Findings Of Fact Petitioner, Kamran Khajeh-Noori, who does business as Khajeh-Noori Laboratory, transacts that business at 2742 North Florida Avenue, Tampa, Florida. Respondent, State of Florida, Department of Health and Rehabilitative Services, is an agency of State government whose principal business is at 1323 Winewood Boulevard, Tallahassee, Florida. The Department of Health and Rehabilitative Services has promulgated a Rule 10D-41.60, Florida Administrative Code, which allows the revocation, suspension, limitation, annulment or denial of renewal of the certification of various laboratories based upon certain stated reasons. In particular, the rule states: Denial or Revocation of Certification. A laboratory certification may be denied, revoked, suspended, limited, annulled or renewal denied for any or all of the following reasons: Making false statements on an application or on any document associated with certification. Demonstrating incompetence or making consistent errors in analyses. Permitting unauthorized personnel to perform analyses. Falsifying the results of analyses. Failure to employ approved labora- tory methodology in the performance of analyses required by the Act. Failure to properly maintain facilities and equipment. Failure to properly report analytical test results or to maintain required records of test results. Failure to participate success- fully in the DHRS performance evaluation and/or quality control program. Violating or aiding and abetting in the violation of any provision of these regulations or the rules promulgated here- under. The stated specific authority for this rule is Section 403.863, Florida Statutes, and the rule purports to implement that same provision of law. Section 403.863, Florida Statutes, is part of the Florida Safe Drinking Water Act. Petitioner, through his laboratory, was engaged in the business of analyzing water samples prior to the enactment of the Florida Safe Drinking Water Act. Following that enactment and the adoption of certification rules by the Department, he received a certificate from HRS to continue the operation of his water testing laboratory. In keeping with the various provisions found in Chapter 10D-41, Florida Administrative Code, the Department of Health and Rehabilitative Services has conducted surveys of the Khajeh-Noori Laboratory and subsequent to those surveys has filed an Administrative Complaint under the authority of Rule 10D-41.60, Florida Administrative Code. This Administrative Complaint has been the subject of a formal hearing in State of Florida, Department of Health and Rehabilitative Services v. Kamran Khajeh-Noori d/b/a Khajeh-Noori Laboratory, DOAH Case No. 81- 2979. That hearing was held on the same date as the present matter, that is August 11, 1982. The possible outcome of that proceeding might lead to the revocation, suspension, or annulment of the certification granted Khajeh-Noori Laboratory, thereby prohibiting the performance of those activities allowed by his certificate.
The Issue The issues are whether Respondent's facility is a public water system subject to regulation by the Department of Environmental Regulation (DER) pursuant to Chapter 17-22, Florida Administrative Code, or whether it is exempt from those regulations by virtue of Rule 17-22.102 if the facility is subject to regulation by DER, whether Respondent should take the corrective actions set forth in the Notice of Violation and Orders for Corrective Action and should pay DER's expenses incurred in the pursuit of this case. DER presented the testimony of Cliff McKeown, a potable water engineer, and Linda Frohock, planning manager for the Department of Community Affairs (DCA). DER had Exhibits 1-4 admitted into evidence. Respondent, Lex Thompson, presented his own testimony and that of Hugh Kelly. The parties have submitted Proposed Findings of Fact and Conclusions of Law. They have been considered and a ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
Findings Of Fact DER is the Florida administrative agency which has the authority to administer and enforce the provisions of the Florida Safe Water Drinking Act, and the rules and regulations promulgated thereunder. (See Prehearing Stipulation). Respondent is a natural person and citizen of the State of Florida. Respondent owns and is responsible for the construction of a potable water distribution main extension ("the facility") which serves a subdivision known as High Bluff Acres-near the community of Midway in Gadsden County, Florida. (See Prehearing Stipulation). On February 1, 1980, Respondent was issued construction permit number DS20-27385 for the facility. The construction permit described the facility as a potable water distribution main extension to the Talquin Electric Company's Midway water- system. The project was to be constructed with approximately 940 linear feet of four inch PVC valves and appurtenances. Specific condition number 15 of the permit restricted operation of the extension until department approval was issued. This approval would be granted upon receipt of certification by the engineer of record as to construction in accordance with the approved plans and specifications and receipt of two satisfactory bacteriological analyses. DER has not received this information and had not issued an approval for use of the facility. The construction permit expired on September 1, 1981. (See Prehearing Stipulation). Respondent modified the facility by constructing it with 550 feet of one inch to one and one-half inch PVC water mains. (See Prehearing Stipulation). DER conducted an inspection of the facility on February 23, 1982. The facility was found to be in use without final DER approval. By letter dated February 26, 1982, DER notified Respondent of his non-compliance with Chapter 17-22, Florida Administrative Code, and requested Respondent to submit specified compliance items. (See Prehearing Stipulation). In October of 1982, DER personnel contacted Respondent . by telephone. Respondent agreed to obtain a permit renewal and modify the unauthorized water line as soon as funds in the form of rent were released by the Department of Community Affairs (DCA). On November 1, 1982, DCA notified DER that payments were being made. (See Prehearing Stipulation). On June 8, 1983, DER notified Respondent of his non- compliance with Chapter 17-22, Florida Administrative Code, and requested a reply on actions to be taken to correct the deficiency. By letters dated October 18, 1984, and December 17, 1984, DER notified Respondent that the facility was not approved for use. Respondent was further requested to inform DER as to the status of the facility. DER received no response to these requests. (See Prehearing Stipulation). The facility was not constructed in accordance with DER-approved plans, and DER has issued no written approval or consent for alterations to the system. (See Prehearing Stipulation). Respondent placed the facility in service without submitting a certification of completion and a copy of satisfactory bacteriological results to DER for approval and clearance. (See Prehearing Stipulation). The facility is not designed to provide maximum hourly system demand without development of distribution pressure lower than 20 psi. (See Prehearing Stipulation). DER has incurred costs and expenses in the pursuit of this case in the amount of $453.50. (See Prehearing Stipulation). Respondent's facility