . located in close proximity to Class II waters . . . will comply with the additional criteria in subsection 3.2.5 (paragraph 40D-4.302(1)(c), F.A.C.)." BOR Section 3.1.l(f) provides that "a regulated activity will not cause adverse secondary impacts to the water resources (paragraph 40D-4.301(1)(f), F.A.C.) (see subsection 3.2.7)." BOR Section 3.1.1(g) provides that "a regulated activity will not cause adverse cumulative impacts upon wetlands and other surface waters . . . (paragraph 40D-4.302(1)(b), F.A.C.) (see subsection 3.2.8)." BOR Section 3.2.4 provides that an applicant must provide "reasonable assurance that the regulated activity will not violate water quality standards in areas where water quality standards apply. . . . The following requirements are in addition to the water quality requirements found in Chapter 5." BOR Section 3.2.4.2(c) provides that the applicant must address the long-term water quality impacts of a proposed system, including "prevention of any discharge or release of pollutants from the system that will cause water quality standards to be violated." BOR Section 3.2.5 provides: The special value and importance of shellfish harvesting waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shell fish is recognized by the District. In accordance with section 3.1.1.(d), the District shall: (b) deny a permit for a regulated activity in any class of waters where the location of the system is adjacent or in close proximity to Class II waters, unless the applicant submits a plan or proposes a procedure which demonstrates that the regulated activity will not have a negative effect on the Class II waters and will not result in violations of water quality standards in the Class II waters. BOR Section 3.2.7 provides that an applicant must provide "reasonable assurance" that "a regulated activity will not cause adverse secondary impacts to the water resource" as described in this section. However, this section explicitly disregards negligible or remotely related secondary impacts. BOR Section 3.2.8 provides that an applicant must provide "reasonable assurance" that "a regulated activity will not cause unacceptable cumulative impacts upon wetlands and other surface waters " BOR Section 4.2 limits off-site discharge "to amounts which will not cause adverse off-site impacts." For a proposed activity within an open drainage basin, as is the subject proposed activity, the allowable discharge is (presumably the greatest of) any amount determined in previous District permits, the legally allowable discharge at the time of the permit application, or historic discharge. Historic discharge is the peak rate at which runoff leaves a parcel of land by gravity under existing site conditions. BOR Section 5.1 requires that proposed discharges meet applicable state water quality standards. This chapter of the BOR requires that proposed systems satisfy certain quantitative criteria, depending on the type of water treatment system. However, BOR Section 5.1 warns: in certain instances a design meeting those standards may not result in compliance with the state water quality standards referenced above. Unless an applicant has provided reasonable assurance that a design will not cause or contribute to a violation of state water quality standards, the District may apply more stringent design and performance standards than are otherwise required by this chapter. Projects designed to the criteria found in this section shall be presumed to provide reasonable assurance of compliance with the state water quality standards referenced above. . . . BOR Section 5.2 sets quantitative criteria for various types of surface water management systems. The subject system is a detention, on-line treatment system. BOR Section 1.7.5 defines "detention" as the "delay of storm runoff prior to discharge into receiving waters." BOR Section 1.7.28 defines "on-line treatment system" as a "dual purpose system that collects project runoff for both water quality and water quantity requirements. Water quality volumes are recovered through percolation and evaporation while water quantity volumes are recovered through a combination of percolation, evaporation, and surface discharge." BOR Section 5.2.b applies to "[d]etention with effluent filtration system (manmade underdrains)." BOR Section 5.2.b.1 provides that proposed activities draining less than 100 acres "shall treat the runoff from . . . the first one-half inch runoff." BOR Section 5.2.b.6 adds: "Maintenance of filter includes proper disposal of spent filter material." BOR Section 5.2.c applies to "on-line treatment system[s]." This section also requires the treatment of the first one-half inch of runoff. However, BOR Section 5.2.e provides: Projects discharging directly into Outstanding Florida Waters (OFW) shall be required to provide treatment for a volume 50 percent more than required for the selected treatment system . . .. Applicant has provided reasonable assurance that the proposed surface water management system would not cause adverse water quantity impacts to receiving waters and adjacent lands and would not cause flooding. In terms of water quantity, the proposed system is designed to meet the requirements of the ten-year storm. The subject site is a short distance from Tampa Bay, and, as already noted, it is very likely that the runoff discharges into Tampa Bay at a location not far from the subject site. Thus, water quantity and flooding are irrelevant to this case. However, Applicant has not provided reasonable assurance that the proposed surface water management system would not cause adverse impacts to the value of functions provided to fish and wildlife by nonwetland surface waters and would not adversely affect the quality of receiving waters. The receiving waters of the discharge from the subject site are Class II waters that are OFW. However, these waters are also impaired sufficiently as to be in violation of certain federal water quality standards and to require the closure, at least at times, of shellfish harvesting. There are three deficiencies in the proposed permit. First, it does not specify, in clear and enforceable language, an inspection and maintenance program, which includes the undertaking by the Applicant to backwash the system at specified intervals, to replace the sand filtration medium at specified intervals, to dispose of the sand filtration medium so that the captured contaminants do not reenter waters of the state, to monitor the water discharged from the oil and grease skimmer at specified intervals following the first two years' monitoring, and generally to take any necessary action to correct deficiencies uncovered from inspections. Second, the treatment of the first 1/2 inch of runoff is insufficient for the system, which is discharging directly into an OFW. BOR Section 5.2.e raises this standard to 3/4 inch. Direct discharges requires the identification of the first receiving waters. Receiving waters are waters of the state that are classifiable as Class I-V waters. Receiving waters thus do not include waters in a stormwater sewer pipe, which are not waters of the state nor are they classifiable. Water quality determinations often require comparison of the quality of the discharged water with quality of the receiving waters. The off-site piping of the discharged water does not preclude such comparison. In such case, the analysis extends to the first receiving waters into which the pipe empties. The District's argument to the contrary invites circumvention of those provisions enacted and promulgated for the protection of OFWs. For example, several owners of land abutting an OFW could establish a jointly owned stormwater sewer line so that the point of comparison for their discharge would be the waters in the pipe rather than the OFW. Third, Applicant failed to submit a plan or propose a procedure demonstrating that the proposed activity would not have a negative effect on the Class II waters of Tampa Bay and would not result in violations of water quality standards in these Class II waters. The District failed to determine the outfall of the discharge from the subject site, so it failed to enforce the requirement of the plan required by BOR 3.2.5 for the protection of the special value of Class II waters. Although required to account for cumulative impacts, the plan will necessarily reflect the characteristics of the site--e.g., 1.6 acres contributing largely automobile-based contaminants and not nutrients--and the characteristics of the receiving waters--e.g., Tampa Bay is vast and relatively impaired, though, in the vicinity of the subject site, more likely due to excessive nutrients.
Recommendation It is RECOMMENDED that the Southwest Florida Water Management District enter a final order denying the ERP application of HBJ Investments, Inc. DONE AND ENTERED this 23rd day of December, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1999. COPIES FURNISHED: E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 John R. Thomas Wyckoff & Thomas, P.A. 233 Third Street North, Suite 102 Saint Petersburg, Florida 33701 Michael Jacobs Director, Legal Affairs 25 Second Street North, Suite 160 Saint Petersburg, Florida 33701 Anthony J. Mutchler Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue As reflected in the parties' prehearing stipulation filed on August 28, 1991, the issue in this case is whether the St. Johns River Water Management District (SJRWMD) should approve South Brevard Water Authority's (SBWA) consumptive use permit (CUP) application. The SBWA is seeking permission to withdraw an annual average daily rate of 18.8 million gallons (mgd) and a maximum daily rate of 21.4 mgd. The District proposes to grant the permit with specified conditions. Petitioners challenge the issuance of the permit, alleging that applicable requirements of Chapter 373, F.S. and Chapter 40C-2, F.A.C. and other applicable law are not met. The standing of Petitioners, other than Osceola County, is at issue. Also at issue is whether the relevant criteria include consideration of the adequacy of existing sources of water, and the consideration of costs of utilizing existing sources versus the cost of the proposed new source of water.
Findings Of Fact The Parties The applicant, South Brevard Water Authority (SBWA) was created by special act of the legislature, Chapter 83-375, Laws of Florida. Its principal office is located in Melbourne, Brevard County, Florida. Its general mission is described in Section 1, of Chapter 83-375, Laws of Florida, as amended by Chapter 87-481, Laws of Florida: Section 1. It is hereby declared and determined by the Legislature that a regional water authority is the most responsive, efficient, and effective local government entity to secure, operate, and maintain an adequate, dependable, and safe water supply for the district and customers of the district. It is the intent of the Legislature that such regional water authority possess the full power and authority to implement, finance, and operate a single coordinated program of water supply transmission and distribution to meet the future quantity and quality needs of the district and for customers of the district. There is a paramount public need to develop a safe, reliable, and energy-efficient source of public water for the district residents and to contruct the wellfields, transmission lines, and other facilities necessary to supply such water. The St. Johns River Water Management District (SJRWMD or District) is an agency created pursuant to Chapter 373, F.S. in charge of regulating consumptive uses of water in a 19-county area of the State of Florida, including all of Brevard and part of Osceola County. The geographical boundaries of the District are described in Section 373.069(2)(c), F.S. Osceola County is a political subdivision of the state, west of, and contiguous to, south Brevard County. The Corporation of the President of the Church of Jesus Christ of Latter Day Saints (Deseret) is a Utah corporation authorized to conduct business in the State of Florida. Deseret owns real property in Osceola County to the north and east of the proposed wellfield. Deseret possesses a valid consumptive use permit authorizing the withdrawal of water for this property. East Central Florida Services (ECFS) does not own land or possess a consumptive use permit (CUP). Its purpose is to take over the water management program for the Deseret property. It has applied to the Public Service Commission for certification. Notwithstanding the parties' stipulation that "Triple E Corporation" and "Triple N Corporation" own real property in Osceola County near the proposed wellfield (prehearing stipulation, filed 8/28/91, p. 5), no such corporations are registered in the State of Florida. The lands identified as Triple E and Triple N are owned by multiple parties through trusts, primarily managed by Maury L. Carter, one of the owners. Neither Triple E nor Triple N properties have CUP's. The properties are used for agricultural purposes and the Triple N property has a well and recreational camp. The Site of the Proposed Use The proposed wellfield is located on property owned by the SJRWMD, the Bull Creek Wildlife Management Area (BCWMA), located entirely in eastern Osceola County. The BCWMA is comprised of 22,206 acres within the drainage area of the St. Johns River. The northern third of the management area is drained by Crabgrass Creek, and the southern two-thirds is drained by Bull Creek. The easternmost boundary is located approximately one mile from the Brevard County boundary. Currently all 22,206 acres of the BCWMA are under lease to the Florida Game and Fresh Water Fish Commission, which agency manages the area as a public recreation facility for hunting, fishing, hiking, horseback riding, camping and archeological studies. The sparsely populated area has historically been used for logging and cattle grazing. It was acquired for a detention area and it currently provides nonstructural flood protection. Its surface topography is relatively flat, with uplands and wetlands separated by only inches in vertical elevation. Upland communities include pine flatwoods, saw palmetto prairies, pine savannahs and sand oaks. Wetland communities include cypress domes, mixed shallow marshes, sawgrass marsh, wet prairies and transitional prairies. The BCWMA is classified as a "conservation area" in the District's current adopted Five Year Land Plan which summarizes the agency's land acquisition and management policies. A "conservation area" is defined as "...an area acquired for water resource conservation and protection in an environmentally-acceptable manner". The term includes water supply areas, including areas for public wellfield location. (Osceola Co. exhibit #33, p. 15) Facilities Associated with the Proposed Consumptive Use Although the precise siting of the wells has not been established, the wellfield will be located at the northern end of the BCWMA, east-west into a "panhandle" area, and extending south, for an inverted "L" shape. The wellfield will consist of 12 production wells in 2000 ft. intervals. Wells 1-9 will lie along an east-west axis adjacent to Crabgrass Creek, while wells 10-12 will lie along a north-south axis below well 9, the eastern-most well. The capacity of each well is designed at 3,000 gallons per minute or approximately 4.30 million gallons a day (mgd). Each well consists of 20" diameter casing pipe extending 700' below the ground surface. From there, an open hole for production will extend another 250 feet in depth. A small, 20 ft. by 30 ft., concrete building will enclose the motor and other equipment associated with each well, in order to eliminate vandalism and to baffle the noise. The wells will be sited to avoid jurisdictional wetlands. In addition to the production wells, monitoring wells will be constructed to comply with permit conditions. Because the water drawn from the proposed wellfield will exceed potable standards, reverse osmosis (RO) desalinization treatment is required. A below ground header pipeline will carry raw water from the wellfield to an RO treatment facility in Brevard County. The RO treatment facility will process 75 percent of water coming from the wellfield, 85 percent of which is recovered as finished water, and 15 percent of which is disposed of as brine by deep well injection. The 25 percent of raw water which bypasses the treatment process will be blended with the finished water to yield water which meets drinking water standards for chloride levels. The yield is anticipated to be 16.67 mgd on an average day and 18.9 mgd on a maximum day. However, the finished water yield could be higher if raw water quality permits greater blending and less reject water. On the finished water side, the water will need to be treated again to assure that it will be compatible with water from the City of Melbourne plant. Failure to balance the blended waters chemically could result in corrosion of pipes, leaching of pipes, discoloration, rusty water, and odorous water. A proper process, therefore, is essential and is highly sophisticated. From the treatment facility the water will travel in underground pipes, beneath the St. Johns River, beneath I-95 and east to the Melbourne distribution system. From there some water is anticipated to travel south to connect to the General Development Utilities (GDU) system. Hydrogeologic Characteristics of the Site For modelling purposes, the aquifer system in the region is represented by sequential layers of differing characteristics in the flow and movement of water. The SBWA model contains 6 layers; the Osceola model contains 7 layers. In both models, layer 1 corresponds to the surficial (water table) aquifer; layer 2 corresponds to the Hawthorn formation (the upper confirming layer); layer 3 is the Upper Floridan aquifer; layer 4 describes the 200 ft. thick portion of the Upper Floridan called the "production zone"; layer 5 in the SBWA model is approximately 450 ft. thick and is called a confining unit; Osceola's consultants consider this layer less permeable or semi-confirming; layer 6 is the lower Floridan; and layer 7 in the Osceola model is the bottom reaches of the lower Floridan. The surficial aquifer consists of sand and shell deposits and extends to a depth of approximately 100 feet below land surface. The surficial aquifer is capable of producing small to moderate amounts of water for domestic uses. The Hawthorn is an interbedded formation consisting of clay, limestone and phosphate. Due to its extremely low permeability, this layer restricts both the vertical and horizontal movement of water. The Hawthorn is thicker in Central Florida than in other portions of the state. At the BCWMA the thickness of the Hawthorn ranges from 240 feet in the area northwest of the management area to 80 feet in the southeastern portion of the management area. The upper Floridan Aquifer at the BCWMA, as characterized by the SBWA's consultant and based on site specific data, extends from the base of the Hawthorn to a depth of approximately 900 feet below land surface. That portion of the upper Floridan Aquifer between the bottom of the Hawthorn and 700 feet below land surface consists of fine grained limestone with relatively low permeability. This zone corresponds with layer 3 in the groundwater modeling done by the SBWA. The portion of the upper Floridan between the bottom of the Hawthorn and 700 feet below land surface is less capable of producing water than the portions below this level. That portion of the upper Floridan Aquifer between 700 feet and 900 feet of depth consists of hard dolomites. Dolomitic zones are the most productive zones of water within the Floridan in this part of the state because these formations contain solution fractures and cavities. This zone corresponds with layer 4 in the groundwater modeling