consists of distribution and storage facilities only and does not have any collection or treatment facilities. It obtains all its water from and is not owned or operated by the Talquin Electric System. Further, Respondent is not a carrier which conveys passengers in interstate commerce. (See Prehearing Stipulation) The public water distribution system constructed by Respondent is connected to twenty dwelling units in twelve structures. The High Bluff Acres subdivision is a government- subsidized, but privately-owned, low-income housing development, wherein DCA, acting on behalf of the U.S. Department of Housing and Urban Development (HUD), subsidizes the payment of rent for the housing. Respondent entered into several agreements on behalf of Salter, Stephens and Thompson, with the DCA to rehabilitate existing structures at High Bluff Acres and thus qualify for the Section 8 Moderate Rehabilitation Housing Assistance Program (HAP) established by HUD. The purpose for entering into the HAP contracts is to provide low cost housing to low income persons. These agreements were entered into over a period of several months during 1981 and 1982. Upon satisfactory completion of the rehabilitation pursuant to the agreements, Respondent entered into a HAP contract for each structure in High Bluff Acres, for a total of twelve structures (20 dwelling units). The HAP contract establishes the contract rent that can be allowed for each individual dwelling unit in a structure (the contract covers one structure). The contract rent is calculated according to a formula established by HUD for such purposes, and includes monetary allowances for utilities or other services which are provided by the owner. It does allow the lessor to recover his capital expenses in rehabilitating an individual housing unit. DER Exhibits 3 and 4 are two of the twelve HAP contracts entered into by the Department of Community Affairs and Respondent, Lex Thompson. Each of these contracts has an Exhibit B which is entitled "statement of services, maintenance and , utilities to be provided by owner." These exhibits show that Respondent has agreed to provide water to the units under the HAP contract. Contract rents paid to Respondent as authorized agent for the partnership include an allocation of money to reimburse Respondent for providing water to the tenants in the dwelling units. However, subsequent to Thompson's and DCA's entering into the contracts for payment of these rental subsidies, Respondent notified DCA that he had incurred additional capital expenses. Since his rental payments were already at the maximum allowable rate, however, Respondent did not seek to modify the aforementioned contracts because the amendment would not result in any greater payment of monies to him. At no time has Respondent amended the terms of the HAP contracts with respect to provision of water to the tenants at High Bluff Acres. He is still receiving the reimbursement for provision of water to tenants. The general partnership which had been receiving contract rents for the dwelling units was dissolved in May, 1985, and the contracts for each structure were assigned to various individuals. Respondent, individually, owns one structure and his wife owns another. DER has received no potable water quality or quantity complaints regarding the High Bluff Acres subdivision. Moreover, the potable water system existing in the High Bluff Acres subdivision does not constitute a present threat to the public health, safety, and welfare.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order and therein order the following corrective actions: That within 45 days, Respondent shall hire an engineer registered in Florida to design a new distribution system for High Bluff Acres or modifications to the existing system, and submit a completed application to the Department for a permit to construct or modify the system. That within 60 days of issuance of the permit, Respondent shall have the distribution system installed, tested(including pressure testing, bacterial testing, disinfectant-testing) and shall have the engineer sign and seal the plans indicating to the Department that the system conforms with the approved plans, and both DER and American Water Works Association standards. It is further RECOMMENDED that Respondent be ordered to pay the Department's costs and expenses in the amount of $453.50, and that same be paid to the Department by cashier's check within 30days. DONE and ORDERED this 4th day of November, 1985, in Tallahassee, Florida. DIANE K. KIESL1NG Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1985 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Proposed Finding of Fact 1 is adopted in substance (See Finding of Fact 13). Proposed Finding of Fact 2 is adopted in substance (See Finding of Fact 15). Proposed Finding of Fact 3 is adopted in substance (See Finding of Fact 15). Proposed Finding of Fact 4 is adopted in substance (See Finding of Fact 17). Proposed Finding of Fact 5 is adopted in substance (See Finding of Fact 18). Proposed Finding of Fact 6 is adopted in substance (See Finding of Fact 19). Proposed Finding of Fact 7 is adopted in substance (See Finding of Fact 22). Proposed Finding of Fact 8 is adopted in substance (See Finding of Fact 21). Rulings on Respondents Proposed Findings of Fact: Proposed Finding of Fact 1 is adopted in substance (See Finding of Fact 1). Proposed Finding of Fact 2 is adopted in substance (See Finding of Fact 2). Proposed Finding of Fact 3 is adopted in substance (See Finding of Fact 3). Proposed Finding of Fact 4, first sentence, is adopted in substance (See Finding of Fact 4). The second sentence is rejected as being unsupported by the evidence and irrelevant. Proposed Finding of Fact 5 is adopted in substance (See Finding of Fact 5). Proposed Finding of Fact 6 is adopted in substance (See Finding of Fact 6). Proposed Finding of Fact 7 is adopted in substance (See Finding of Fact 7). Proposed Finding of Fact 8, first sentence, is adopted in substance (See Finding of Fact 8). The remainder of Proposed Finding of Fact 8 is rejected as irrelevant. Proposed Finding of Fact 9 is adopted in substance (See Finding of Fact 12). Proposed Finding of Fact 10 is adopted in substance (See Finding of Fact 14). Proposed Finding of Fact 11 is adopted in substance (See Finding of Facts 19 and 20). Proposed Finding of Fact 12 is rejected as unsupported by the evidence, irrelevant and conclusory. Proposed Finding of Fact 13 is adopted in substance (See Finding of Fact 23), except that it is rejected as it relates to a potential threat because that portion is unsupported by the competent, credible evidence. COPIES FURNISHED: Clare E. Gray, Esquire Daniel H. Thompson, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 William L. Hyde, Esquire 300 East Park Avenue Post Office Drawer 11300 Tallahassee, Florida 32302 Victoria Tschinkel Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Mr. Robert W. Hall, Certification Officer for Respondent, reviewed the application. As indicated by Hall's testimony and notations on Petitioner's application, Respondent gave Petitioner credit for work and training experience in Vietnam, but determined that Petitioner was only qualified to be a Class C water treatment plant operator. Respondent certified Petitioner as a Class C operator on February 4, 1982. Hall's testimony established that although Petitioner met Class B operator education and experience requirements, he had not taken or successfully completed an approved training course as described in Section 17-16.03(9), Florida Administrative Code (FAC). A list of approved training courses was introduced as Exhibit 3. The required length of time for the training course is 120 hours, and courses are available in the vicinity of Petitioner's residence and by correspondence course. In response to Hall's testimony, Petitioner stated that he had taken an equivalent course for four months in Vietnam, as indicated on the second page of his application to the Respondent. The application was, however, inconsistent with Petitioner's resume (Exhibit 2), which listed training from July, 1972 to August, 1972 at the National Water Supply Agency in Saigon, Vietnam. Furthermore, Petitioner presented no evidence, documentary or otherwise, to establish course content, the number of hours involved, or the certification, if any, granted. Respondent also presented the testimony of Mr. William Johnson, Director of Public Utilities for the City of Saint Petersburg. Johnson is certified as a Class A water treatment plant operator, which is the highest level of certification. He has an extensive professional background in the area of water and wastewater treatment, and is involved in teaching and curriculum development in these areas at Hillsborough County Community College. He was a member of a task force established in 1975 when Respondent first implemented the above cited rule. The task force established various criteria and standards to be applied in developing curricula for water plant operator training courses, based upon accepted national practices. Johnson's testimony established the distinction between Class C, B and A operators. A Class C operator is typically a line employee at a water treatment plant who is able to make repairs, but works at the direction of a supervisor. A Class B operator has sufficient managerial capabilities to manage a shift at a major treatment plant, and has extensive familiarity with the mechanics and engineering of the treatment plant processes. A Class A operator has additional theoretical knowledge as well as administrative and budgetary skills, and can take charge of a major water treatment plant.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a Final Order denying the petition. DONE and ENTERED this 31st day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1982. COPIES FURNISHED: Mr. Hinh van Nguyen 445 11th Avenue North St. Petersburg, Florida 33701 Daniel H. Thompson, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue in this case is whether Bocilla Utilities, Inc. is entitled to a public drinking water construction permit for the expansion of an existing reverse-osmosis water plant located on Don Pedro Island.
Findings Of Fact Bocilla Utilities, Inc. (Applicant) was incorporated in the mid-1980s for the purpose of supplying water to a residential development being developed by some or all of the principals of the water utility. The residential development is on a bridgeless barrier island in Charlotte County. Applicant initially proposed locating the plant on the mainland with submerged pipes to the island. This proposal was approved by the Army Corps of Engineers and Department of Environmental Regulation, but the Trustees of the Internal Improvement Trust Fund denied Applicant's request for an easement across submerged state lands. After failing to obtain a submerged land easement, Applicant obtained the permits to build a reverse-osmosis (RO) water plant at its present location on the barrier island. Included among the permits was a permit from the Department of Natural Resources dated September 11, 1985, allowing Applicant to construct the water treatment plant, two underground concrete water storage tanks, and a tennis court on top of the tanks up to 100 feet seaward of the coastal construction control line. Applicant is a certificated utility that, since September 1994, has been regulated by the Public Service Commission. It was previously regulated by Charlotte County. By Application for a Public Drinking Water Facility Construction Permit filed January 26, 1995 (Application), Applicant requested a permit to expand the treatment capacity of its water plant from 30,000 gallons per day (gpd) to 120,000 gpd. By installing the new treatment equipment in two stages, the plant would have an immediate capacity of 60,000 gpd. Applicant proposes no material changes to the existing water storage tanks, distribution system, or the size or location of the building that houses the existing and proposed water treatment equipment. The Application form asks Applicant to identify any well construction permits obtained from the water management district and to provide a map showing any sanitary hazards within 500 feet of each proposed well. The Application form requires Applicant's professional engineer to attest that the project complies with Chapter 62-555, Florida Administrative Code. The Engineering Report attached to the completed Application supplies the requested information, but explains that Applicant's hydrogeologist had not, as of the date of the report, obtained the well-construction permits from the water management district. By Intent to Issue dated February 27, 1995, the Department of Environmental Protection (DEP) gave notice of its intent to issue the requested permit. Noting that it has permitting jurisdiction under Section 403.861(9), Florida Statutes, and that the project is not exempt, DEP determined that a public drinking water construction permit is required for the proposed work. The Intent to Issue is based on DEP's belief that reasonable assurances have been provided to indicate that the proposed project will not adversely impact water quality and the proposed project will comply with the appropriate provisions of Florida Administrative Code Rules 62-4, 62-550, 62- 555 and 62-699. Petitioners timely objected to the issuance of the proposed permit. Petitioners reside in Applicant's certificated area on the barrier island. They presently obtain their water from private wells or cisterns, rather than Applicant. If the permit were granted so as to expand Applicant's production capacity, Petitioners would be more likely required to obtain water from Applicant due to Charlotte County's mandatory hookup ordinance. About a week before filing the Application, Applicant applied on January 20, 1995, to the Southwest Florida Water Management District (SWFWMD) for permits for the construction of the two wells included in the draft permit. SWFWMD granted these permits on February 8, 1995, about three weeks after receiving the applications. Consistent with its normal practice in granting well-construction permits, SWFWMD did not provide interested persons with a point of entry to challenge the permits. The SWFWMD permits provide in part: Compliance with state and local county health regulations as per Chapter 17-555, Florida Administrative Code (F.A.C.), is required via the Drinking Water System Permit. Compliance with Chapters 17-532 and 17- 555, F.A.C., on construction standards and grouting procedures for Public Supply Wells shall be followed. * * * This well site has been judged as satisfactory based on the location and information provided to [SWFWMD] at the time of the well site inspection. . . . * * * Public Supply Wells must meet certain