done by the SBWA. Several researchers and modelers have suggested the existence of a zone, variously referred to as a semi-confining unit, a zone of lower permeability or a middle semi-confining unit, located between the upper and lower Floridan Aquifer. This area between 900 feet and 1350 feet below land surface consists largely of hard dolomites similar in nature to those in the zone immediately above it. This zone corresponds to layer 5 in the groundwater modeling done by SBWA. Previous regional modeling efforts have utilized model derived values to describe the middle semi-confining unit rather than site specific information showing the location, thickness or hydrogeological characteristics of the zone. Site specific data tends to confirm the lower permeability of this zone relative to the layers above and below it. Site specific data consists of a core sample, mineral content observed during the drilling of the test monitor well, and a Neumann-Witherspoon ratio analysis conducted during the aquifer performance test. The area between 1350 feet and 1450 feet below land surface also consists of dolomites but with greater permeability and greater transmissivity (the measure of an aquifer's ability to transmit water in a horizontal direction). This area corresponds to layer 6 in the groundwater modeling done by the SBWA. No site specific data exists beneath 1483 feet, representing the total depth of test well TM. Regional data does exist which characterizes the areas from 1500 feet below land surface to the bottom of the lower Floridan Aquifer as consisting of zones of varying lithology, and varying permeabilities. This zone which corresponds to layer 7 in the groundwater modeling done by Osceola County is not homogeneous or uniform over its entire thickness according to available regional data, consisting of geologic reports of deep wells in the east-central Florida area. All parties agree that in the area of the proposed wellfield, horizontal movement of water in the Floridan aquifer is from west, where the greatest recharge occurs along the Lake Wales Ridge, to east, where there is little or no recharge. Water quality in the upper Floridan as measured by chloride concentrations deteriorates as one moves from west to east. The Floridan aquifer beneath the BCWMA represents a transition zone between the recharge area to the west and high saline formation waters in the east. The dominant geochemical components in water beneath the BCWMA are biocarbonates. Water quality, as measured by chloride concentrations, also deteriorates with depth. Chloride concentrations, based on data derived from the drilling of well TM at the BCWMA, increase gradually from 306 milligrams per liter (mgl) at 410 feet, to 658 mgl at 1473 feet below land surface. Chloride concentrations increase abruptly to 1980 mgl in well TM at 1483 feet of depth. Evidence is inconclusive as to whether all of the proposed production wells will draw water exceeding 250 mgl in chloride concentrations. It is undisputed that most will, but chloride contours initially provided by SBWA's consultant indicate that the southernmost wells may produce water between 150 and 250 mgl. A comprehensive aquifer performance test (APT) was conducted at the BCWMA by the SBWA's consultant, Post, Buckley Schuh, and Jernigan, Inc. (PBSJ). The test was designed by the staff of the SJRWMD in consultation with the U.S. Geological Survey (USGS). This test yielded data which enabled PBSJ to calculate several aquifer characteristics for use in the groundwater modeling which was later done by SBWA's modeling consultant, Environmental Science and Engineering, Inc. (ESE). Eight wells were utilized in connection with the APT conducted at the BCWMA in January and February 1990. Three of the wells were dual zone monitoring wells capable of monitoring events in two different geologic units simultaneously. Three wells, including the test production well (TP) were open to the interval between 700 and 900 feet below land surface which was identified by the SBWA as the production zone. Typically APT's are run for 12 to 72 hours in Florida. Well TP was pumped for approximately 10 days at a rate equivalent to that expected during actual production while observations were made of water levels in all wells, including three off-site wells (the Holopaw test well, the Kempfer well and the Bruner well). All of the information the SBWA needed from the APT was obtained in the first hours of the test. Water levels in the area monitored during the APT ceased dropping due to pumpage within 1 hour after the pumping started. Three different analytical models were used to calculate a transmissivity value for the production zone, utilizing data derived during the APT. The result showed transmissivity in this zone to be approximately 2 million gallons per foot per day. This is a very high transmissivity value indicating a comparatively prolific aquifer, capable of producing the volumes of water requested in the application. As transmissivity increases, the cone of depression associated with pumpage tends to flatten out and be less steep. The cone of depression extends further out, creating a wider area of drawdown. Hydraulic conductivity is the measure of an aquifer's resistance to flow either in a vertical (KV) or horizontal (KH) direction. Two methods were used to calculate the hydraulic conductivity of the Hawthon Formation by PBSJ: laboratory analysis of a core sample taken from this unit, and a bail test (measuring an increase in water level over time) conducted on a well on site by the SJRWMD. Two different methods were used by PBSJ to calculate the hydraulic conductivity of layer 5: laboratory analysis of a core sample taken from that zone, and the Neuman-Witherspoon ratio analysis method. Porosity is the void space in porous media through which transport of particles, such as chlorides, can occur. Effective porosity has an impact on the ability of saline or dense water to move upward from depth toward a pumping well. The lower the effective porosity within an aquifer, the greater the potential for upconing of saline water within that aquifer. Effective porosity for layers 4 and 5 was calculated using two different methods, those being laboratory analysis of core samples taken from these zones, and analysis of acoustic logs generated during the APT. Each of these methods is accepted in the field of hydrogeology. Anticipated Impacts to Groundwater Levels and Flows as a Result of the Proposed Consumptive Use A numeric groundwater flow model is a computer code representing the groundwater flow process. Both SBWA and Osceola used numeric groundwater flow models developed by their consultants to predict and simulate the impacts associated with withdrawals proposed in the application. The SBWA used a finite difference model called INTERSAT for its simulations. INTERSAT is a widely used and accepted groundwater flow model. The model was run by ESE for the SBWA in the impact or drawdown mode. Drawdown or impact models simulate changes in water levels in response to a stress such as a pumping well. Drawdown models are an accepted and frequently used method to evaluate wellfield stress, particularly in association with a CUP application. ESE and PBSJ utilized several analytical models to first determine and later to verify the area to which the boundaries of their model would extend. The radius of influence of a well or wellfield is the distance from the center of pumpage extending out to where drawdowns caused by that pumpage reach zero. The boundary for a numeric groundwater model should be set at, or beyond, the radius of influence of the pumpage being simulated by the model. Based on the analytical models run by ESE and PBSJ the radius of influence of the wellfield proposed in the application is 43,000 to 45,000 feet. The approximate distances of the boundaries set in INTERSAT model from well TP were 50,000 feet to the east, 40,000 feet to the west, 40,000 feet to the north and 50,000 feet to the south. The INTERSAT model covers a total area of 320 square miles. This size falls somewhere between a regional model and a local model, and is adequate in size to address the impacts associated with the proposed withdrawals. The vertical boundary of SBWA's model extends to 1450 feet below land surface and, as stated above, is divided into 6 layers. The 1450 feet depth generally coincides with the limits of site specific data generated during the APT. The six layers in the SBWA flow model coincide with the six distinct geologic units identified by PBSJ in their APT report. The site specific data generated by the APT was utilized, along with other regional modeling studies, to arrive at a set of "conservative" aquifer parameters to be utilized in the INTERSAT model. "Conservative" parameters for purposes of this application are those which would tend to overpredict drawdown in the surficial aquifer and the production zone, while allowing for more upconing of dense water from the bottom of the model. The selection of "conservative" aquifer parameters by SBWA involved taking site specific values, comparing them with the ranges of values reported in the other available regional models and selecting values which, while still within the range of reported values used in other studies, would tend to show greater impacts for the areas of primary concern than the site specific values. Every aquifer parameter utilized in SBWA's groundwater flow model falls within the range of values reported in at least one of the groundwater modeling studies previously done in this region. The size of the grids utilized in the SBWA model were 500 feet by 500 feet within the vicinity of the wellfield. Grid sizes expand as one moves toward the outer boundaries of the model. The fineness of the grids used by ESE, particularly in the wellfield area, allows for accurate representation and resolution of surface water features, impacts in the production zone and for evaluating the effects of saltwater upcoming in the transport model also done by ESE. Within the radius of influence of the proposed wellfield, there are no existing wells in layers 5 or 6. The ESE model simulations for 18.8 mgd pumpage predict a maximum drawdown in the surficial aquifer (layer 1) of 0.14 feet centered primarily within the BCWMA. At a distance of 1 mile from the wellfield the impact drops to 0.12 feet. None of the existing legal users of water in layer 1 within the radius of influence of the proposed wellfield will suffer a ten percent or greater reduction in withdrawal capacity from their wells solely as a result of the proposed withdrawals, since 10 percent reduction would require at least 3 feet of drawdown. The ESE model simulations predict a maximum drawdown caused by the proposed pumpage of 4.5 feet in layer 3 centered along the alignment of wells and primarily within the BCWMA. At a distance of 2 miles, the drawdown drops to 2 feet. At the Brevard-Osceola County line the drawdown in layer 3 is approximately .5 feet. Petitioner Deseret's flowing wells are drilled in layer 3 and are located within the area where a drawdown of 1 foot is predicted in layer 3 by the ESE model. Deseret uses its property for a cow/calf ranching operation and has approximately 32,000 head of cows. Deseret uses 39 flowing wells east of state road 192 to irrigate pasture, water cattle and supply drinking water. Deseret possesses a valid CUP for a portion of the total flow capacity from those wells. Seasonally, the wells flow at different rates, but they are most relied upon in dry conditions when the natural flow would be decreased. It is unlikely that the proposed SBWA withdrawals will stop the flow of any of Deseret's wells; and it is unlikely that the flow will be reduced by more than 10 percent. Deseret and Osceola's consultants do predict a greater drawdown and opine that approximately 12 of Deseret's wells will cease flowing as a result of the SBWA withdraw As addressed below, the modelling by Petitioner's consultants, upon which those predictions are based, is less reliable than that of SBWA's consultants. If the effects are greater than predicted, mitigation in the form of installation of pumps is possible, albeit inconvenient and expensive. Mitigation would have to be provided by the applicant, SBWA. The drawdowns predicted by the ESE model for layer 4 are not significantly different from those for layer 3. It is anticipated that no legal user of water within the radius of influence of the proposed wellfield will suffer a 10 percent or greater reduction in withdrawal capacity for its wells, as a result of SBWA's proposed withdrawals. Petitioners' consultants, Hartman and Associates, (Hartman) modeled a significantly larger (4900 square miles) and deeper (3000 feet) area than did SBWA. The model makes its predictions based on one data point for every 49 square miles within the modeled area. Petitioners utilized much larger model grids in the wellfield area (2000 feet by 2000 feet) than did the SBWA. Grid of this size lacks the resolution necessary to evaluate wellfield impacts. Petitioners selected their aquifer parameters from another regional modeling study done in 1985 rather than using site specific data. Those parameters were then adjusted or calibrated until a match was obtained to a computer created potentiometric surface which was supposed to reflect the potentiometric surface for May 1990, an uncharacteristically dry period. The created potentiometric surface to which Hartman calibrated its model varies greatly from the potentiometric surface as reflected in the actual data points from which USGS derives its potentiometric surface maps. While no model is perfect, and actual data is preferable, in the absence of all the actual data that is needed, the ESE model is a more credible predictor of drawdowns. Anticipated Impacts to Groundwater Quality as a Result of the Proposed Consumptive Use Solute transport models are computer models designed to simulate the movement of mass, in this case -- chlorides -- through a groundwater flow system. These models are linked to, and are dependent on flow fields generated by groundwater flow models. In order to predict changes in water quality anticipated to occur as a result of its proposed withdrawals, SBWA's consultants used a solute transport model called HST3D. Developed by the USGS, this model is widely used and accepted. For simulations using the HST3D model, SBWA used the flow field and a portion of the grid generated by its INTERSAT groundwater flow model. The HST3D simulations run by ESE utilized a cross section of the INTERSAT model grid extending through row 26 of that grid, which is the row containing the line of 9 proposed wells running on an east-west axis. Use of a cross sectional grid is an appropriate method by which to examine salt water intrusion. Upconing, to the extent that it will occur as a result of the proposed pumpage, would be greatest within the cross section containing the 9 wells. The cross section extends two miles through the wellfield to the west. As chloride concentrations in water increase, the density of the water increases. Density can retard the degree of upconing when chloride concentrations are as low as 1000-2000 parts per million and becomes significant at 3000-5000 parts per million. Failure of a model to consider density effects, when appropriate, would tend to overstate upconing. HST3D does consider density effects. SBWA's consultant ran several simulations with the HST3D model to predict changes that would occur as a result of the proposed pumpage in chloride concentrations over 7, 14 and 30 year time periods. These simulations utilized the same aquifer parameters as the INTERSAT model together with the effective porosity values derived from site specific data. Assuming a starting chloride concentration of 1000 mgl at the bottom of layer 5, the measured concentration at that level in well TM on the BCWMA site, after 30 years of pumpage at 18.8 mgd, the chloride concentrations in layer 4 would increase by only 100 mgl. The simulations for 7 years of pumpage which is the duration of the proposed permit, show that the predicted increase in chloride levels would be substantially less than 100 mgl. Other HST3D simulations were run by SBWA for a pumpage rate of 35 mgd utilizing beginning chloride concentrations of 5,000 mgl and 10,000 mgl, respectively at the bottom of layers. The results did not show any significant changes in chloride concentrations in layer 4 over and above those shown when a lower starting chloride concentration was assumed. In a circumstance where, as here, the chloride concentrations in the zone from which water is proposed to be withdrawn exceeds secondary drinking water standards (250 mgl), the SJRWMD evaluates the existing legal water uses within the area that would be impacted by the proposed use. If it is determined that the increase in chloride concentrations caused by a proposed use would detrimentally affect other existing legal users or the applicant, only then is the increase deemed to be "significant". Within the layers of the aquifer which would experience increases in chloride concentrations as a result of the proposed withdrawal, layers 4, 5 and 6, no existing users of water would be detrimentally affected. Petitioner Deseret's closest wells to the proposed wellfield are in layer 3 where chloride levels will not be affected by the proposed wellfield within the 7 year duration of the proposed permit or even beyond that period. Further, the use Deseret makes of the water from the wells in closest proximity to the proposed wellfield, pasture irrigation, can tolerate significantly higher chloride concentrations than will exist even directly beneath the wellfield in level 4 after 30 years of pumping. Use of water for public supply purposes is considered by SJRWMD to be in the public interest. Utilization of the water beneath BCWMA for public supply purposes, even with some increase in chloride concentrations in the source of the water over the life of the permit, does not on balance detrimentally affect the public interest. Two different solute transport models were done by Petitioners' consultants, one a numeric model and the other an analytical model. The numeric model done by Hartman, RANDOMWALK, does not predict changes in chloride concentrations within an aquifer, but rather tracks movement of particles. RANDOMWALK does not account for density effects. The analytical model done by Prickett for the Petitioners relies on assumptions, many of which are not met in the aquifer system at BCWMA. Those assumptions relate to uniformity of the system, for example: porosity and permeabilities, and lack of regional gradients. The solute transport models utilized by the Petitioners are less reliable for predicting water quality changes resulting from the proposed pumpage than the model utilized by the SBWA. Salt water intrusion is a dramatic increase of chloride levels in an aquifer layer. The saline water encroachment which occurs from the wellfield stress will be in the lower confining unit. There will be limited degradation in the lower part of the production zone. The wellfield will not induce significant lateral intrusion from the east. There will not be any dramatic changes in chlorides. The movement of the chlorides is confined to the locality of the wellfield. Most of the movement is vertical and is of limited increase. The proposed Bull Creek withdrawals will not aggravate any currently existing salt water intrusion problems. The reject brine water from the RO treatment plant will be disposed of in deep injection wells in Brevard County. These injection wells would deposit the brine into a receiving body of water in the Oldsmar geologic formation. The brine reject will have a total dissolved solids (TDS) concentration of approximately 7,000 mgl. The