setback requirements from all potential sources of contamination. To obtain and retain your Drinking Water System Permit, please coordinate any future development of the surrounding property within 200' of your well site with the Charlotte County Health Department. * * * By letter dated February 14, 1995, from a SWFWMD representative to Applicant's hydrogeological consultant, SWFWMD acknowledged that it granted Applicant a setback variance of 100 feet from nearby septic systems in permitting the two new wells. The letter states that the "variance is based upon the known geohydrology of the area and the proposed construction of the wells," as well as an understanding that the "existing public system is working out with no problems." A month later, a letter from a DEP engineer identifies various types of sanitary hazards and implicitly ratifies the setback variance granted by SWFWMD. By letter dated March 14, 1995, Gary Maier identified sanitary hazards as septic tank systems, sewer lines, swimming pools and associated chemicals, pet excretions, and residential chemicals such as pesticides, fertilizers, paints, oils, and solvents. Mr. Maier's letter acknowledges that SWFWMD had granted a variance from 200 feet to 100 feet "due to geologic and treatment conditions," but cautions that "any further decrease in setbacks for sanitary hazards would be imprudent." Applicant's water plant is located on Don Pedro Island, which is part of an island chain consisting, from north to south, of Knight Island, Don Pedro Island, and, usually, Little Gasparilla Island. The low-lying island chain fronts the Gulf of Mexico on the west. The northern end of the island chain abuts Lemon Bay on the east. Over the years, storms have opened and closed passes at various points along the island chain. The island chain is vulnerable to flooding, and some areas are more vulnerable than others. One of the historic passes is Bocilla Pass. The plant site area is about a half mile south of this now-closed pass. The Gulf beaches on either side of the point at which the Bocilla Pass emptied into the Gulf have suffered considerable erosion in recent years, to the point that recently built homes have been inundated by water and had to be removed or razed. The plant site area includes the building housing the water treatment and other equipment, two 50,000-gallon storage tanks immediately to the west of the building, the existing water supply well located just east of the building, and the two proposed water supply wells located a short distance east and south of the building. The existing storage tanks, which mark the westernmost extent of the plant site area, are about 235 feet east of a pronounced erosion line along the Gulf shore and are separated from the Gulf by South Gulf Boulevard. Immediately adjacent to the tanks is the building housing the water treatment equipment. The two proposed wells would be located about 200 and 450 feet south of the tanks. The plant site area is much closer to water on the east. The southerly proposed well is about 12 feet west of the mean high water line of Bocilla Lagoon, and the northerly proposed well is about 16 feet west of the mean high water line of Bocilla Lagoon. The building housing the water treatment equipment is further away from the water, but still less than 50 feet. Bocilla Lagoon is a long and narrow waterway that was dredged in a north-south direction parallel to the Gulf shoreline. Bocilla Lagoon is closed off by land less than a quarter of a mile south of the plant site area. The lagoon runs to the north to connect to what remains of Bocilla Pass, which then runs easterly a short distance to a dredged extension of Lemon Bay. The building housing the water treatment equipment and the storage tanks are not located in the vulnerable FEMA V[elocity] zone. However, the record does not establish the location of the proposed wells relative to the V- zone. Testimony concerning the location of the V-zone relative to the water plant establishes only that the building, not the two proposed wells, are safely outside the V-zone. Nothing in the record establishes contour lines on the barrier island in the vicinity of the plant site area or the elevation of the land at the site of the two proposed wells. Applicant has recently upgraded the security of the storage tanks through the addition of locks to the manholes. The installation of fences is impractical and unnecessary because the tanks are topped by a six-inch, reinforced slab of concrete that also serves as tennis courts. The proposed wells would be well constructed. They would extend 167 feet into a confined artesian aquifer. The concrete pressurized grouting coupled with a potentiometric surface of seven feet make it unlikely that the wells would be vulnerable to contaminants. During severe-storm conditions, pumping would cease, leaving the system in its naturally pressurized state, so that surface water could not easily flow down into the well. Additionally, the RO filtration technology is one of the most effective at eliminating contaminants from drinking water. However, failing to have shown that the two proposed wells are outside the V-zone, Applicant has also failed to provide reasonable assurances that the two proposed wells would be protected from damage from the velocity wave action associated with the V-zone. Applicant has constructed and operated the water plant in an exemplary fashion. Applicant has at all times met or exceeded applicable standards for water quality, safety, and operations. Original construction exceeded minimum requirements and added to the durability of the fixtures. The building housing the water treatment equipment and hydropneumatic tank has been issued a floodproofing certificate by a registered engineer. The certificate states that, with human intervention in the form of bolting predrilled plywood boards over openings, the plant is waterproofed to an elevation of 14 feet NGVD, which is one foot higher than the FEMA-supplied base flood elevation of 13 feet NGVD. Applicant employs an operations manager with a Class A license rather than one with merely a Class C license, even though only a Class C operator is required for a water plant of this size. Also, Applicant maintains a low-level chlorine indicator, even though not required to do so due to the small size of the utility. The relevant sewage flows from the quantity of water that would be drawn by each proposed well would be greater than 2000 gpd. Near the proposed wells are single- and multi-family residences served by on-site sewage disposal systems, the above- described road, a swimming pool on the other side of the road, an injection well, and the treatment plant at which Applicant stores anti-scaling agents, ammonia, chlorine, and acid. However, Applicant has shown that none of these items is within 100 feet of the proposed wells. Bocilla Lagoon is not a sanitary hazard at this time. The two deficiencies in Applicant's proof relate solely to the susceptibility of the proposed wells to a significant risk of damage from flooding and other disasters and the location of the proposed wells relative to areas least subject to localized flooding. In all other respects, such as fire flow and security, Applicant has provided reasonable assurances that the applicable criteria would be satisfied or that the proposed work would have no bearing on the issue raised by Petitioners.
Recommendation It is RECOMMENDED that the Department of Professional Regulation enter a final order denying the application of Bocilla Utilities, Inc. for a public water supply construction permit. ENTERED on August 25, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on August 25, 1995. APPENDIX Rulings on Respondents' Proposed Findings 1-4: adopted or adopted in substance. 5: rejected as irrelevant and repetitious. 6-7 (except last sentence): adopted or adopted in substance. (last sentence): rejected as unsupported by the appropriate weight of the evidence and legal argument. (except last sentence): rejected as subordinate, recitation of testimony, and irrelevant. 8 (last sentence): adopted or adopted in substance. 9: rejected as irrelevant. 10: adopted or adopted in substance, except to extent of legal argument as to effect of action of SWFWMD in granting variance. 11-12: rejected as irrelevant. 13 (except last sentence): adopted or adopted in substance. 13 (last sentence): rejected as irrelevant. 14-17 (except last sentence): adopted or adopted in substance. 17 (last sentence): rejected as legal argument. 18-21: adopted or adopted in substance. 22: rejected as unnecessary. 23: adopted or adopted in substance as to protection from only sanitary hazards. 24-26: adopted or adopted in substance as to description of aquifer, proposed well construction, and efficiency of RO filtration process, but not as reasons in support of Paragraph 23. 27 (first sentence): adopted or adopted in substance. 27 (remainder): rejected as unnecessary. 28: adopted or adopted in substance. 29: rejected as unnecessary. 30-31: adopted or adopted in substance. 32: rejected as irrelevant. 33-40: rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Robert Starr P.O. Box 5337 Grove City, FL 34224 Betty Brenneman P.O. Box 67 Placida, FL 33946 Jim Duff P.O. Box 41 Placida, FL 33946 M. Christopher Bryant Oertel Hoffman P.O. Box 6507 Tallahassee, FL 32314-6507 Thomas I. Mayton, Jr. Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2440
The Issue The issue is whether Petitioner's application to sit for the water well contractor examination should be approved.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On January 9, 2004, Petitioner, who resides in Baker County, Florida, filed his application with the District requesting that he be allowed to sit for the water well contractor examination. The requirements for qualification to take the examination are set forth in Florida Administrative Code Rule 62-531.300. Relevant to this controversy is the requirement that an applicant present "satisfactory proof of two years experience in the water well construction business." This requirement is normally met by the applicant providing a list of at least ten water well jobs he has completed during a consecutive 24-month period (together with their locations, major use, and approximate depth and diameter), the name and address of the owner of the well, and the approximate date the activity took place. See Fla. Admin. Code R. 62-531.300(6)(a). If the work has been completed in Florida, the applicant is also required to submit copies of completion reports for each of the ten wells. Id. Completion reports are filed by the contractor with the District within thirty days after the work is completed. See Fla. Admin. Code R. 40C-3.411. Finally, the applicant must submit letters from three persons attesting to the length of time the applicant has been working in the water well construction business as a major activity. See Fla. Admin. Code R. 62-531.600(6)(a). Alternatively, an applicant may present "satisfactory proof of equivalent experience," which may be accepted by the District "on a individual basis." See Fla. Admin. Code R. 62- 531.300(6)(b). While this option has rarely, if ever, been used by any applicant, at hearing the District suggested that this provision would allow an applicant to submit other credible documentary evidence, such as affidavits, attesting to the applicant's equivalent experience. Mr. Julian C. Varnes, Jr., a District water resource representative III, is in charge of reviewing water well contractor applications in four northeast Florida counties, including Baker County. Mr. Varnes reviewed Petitioner's application and concluded that he had failed to submit proof of two years' experience in the water well contracting business or satisfactory proof of equivalent experience, as required by the rule. In this case, Petitioner submitted ten completion reports with his application, but none of the reports indicated that he had been involved on those projects, and Petitioner acknowledged at hearing that he could not recall if he was even present on the job site. This is probably because the reports related to jobs performed between November 10, 1982, and July 31, 1985, by his father, a licensed water well contractor, when Petitioner was less than fifteen years old. In addition, the reports submitted by Petitioner covered work performed over a 32-month period, rather than over a 24-month period, as required by the rule, and some of the reports did not have the complete address of the location of the well. By letter dated February 4, 2004, the District advised Petitioner that his application was deficient because he had failed to submit the information required in Florida Administrative Code Rule 62-531.300(1)(b) and (6) relative to experience. The letter advised Petitioner that he must submit an "acceptable list of ten wells together with their completion reports, for wells that [he had] constructed, repaired, or abandoned, with completion dates distributed over a consecutive 24-month time period." Further telephonic discussions between Petitioner and District personnel concerning the request for additional information occurred on March 25 and 29, 2004, but they did not resolve the District's concerns. On June 15, 2004, the District staff again notified Petitioner in writing that he must submit the requested information within 30 days or his application would be denied. When no response was received from Petitioner, on July 27, 2004, the staff issued a Technical Staff Report recommending that the application be denied because of Petitioner's failure to comply with the requirements of Florida Administrative Code Rule 62- 531.300(1)(b) and (6). On August 23, 2004, a Notice of Staff Intent to Recommend Denial of Water Well Contractor Application No. 7300 and Notice of Rights was issued by the District. Petitioner's request for a hearing was then filed. After his first request for a hearing was dismissed, on November 18, 2004, Petitioner filed an amended request for a hearing. In that request, he alleged that the District was "not capable of locating completion reports filed by [Petitioner] and/or his father"; that the experience of he and his father was well known to two District staffers; that he had purchased a well drilling company from another individual and operated under the seller's license for over a year; that he is entitled to licensure because he has satisfactory equivalent experience; and that his father has paid all outstanding fines previously imposed by the District. As relief, Petitioner has requested that he be allowed to take the contractor's examination. At hearing, Petitioner explained that his father was in the water well contracting business for twenty years, and that beginning in 1983, when he was thirteen years old, he had helped his father on "hundreds of jobs" until his father's retirement in 1994. However, Petitioner cannot recall the names and addresses of customers who were serviced by his father's business, which is necessary in order for the District to retrieve completion reports presumably filed by his father. Because of the large number of completion reports filed by contractors throughout its multi-county jurisdiction, in order to retrieve one, the District must have the following information: the year the job was completed, the county in which the job was performed, and the address (township and range) of the well's owner. Petitioner is unable to provide this information.1 In addition, Petitioner stated that he had purchased a water well contractor's business (from Tim Johnson) shortly after his father retired in 1994 and that he operated the business under Mr. Johnson's license for a little more than a year. Although Petitioner produced no documentation concerning jobs he may have performed under Mr. Johnson's license, even if he had, that work would still constitute less than 24 consecutive months of experience, as required by the rule. Petitioner further asserted that Mr. Varnes, who oversees the water well contractors in Baker County, personally "knows" that he is an experienced well driller (having gained such experience through working for his father for many years) and that he possesses the skills necessary to take the examination. However, Mr. Varnes did not agree with this assertion. Finally, Petitioner asked that he be allowed to take the examination, which would be the best indicator of whether he possesses the necessary knowledge to be a contractor. He also pointed out that each completed project must be inspected by a District employee, and that such inspections would verify and ensure that his work is satisfactory. However, the rules require that before the examination can be taken, certain requirements must be met. Petitioner has not satisfied those requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order denying Petitioner's application to sit for the water well contractor examination. DONE AND ENTERED this 25th day of January, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2005.