receiving water into which the brine will be injected approximates sea water, with TDS concentrations in the range of 36,000 mgl. The receiving body will obviously not be further degraded. Environmental Impacts of the Proposed Consumptive Use District staff, SBWA consultants and Osceola's consultants independently conducted onsite field investigations of the BCWMA to evaluate the vegetative communities and land uses which exist on site. Each consultant prepared a habitat map identifying the various vegetative communities found at the site. While relatively pristine, the BCWMA has been logged and grazed by cattle in the past. The impacts of man's activities have been remediated by ceasing the activity. There are few permanent incursions, such as roads, canals and buildings. The area is a very diverse landscape, with a mosaic of different types of plant communities. There are various upland and wetland habitats. The variety of wetlands are forested and non-forested, deep and shallow, open and closed. These wetlands perform important functions, including water storage and purification, aquifer recharge, flood control, and provision of food sources and habitat for wildlife, and they are "factories" for producing the materials needed by many higher organisms. The wetlands on site are structurally complex and are good habitat for macro- invertebrates and the fish and higher organisms that feed on them. A number of these wetlands are shallow, isolated wetlands. During periods of inundation, when the wetlands fill up with water and interconnect with the Bull Creek drainage system, the system exports various organisms to the wetlands. Fish that are live bearers move into isolated wetlands during periods of inundation, and they and their offspring become a source of food for birds. Fish species that lay eggs can withstand desiccation (total drying out) can survive the temporary drying of wetlands, but live bearers must repopulate during periods of inundation. The mixed wetland hardwoods on site contain a diversity of bugs, crawfish, mayflies, damsel flies, midges, and snails. Some of these are important food sources for higher organisms. The apple snail, for example, is an important food source for such birds as the limpkin and the endangered snail kite, and its eggs are food for crawfish and other organisms. The biological communities that exist in the wetlands and uplands at the site are determined by a number of factors, including the depth and duration of the hydroperiod, soils, climate, temperature, and availability of sunlight. These communities and their habitats will react to changes in light, water, temperature, and many other subtle effects, causing changes in plant diversity and structure, the areal extent of certain types of habitats and wetlands, and utilization by wildlife. Natural fluctuations in the hydroperiod also cause these changes, generally from the exterior edges of a wetland to the interior. The wetlands in the BCWMA have been able to withstand the natural drought and flood periods, or they wouldn't be there today. Periodic burning is essential to the health of ecosystems such as in the Bull Creek area. Fires reduce the prevalence of species less tolerant to fire, allow other species to strengthen their presence, return organic material to the soil, and reduce the fuel available for wild fires. Originally occurring naturally as a result of lightening strikes, prescribed burns are now undertaken by agencies such as the Division of Forestry and the Game and Fresh Water Fish Commission to replicate the beneficial functions of natural periodic burning. Fire management is used as a land management technique at BCWMA and continued fire management at the BCWMA will maintain a natural ecological setting typical of Florida. Slight variations in elevation which mark the difference between wetlands and uplands can result in utilization of the areas by different animal communities. Where different types of plant communities meet, an "ecotone" is created. Where an ecotone exists, the "edge effect" of the competition between the two communities occurs. The result of the edge effect is higher plant and animal species diversity, which is extremely important to the natural community. Some animals make specific use of the ecotone for habitat and food resources. Many amphibians, frogs in particular, live in the ecotone. Some birds will not roost in the upland forests but will roost in the edge of the forest adjacent to wetlands. Wetlands in the BCWMA are connected to the remainder of the Bull Creek system through groundwater resources. Their biological and ecological communities are also connected as the same organisms move throughout the system. Isolated wetlands also exhibit a "moving edge" effect, where changes in the surface water and water table levels cause different plants, or plants at different levels of maturity, to exist in the wetland and its perimeter. This increases the productivity of the wetland by making it attractive to a wider variety of plant and animal species. If the expansion and contraction of isolated wetlands is reduced by lowered water levels, the smaller wetlands would exhibit a reduced edge effect, and the cumulative effect of this reduction over time would disrupt the functioning of the wetland-upland system. Isolated wetland systems are more sensitive to drawdowns in the surficial aquifer than connected wetland systems because the drainage area contributing water to the wetland system is smaller. Isolated herbaceous wetland communities are the most sensitive of the vegetative communities on BCWMA to drawdowns in the surficial aquifer. The surficial aquifer fluctuates naturally as much as five feet annually. Rainfall is the primary source of water for the surficial aquifer. Water levels in the surficial aquifer respond very quickly to rainfall events. Hydroperiods of the wetland systems in the BCWMA respond to rainfall and surficial aquifer levels. The wetland hydroperiods vary from year to year, and wetland ecosystems have adopted to those annual changes. But a groundwater withdrawal from the surficial aquifer in the Bull Creek area would cause a corresponding lowering of the surface water level, since the wetlands are not "perched", or separated from the aquifer by a confining layer. A drawdown would lower water levels throughout the hydroperiod, under both high water and low water conditions, with a more pronounced effect during the dry season and drought periods. Some of the over twenty threatened and endangered plant species present at Bull Creek grow in shallow, marginally wet areas. Changes in even a few inches of groundwater would cause these plant species to be retarded in growth, and their abundance would decrease or they would die out at the site. Many of the wetlands are shallow, broad, sloping areas, and groundwater elevation changes of just a few inches will cause changes in the areal extent of these wetlands. Even the .14 foot drawdown predicted by SBWA's modeling would affect shallow inundated or saturated systems by changing the moisture level at the surface, particularly by affecting the lowest water levels. Changes in the vegetative composition of wetlands will affect the macro-invertebrate characteristics of a site. For example, as water levels change, the density of the vegetation (in terms of number of plant stems per acre) can decrease, leaving fewer places for the macro-invertebrates to hide, and the populations of macro-invertebrates will decrease through predation. As food sources, habitat and breeding grounds decrease, those animal species that can relocate will attempt to do so. Relocation can adversely affect the survival of the species; for example, a wood stork unable to find a particular food upon which it is dependent at a particular interval in its life cycle may abandon its nest and its young. Animals that attempt to relocate may find that there is not a suitable similar habitat available, making their attempt to adjust to the change in their environment unsuccessful. The proposed use will not significantly affect the stages or vegetation of the upland communities at the BCWMA because they are not as dependent on saturation or inundation as a wetland community. Forested wetland systems, be they isolated or connected, will not be influenced by a drawdown of the magnitude predicted by SBWA for the surficial aquifer. Forested systems have deep root zones and the canopy provides shading to the strata below. Forested systems are able to tolerate natural changes in hydrology. The SBWA assessment does not offer any detailed cataloguing of the plant and animal communities on site, or a description of how the systems operate or interface with each other. It does not provide sufficient information to be able to assess the impacts of the proposed wellfield on these systems. There was insufficient information presented by the applicant to conclude that the environmental harm to be caused by operation of a wellfield at the BCWMA has been reduced to an acceptable level. The applicant relied on the fact that drawdowns in the surficial aquifer will be minimal, without fully considering the impact of those minimal drawdowns on a fragile wetland ecosystem during a dry period. Water Demand The SBWA was created by special act in 1983 as a dependent special district for the purpose of developing regional water supplies and transmission of water to water distribution systems. In its existence so far, its labors have been in the former, and none in the latter category. Efforts to develop a regional water supply have been frustrated by litigation, by reluctance of local public systems to give up their authority and by delays in pursuing and processing CUP applications, two of which are still pending, in addition to the instant application. The City of Melbourne's public water system provides water to Melbourne, Palm Bay and West Melbourne, and to some unincorporated areas surrounding Melbourne. It also supplies water to the area called south beaches, comprised of the Brevard County area south of Patrick Air Force Base, including Satellite Beach, Melbourne Beach, Indiatlantic and Indian Harbor Beach. The current water supply is Lake Washington, which is part of the chain of lakes on the St. Johns River. The city of Melbourne was granted a CUP on January 15, 1991, for withdrawals from Lake Washington, ranging from 27.15 million gallons maximum daily withdrawals in 1991 to 21.7 million gallons maximum daily withdrawals in 1998. In addition, Melbourne has planned a new facility and has the CUP to withdraw 8.13 million gallons a day from the Floridan Aquifer commencing in 1993. After reverse osmosis treatment, the groundwater withdrawal will yield 6.5 million gallons a day finished water, making up the difference from reduced withdrawals from Lake Washington. Approximately 56 potable water systems have been identified by SBWA in South Brevard, south of the Pineda Causeway. Almost all are small private systems. Besides Melbourne, the other major water supplier in the area is General Development Utilities (GDU), serving the City of Palm Bay. GDU's CUP expires in 1993 with an average daily withdrawal of 6.5 mgd and maximum daily withdrawal of 8.5 mgd. It has ample capacity until 1996, and beyond to the year 2000, if an additional Department of Environmental Regulation capacity rating is obtained. The total capacity of the two major existing facilities is approximately 30 mgd and total existing consumptive use quantities (including existing CUPs with expiration dates varying from 1993 to 1998) approach 40 mgd. The current SBWA water master plan assumes that existing sources need replacing. More specifically, SBWA, if this CUP is granted, seeks to replace Lake Washington as the primary source of water in the area with the groundwater obtained from the BCWMA wellfield. An agreement between the City of Melbourne and SBWA provides that the City will initially purchase 8 mgd, plus all future needs of water from the SBWA. This 8 mgd would be used by Melbourne prior to using its 6.5 mgd finished water from the RO facility, and the RO water would be used prior to withdrawals from Lake Washington. The agreement, dated January 9, 1991, acknowledges the need for, and specifically authorizes improvements to Melbourne's Lake Washington Water Treatment Plant, including the conversion of the existing high service pumping station to a low service pumping station with average daily capacity of 20 mgd and maximum capacity of 25 mgd. (SBWA Ex. 49) GDU is a private utility and currently is outside the jurisdiction of the SBWA. General Development Corporation is in receivership and the City of Palm Bay is negotiating for purchase of the utility. If the purchase is successful, the supply will become publicly owned and subject to the jurisdiction of the SBWA. The City of Palm Bay is not bound to purchase GDU at any price, and the requirement that it would shut down its newly purchased facility to receive water from SBWA is a disincentive to the acquisition. In the meantime, GDU has no incentive to reduce CUP capacity and devalue its facility. GDU's service has been uninterrupted and reliable. Contamination to the surface aquifer utilized by GDU has been successfully treated. Although septic tanks proliferate in Palm Bay, their location, as well as the presence of confining layers in the surficial aquifer, reduce the susceptibility of GDU wells to contamination from septic tanks. The applicant's concerns about unreliability and safety of Lake Washington as a continued water source are unsubstantiated by the weight of evidence in this proceeding. Surface water facilities have been used in Florida since before the turn of the century and no major facility has ever been off-line one day due to raw water contamination. Nor has any major Florida surface water plant ever been sabotaged. There is a greater chance in Florida of problems with pipeline failures, and the miles of pipes planned to transmit ground water from Bull Creek east to SBWA consumers increase the chances of those problems. Recently, the SJRWMD Upper Basin Project has significantly improved the water quality and quantity in Lake Washington through restoration of marshlands in the upper basin and capping flowing wells. Restored marsh areas will allow for additional removal of nutrients and provide an additional storage to the Lake Washington/Upper Basin system, significantly improving safe yield quantities. Comparisons of concentrations of raw water chlorides and total dissolved solids for the drought years of 1989 and 1990, show significant reductions for the latter time frame. Recent evaluations indicate that Lake Washington would be acceptable in terms of chlorides and TDS concentrations for a 35 mgd withdrawal, even during 50 and 100 year droughts. Water quality improvements to Lake Washington can be directly related to the Upper Basin project. Trihalomethanes are regulated by the Safe Drinking Water Act. They are produced by the disinfection process of treating raw water with chlorines, and they are carcinogenic. A previously experienced problem at the Melbourne plant has been corrected with operational changes. As recently as 1988, an internal staff report by SJRWMD staff provided: Lake Washington has been a reliable source of public water supply since 1960 and can remain so in the future with the continuation of sound basin planning and watershed management by the St. John's river Water Management District. The quality of the raw water from Lake Washington is subject to annual and seasonal variations that make the treatment process more difficult, and the quality of the delivered water less consistent, than would be the case with a groundwater supply. A supplemental water source near Lake Washington would improve the quality of the water delivered to the users, would increase the total volume that could be taken from the lake in times of stress, and would provide a reliable alternative in case of emergency. The upper zone of the Floridan Aquifer within south Brevard County has the potential to supply a significant portion of the area's future water needs with existing low-pressure, reverse osmosis technology at a cost that is comparable to current supplies.
Recommendation Based on the foregoing, it is hereby, recommended that the SBWA application for CUP be denied. RECOMMENDED this 12th day of March, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 91-1779, 91-1780, & 91-1781 The following constitute disposition of the findings of fact proposed by each party. Petitioner, Osceola County These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-5, 7-8, 14, 21-22, 24-25, 27-28, 30, 32, 35, 62-65, 73, 104, 113, 116-125, 127, 129-130, 132-138, 140, 154, 157-158, 164, 167-168, 183, 186, 189, 191-195, 197-200, 202-204, 209, 212. These findings are rejected as contrary to or unsupported by the weight of evidence: 37-38, 48, 51, 53, 56, 66, 79-81, 84-90, 92-94, 102-103, 105-107, 110-112, 115, 128, 171-172, 212(d), (f) and (g), 213-214. These findings are rejected as cumulative, unnecessary or irrelevant: 6, 9- 13, 15-20, 23, 26, 29, 31, 33-34, 36, 39-47, 49-50, 52, 54-55, 57-61, 67-72, 74- 78, 82-83, 91, 95-101, 108-109, 114, 126, 131, 139, 141-153, 155-156, 159-163, 165-166, 169-170, 173-182, 184-185, 190, 196, 201, 205-208, 210-211, 212(e), 215. Petitioners, Triple E, Triple N, East Central Florida Services, Inc., and Deseret These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-6, 8-9, 16-20, 22-25, 27-28, 30-31, 50- 56, 59-60. These findings are rejected as contrary to or unsupported by the weight of evidence: 7, 12, 32, 34-37, 40, 42, 44, 48, 49, 58. These findings are rejected as cumulative, unnecessary or irrelevant: 10- 11, 13-15, 21, 26, 29, 33, 38-39, 41, 43, 45-47, 57, 61-63. Respondent, South Brevard Water Authority These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-6, 9-11, 13, 16-24, 28, 30-34, 36, 38, 46-48, 61, 64, 70, 72-74, 90-91, 94-98, 105-108, 110-111, 113, 115-116, 121, 126-129, 133, 149, 152, 157, 169, 179, 181-190, 192-194. These findings are rejected as contrary to or unsupported by the weight of evidence: 41, 130-132, 156, 158, 167, 174, 177. These findings are rejected as cumulative, unnecessary or irrelevant: 7-8, 12, 14-15, 25-27, 29, 35, 37, 39-40, 42-45, 49-60, 62-63, 65-69, 71, 75-89, 92- 93, 100-104, 109, 112, 114, 117-120, 122-125, 134-148, 150-151, 153-155, 159- 166, 168, 170-173, 175-176, 178, 180, 191. Respondent, St. Johns River Water Management District These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-8, 10-22, 24-36, 38-44, 47-62, 64-88, 90, 92-116, 118-122, 124-130, 132-142, 144-151, 159-160, 164, 166-167, 169, 171, 174-175, 177, 193-196, 198, 202, 206. These findings are rejected as contrary to or unsupported by the weight of evidence: 131 (the conclusion), 153-154, 156-157, 161-162, 197, 204, 207. These findings are rejected as cumulative, unnecessary or irrelevant: 9, 23, 37, 45-46, 63, 89, 91, 117, 123, 143, 150, 152, 155, 158, 163, 165, 168, 170, 172-173, 176, 178-192, 199-201, 203, 208-210. COPIES FURNISHED: Segundo J. Fernandez, Esquire Scott Shirley, Esquire OERTEL, HOFFMAN, FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, FL 32314-6507 Douglas P. Manson, Esquire BLAIN & CONE, P.A. 202 Madison Street Tampa, FL 33602 Clifton A. McClelland, Esquire POTTER, McCLELLAND, MARKS & HEALY, P.A. Post Office Box 2523 Melbourne, FL 32902-2523 Wayne Flowers, Esquire Nancy B. Barnard, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Neal D. Bowen, County Attorney Osceola County Room 117 17 South Vernon Avenue Kissimmee, FL 32741 Carol Browner, Secretary Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue to be determined in this case is whether the Administrative Order issued by DEP on December 23, 2014, is a reasonable exercise of its enforcement authority.
Findings Of Fact Parties FPL is a subsidiary of NextEra Energy. It is a regulated Florida Utility providing electric service to 4.7 million customers in 35 counties. FPL owns and operates the Turkey Point Power Plant, which includes a cooling canal system (“CCS”) that is the subject of the AO at issue in this proceeding. DEP is the state agency charged with administering the Florida Electric Power Plant Siting Act (“PPSA”), chapter 403, Part II, Florida Statutes. DEP has the power and the duty to control and prohibit pollution of air and water in accordance with the law and rules adopted and promulgated by it. § 403.061, Fla. Stat. (2015). ACI is a Florida corporation and the owner of 2,598 acres of land in southeast Miami-Dade County approximately four miles west of the Turkey Point CCS. ACI is engaged in agriculture and limerock mining on the land. ACI withdraws and uses water from the Biscayne Aquifer pursuant to two SFWMD water use permits. ACI also has a Life- of-the-Mine Environmental Resource Permit issued by DEP for its mining activities. The Life-of-the-Mine permit requires that mining be terminated if monitoring data indicate the occurrence of chloride concentrations greater than 250 milligrams per liter (“mg/L”) in the mine pit. The City of Miami is a municipal corporation located about 25-miles north of Turkey Point. The City purchases water from Miami-Dade County, which withdraws the water from the Biscayne Aquifer. Turkey Point FPL’s Turkey Point property covers approximately 9,400 acres in unincorporated Miami-Dade County, along the coastline adjacent to Biscayne Bay. Five electrical generating units were built at Turkey Point. Units 1 and 2 were built in the 1960s. Unit 2 ceased operating in 2010. Units 3 and 4 are Florida’s first nuclear generating units, which FPL constructed in the 1970s. Unit 5 is a natural gas combined cycle generating unit brought into service in 2007. Units 1 through 4 pre-date the PPSA and were not certified when they were built. However, Units 3 and 4 were certified pursuant to the PPSA in 2008 when FPL applied to increase their power output, referred to as an “uprate.” Unit 5 was built after the PPSA and was certified under the Act. The CCS The Turkey Point CCS is a 5,900-acre network of canals, which provides a heat removal function for Units 1, 3, and 4, and receives cooling tower blowdown from Unit 5. FPL constructed the CCS pursuant to satisfy a 1971 consent judgment with the U.S. Department of Justice which required FPL to terminate its direct discharges of heated water into Biscayne Bay. The CCS is not a certified facility under the PPSA, but it is an “associated facility,” which means it directly supports the operation of the power plant. The CCS functions like a radiator, using evaporation, convective heat transfer, and radiated heat loss to lower the water temperature. When cooling water enters the plant, heat is transferred to the water by flow-through heat exchangers and then discharged to the “top” or northeast corner of the CCS. Circulating water pumps provide counter-clockwise flow of water from the discharge point, down (south) through the 32 westernmost canals, across the southern end of the CCS, and then back up the seven easternmost canals to the power plant intake. The full circuit through the CCS from discharge to intake takes about 48 hours and results in a reduction in water temperature of about 10 to 15 degrees Fahrenheit. The CCS canals are unlined, so they have a direct connection to the groundwater. Makeup water for the CCS to replace water lost by evaporation and seepage comes from process water, rainfall, stormwater runoff, and groundwater infiltration. When the CCS was first constructed, FPL and SFWMD’s predecessor, the Central and Southern Florida Flood Control District, entered into an agreement to address the operation and management of the CCS. The agreement has been updated from time to time. The original agreement and updates called for monitoring the potential impacts of the CCS. Operation of the CCS is also subject to a combined state industrial wastewater permit and National Pollution Discharge Elimination System (“NPDES”) permit administered by DEP. The industrial wastewater/NPDES permit is incorporated into the Conditions of Certification. Hypersaline Conditions The original salinity levels in the CCS were probably the same as Biscayne Bay. However, because the salt in saltwater is left behind when the water evaporates, and higher water temperature causes more evaporation, the water in the CCS becomes saltier. Salinity levels in the CCS are also affected by rainfall, air temperature, the volume of flow from the power plant, and the rate of water circulation. In 2008, when FPL applied for certification of the uprate of Units 3 and 4, it reported average salinity to be 50 to 60 Practical Salinity Units (“PSU”). This is a “hypersaline” condition, which means the salinity level is higher than is typical for seawater, which is about 35 PSU. Higher salinity makes water denser, so the hypersaline water in the CCS sinks beneath the canals and to the bottom of the Biscayne Aquifer, which is about 90 feet beneath the CCS. At this depth, there is a confining layer that separates the Biscayne Aquifer from the deeper Upper Floridan Aquifer. The confining layer stops the downward movement of the hypersaline “plume” and it spreads out in all directions. FPL estimated that the average daily loading of salt moving from the CCS into the Biscayne Aquifer is 600,000 pounds per day. In late 2013, salinity levels in the CCS began to spike, reaching a high of 92 PSU in the summer of 2014. FPL believes the salinity spikes in recent years are attributable in part to lower than normal rainfall and to higher turbidity in the CCS caused by algal blooms. Reductions in flow and circulation during this period associated with the retirement of Unit 2 and the uprate of Units 3 and 4 could also have contributed to increased temperatures in the CCS, more evaporation, and higher salinity. ACI presented evidence suggesting that the uprate of Units 3 and 4 could be the primary cause of recent, higher water temperatures and higher salinity. The analyses that have been conducted to date are not comprehensive or meticulous enough to eliminate reasonable disagreement about the relative influence of the factors that affect salinity in the CCS. FPL has taken action to reduce salinity within the CCS by adding stormwater from the L-31E Canal (pursuant to emergency orders), adding water from shallow saline water wells, and removing sediment build-up in the canals to improve flow. These actions, combined with more normal rainfall, have decreased salinity levels in the CCS to about 45 PSU at the time of the final hearing. Saltwater Intrusion Historical data show that when the CCS was constructed in the 1970s, saltwater had already intruded inland along the coast due to water withdrawals, drainage and flood control structures, and other human activities. The “front” or westernmost line of saltwater intrusion is referred to as the saline water interface. More specifically, the saline water interface is where groundwater with total dissolved solids (“TDS”) of 10,000 mg/L or greater meets groundwater with a lower chloride concentration. DEP classifies groundwater with a TDS concentration less than 10,000 mg/L as G-II groundwater, and groundwater with a TDS concentration equal to or greater than 10,000 mg/L as G-III groundwater, so the saline water interface can be described as the interface between Class G-II groundwater and Class G-III groundwater. In the 1980s, the saline water interface was just west of the interceptor ditch, which runs generally along the western boundary of the CCS. The interceptor ditch was installed when the CCS was first constructed as a means to prevent saline waters from the CCS from moving west of the ditch. Now, the saline water interface is four or five miles west of the CCS, and it is still moving west. The groundwater that comes from the CCS can be identified by its tritium content because tritium occurs in greater concentrations in CCS process water than occurs naturally in groundwater. CCS water has been detected four miles west of the CCS. Saline waters from the CCS have been detected northwest of the CCS, moving in the direction of Miami-Dade County’s public water supply wellfields. The hypersaline plume from the CCS is pushing the saline water interface further west. Respondents identified factors that contributed to the saltwater intrusion that occurred before the CCS was constructed. However, while saltwater intrusion has stabilized in other parts of Miami-Dade County, it continues to worsen in the area west of the CCS. Respondents made no effort to show how any factor other than the CCS is currently contributing to the continuing westward movement of the saline water interface in this area of the County. The preponderance of the record evidence indicates the CCS is the major contributing cause of the continuing westward movement of the saline water interface. Fresh groundwater in the Biscayne Aquifer in southeast Miami-Dade County is an important natural resource that supports marsh wetland communities and is utilized by numerous existing legal water uses including irrigation, domestic self-supply, and public water supply. The Biscayne Aquifer is the main source of potable water in Miami-Dade County and is designated by the federal government as a sole source aquifer under the Safe Drinking Water Act. Saltwater intrusion into the area west of the CCS is reducing the amount of fresh groundwater in the Biscayne Aquifer available for natural resources and water uses. Water Quality Violations At the final hearing, a DEP administrator testified that DEP was unable to identify a specific violation of state groundwater or surface water quality standards attributable to the CCS, but DEP’s position cannot be reconciled with the undisputed evidence that the CCS has a groundwater discharge of hypersaline water that is contributing to saltwater intrusion. Florida Administrative Code Rule 62-520.400, entitled “Minimum Criteria for Ground Water,” prohibits a discharge in concentrations that “impair the reasonable and beneficial use of adjacent waters.” Saltwater intrusion into the area west of the CCS is impairing the reasonable and beneficial use of adjacent G-II groundwater and, therefore, is a violation of the minimum criteria for groundwater in rule 62-520.400. In addition, sodium levels detected in monitoring wells west of the CCS and beyond FPL’s zone of discharge are many times greater than the applicable G-II groundwater standard for sodium. The preponderance of the evidence shows that the CCS is contributing to a violation of the sodium standard. Agency Response The 2008 Conditions of Certification included a Section X, entitled “Surface Water, Ground Water, Ecological Monitoring,” which, among other things, required FPL and SFWMD to execute a Fifth Supplemental Agreement regarding the operation and management of the CCS. New monitoring was required and FPL was to “detect changes in the quantity and quality of surface and ground water over time due to the cooling canal system.” Section X.D. of the Conditions of Certification provides in pertinent part: If the DEP in consultation with SFWMD and [Miami-Dade County Department of Environmental Resources Management] determines that the pre- and post-Uprate monitoring data: is insufficient to evaluate changes as a result of this project; indicates harm or potential harm to the waters of the State including ecological resources; exceeds State or County water quality standards; or is inconsistent with the goals and objectives of the CERP Biscayne Bay Coastal Wetlands Project, then additional measures, including enhanced monitoring and/or modeling, shall be required to evaluate or to abate such impacts. Additional measures include but are not limited to: * * * 3. operational changes in the cooling canal system to reduce any such impacts; DEP determined that the monitoring data indicates harm to waters of the State because of the contribution of CCS waters to westward movement of the saline water interface. Under the procedures established in the Conditions of Certification, this determination triggered the requirement for “additional measures” to require FPL to “evaluate or abate” the impacts. Pursuant to the Conditions of Certification, a Fifth Supplemental Agreement was executed by FPL and SFWMD, which, among other things, requires FPL to operate the interceptor ditch to restrict movement of saline water from the CCS westward of Levee 31E “to those amounts which would occur without the existence of the cooling canal system.” The agreement provides that if the District determines that the interceptor ditch is ineffective, FPL and the District shall consult to identify measures to “mitigate, abate or remediate” impacts from the CCS and to promptly implement those approved measures. SFWMD determined that the interceptor ditch is ineffective in preventing saline waters from the CCS in deeper zones of the Biscayne Aquifer from moving west of the ditch, which triggered the requirement of the Fifth Supplemental Agreement for FPL to mitigate, abate, or remediate the impacts. Following consultation between DEP and SFWMD, the agencies decided that, rather than both agencies responding to address the harm caused by the CCS, DEP would take action. DEP then issued the AO for that purpose. The AO The AO begins with 36 Findings of Fact, many of which are undisputed background facts about the history of Turkey Point and the CCS. Also undisputed is the statement in Finding of Fact 25 that “the CCS is one of the contributing factors in the western migration of CCS saline Water” and “the western migration of the saline water must be abated to prevent further harm to the waters of the state.” Findings of Fact 16-19 and 25 indicate there is insufficient information to identify the causes and relative contributions of factors affecting saltwater intrusion in the area west of the CCS. However, as found above, the preponderance of the record evidence indicates the CCS is the major contributing cause of the continuing westward movement of the saltwater interface. In the “Ordered” section of the AO, FPL is required to submit to DEP for approval a detailed CCS Salinity Management Plan. The AO explains that “[t]he primary goal of the Management Plan shall be to reduce the hypersalinity of the CCS to abate westward movement of CCS groundwater into class G-II (<10,000 mg/L TDS) groundwaters of the State.” The goal of reducing hypersalinity of the CCS to abate westward movement of CCS groundwater into class G-II groundwaters is to be demonstrated by two success criteria: (1) reducing and maintaining the average annual salinity of the CCS at a practical salinity of 34 within 4 years of the effective date of the Salinity Management Plan; and (2) decreasing salinity trends in four monitoring wells located near the CCS. Although the AO states that FPL’s proposal to withdraw 14 mgd from the Upper Florida Aquifer and discharge it into the CCS might accomplish the goal of the AO, the AO does not require implementation of this particular proposal. It is just one of the options that could be proposed by FPL in its Salinity Management Plan.1/ If the success criteria in the AO are achieved, hypersaline water will no longer sink beneath the CCS, the rate of saltwater intrusion will be slowed, and the existing hypersaline plume would begin to “freshen.” Petitioners’ Objections ACI and the City object to the AO because the success criteria do not prevent further harm to water resources. Maintaining salinity in the CCS to 34 PSU will not halt the western movement of the saline water interface. They also contend the AO is vague, forecloses salinity management options that could be effective, and authorizes FPL’s continued violation of water quality standards. For ACI, it doesn’t matter when the saline water interface will reach its property because, advancing in front of the saltwater interface (10,000 mg/L TDS) is a line of less salty water that is still “too salty” for ACI’s mining operations. Years before the saline water interface reaches ACI’s property, ACI’s mining operations will be disrupted by the arrival of groundwater with a chloride concentration at or above 250 mg/L.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department of Environmental Protection rescind the AO or amend it as described above. DONE AND ENTERED this 15th day of February, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2016.
The Issue The issue to be determined in this case is whether the City of Tarpon Springs (“City”) is entitled to a industrial wastewater facility permit for its proposed discharge of demineralization concentrate into the Gulf of Mexico adjacent to Pasco County, Florida.
Findings Of Fact The Parties Henry Ross is a resident of Tarpon Springs. In his petition for hearing, he alleges that he is a recreational fisherman and a "consumer of fish taken from the area" where the proposed wastewater discharge would occur. He presented no evidence at the final hearing to prove these allegations. Neither the City or the Department stipulated to facts that would establish Ross's standing. The City of Tarpon Springs is a municipality in Pinellas County and the applicant for the industrial wastewater permit that is challenged by Ross. The Department is the agency charged by law with the duty, and granted the power, to regulate the discharge of pollutants into waters of the State. The Proposed Permit - General Due to the cost of obtaining potable water from Pinellas County Utilities, the City decided to look for another source of drinking water. In February 2004, an alternative water supply plan was developed by the City’s Office of Public Services which analyzed potable water supply options. It determined that the withdrawal and treatment of brackish groundwater represented the best option for the City. The proposed permit authorizes the City to discharge industrial wastewater into waters of the State. The wastewater is demineralization concentrate, which is produced when RO technology is used to remove salts from brackish water to convert it to potable water. The wastewater would be produced in conjunction with the operation of a not-yet-constructed WTP that would supply public drinking water to the residents of the City. The City must also obtain a consumptive use permit from the Southwest Florida Water Management District for the proposed withdrawal of groundwater. Whether the Town is entitled to a consumptive use permit is not at issue in this proceeding. The industrial wastewater permit would authorize a maximum daily discharge of 2.79 million gallons per day ("mgd") of RO concentrate. The initial operation of the WTP, however, is expected to discharge 1.05 mgd. The RO concentrate would be transported via a force main from the WTP in the City to an outfall in Pasco County. The outfall would discharge the wastewater into a canal which is already being used for the discharge of cooling water from Progress Energy Florida, Inc.’s Anclote Power Generation Facility. The outfall would be 50 feet north of the point in the canal where Progress Energy is required to demonstrate compliance with its own permitting requirements, so as not to interfere with Progress Energy's ability to demonstrate compliance. There is a floating barrier in the channel north of the proposed point of discharge, and a fence along the side of the canal, to prevent swimmers, boaters, and persons on foot from getting near the Progress Energy power plant. The floating barrier and fence would also prevent swimmers, boaters, or pedestrians from reaching the proposed discharge outfall and the area of the canal where the discharge will initially mix. After being discharged into the canal, the wastewater would become diluted and flow northward, out of the canal and into the open waters of the Gulf. The prevailing currents in area would most often force the wastewater south toward Pinellas County and the mouth of the Anclote River. To determine the characteristics of the wastewater, the City's consultants collected water from the three proposed well fields for the new WTP and ran the water through a small, pilot-scale RO unit to generate an RO concentrate that is representative of the proposed RO discharge. It was determined that eight constituents of the wastewater would likely be present in concentrations that would exceed applicable state water quality standards: aluminum, copper, iron, gross alpha (a radioactivity measurement), total radium, selenium, nickel, and zinc. The Mixing Zones The Department may authorize mixing zones in which a wastewater discharge is allowed to mix with the receiving waters. See Fla. Admin. Code R. 62-4.244. Within the mixing zone, certain minimum water quality criteria must be met. At the outer boundary of the mixing zone, the applicable state water quality standards must be met. In this case, the water quality standards for Class III marine waters are applicable. The City's consultants analyzed the wastewater, receiving waters, and other factors and used an analytical model to simulate a number of mixing scenarios. In cooperation with Department staff, a separate mixing zone was established for each of the eight