The Issue The issue in this case is whether the Department of Environmental Regulation (Department) should issue permit number 1C53-154132 to the applicant, IMC Fertilizer, Inc. (IMCF), for the modification of an existing industrial wastewater management system by constructing additional phosphogypsum storage capacity, or whether the permit should be denied as maintained by Manasota- 88 (Petitioner).
Findings Of Fact The Parties IMCF is a Delaware Corporation properly registered to conduct business in the State of Florida, which owns real property known as the New Wales Chemical Complex located in western Polk County, Florida, approximately 5 miles southwest of Mulberry, l mile south of State Road 640, and east of the Hillsborough-Polk County line. The New Wales Chemical Complex began operations in April, 1975, and consists of approximately 1600 acres which are located within a 17,000 acre tract owned by IMCF known as the "Kingsford Mine". Generally, the distance from the New Wales Complex boundary to the Kings ford Mine property boundary is from one to two miles. IMCF produces phosphoric acid and other phosphate-related products, including animal feed ingredients, and stores the by-product called phosphogypsum within a gypsum stack or pile. The Department is the administrative agency of the State of Florida having the power and duty to control and prohibit pollution of air and water in accordance with Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code. The Department has the authority to consider and act upon the permit application at issue in this case. Petitioner is a public interest environmental protection organization incorporated under the laws of the State of Florida as a not-for-profit corporation, is headquartered in Palmetto, Florida, and is a citizen of the State of Florida for purposes of Section 403.412(5), Florida Statutes. Petitioner has standing to maintain this action. The Application Process On or about August 31, 1988, IMCF filed with the Department an application for a permit to modify its industrial wastewater management system at the New Wales Complex by constructing additional phosphogypsum storage capacity. This permit application was assigned file number 1C53-154132. The Department requested additional information from IMCF concerning this initial application on or about September 29, 1988 and December 16, 1988, and IMCF timely responded on each occasion. On or about July 3, 1989, IMCF submitted an application supplement to the Department which substantially changed the nature and scope of its original application. The project proposed by IMCF for which it has sought the permit at issue in this proceeding is described and set forth in this supplement to IMCF's original application. The Department requested additional information concerning this application supplement on or about August 2, 1989, to which IMCF timely responded. On or about November 6, 1989, the Department filed its Intent to Issue permit number 1C53-154132, and thereafter, Petitioner timely instituted this action to challenge the issuance of this permit to IMCF. The Existing Operation At its New Wales Chemical Complex, IMCF operates sulfuric acid and phosphoric acid plants, granulated triple superphosphate and granulated ammonium phosphate plants, and a uranium recovery plant. The primary raw materials used at the New Wales Complex are sulfur and phosphate rock. Sulfur is used to produce sulfuric acid, which is then used to react with phosphate rock that has been mined by IMCF. This reaction produces phosphoric acid which is then further processed into fertilizer products and animal feed ingredients. Phosphogypsum or gypsum is a byproduct from the production of phosphoric acid. Approximately five tons of gypsum are produced for every ton of phosphoric acid which is produced. Gypsum is slurried and transported to an existing gypsum stack where it is allowed to settle in settling compartments. IMCF's existing gypsum stack is approximately 132 feet high, and it is reasonably estimated that it will reach its maximum useful height of 200 feet by May, 1992, at IMCF's current phosphoric acid production rate of 1.7 million tons per year, which results in approximately 8.5 million tons of gypsum per year. As the gypsum stack grows in height, the surface area on top of the stack that is available for gypsum deposition and management decreases, and at approximately 200 feet above ground surface there will be insufficient retention time for the slurried gypsum to settle out and to be used in continued construction of the stack. Therefore, when IMCF's existing stack reaches 200 feet in height, operations at the New Wales Complex will have to cease unless an alternative gypsum storage location is authorized through the issuance of the permit sought in this proceeding. The existing gypsum stack is unlined. In addition to the storage and management of gypsum, the existing gypsum stack at the New Wales Complex is also used to store rainfall that may fall on the stack and cooling pond. This storage capability allows IMCF to avoid discharging pond water to the surface waters of the State during heavy or extended rainfalls. During low rainfall periods, stored rainwater can be used to supplement pond water, and thereby reduce IMCF's need to pump fresh water from the aquifer to meet its cooling and scrubbing needs. Additionally, during the hot summer months, the area on top of the stack is also used for cooling purposes. A cooling pond approximately 247 acres in size is located to the immediate south of the existing stack, with additional cooling channels encircling the stack on its remaining three sides. This existing, unlined cooling system encompasses a total of approximately 281 acres, and recirculates approximately 150,000 to 170,000 gallons of water per minute through this entire cooling system and back to IMCF's production plants for reuse. Approximately twelve uncapped recharge wells, each eight inches in diameter, were drilled in the area under the cooling pond during mining operations. These recharge wells were broken off during mining operations, and it is estimated that these wells have been filled to the top of the confining layer above the Floridan aquifer by sand and debris. The production of fertilizers generates heat which must be dissipated through cooling, and gasses which must be cleaned by "scrubbing" them with water. IMCF's cooling system at the New Wales Complex carries out these cooling and scrubbing functions. Pond water is used to transport gypsum in slurry from the phosphoric acid plant to the top of the gypsum stack, where it is directed to one of three settling compartments on the top of the stack. Settled gypsum is periodically dredged out, and used to build up the diked area around the edges of the stack. The slurry water is then decanted to the perimeter ditch and returned to circulation. Waters collected at the New Wales Complex which do not come in contact with fertilizer products or raw materials are collected on the site and directed to an impoundment area referred to as "A-11" for recirculation and reuse in the plant. Excess noncontact water may be periodically released to the Kings ford Mine recirculating system during heavy or extended rainfall, and is managed separately from pond water. A 90 acre emergency holding pond is located to the west of the cooling pond and to the south of the production facility. However, IMCF has never had to discharge excess pond water into this emergency area. This