constituents that are not expected to meet water quality standards at the outfall. The largest mixing zone, for copper, is 1,483.9 square meters. The smallest mixing zone, for nickel, is 0.7 square meters. The mixing zones are conservatively large to assure sufficient mixing. Under most conditions, the mixing is expected to occur in a smaller area. Toxicity Analysis Among the minimum criteria that must be met within a mixing zone is the requirement to avoid conditions that are acutely toxic. See Fla. Admin Code R. 62-302.500(1)(a). A wastewater discharge is tested for potential acute toxicity by exposing test organisms to the undiluted discharge and determining whether more than 50 percent of the organisms die within a specified time period. The test organisms, mysid shrimp and silverside minnow, are sensitive species. Therefore, when a discharge is not acutely toxic to these organisms, it can be reasonably presumed that the discharge would not harm the native organisms in the receiving waters. The acute toxicity test for the proposed RO concentrate indicated zero toxicity. The Department requested that the City also analyze the potential chronic toxicity of the proposed discharge. A wastewater discharge shows chronic toxicity if exposure to the discharge adversely affects the growth and weight of the test organisms. The tests performed on the representative discharge showed that the proposed discharge of RO concentrate would not create chronic toxicity in the mixing zones. Petitioner’s expert witness, Ann Ney, did not review the toxicity analyses or other water quality data that were submitted to the Department by the City. However, she expressed a general concern about a salty discharge that could create stratification in the canal with higher salinity at the bottom of the canal that might be hypoxic (little or no dissolved oxygen). The more persuasive evidence shows that salinity stratification, or a hypoxic condition, is unlikely to occur. The proposed permit requires the City to conduct quarterly chronic toxicity tests. The permit also requires the City to periodically test the water and sediments for any unexpected cumulative effects of the discharge. Evaluation of Disposal Options Florida Administrative Code Rule 62-620.625(6) requires that an applicant for a permit to discharge demineralization concentrate must investigate disposal options potentially available in the project area. The City evaluated blending the discharge concentrate with the City's re-use water irrigation program or with the City’s domestic wastewater discharge into the Anclote River. The RO concentrate was too salty for irrigation use and there was an inadequate volume of domestic wastewater available throughout the year. In addition, the Anclote River is an Outstanding Florida Water and, therefore, is afforded the highest water quality protection under Department rules. See Fla. Admin. Code R. 62-4.242(2). The City also looked at underground injection but that was economically unreasonable and there was concern about upward migration of the discharge. It was economically unreasonable to discharge the concentrate farther out into the Gulf. Anti-degradation Analysis For a proposed new discharge, a permit applicant must demonstrate that the use of another discharge location, land application, or recycling that would avoid the degradation of water quality is not economically and technologically reasonable. See Fla. Admin. Code R. 62-4.242(1)(d). As discussed above, the City investigated other disposal options, but they were not economically or technologically reasonable. An applicant for a permit authorizing a new discharge must demonstrate that any degradation is desirable under federal standards and under circumstances that are clearly in the public interest. See Fla. Admin. Code R. 62-302.300(17). In determining whether a proposed discharge is desirable under federal standards and under circumstances that are clearly in the public interest, the Department is required by Rule 62-4.242(1)(b) to consider the following factors: Whether the proposed project is important to and is beneficial to public health, safety or welfare (taking into account the policies set forth in Rule 62-302.300, F.A.C., and, if applicable, Rule 62-302.700, F.A.C.); and Whether the proposed discharge will adversely affect conservation of fish and wildlife, including endangered or threatened species, or their habitats; and Whether the proposed discharge will adversely affect the fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge; and Whether the proposed discharge is consistent with any applicable Surface Water Improvement and Management Plan that has been adopted by a Water Management District and approved by the Department. The proposed project is important to and is beneficial to public health, safety or welfare because it would provide drinking water for the public. In addition, the treatment and use of brackish groundwater converts otherwise unusable water into a valuable resource. The use of brackish water avoids the use of water in the surficial aquifer that is used by natural systems, such as wetlands. The Florida Legislature has found that the demineralization of brackish water is in the public interest, as expressed in Section 403.0882, Florida Statutes (2010): The legislature finds and declares that it is in the public interest to conserve and protect water resources, provide adequate supplies and provide for natural systems, and promote brackish water demineralization as an alternative to withdrawals of freshwater groundwater and surface water by removing institutional barriers to demineralization and, through research, including demonstration projects, to advance water and water by-product treatment technology, sound waste by-product disposal methods, and regional solutions to water resources issues. The proposed discharge would not adversely affect conservation of fish and wildlife. Because the discharge is not toxic to sensitive test organisms provides reasonable assurance that the native fish and other aquatic life would not be adversely affected by the discharge. The only identified threatened or endangered species that frequents the canal waters is the endangered Florida Manatee. Manatees use the canal because of its relatively warm waters. Manatees come to the surface to breathe and they drink fresh water. There is no reason to expect that a manatee moving through the mixing zones would be adversely affected by the RO concentrate. The Florida Fish and Wildlife Conservation Commission, which has primary responsibility for the protection of endangered and threatened species, did not object to the proposed permit. Manatees and many other aquatic species use seagrasses as food or habitat. There are no seagrasses in the area of the canal into which the RO concentrate would be discharged, but there are dense seagrass beds nearby. The proposed discharge would have no effect on the seagrasses in the area. The proposed discharge would not adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge. Because the proposed discharge is non-toxic and would meet Class III water quality standards before reaching the closest areas where humans have access to the canal and Gulf waters, there is no reason to believe that the proposed discharge would be harmful to humans. The proposed discharge would not adversely affect recreational activities, such as swimming, boating, or fishing. Petitioner presented the testimony of two fishermen about fishing resources and water flow in the area, but no evidence was presented to show how the proposed discharge would reduce marine productivity. Petitioner contends that the proposed discharge would adversely affect the Pinellas County Aquatic Preserve. However, the aquatic preserve is two miles away. The proposed discharge would probably be undetectable at that distance. It would have no effect on the waters or other resources of the aquatic preserve. With regard to the requirement that the proposed discharge be consistent with an adopted and approved Surface Water Improvement and Management Plan for the area, there is no such plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department issue a final order determining that Petitioner lacks standing, and approving the issuance of the industrial wastewater facility permit to the City. DONE AND ENTERED this 16th day of December, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2010. COPIES FURNISHED: Nona R. Schaffner, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Thomas J. Trask, Esquire Frazer, Hubbard, Brandt & Trask, LLP 595 Main Street Dunedin, Florida 34698 Henry Ross 1020 South Florida Avenue Tarpon Springs, Florida 34689 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi Drew, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact At all times pertinent to the issues herein, the Southwest Florida Water Management District had permitting authority for the issuance of consumptive use permits in the area in which Respondent, El Jobean, proposes to sink its irrigation well. On December 12, 1988, El Jobean submitted a consumptive use permit application to sink a new well for the purpose of irrigation of a golf course to be developed on the property it owns in Sarasota County. The well is to be located in the NE 1/4 of the NE 1/4 of Section 32, Township 365, Range 20R, in Sarasota County, Florida near the southern boundary of an irregularly shaped piece of property consisting of approximately 855 acres, owned by the applicant, which extends over Sections 28, 29, 32 and 33, Township 365, Range 20E. Respondent proposed to sink a 10 inch diameter well to a total depth of approximately 900 feet with casing in the well now to extend down to 300 feet, with a pump capacity of 1,000 GPM. The golf course to be irrigated is to encompass approximately 190 acres. The applicant requested authority to withdraw an average of 600,000 GPD with a limitation of a maximum of 1,440,000 GPD. The application was properly staffed by the District. In the staff report on the application, the average daily use limitation was expanded to 707,000 GPD; consumptive use was raised from 0 to 139,000 GPD; and maximum daily consumption was reduced from 1,440,000 GPD to 1,240,000 GPD. These changes were due to correction of arithmetic errors in the application and were accepted by the applicant. The ultimate recommendation of the staff was for approval of a 6 year permit, subject to certain conditions outlined in subparagraph I of the staff report. These special conditions require the provision and use of flow measuring devices to maintain an accurate record of the water withdrawn; the maintenance of flow records and the providing of periodic reports to the District; the collection and analyzing of water quality of samples taken from the well to measure the appropriate parameters for chlorides, sulfates, and total dissolved solids; the reporting of the results of these samplings and a description of the sampling and analytical methodologies employed; and a requirement that the permittee investigate the feasibility of supplementing and/or substituting drawn water with treated sewage affluent. After the staff report was submitted, proper notice of the District's intent to issue the permit was published. Based on that notice, protests were filed both by Miakka and Mr. Bishop. The area in question is located within the Manasota Basin which, itself, is located within the Southern West-Central Florida Ground Water Basin, (SWCFGWB), which encompasses all of Pasco, Hillsborough, Manatee, Sarasota, Polk, Hardee, and DeSoto Counties, and parts of Lee, Glades, Charlotte and Highlands Counties. The SWCFGWB sits atop several aquifers which include the Floridian Aquifer, two Intermediate aquifers, and the Surficial Aquifer. The Floridian Aquifer is the deepest and the Surficial Aquifer is on the top. The Miakka Community Club is a Florida corporation made up of residents of the pertinent area whose primary function is to preserve and conserve the rural nature and spirit of the Northeast section of Sarasota County. The club performs this function through educational programs, community activities, and participation in the legislative process. Miakka urges denial of the permit sought by El Jobean based on its membership's belief that the property owners whose property is in the immediate vicinity of the proposed well will be adversely affected if El Jobean is permitted to sink its well and withdraw water from it. The club membership believes that approval of El Jobean's well will result in contamination of existing personal water wells due to excessive use by El Jobean; potential contamination of Sarasota County's future drinking water sources which include the capital Ringling,/MacArthur tract and the Myakka River; reduction of property values; and destruction of personal resources. Petitioner also urges that since the proposed golf course will be a part of a private club for the use of members only, in which membership will be limited, there is no public benefit derived from the approval of and sinking of the well in question. Petitioner also contends that during the periods of severe water shortage as are being currently experienced, permission to sink a well of this size to draw water in of the magnitude expressed in the application, would be counterproductive and detrimental to the interests of the other property owners in the area. In support of its claim, Petitioner presented the testimony of two homeowners from the area, Mr. Richardson and Ms. Mustico. Mr. Richardson, whose well is 183 feet deep, has had several problems with his well even without the instant drilling. In 1974, and subsequent thereto, he has had to go deeper with a suction pipe because the water has dropped below the level of the tail pipe. Ms. Mustico's 160 foot deep well, with 80 feet of casing, is used to supply water for the home. She also has other wells for watering her lawn and for livestock, one of which goes down 500 feet. She is concerned that the well proposed by El Jobean will adversely impact her ability to draw water from her wells because, she believes, the water level from which her water is drawn will drop. In the past, her primary well has gone dry and the wells of several neighbors have gone dry as well. Through maps and other documentation taken from the Ground Water Resource Availability Inventory for Sarasota County, Florida, prepared by the District in March 1988, Petitioner has established that areas of significant groundwater withdrawal within the SWCFGWB occur in Hillsborough, Manatee, Polk, Hardee, DeSoto and Highlands Counties. With the exception of an extremely small portion of Sarasota County located contiguous to Manatee County, there appear to be no areas of major ground water withdrawal currently existing in Sarasota County. The majority of the major municipal well fields within the pertinent basin that are located within Sarasota County, extend down to the Intermediate and Surficial Aquifers with only 3 extending through the lower Intermediate into the Floridan Aquifer. These include the Verna well field located in the northeast corner of Sarasota County where it abuts Manatee County; the Sarasota County well field located in northwest Sarasota County near the Manatee County line; and the Sorrento Utility, Inc., well field which is located near the Gulf Coast, approximately two-fifths of the way down between the Manatee and Charlotte County lines. With the exception of the Verna well field, all the municipal well fields in Sarasota County appear to be reverse osmosis systems and as of 1987, there were 28 reverse osmosis systems located within Sarasota County. Most are relatively small in their output measured in millions of gallons per day. With the exception of 3 public supply wells, 2 of which are permitted an average annual pumpage greater than 100,000 GPD and 1 of which is permitted less, all of the permitted public supply well fields in Sarasota County are located west and south of 1-75 as it extends from the Manatee County line in the north to the Charlotte County line in the south. The El Jobean well would be located east of the line, in that area occupied by the 3 public supply wells. Generalized recharge areas for the upper Floridan Aquifer in the groundwater basin in issue here have been categorized from "high", with a rate of more than 10 inches per year, to "Generally none", with a recharge rate at 0. In 1980, the high recharge rates existed in the north-central part of Pasco, the eastern part of Polk County, and the northeastern part of Highlands County. Sarasota County is in an area wherein the recharge rate was either very low or generally none. In September 1986, the high recharge rate was found in a very small area of northeastern Pasco County, and small areas in both Polk and Highlands Counties. Sarasota County, for the most part, was classified as having no recharge. In May 1987, the high recharge rates were, again, a small area in eastern Pasco County, a small area in northeastern Hillsborough County, a small area in southeastern Polk and northwestern Highlands Counties, and a minuscule area in central Pinellas County. Again, Sarasota County had a recharge rate of 0. Generalized estimated, calibrated, model-derived recharge and discharge values for the upper Floridan Aquifer in the ground water basin in issue here, as they pertain to Sarasota County, reflect positive 2 recharge to negative 1 discharge inches per year. Historically, however, the northeast portion of Sarasota County, where the El Jobean well in question would be located, evaluated by various individuals or agencies periodically from 1980 through 1988, reflects a recharge of anywhere from 0 to 2 inches per year. None of this documentation was supplemented, however, by direct testimony by an individual knowledgeable in this area, and Petitioner's main thrust appears to be an unsubstantiated fear that the sinking of El Jobean's well will have a negative impact on its membership's wells. Admittedly, the residents in the area in question all rely on private wells for the majority of their water supply, other than through the catchment of rainwater, which is insignificant. It was also established that the area has been undergoing a severe water shortage and that conservation measures have been mandated. On the other hand, El Jobean presented the testimony of a hydrogeologist, Mr. Moresi, who has extensive experience with the modeling process used to determine water consumption and recharge in southwest Florida and Sarasota County. The aquifer system in Florida is made up of water bearing limestone layers below the surficial sand base. This aquifer system underlays the various zones throughout the state and reflects a surficial aquifer extending from ground level down approximately 70 feet to a confining bed which separates it from the lower strata. This top confining bed is approximately 20 feet thick, and below it is the Tamiami-Upper Hawthorn Aquifer, which is between 100 and 200 feet deep and which rests on another confining bed somewhat thicker than the upper one. Below the second confining bed is the Lower Hawthorn-Upper Tampa Aquifer which extends approximately from the 250 foot to the 450 foot level at the Manatee County line, and between the 320 foot and the 710 foot level at the Charlotte County line. Another confining bed lays between this aquifer and the Floridan Aquifer which starts at the 500 foot level and goes down well below the 900 foot level in the north and extends from the 730 foot level down in the south. The confining bed below the surficial aquifer is made up of a clay material which retards the movement of water from one aquifer to another. The surficial aquifer is porous and saturated with water from the water table down. Since the confining beds are far less porous than the aquifers they separate, water moves much more slowly through them. The lower aquifers are made up of limestone and are also porous and contain water. The Tamiami-Upper Hawthorn formation consists of limestone and clay, but is water bearing. The Lower Hawthorn-Upper Tampa formation is similar and both make up the intermediate aquifer below which is the lower confining bed followed by the Floridan aquifer. Respondent's well would be cased in steel down to an area approximately 100 feet into the Floridan Aquifer, through the Lower Hawthorn- Upper Tampa Aquifer and through the lower confining bed. Since the well would be cased to well below the lower confining bed, water existing in the upper aquifers, would be prevented from being drawn down by operation, of the Respondent's well either directly or by settling down to replace the water drawn out. Generally, the deeper a well is drilled, the worse the quality of the water, and it becomes less potable. The Floridan Aquifer produces far more copious quantities of water than do the intermediate aquifers. However, since it is cheaper to drill to the intermediate zones as the wells need not be so deep, and since the water there is better, most domestic wells go no deeper than these aquifers. They go down approximately 150 to 180 feet. The pressure in each level is separate from and different from that in the other aquifers. The upper intermediate system generally has a lower pressure than the lower intermediate system. As a result, water from the