emergency holding pond is unlined. IMCF's existing facility is a zero discharge to surface water facility. Other phosphate companies discharge pond waters to surface waters after treatment with calcium oxide or calcium carbonate. This existing facility can also store, without surface water discharge, rainfall and other waters in excess of Departmental and federal effluent guidelines Because IMCF's existing, unlined gypsum stack and cooling pond system release some seepage to the ground water, on or about September 8, 1989, IMCF and the Department executed a Consent Agreement in OGC Case Number 89-0657 pertaining to the operation of the existing gypsum stack and cooling pond, which states in pertinent part: Cooling pond water on the Site contains concen- trations of various constituents in excess of primary drinking water standards. (Finding 4) Contaminant concentrations in groundwater samples collected from the surficial aquifer and the uppermost segment of the intermediate aquifer system at certain locations on the Site are elevated with respect to unaffected groundwater quality. Monitoring well SA-4 . . . is located approximately 400 feet from the cooling pond channel and has indicated concentration levels of certain constituents in excess of primary and secondary drinking water standards . . . Analyses from monitoring well SA-6, located 1600 feet downgradient from well SA-4, have recently indicated sulfate and TDS concentra- tion levels slightly exceeding secondary drinking water standards. Therefore, the vertical and horizontal extent of groundwater contamination and the rate and direction of contaminant transport in groundwater require additional evaluation. (Finding 5) Some evidence indicates elevated contaminant concentrations above background levels in groundwater samples collected from one of seven monitoring wells that draw water from the lower segment of the intermediate aquifer system in a location adjacent to and down- gradient from the cooling pond. Therefore, additional evaluation of the potential impact of abandoned recharge wells underlying the cooling pond is required. (Finding 6) IMCF has collected ground water quality data pursuant to the requirements of Ground Water Monitoring Plan Permit No. MP53-75181, currently in effect, as well as data in connection with this expansion project. This data indicates that two monitoring wells have been impacted by seepage from the existing gypsum stack. Well No. NWC-2-S2A, located approximately 400 feet to the west of the edge of the gypsum stack, contains ground water with elevated levels of sodium in excess of concentrations set forth in applicable ground water quality rules, and has recorded sulfate levels which exceed standards. Well No. SA-4, located approximately 700 feet west of the existing stack, reflects concentrations of sodium, gross alpha, and radium-226 in excess of concentration limits set forth in applicable rules, and has also recorded exceedences for sulfate, total dissolved solids and iron. These two wells are located within the New Wales Complex, and draw water from the upper portion of the intermediate aquifer, probably being impacted by seepage from the stack westward through this zone. In addition, data collected from IMCF monitoring well NWC-5-I4A, located immediately west of, and adjacent to, the cooling pond, show elevated levels of temporary dissolved solids, arsenic, sulfate and sodium above background levels, although the sodium concentrations do not exceed the maximum concentration limits set forth in applicable Departmental ground water quality standards. This well draws water from the major producing zone of the intermediate aquifer system. Finally, water quality impacts are shown as a result of analysis of ground water samples taken from three other wells at the New Wales Complex, wells NWC-2-S1 and NWC-2-SIA which draw water from the surficial aquifer, and well SA-6 which draws water from the uppermost portion of the intermediate aquifer system. However, based upon the evidence and analysis presented by Dr. John Garlanger, who was accepted as an expert in ground water quality impact assessment, and notwithstanding the contrary opinion expressed by Steven R. Boyes, who was accepted as an expert in hydrogeology, it is likely that these impacts come from a source other than the gypsum stack. Based in part upon the findings set forth above, the Consent Agreement provides that IMCF will implement a series of stated corrective actions, including additional monitoring activities, and that IMCF will evaluate pertinent primary and secondary drinking water standard constituents in all potentially affected aquifers within, and/or beyond, its zone of discharge. Once this is done, IMCF may be required to evaluate various remedial action alternatives, and to ultimately implement a remedial action plan. The Consent Agreement also authorizes IMCF to install a slurry wall to the north and northeast of the existing stack to limit any seepage in that area. IMCF has committed to the Department that if ground water quality monitoring indicates significant contamination is approaching the limits of the IMCF production plant, it will also install a slurry wall along the western edge of the plant in order to intercept any such contamination in the surficial and upper intermediate aquifer systems and contain it within IMCF's property. Dr. Garlanger performed a modeling analysis concerning the impact of the existing cooling pond and stack upon the water quality of the major producing zone of the intermediate or Floridan aquifer, given that these existing facilities will not be closed, but will remain in use in connection with the new stack for an additional twenty years beyond 1992. Based upon that analysis, it is found that any seepage through the upper confining unit from either the existing stack or pond would not cause a violation of primary or secondary drinking water quality standards. In addition, even if the twelve recharge wells underlying the cooling pond area were each leaking at the rate of one gallon per minute, which was shown to be an overestimate of any reasonable leakage rate, Dr. Garlanger concluded that insignificant impacts would result in the major producing zone of the intermediate and Floridan aquifer systems. The precise vertical or downward extent of the zone of discharge has not yet been determined for the New Wales Complex, although a zone of discharge horizontally to the IMCF property line has been established. However, the Department has reasonably concluded that the water quality impacts at the site resulting from the existing stack and cooling pond, referred to above, are not violations of IMCF's current permit, or of applicable rules and standards. The Department does not currently have sufficient information to determine what, if any, remedial action would be appropriate for impacts resulting from the existing stack and cooling pond, but this information will be developed pursuant to the Consent Agreement. The Department has not ruled out any eventual remedial action alternative, including closure of the existing gypsum stack. The Proposed Project IMCF proposes to construct an additional 415 acres of gypsum storage capacity, including permimeter ditching, in a total project area of 520 acres which will be located immediately south of, and adjacent to, the existing cooling pond that is used in connection with the existing gypsum stack or pile. It is reasonably estimated that this new stack will be in operation for twenty