lower intermediate system tends to leak upward toward the upper intermediate aquifer, rather than the reverse. In addition, a recent survey tends to show that the Floridan aquifer also tends to leak upward into the lower intermediate level. It also shows that leakage through the confining beds amounts to .002 GPD per cubic foot of aquifer. Petitioner claims that since the lower water is of lesser quality, and since withdrawal of water from the upper layers would promote leakage upward, thereby adding lower grade water to the better grade upper water, there could be a diminishment in upper level water quality as a result of water being drawn from the upper levels. However, according to Mr. Moresi, the .002 figure is so small it would result in an infinitesimally small drawdown of water level from the upper intermediate level aquifer and the potential for compromise of the water quality therein is remote. Clearly, this is not the result of drawing water from the Floridan Aquifer as the well in question would do but more the result of the residential wells extending into the upper levels. The District ran a model for the proposed El Jobean well (a Jacob- Hantush model) which showed that drawdown at the wellhead would be just over 2 feet. This means that use of the Respondent's well would reduce the water level in the Floridan Aquifer at the well head by 2 feet. However, this drawdown is shown to decrease rapidly out to where, at distance, it is almost immeasurable. In fact, drawdown of the Floridan Aquifer at 24,000 feet from the well head (approximately 4.5 miles) would be .1 feet, slightly or 1 inch. The .1 foot drawdown relates to the lowest (Floridan) aquifer and the resultant drawdown in the upper intermediate aquifer, into which the majority of residential wells are sunk, would be relatively undetectable. Since the Petitioner's wells, at their deepest, go only into the upper intermediate level, and would be separated by 2 confining beds from the Floridan Aquifer, the impact on the domestic wells at 2 miles from the El Jobean wellhead would be immeasurable. Even at 1 mile, there would be minimal drawdown in the Floridan Aquifer and almost none in the upper intermediate aquifer. The potentiometric surface of the intermediate layer would not be adversely affected, nor would that of the surface water. Recognizing the potential for saltwater intrusion which occurs all along the coast, based on his studies, Mr. Moresi concluded that the well in question here would not induce significant saltwater intrusion. He concluded as well that the permit is consistent with the requirements of the District rule; that the amount permitted for the use of irrigation of the golf course is reasonable, assuming a golf course is a reasonable and appropriate use of water; that the withdrawal by the well in issue would not have an adverse impact on users outside the property on which the well was located; that it would not impact existing users; that there is no other water available for the purpose intended; that the water taken from the Floridan Aquifer under this permit may be potable but is of poor quality; and that the applicant met rule standards. Mr. Moresi also discussed the possible cumulative impact of the proposed well when operated along with the currently existing wells. If there are other drawdowns from the same cone into which El Jobean's well would be sunk, the withdrawals would be cumulative. However, as best he can determine, the only other significant drawdown from the cone pertinent here is that of the Verna well field. In his opinion, that well field's drawdown, which is from the northeast, would not be significant even when considered with the El Jobean well. Mr. Moresi was also satisfied that while the confining bed separating the surficial aquifer from the next lower level might be disturbed, the deeper one goes, the less likely there is to be mixing of aquifers. The only instance where water could move from one level to another as a result of the well is where there is no casing on the bore hole. In the instant case, plans call for, and permit conditions require, the well to be cased to below the lowest confining bed. Consequently, there should be no upward or downward flow of water as a result of the bore. Mr. Tyson, who worked on the evaluation of El Jobean's application for permit, was of the opinion that the amount of water requested by El Jobean in its application was appropriate for a golf course. This does not mean that a golf course is an appropriate use of the property. The special conditions imposed on the granting of the permit by the District are designed to reduce any impact possibly caused by the permitted activity. The Jacob-Hantush model used in analysis of the instant application is considered to be a conservative tool and showed minimal drawdown at all property boundaries. The use of other models in this case was considered neither necessary nor appropriate. Mr. Tyson considers the proposed permit a reasonable beneficial use as defined in the Florida Administrative Code and statutes because it proposes use of reasonable amounts of water and the models indicate no unfavorable impact. Based on the past practice of permitting golf courses with subdivisions, he feels the proposed use is reasonable. He concludes, therefore, that it is in the public interest to grant this permit. In his opinion, the permit will not interfere with legal existing uses and meets all statute and rule requirements. Considering the evidence as a whole, it is found that petitioner has presented insufficient evidence to support its claim that approval and operation of El Jobean's well as proposed would have an adverse impact on the property owners. It's concerns are no doubt sincere, but these concerns are not sufficiently confirmed by evidence of record. At the hearing, the parties stipulated that if the permit were granted, it would be modified by the addition of two conditions: The proposed well shall be constructed with a minimum of 600 feet of casing so as to prevent the unauthorized interchange of water between water bearing zones in order to prevent the deterioration of water quality in the shallower zones. If the well cannot be properly completed to prevent such an unauthorized interchange of water, the well shall be abandoned and plugged in accordance with Rule 17-21.10(2)(c), F.A.C.. Upon completion of the well, a copy of the well construction completion report shall be sent to the District. The permittee shall line the bottom of the pond that will be used as the irrigation source, with clay to a thickness equal to 1.5 feet.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Southwest Florida Water Management District enter a Final Order issuing Consumptive Use Permit Number 209458, as modified by the conditions stipulated to at the hearing held herein on June 7, 1989, and outlined in Finding of Fact Number 27 herein, to El Jobean Philharmonic Group, Inc. RECOMMENDED this 9th day of August, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of Division of Administrative Hearings this 9th day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1176 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: Not a Finding of Fact but a statement of the ultimate issue of fact. Accepted and incorporated herein. 3-6. Accepted and incorporated herein. 7-12. Accepted and incorporated herein. Accepted as indicating original conditions. The parties stipulated to additional conditions at the hearing. Accepted. 15 & 16. Accepted and incorporated herein. 17-33. Accepted and incorporated herein as pertinent. 34 & 35. Accepted. 36 & 37. Accepted. 38 & 39. Redundant. 40-43. Accepted. 44. Accepted. 45-51. Accepted. 52 & 53. Accepted. 54-56. Accepted. 57 & 58. Accepted and incorporated herein. 59-66. Accepted. 67-75. Accepted and incorporated herein. 76 & 77. Accepted and incorporated herein. 78. Accepted. 79-84. Accepted. Accepted and incorporated herein. Rejected. 87 & 88. Accepted. 89-93. Accepted and incorporated herein. Accepted. Accepted in the natural source sense suggested by Petitioner. 96-99. Accepted and incorporated herein. 100 & 101. Accepted and incorporated herein. 102-105. Accepted and incorporated herein. 106. Accepted. 107 & 108. Accepted. 109 & 110. Accepted. For the Respondents: 1 & 2. Stipulation between the parties accepted and incorporated herein. 3-6. Accepted and incorporated herein. Not a Finding of Fact but a comment on the evidence except for the second sentence which is incorporated herein as a Finding of Fact. Not a Finding of Fact but a comment on the evidence. 9-11. Accepted and incorporated herein. 12. Accepted. 13-16. Accepted and incorporated herein. 17. Accepted and incorporated herein. 18 & 19. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. 22-26. Accepted and incorporated herein. 27 & 28. Accepted and incorporated herein. 29. Accepted. 30-32. Accepted and incorporated herein. 33-40. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Not a Finding of Fact but a Conclusion of Law. COPIES FURNISHED: Becky Ayech Personal Representative Miakka Community Club 421 Verna Rd. Sarasota, Florida 34240 Douglas Manson, Esquire Blain & Cone, P.A. 202 Madison Street Tampa, Florida 33602 Edward B. Helvenston, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 6899
The Issue The issues are whether the Respondents are guilty of misconduct as alleged in the Administrative Complaint filed on February 6, 1991, as amended and, if so, what corrective action should be ordered and what penalties imposed; and whether Paul Ayers is guilty of misconduct as alleged in the Notice of Denial of Operator Certification dated June 3, 1991, and, if so, whether the Department's action denying renewal of Mr. Ayers' wastewater treatment plant operator certification was correct.
Findings Of Fact Mr. Paul Ayers holds operator certificates issued by the Department in both drinking water treatment (Class C, No. 4360) and wastewater treatment (Class B, No. 3375). The Department's Notice of Denial of Operator Certificate, which forms the basis for the Division of Administrative Hearings case No. 91- 3861, identifies the wastewater treatment certificate number as Class B, No. 3375. Paul Ayers did submit certain Drinking Water Treatment Plant Daily Operation Summaries in which he identified his water treatment certificate as Class C, No. 4360 (Department Exhibit 8). Ms. Judy Devores is a Department certified Class C water treatment plant (WTP) operator (Certificate No. 4885) and a Class C wastewater treatment plant (WWTP) operator (Certificate No. 4753). Mr. Ayers and Ms. Devores are president and vice president, respectively, of Paul Ayers Utilities, Inc., a company that contracts with the owners of drinking water and wastewater treatment plants to operate them. Ms. Devores is sometimes known as Ms. Ayers (Department Exhibits 25 and 26). The office of the utilities company is in the home they share. The utility company has a handful of employees. The Department's Amended Complaint alleged that during the calendar year 1990, Respondents operated the following public water treatment plants and wastewater treatment plants: ST. LUCIE COUNTY WATER WASTEWATER Coggin Osteen Auto Dealership Coca Cola Foods Distribution Center Demarco's Restaurant Floresta Elementary School Floresta Elementary School Florida Power & Light Distribution Center Fontenelle Plaza Glendale Commons Subdivision Glendale Commons Subdivision Lakewood Park Subdivision Lakewood Park Subdivision Johnny's Restaurant Lakewood Park Plaza Loyal Order of Moose #248 Orange Co. of Florida, Orange Co. of Florida, Grove Grove Operations Complex Operations Complex Orchid Acres Mobile Home Orchid Acres Mobile Home Park Park Port St. Lucie Port St. Lucie Convalescent Center Convalescent Center Quick and Easy Convenience Store Raven Parc Industrial Park Rainbow Trailer Park Teacher's Place Child Care Visa St. Lucie Condominiums Vista St. Lucie Condominiums Whispering Creek La Buona Vita Lakewood Park Elementary Port St. Lucie Medical Center MARTIN COUNTY WATER WASTEWATER Lobster Shanty Restaurant Regency Mobile Home Park Regency Mobile Home Park Vista Del Lago Condominiums Vista Del Lago Condominiums Yankee Trader Plaza INDIAN RIVER COUNTY WATER WASTEWATER Citrus Elementary School Fellsmere Elementary School Fellsmere Elementary School Sebastian River Middle School Sebastian River Middle School OKEECHOBEE COUNTY WATER WASTEWATER Barlow's Fish Camp Big "O" R.V. Campground Barlow's Restaurant Four Acres Mobile Home Park Bob's Big Bass RV Park Pier 2 Motel Circle K Taylor Creek Lodge Crossroads Restaurant Town & County Mobile Home Martha's House Zachary Taylor Mobile Home Moose Lodge #1753 Town Star Convenience Store GLADES COUNTY WATER Old River Run Many of these water and wastewater treatment plants were acknowledged during the hearing as being operated by Paul Ayers Utilities, Inc. Some were not mentioned during testimony, but show up on various exhibits. Department's Exhibit 16, the minutes of a meeting held between the Department and Ms. Devores, contain a partial list of plants operated by Respondents. Lakewood Plaza On September 30, 1990, Paul Ayers and his employee, Danny Runyan, removed a water pump, flow meter, and chlorine feed pump from the Lakewood Plaza water treatment plant. This action interrupted potable water service to the facility until October 3, 1990. Ms. Devores contended that the owner of Lakewood Plaza had not paid Respondents for the equipment, and that she notified Jerry Toney of the Department prior to removal of the equipment, who told her "to take it if it was ours." Mr. Toney's contradiction of Ms. Devores' account is more believable. He first heard of the disabling of the Lakewood Plaza water treatment plant in a phone call from Wayne Dampier on October 1, 1990, notifying Mr. Toney that Mr. Dampier would replace the water pump that day, but no chlorinator pump could be installed until the next day. Ms. Devores' call to Mr. Toney was made after the equipment had been removed and after Mr. Dampier's call. A contemporaneous entry into the Department's records also indicates that Ms. Devores called the Department on October 1, 1990, after the water treatment plant had been disabled. Expert testimony established that disabling a water treatment plant is a potential public health hazard, and that deliberate disabling of a water system by an operator is not the same as accidental interruption of operations. Rule 17-555.350(3), Florida Administrative Code, requires an operator to receive written permission from the Department prior to altering or discontinuing water purification. This forms a basis for the operator's duty to avoid unilateral action. Removal of essential parts of a water treatment system as a remedy for nonpayment of bills for operator services threatens not only the owner of the system but also the public health, and is contrary to the Rule and to standard operating practices. Even were the testimony of Ms. Devores credited, oral notification to the Department before removal of equipment, or even oral acquiescence by an employee of the Department to removal undertaken to enforce collection of bills for services by disabling a public water system would not justify that action, which is inappropriate under Rule 17-555.305(3), Florida Administrative Code. Licensees have a duty to know the rules controlling their regulated activity. Mr. Ayers had been notified by the Department in 1986 that removing equipment (a gas chlorinator) from a public water system at Sand Dollar Villas was a serious violation of the duties of a certified operator and could result in revocation of his operating certificates. (Department Exhibit 13) The evidence is clear and convincing that Respondents did not notify the Department prior to removing the equipment. Deliberate disruption of a public water supply by a certified operator constitutes gross neglect and incompetence in the performance of the duties of a certified operator, with potential public health consequences. Both Mr. Ayers and Ms. Devores are responsible for this misconduct, as both participated in it. Use of Uncertified Personnel Danny Runyan was employed by Respondents during the period from approximately 1983 to May 1991. Mr. Runyan acknowledged that he never has been certified to operate water or wastewater treatment plants, but that during calendar year 1990, he fulfilled certified operator duties at Coggin O'Steen, Fontenelle, FPL Distribution Center, J & S Fish Camp, Johnny's Restaurant, PSL Medical Center, Quick & Easy, Rainbow Trailer Park, Raven Parc, Teachers' Place, Cinnamon Tree, Floresta Elementary School, Glendale Commons, Port St. Lucie Convalescent Home, and Vista del Lago plants under the direction or instruction of Paul Ayers or Judy Devores. Donna Anderson was employed as secretary and office manager at Respondents' business and to perform domestic work for Respondents who ran their business out of their home, for two years and nine months from 1988 to approximately October 1990. Her testimony corroborated Runyan's admissions, as did the testimony of Wayne Dampier, who is a certified operator for both water and wastewater treatment plants and who was employed by Respondents during a period from approximately October 1985 to August 1990. Ms. Anderson heard Paul Ayers or Judy Devores direct Danny Runyan to operate plants; it was common knowledge among Respondents' employees that Mr. Runyan operated plants. Mr. Dampier heard Paul Ayers direct Danny Runyan to operate plants, and Paul Ayers also directed Mr. Dampier to direct Danny Runyan to operate plants. Respondents contended that they did not know that Danny Runyan was operating plants, and that if he was doing so it was solely on the instruction of Wayne Dampier, a field manager for Paul Ayers Utilities, Inc. This is not believable, because the same pattern was followed with the work of another employee, John Canard. 2/ John Canard was uncertified, but received direct instructions about which plants he was to operate from Wayne Dampier. Mr. Canard believed that the instructions originated with Respondents, who were aware that he was operating water treatment plants before he was certified. Mr. Canard's belief is supported by Mr. Canard's time sheets (Respondents' Exhibit 26) which shows that between December 29, 1989, and January 19, 1990, while Mr. Canard was not yet certified in water treatment operations, he visited the following water treatment plants which Respondents serviced: 12/29/89 12:00 Lobster Shanty 12:15 Yankee Trader 2:15 Teachers Place 4:45 Fontenelle Plaza 1/2/90 3:00 Lobster Shanty 3:30 Yankee Trader 1/3/90 11:45 Yankee Trader 1:45 Teachers Place 4:00 Fontenelle Plaza 1/4/90 10:00 Johnny's Restaurant 12:15 Lobster Shanty 1:00 Yankee Trader 1/5/90 1:00 Yankee Trader 3:30 Teachers Place 5:15 Fontenelle Plaza 1/8/90 1:30 Teachers Place 3:15 Yankee Trader 5:45 Fontenelle Plaza 1/9/90 10:30 Lobster Shanty 11:15 Lobster Shanty 12:00 Yankee Trader 2:30 Johnny's Restaurant 3:30 Fontenelle Plaza 1/10/90 12:45 Teachers Place 1:15 Fontenelle Plaza 5:00 Yankee Trader 1/11/90 2:45 Yankee Trader 4:00 Fontenelle Plaza 1/12/90 1:15 Lobster Shanty 3:30 Yankee Trader 4:00 Fontenelle Plaza 1/15/90 4:00 Yankee Trader 1/16/90 1:00 Yankee Trader 1:30 Lobster Shanty 5:30 Fontenelle Plaza Respondents maintained that John Canard operated the Rainbow Park water treatment plant and offered his time sheets as evidence, which show that he did so prior to May 1990. Mr. Canard's time sheets show several entries for Rainbow Park prior to certification, including 3/27/90 at 1:00 p.m.; 4/5/90 at 2:00 p.m.; 4/10/90 at 1:15 p.m.; 4/12/90 at 3:45 p.m. and 4/17/90 at 12:30 p.m. The evidence establishes a pattern of using uncertified operators which Respondent knew or should have known about, based on the employee time sheets. It is not credible that Mr. Canard visited these plants on such a regular basis without providing operator service, or that Respondents did not see the time sheets in the regular course of their business. Respondents had to know that their employees were operating plants for which they were not certified. Respondents' contention that all irregular practices originated with Wayne Dampier, and that they knew nothing about them until they met with the Department in June 1990 is undermined by the testimony of Lowell Polk. Mr. Polk was an employee of Respondents for a nine-month period during 1988. At that time, Mr. Polk was certified in water treatment plant operation only, not wastewater plants. 3/ While employed, Mr. Polk told Judy Devores that Wayne Dampier had asked him to operate a wastewater treatment plant when Mr. Polk was not certified as a wastewater treatment plant operator. Ms. Devores replied "don't worry about it, just do it." He did so, until he was discovered by the Department, and then told Ms. Devores that he did not want to do it anymore. This incident exemplifies the casual attitude the Respondents had toward regulations governing their business. The Department has established by clear and convincing evidence the allegations of Count III of the Amended Complaint. During calendar year 1990, Respondents employed Danny Runyan, a person uncertified in either water or wastewater treatment plant operation, to fulfill certified operator requirements at water and wastewater treatment plants, a practice which can result in a threat to public health. Raven Parc - No Certified Operator Jerry Toney inspected the Raven Parc water treatment plant on February 16, February 19, February 20, February 21, February 22, and February 23, 1990. Through February 23, 1990, there were no entries in the on-site operation and maintenance log. The absence of entries indicated no visits by an operator on any of those days. When he inspected again on February 26, 1991, all the data had been backfilled by someone using the initials "J.D." as certified operator. Danny Runyan admitted that although he was the de facto operator of the Raven Parc plant, he did not visit the Raven Parc water treatment plant during the period from February 16 through February 23, 1990. The Department has established by clear and convincing evidence the allegations of Count II of the Complaint that no certified operator, or indeed any operator, visited the Raven Parc water treatment plant during the period from February 16 through February 23, 1990. Use of an individual to provide operator services at a water treatment plant who is uncertified, and failure to provide any operator coverage at all for a week each constitute serious inattention to operations which could result in a hazard to public health. Raven Park - Backfilled O & M Log, False Use of Initials Certified operators are under a duty to "maintain an operation and maintenance log for each plant . . . current to the last operation and maintenance performed . . . . The log, at a minimum, shall include . . . the signature and certification number of the operators." Rule 17-602.360(1)(e), Florida Administrative Code. It is the practice in the industry for certified operators to initial rather than fully sign each entry in the O & M log. Mr. Runyan entered the initials of Judy Devores, a certified operator, after the fact in the O & M log for February 16, 19, 20, 21, 22 and 23, 1990. Mr. Runyan "backfilled" and used the initials "J.D." at the instruction of Respondents. Respondents' denial that they ever instructed Mr. Runyan to use their initials and backfilled O & M logs is not credible in light of Mr. Runyan's admission and the corroborating testimony of John Canard, who also testified that he was instructed by Paul Ayers to backfill O & M logs. The Department has established by clear and convincing evidence the allegations of Count II of the Amended Complaint that a certified operator initials, namely Judy Devores' initials, were "backfilled," or entered after the fact, at the Raven Parc plant during February 1990. This was done with the knowledge and approval of Respondents. The practice of "backfilling" is contrary to standard operating practice for water treatment plant operators. Raven Parc - Inadequate Chlorine Residuals When Jerry Toney visited the Raven Park plant on February 7, February 14, February 22, February 23, and February 26, 1990, he took chlorine samples and found inadequate chlorine residuals, that is, a free chlorine residual of less than 0.2 milligrams per liter (mg/1). Chlorine residuals are an assurance that no biological or bacteriological contamination will taint the water supply. The readings were taken after Mr. Toney had "flushed" the system at full tap for three minutes, which is a remedy for a low chlorine residual. Chlorine residuals in treated water can vary over the course of time, and a reading taken by a Department inspector on a particular day might not match exactly the chlorine residuals obtained by an operator at a different time on the same day. Rule 17-550.510(6)(d), Florida Administrative Code, requires "a minimum free chlorine residual of 0.2 milligrams per liter or its equivalent throughout the distribution system at all times." On February 7, 14, 22, 23 and 26, 1990, the chlorine residuals documented by Jerry Toney at the Raven Parc Water Treatment plant did not meet the requirement of Rule 17-550.510(6)(d), Florida Administrative Code. These inadequate chlorine residuals on February 22 and 23, 1990, the dates alleged in the Amended Complaint, were a direct result of gross neglect by Respondents in the operation of the plant, by failing to visit it over an extended period of time, and resulted in a condition which was a potential public health hazard. This aspect of Count II of the Amended Complaint has been established by clear and convincing evidence. Raven Parc - Falsified Chlorine Data Rules 17-550.730(1) and 17-601.300(1)(a), Florida Administrative Code, require monthly operating reports to be submitted to the Department for drinking water treatment plants and wastewater treatment plants. With regard to water treatment plants, and specifically, the Raven Parc water treatment plant, it was the practice of Paul Ayers Utilities, Inc., to keep a "Drinking Water Treatment Plant Daily Operation Summary" worksheet [DER Form 17-1.208(5)] at the plant on which to record certain measurements such as flow, pH and chlorine residuals. The Daily Operation Summary worksheet is also known as an MOR (monthly operating report) worksheet. At the end of each month, the MOR worksheets would be brought into the office, where the information on the worksheet would be transferred to the "official" monthly operating report [DER Form 17-555.910(2)], which would be signed by the lead operator to certify to its accuracy and sent to the Department. The information on the worksheets was the best and most accurate information available for flows, pH, and chlorine residuals on any particular day. The chlorine residual values certified to the Department by Ms. Devores for February 19, 21 and 23, 1990, are different than the values recorded in the on-site MOR worksheet. The on-site entry for each of those days shows the chlorine residuals (in mg/1) were 1.0 at the plant and 0.3 at the remote tap each day, but the MOR as submitted shows 1.8 and 0.8 respectively on those days. These MOR entries are false. Department Exhibit 4, the certified MOR for Raven Parc for February 1990 signed by Ms. Devores, shows that the entries for February 6, 9, 12 and 16, 1990, have been whited-out and reentered. The original entries on Department Exhibit 4, the certified MOR, had higher values than recorded on Department Exhibit 3, the MOR worksheet. Those higher values had originally been entered to satisfy the concerns expressed by Jerry Toney in a note left on the Raven Parc MOR worksheet on February 16, 1990: "Judy, the DER classifies .3 - .4 chlorine as 'marginal.' We would like to see it higher. Also, the system requires a weekend visit. Thanks, Jerry 878-3890" (Department Exhibit 3). The higher values were whited-out and changed back to the lower values actually recorded on the on-site MOR worksheet, because Respondents realized that Mr. Toney had seen the on-site MOR worksheet for all dates up to February 16, 1990, when he made the dated notation on the worksheet. This conclusion is supported by the appearance of the document itself and by Donna Anderson's testimony that, while she generally transferred the information from the MOR worksheet to the MOR for submission to the Department, she never whited-out data on an MOR, and that she did not do so in this instance. Ms. Anderson testified that after she had typed in the MOR header information and transferred data from the MOR worksheet, it was routine practice for Respondents to take the MORs and "fill in for days that were missing." All of the chlorine values recorded and reported on the official form fall within acceptable values established in Rule 17-550.510(6)(d), Florida Administrative Code. This is not surprising, since they were all made up at the time they were backfilled on the worksheet. Danny Runyan admitted that he did not actually visit the plant during the period from February 16 to February 23, 1991, Findings 23 and 24, above. All information recorded for those days on both the MOR worksheet and the MOR submitted to the Department were fabricated. The evidence clearly and convincingly establishes that the chlorine data on the MOR submitted to the Department for the Raven Parc water treatment plant for February 16-23, 1990, and certified by Ms. Devores as correct, were knowingly falsified. The Department has proven the allegations of Count VII of the Amended Complaint. Raven Parc - Falsified Flow Data Judy Devores and Paul Ayers respectively signed and submitted the February 1990 and March 1990 MORs for Raven Parc. They each reported at least twenty-four daily entries of "Total Water Treated in Gallons," that is, flow of treated water. It was admitted that the flow meter at Raven Parc was inoperative. By tracking the amount of time a water pump operates with an elapsed time clock, an operator may calculate flows of treated water. An elapsed time clock was installed at Raven Parc at some point. The issue raised by the Department is whether the elapsed time clock was available and used to calculate the treated water flows certified by Respondents in February and March 1990. Respondents claimed that an elapsed time clock was installed at Raven Parc on February 8, 1990. In support of this contention, Respondents offered a photocopy of a work order in Danny Runyan's handwriting, indicating the installation of an elapsed time clock at Raven Parc. The date on this document is obscured and cannot be read. Even Paul Ayers had trouble trying to decipher a date on the exhibit at the hearing (Respondent's Exhibit 25). Jerry Toney in February 1990, and Wes Upham and Jerry Toney together, on June 25, 1990, looked for an elapsed time clock at the Raven Parc water treatment plant found none. Mr. Runyan and Mr. Dampier both testified that the elapsed time clock was installed "in June" and "after the meeting with the Department," which took place on June 25, 1990. Ms. Anderson also believed that elapsed time clock was installed in June, although she was "not sure." Her belief is consistent with the testimony of Mr. Runyan and Mr. Dampier. Taken together, this testimony is highly persuasive. Mr. Runyan testified that he was instructed by Wayne Dampier to put the time clock "at the breaker panel in the top part of the panel under the top of the lid" because "they didn't want DER to see it." Mr. Dampier admitted relaying instructions from Paul Ayers to "put it in an inconspicuous area to where it wouldn't be as noticeable so if the DER come out looking for it they wouldn't find it just right offhand." Determining water flows by the use of an elapsed time clock requires multiplication of the time the water pump was operating by the capacity of the pump. Neither the MOR worksheet, nor the O & M log for Raven Parc contained such calculations. Even according to Mr. Ayers' contentions, the elapsed time clock was not installed until February 8, 1990, at the earliest. The MOR submitted to the Department for February 1990, signed by Judy Devores, includes entries for "Total water Treated in Gallons," i.e. flow, for February 1, 2, 3, 5, 6 and 7, 1990, as well as for the rest of the month. It has already been established that no one visited the plant between February 16 and February 23, 1990, but flows are entered for February 16, 17, 19, 20, 21, 22 and 23, 1990. (Department Exhibit 4). These facts wholly undermine the claim that flow was measured by an elapsed time clock and accurately recorded and certified to the Department by Respondents. Viewing the evidence as a whole, the Department has presented clear and convincing evidence to establish the allegations of Count VI of the Amended Complaint, that no means to measure or to estimate flow data was available at Raven Parc during this period. The flow data submitted on the Raven Parc MORs for February and March 1990, by Paul Ayers and Judy Devores were falsified. Raven Parc - Failure to Fulfill Duties of "Lead Operator" On June 25, 1990, the Department and Judy Devores met to discuss the operation of Raven Parc plant. At that meeting, Ms. Devores stated that she did not operate the Raven Parc plant, and in testimony, Ms. Devores stated she did not visit Raven Parc. Ms. Devores signed the Raven Parc MOR for February as lead operator, however, and the initials "JD" are the only initials which appear on the Raven Parc O & M log for February 1990 (Department Exhibits 1 and 4). Ms. Devores exhibited a lack of familiarity with the actual conditions at Raven Parc during the June 25th meeting. This was inconsistent with a person who properly functioned as its lead operator. According to the Department's expert, the lead operator is "the individual with the most knowledge of the workings of that treatment plant and its condition at any given point in time." (Tr. Day 1, p. 69) At a minimum, a lead operator personally should provide once-a-week on-site supervision to a certified operator, and should never delegate the operation of a water treatment plant to an uncertified operator. Danny Runyan was the de facto operator of the Raven Parc plant, and admitted that he did not visit the plant from February 16 through February 23, 1990. Rule 17-602.200(11), Florida Administrative Code, defines "lead or chief operator" as "the certified operator whose responsibilities include the supervision of all other persons who are employed at a plant, performance of on- site treatment plant operation and whose responsibility it is for the effectiveness and efficiency of the overall treatment plant operation." While Ms. Devores may not have ever gone to the plant, she was responsible for its operation as the lead operator, and should have done so. The Department has presented clear and convincing evidence to substantiate the allegations of Count IX of the Complaint that Judy Devores did not fullfil the duties of a lead operator for the Raven Parc water treatment plant. Raven Parc and Moose Lodge - O & M Log Falsification The Loyal Order of Moose #248 water treatment plant is located in Fort Pierce, and is 12.0 miles away from the Raven Parc plant. Travel between the two plants takes approximately 20 minutes. An operator with the initials "JD" arrived at each plant on February 20, 1990, at 4:15 and left each plant at 4:30, according to the O & M logs at each of the two plants. Similarly, on February 22, 1990, "JD" left the Moose Lodge at 4:30 and arrived at Raven Parc at 4:30. The handwriting on the logs appear to be the same, but the initials do not appear to be in the handwriting of Judy Devores. (See the signature on Department Exhibits 4 and 16, and the initials in the entries for August 21 to August 25 on Department Exhibit 33.) The O & M logs for Raven Parc and Moose Lodge are documents required to be kept by the operator "current to the last operation and maintenance performed." Rule 17-602.360(1)(e), Florida Administrative Code. They are falsified for February 1990. The facts alleged in Count VIII of the Complaint are true. The false O & M log for Raven Parc for February 1990, was maintained by Danny Runyan, with the authorization and under the direction of Judy Devores. Other Falsified O & M Logs The Amended Complaint alleged in Count X that initials of Judy Devores were entered in O & M logs for days she did not visit facilities, and could not have visited facilities because she was out of town. Specific instances are tabulated below: JUDY DEVORES Big O WWTP July 18, 1990 (10-10:30 AM). Glendale Commons WTP July 1990: 18th (3-3:30 PM) 23rd - 25th, 30th and 31st, August 1990: 1st, 2nd, 3rd, 6th, 9th, 10th, 13th and 14th. Johnnies Restaurant WTP June 11th and 12, 1990. Pier II Motel WWTP July 18th, 1990 (10-10:25). Rainbow Trailer Park WTP July 24th and 27th, 1990. Zachary Taylor WWTP July 18th, 1990 (12:15 - 12:45 PM). The Department introduced at hearing copies of the relevant O & M logs (Department Exhibits 27 through 35), and airline ticket receipts which show that the Respondents were out-of-state on the relevant dates (Department Exhibits 24 through 27), and the testimony of Danny Runyan, who admitted that he had signed those O & M logs. Judy Devores characterized Danny Runyan's testimony as erroneous. She was not sure whether or not she used the ticket introduced as Department Exhibit 25, and maintained that she used the ticket introduced as Department Exhibit 26, but left on July 19, 1990, rather than July 18, the departure date noted on the ticket receipt. Judy Devores also asserted that she went to all five plants listed in paragraph 21 of the Amended Complaint as having been visited by "J.D." on July 18, 1990 because "Wayne was on vacation. Paul and I had to cover the plants." She could not blame Wayne Dampier for false entries on those days. She swore that she went to the West Palm Beach airport and "missed the plane" scheduled to leave at 9:34 a.m. on July 18, 1990, and by 10:00 a.m., after having taken the time to make arrangements to pay an extra $75.00 and be reticketed for a next-day departure, arrived at the Big O water treatment plant in Okeechobee County (Department Exhibit 29). This is not believable. Ms. Devores would have had to miss both flights (or used neither of the non-refundable tickets offered as Department Exhibits 25 and 26) in order to establish her presence at the various water and wastewater treatment plants on the dates her initials appear. Ms. Devores hinted, but offered no proof, that Wayne Dampier falsified initials on O & M logs, presumably to get them in trouble. The testimony of Judy Devores is not credible, and her evidence inadequate to overcome the Department's proof, especially in light of Danny Runyan's admission. The initials entered showing Judy Devores performed services at the facilities listed in Finding 63 above are false. The allegations of Count X have been proven by clear and convincing evidence. Falsified BOD and TSS Data The Department's Amended Complaint alleged in Count IV that during calendar year 1990, Respondents reported biochemical oxygen demand (BOD) and total suspended solids (TSS) data in the wastewater treatment plant MORs for the Town & Country wastewater treatment plant and other facilities operated by them, for which no analyses were performed. BOD and TSS and measurements of the treatment efficiency of wastewater plants, and maximum counts for BOD and TSS are established by the Department in Rule 17-600.420, Florida Administrative Code, which sets minimum treatment standards. Measuring and reporting BOD and TSS values is required for the protection of public health. Rule 17-601.300, Florida Administrative Code, requires monthly monitoring and reporting of BOD and TSS. The MOR, which is the reporting format for BOD and TSS, must be signed by the "lead operator in charge of operating the treatment facility." While the Rule imposes a duty on "wastewater treatment facilities" to monitor effluent for compliance with the rules, the common practice in the industry is for the operator to be responsible to collect samples, forward the samples to a laboratory for analysis, receive the lab report and report the laboratory results to the Department. Respondents did not deny that monitoring of BOD and TSS was part of the operating services they had contracted to perform. In support of the allegation that BOD and TSS analyses were not done, the Department submitted MORs for each month in 1990 for six wastewater treatment plants: Town and Country Mobile Home Park, Big O RV Park, Four Acres Mobile Home Park, Motel Pier II, Taylor Creek Lodge, and Zachary Taylor RV Camp (Department Exhibits 19a-19f). Each of these MORs has a value entered in the space labeled "BOD (mg/1) EFFLUENT" and "TSS (mg/1) EFFLUENT." All are signed by Paul Ayers or Judy Devores. In the course of discovery, the Department asked Respondents in deposition which laboratories Respondents used for analysis of BOD and TSS. The labs identified as performing analyses for Respondents were East Coast Laboratories, Bioservices, and Envirometrics, with Envirometrics being the lab mainly used. Affidavits from the directors of Bioservices and East Coast Laboratories indicate that neither of those laboratories performed any BOD or TSS analyses for Respondents. 4/ Proof of the non-existence of reports by those labs is admissible under Section 90.803(7), Florida Statutes (1991). The Department subpoenaed and copied the records of Envirometrics, and Francisco Perez prepared a summary of the documents, which the director of the laboratory confirmed in an affidavit to be accurate, with certain corrections. The summary shows only 11 rather than 72 instances of lab analyses (six plants times 12 months of MOR entries) for the plants listed in Finding 75: Big O - 2; Town & Country - 2; Four Acres - 2; Motel Pier II - 3; Zachary Taylor - 2; and Taylor Creek Lodge - 0. While Donna Anderson was employed, there was no procedure for collecting monthly effluent samples from the approximately 21 wastewater treatment plants operated by Respondents. Ms. Anderson did not receive regularly 21 sets of lab reports for BOD and TSS, and she saw no evidence at Respondents' office/home that 21 sets of such samples routinely were being collected, stored, or delivered to any laboratory for analysis. John Canard and Danny Runyan each testified that they did not regularly collect effluent samples from wastewater treatment plants they maintained. Applying the standard of clear and convincing evidence, the Department has proven that the BOD and TSS analyses were not performed, although both Paul Ayers and Judy Devores certified they had been in Department Exhibits 19a-19f. The Department's evidence is not rebutted by Respondents' bare assertions, with no supporting documentation, that the required laboratory analyses were performed. Their refusal to identify the lab or lab technician they maintain ran the tests for them renders their testimony highly suspect, and the evidence of other falsifications make their testimony unbelievable. See Finding 130(a), below. Falsified Bacteriological Data Rule 17-550.510(6)(b), Florida Administrative Code, requires at least monthly monitoring of each regulated water system for coliform bacteria (bacteriologicals). One representative raw sample and two samples from the distribution system (sometimes identified as remotes) are required. Rule 17- 550.730(1)(a), Florida Administrative Code, requires monthly reporting of the bacteriological results to the Department. Respondents undertook the sampling and reporting requirements as part of their operating service agreements but did not follow appropriate sample collection methods. Wayne Dampier, Danny Runyan, and Donna Anderson each testified that for the month of October 1990 unlabeled samples were brought into the office, and Paul Ayers, Danny Runyan and Donna Anderson assigned arbitrary and false identifications to the bacteriological samples, identifying them as various facilities operated by Paul Ayers Utilities, Inc. These falsely labelled samples were then submitted to a laboratory for analysis and the results were reported to the Department. The practice of intentionally submitting mislabeled bacteriological samples and reporting false results constitutes submission of fraudulent data, gross neglect in the performance of the duties of a certified operator which can result in adverse public health consequences, and violates standard operating practice for plant operators. Paul Ayers simply denied that he ever collected samples from one location or misalabeled unlabeled samples, and called Donna Anderson's testimony untrue. This testimony is not credible. The allegation of Count XI of the Amended Complaint, that bacteriological samples were mislabeled during the month of October 1990 to seem to have come from other treatment plants, has been proven by clear and convincing evidence. Floresta Elementary - Inadequate Operator Visits The Amended Complaint alleged in Count XII that Respondents failed to provide the Floresta Elementary School water treatment plant the required five visits per week plus one weekend visit for the period from August 22, 1990, through April 23, 1991. The Department offered copies of the on-site O & M log for the relevant period showing inadequate coverage (Department Exhibit 39), and the testimony of Wes Upham. A letter from the school, dated July 26, 1991, states that "Present Operator Paul Ayers Utilities states they have been operating the plant at least 5 days per week for the past several months since Department notice to that effect." The "Department notice" referred to is the notification Wes Upham gave to the school board after his inspection on April 26, 1991. From April to July is "several months" of five day per week operator coverage. The letter does not establish adequate operator coverage for the period at issue: August 22, 1990, to April 23, 1991, and so does not exonerate Mr. Ayers. Kevin Prussing serviced Floresta Elementary for Paul Ayers Utilities, Inc. He was asked by counsel for Respondents whether Paul Ayers called him in April of 1991 to tell him to start going to visit Floresta. Mr. Prussing replied that he did not remember the exact date, but it was after "the question came up about how many visits" and after "it was settled amongst Paul and whoever. . . " (Tr. Day 2 p. 179), which was after the Department's Notice of Noncompliance dated July 10, 1991, was sent to the school board. Paul Ayers did not deny that prior to April 23, 1991, operator coverage was less than five day per week plus one weekend visit. He asserted that his company entered into a contract with the school board which called for three day per week coverage, and that prior to plant modifications in August 1990, only three day per week coverage was required for the Floresta Elementary School water treatment plant. Mr. Ayers acknowledged that he knew five days per week with one weekend visit was required after the plant modifications were completed in August 1990, and that he informed a representative of the school board of that fact. Mr. Ayers claimed that the school board representative refused to pay for additional operator coverage until he was notified by the Department of increased operator coverage requirements. The Department established through the testimony of Rim Bishop, Wes Upham and Kevin Prussing that a licensed operator and the owner of a water treatment plant each have an independent responsibility to know and comply with the plant coverage requirements, which are designed to protect public health. Both Rim Bishop and Kevin Prussing, certified water treatment plant operators, testified that they would not accept a customer who wanted them to provide less than the required operator coverage. The Invitation to Bid circulated by the school board on May 9, 1990, to which Paul Ayers responded on May 23, 1990 (Department Exhibit 37), has a set of "Special General Conditions," which include the following for Floresta Elementary School: "Provide service for both water and wastewater treatment plants, as required by current DER regulations." This specification indicates that the school board intended the operator to make the judgment about appropriate operator attendance requirements. No specific number of days was required in the school board's bid documents. Other operating companies (not including Respondents) contacted the Department to find out how many visits per week would be required at Floresta. For some time before completion of the modifications to Floresta Elementary's system, the school's water supply was such a problem that the school board was required to supply bottled water for cooking and drinking, and to post warnings that bathroom water was not potable. From the time Mr. Ayers became the operator of the Floresta Elementary School water plant, he knew or should have known that water quality was a problem and that extensive treatment modifications were forthcoming. The plant's system, as modified in August 1990, included aeration, gas chlorination, multimedia filtration and ion exchange softening. Proper operation of this system requires blending of raw and treated water. Andrew Helseth, the plant engineer, pointed out that this plant "was only the second one that has had filters and softeners on it". Kevin Prussing, the current operator of the Floresta plant, testified that the plant modifications caused the plant to be "unusual" and "pretty complex" and stated that the engineer was still "very heavily" involved in making corrections. The O & M logs for Floresta Elementary School indicate a period in early 1991 when the plant was visited only twice a week by Respondents. An examination of the O & M logs show that during the week of February 24 to March 2, the plant was visited only twice; from March 3 to March 9 only once; from March 17 to March 23 twice; from March 24 to March 30 twice. The plant was not visited at all from February 28 to March 9, 1991, a period of nine days. This plant is located at a public elementary school. It had a history of water quality problems, and the unique combination of treatment processes. It was gross negligence for an operator to provide less than the three visits per week arguably covered by contract, and less than the required coverage of fives days plus one weekend visit which Mr. Ayers acknowledged, and to leave the plant unattended for nine days. Respondents' claim that the owner of the facility is responsible for ensuring operator coverage is inadequate to overcome the Department's clear and convincing proof with regard to Count XII of the Amended Complaint, that Paul Ayers failed to provide the required operator coverage at the Floresta Elementary School water treatment plant between August 22, 1990, and April 23, 1991. Floresta Elementary - Monitoring Requirements It is essentially undisputed that Respondents failed to monitor the Floresta Elementary plant on each visit for turbidity and water hardness at the water's point of entry into the system, and failed to measure on each visit the raw, bypass and finished water flows. In their defense, Respondents showed that there is no specific permit requirement or rule which mandates such monitoring. The Department established by clear and convincing evidence, including the testimony of Rim Bishop, Wes Upham, Kevin Prussing and Andrew Helseth, and the construction permit issued for the Floresta Elementary School water treatment plant (Department Exhibit 38) that this monitoring is essential to the operation of this type of plant, which includes mixed media filtration, ion exchange and raw water blending, and which had a history of water quality problems. The modifications to the Floresta plant included a turbidometer and additional flow meters beyond the normal flow meters, but Mr. Ayers contended that the presence of this additional monitoring equipment did not imply that additional flows for which gauges had been installed should be measured. Standard operating practice in the industry would indicate to a operator exercising ordinary care in performing his duties that such measurements must be taken. The Amended Complaint further alleged in Count XIII that Respondents failed to monitor monthly for nitrate, chloride, pH, specific conductance, total dissolved solids and fecal coliform, as required by specific condition 13 of the Floresta water treatment plant construction permit (Department Exhibit 38). This allegation was not denied. Paul Ayers defended his conduct by contending that the school board was responsible for the failure to monitor, even though the Invitation to Bid states: "Special General Condition (A). Floresta Elementary (B). Perform all analysis on water and wastewater as required by current D.E.R. regulations" and "General Conditions (2). Contractor agrees to sub-contract laboratory analysis on samples in accordance with the analytical procedure acceptable to the Department of Environmental Regulations (sic)" Mr. Ayers' own bid response states "The charge for the above-described services per school will be, Floresta Elementary water $310, waste water, $210 per month to include all DER required lab analysis and labor service as described herein" (Department Exhibit 37). Standard operating practice requires that a water treatment plant operator be familiar with the terms of a plant's permit, and operate the system in compliance with the permit's terms. Even if the school board had an independent duty to assure compliance with the special monitoring requirements set out in Specific Condition 13 of the construction permit, Paul Ayers failed to comply with standard operating practice with regard to these monitoring requirements. The allegations of Count XIII have been proven by clear and convincing evidence. Failure to Supply Chlorine at Armadillo Warehouse The Amended Compliant alleged in Count XIV that Respondents failed to supply chlorine to the Armadillo warehouse water treatment plant after becoming aware that its on-site cholrine reservoir was empty, which caused an inadequate chlorine residual. The Department's evidence on this count included testimony from Francisco Perez, Donna Anderson, Wayne Dampier and Lowell Polk. Lowell Polk testified that he was given a list of plants to operate, which included the Armadillo plant. Despite his efforts during four or five visits to the plant, he "could not get satisfactory operation out of the [chlorine] feed pump." (Tr. Day 2 p. 141-142) As a result, "There was no chlorine in the water" (Tr. Day 2 pp. 141 and 149). Mr. Polk informed Ms. Devores about the inadequate chlorine situation, and she told him "don't worry about it." The plant was so small it did not fall under the jurisdiction of the Department, but was supervised by the local county public health unit. Respondents maintain that they had no contract to provide operator service, and that their only responsibility at Armadillo was "for a monthly bacteriological to be picked up" according to Ms. Devores (Tr. Day 2 p. 206), although Mr. Ayers believed it was a "quarterly sample" (Tr. Day 2 p. 258) for the public health unit. Despite the appearance of the Armadillo warehouse in Lowell Polk's list of plants to be serviced, the evidence about the contractual obligation of Respondents to provide any services to the Armadillo warehouse is too vague to support a finding that Respondents failed to perform services they had agreed or were required to perform for the public health unit. The Department has failed to prove the allegations of Count XIV of its Amended Complaint. Port St. Lucie Convalescent Center Count XV alleges that no operator certified in wastewater provided the minimum number of visits to the Port St. Lucie Convalescent Center wastewater treatment plant during the period from approximately June 1, 1989, through November 30, 1989. At the hearing, Lowell Polk, an operator certified in water only, testified that he operated the Port St. Lucie Convalescent Center plant during the period that he worked for Respondents, which was in 1988, not 1989. Mr. Polk's testimony does not support the allegations of Count XV, since that count specifically alleged misconduct by Respondents during 1989. Mr. Polk's testimony tends to corroborate, to some extent, the allegations of Count III, that uncertified operators were used by Respondents, and negates Respondents' assertions that they were unaware that any plants were being operated by uncertified operators. Mr. Polk told Judy Devores that Wayne Dampier asked him to operate a plant for which he was not certified, and Ms. Devores responded, "don't worry about it, just do it." (Tr. Day 2 p. 140) The Department has failed to prove the allegations of Count XV of its Amended Complaint. Costs The Department incurred costs and expenses in its investigation of the violations alleged in the amount of $15,512.60, which it seeks to recover in Count XVI. GENERAL OBSERVATIONS ABOUT THE EVIDENCE Respondents have attempted to impeach the credibility of Donna Anderson and Wayne Dampier as witnesses against them, alleging bias. They claim Ms. Anderson was fined because she had been embezzling funds from petty cash, and Mr. Dampier was personally responsible for improprieties alleged by the Department. Both witnesses, according to Respondents, are lying because they are disgruntled ex-employees. Danny Runyan, another ex-employee, admitted lying under oath during a deposition taken while he was still employed by Respondents, and explained that he lied under instructions from Respondents in order to keep his job. I have listened to the testimony, read the transcript, examined the documentary evidence and considered the various allegations of interest, motive and bias. I have observed the witnesses and evaluated their opportunity to have observed the matters they testified about, their ability to remember the facts, their ability to articulate details of their recollection, and any reason they had to shade or avoid the truth. Based on these observations and review of the record, I find that the evidence offered by Ms. Anderson, Mr. Dampier and Mr. Runyan are for the most part corroborated by testimony from John Canard, Kevin Prussing and Lowell Polk; by testimony from Department employees; and by exhibits offered by both parties. Mr. Dampier, Mr. Canard and Mr. Polk all admitted misconduct involving activities which could jeopardize their treatment plant operations certificates, with no evidence of any "grant of immunity" or agreement by the Department not to take enforcement action against their certifications. I simply do not believe that Ms. Anderson, Mr. Dampier and Mr. Runyan have perjured themselves for the purpose of revenge, or for any other reason. Many details in the testimony, while not alleged as to specific counts, and which do not in themselves support a finding of gross neglect in treatment plant operations, tend to corroborate the Department's specific allegations about false entries in required reports. For example, Donna Anderson said Respondents had instructed her to "stagger between 6.8 and 7.2" the pH values as she filled out the MORs; Wayne Dampier testified that Respondents told him "definitely not to take a raw sample because its too likely they will flunk" and to "make sure you got a good chlorine residual so that the samples would pass." During cross examination, Donna Anderson remembered Respondents asked her "to put in times and dates and stagger information of these particular logs . . . They had me make up these so called O & M logs that were missing from plants. They didn't have any." This is consistent with the statement made by Respondents in their written response to the Department's Notice of Noncompliance. In paragraph 3, of Department's Exhibit 15, Respondents state: "When the laws concerning the O & M logs were enforced, Paul Ayers Utilities immediately complied." It appears that Respondents "immediately complied" by having Donna Anderson manufacture O & M logs. Past questionable reports submitted by Respondents offer some slight corroboration of the charge of false labeling of samples. In 1986, the Department was notified by an HRS laboratory that samples submitted by Respondents were questionable, in that all samples, although labeled from different plants, had the same coliform bacteria counts. Respondents were advised at that time to take care in the handling of samples, just as they were warned in 1986 that removal of components of a treatment plant was considered by the Department to be "gross neglect in the performance of duties as a certified operator." The evidence of the fraud in the samples the Department charged in the Amended Compliant is itself highly persuasive even without this evidence. Statements, admissions and actions by Respondents have undermined their own credibility. For example: Respondents alleged that the nonexistent BOD and TSS analyses had been performed by a "moonlighting" lab technician in Okeechobee County who had been paid in cash. This entire line of testimony was not credible and damaged Respondent's credibility generally. Ms. Devores testified that the initials "J.D." which appear on the Zachary Taylor plant O & M log (Department Exhibit 33) for August 21 through 26, 1990, are in her handwriting, and that the initials "J.D." which appear on the same document on the dates July 17 and 18, 1990, are also in her handwriting, even though the handwritings are distinctly dissimilar, and even though Danny Runyan admitted that he had entered the latter set of initials. This further undermined the trustworthiness of Ms. Devores' testimony. Respondents tried to implicate Wayne Dampier in the allegations involving Floresta Elementary School, but the Floresta allegations all relate to a time period after Wayne Dampier's employment had terminated. Ms. Devores was unable to explain how her initials, "J.D." appeared in the Big O Water Treatment Plant at 10 a.m., on 7-11-90, and simultaneously at the Pier II WWTP, except that she "didn't have on my watch". Similarly, she was unable to explain how her initials show her to be simultaneously at Moose Lodge and Raven Parc on February 20, 1990. Respondents were unable to explain why they never noticed that their initials repeatedly were being used at plants they contend they did not operate. Ms. Devores kicked and threatened Ms. Anderson with bodily harm when she saw Anderson in the hall of the Palm Beach County Courthouse during the proceedings (Tr. Day 2 p. 96-99).
Recommendation Paul Ayers' and Judy Devores' water and wastewater treatment plant operator certifications referred to in Finding 1 should be permanently revoked. They should surrender those certificates to the Department within thirty (30) days of the effective date of the final order. Respondents should no longer accept employment in a capacity requiring water or wastewater treatment certification nor represent themselves as holding such certifications. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of May 1992. WILLIAM R. DORSEY, JR. 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 5th day of May 1992.
The Issue Whether respondent should admit petitioner to the examination for Class B Wastewater Treatment Plant Operator certification or deny admission for failure to comply with Rule 17-602.300(3), Florida Administrative Code?
Findings Of Fact At the time and place set for final hearing, neither petitioner nor respondent presented any evidence on which findings of fact could be based.
Recommendation It is, accordingly recommended that respondent deny petitioner's application for certification as a Class B Wastewater Treatment Plant Operator, without prejudice to the filing of a subsequent application. RECOMMENDED this 13th day of March, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1991. COPIES FURNISHED: Charles H. Colvin 2140 Bay Road Neptune Beach, FL 32233 William H. Congdon, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