years. A 60-mil high density polyethylene liner is to be installed over the entire base area, and the upstream slope of the perimeter dikes. The proposed liner will be chemically and physically compatible with conditions that will be encountered in the expanded gypsum stack area, and will be of sufficient strength to prevent failure during installation and operation. Textured liner material will be used around the outer edges of the stack area underlying the projected stack slope, while smooth material will be used under the remainder of the stack. The textured material provides an additional safety factor to prevent slope stability failure. IMCF's proposed gypsum stack is designed with a factor of safety significantly greater than that which is provided in other stack projects. The liner material will be delivered to the site in sheets which will be rolled out on site, overlapped, and bonded with adjacent sheets using an extrusion-fusion welding process. IMCF will follow an extensive quality assurance and control program to insure that the contractor installing the liner follows all required procedures, including inspections and evaluations, random destructive testing, and vacuum testing of every inch of liner welds. Three concentric rings of perimeter gravel drains with polyethyline collector pipes will be installed over the liner and beneath the projected slope of the gypsum stack in order to reduce the hydraulic head on the liner and improve the stability of the stack. The materials used in the drain system will be compatible with the environment which they will encounter in the gypsum stack. IMCF proposes to separate the existing cooling pond and the proposed new gypsum stack with a 2.5 foot thick soil-bentonite slurry wall constructed along and within the entire length of the northern perimeter dike of the expansion area, and keyed approximately 30 feet into the underlying bedrock- bedclay complex. This slurry wall will provide a barrier to lateral seepage from the existing cooling pond into the expansion area, and will effectively function as a vertical liner. Materials used to construct the slurry wall will not be adversely impacted by seepage from the cooling pond. Two culverts for routing the seepage, runoff and decant water from the gypsum stack perimeter collection ditch into the existing cooling pond are to be installed. An additional syphon spillway is to be constructed at the southwest corner of the existing cooling pond and directed into the emergency holding pond. There is no proposal to cap the twelve uncapped recharge wells located under the existing cooling pond. The existing cooling and emergency holding pond will remain in operation with the new proposed gypsum stack. Gypsum will be slurried by pipeline from the phosphoric acid plant to the proposed new stack after its completion, where it will be managed in a manner similar to that practiced on the currently operating stack. The transport water will be returned to the cooling pond system for recirculation. IMCF proposes to use the top of the existing stack for the storage of rainfall and for cooling purposes during times of excessive heat. The geology of the gypsum stack expansion project site is appropriate and suitable for this proposed use, as established through an evaluation of regional and site-specific information, including prospecting data collected by IMCF prior to mining this area and geophysical logging information from wells that have been installed in the area. Site-specific geological tests performed by IMCF included the drilling and evaluation of five core holes around the area of the expansion project, and evaluation of the geological conditions encountered during the drilling of thirty-one ground water monitoring-wells installed in the vicinity of the proposed project area, and an evaluation of soil borings taken from within the project site. Surface depressions and lineaments shown on pre-mining aerial photographs of the area were also evaluated. The physical evaluation and examination of the former locations of surface depressions was conducted, as was a sinkhole probability assessment. The hydrogeology underlying the site of the proposed expansion area does not contain any features which would adversely affect the siting of the expanded stack in this proposed location. There are three major aquifer systems underlying the proposed project area, including the surficial, intermediate and Floridan aquifer system. The surficial aquifer, extending from the top of the water table to a depth of approximately 60 feet, contains overburden and sands that have replaced the original "matrix" formation of phosphate ore which has been mined. The intermediate aquifer system underlies the surficial aquifer, with its upper portion having very low permeability, extending approximately 125 feet in thickness, and containing some water bearing zones which are not laterally continuous in the project area. The major producing zone, consisting of sandy limestone material, is located in the lower portion of the intermediate aquifer. There is a confining unit approximately ten feet in thickness, known as the "Tampa clay", at the very bottom of the intermediate aquifer, separating it from the Floridan aquifer. The Floridan aquifer system is a highly productive limestone aquifer, several hundred feet in thickness, that is the primary source of municipal drinking water and industrial water supplies in the area. The preparation of the site will begin with the removal of various materials deposited in the area during mining operations which have already taken place, and the diversion of surface water from the area. The site will be dewatered by allowing water to flow from the site into other mined-out portions of the Kingsford Mine further to the south. This dewatering process will not discharge any water to the waters of the State. After dewatering, the site will be graded to remove any materials that could potentially puncture the liner. The presence of existing wells in the project site will also be addressed by IMCF as part of its site preparation activities. Thirty-eight wells were previously installed in the project area, thirty-three of which were recharge wells that were used to drain water from the surficial aquifer system down to lower aquifer systems prior to mining. Twenty of these wells have been physically located, and IMCF will insure that these wells are abandoned and plugged in accordance with currently applicable regulatory requirements. The remaining eighteen wells in the project area cannot be physically located and plugged because they have been destroyed or otherwise impacted by mining operations. IMCF will install circular concrete caps, three feet in thickness and of varying diameters, over the former locations of these wells which have been determined using an analysis and evaluation of historical surveys and aerial photography, as well as computer modeling. It was established through the testimony of Richard Fountain and Dr. Nadim Fuleihan, who were accepted as experts in geological evaluation and consultation, and civil and geotechnical engineering, respectively, that these caps will reliably encompass the locations of these eighteen former wells, and will, further, maintain the structural integrity and stability of the lined gypsum stack. IMCF has provided reasonable assurances to the Department that the construction and operation of the proposed additional gypsum stack will not result in discharges that will cause pollution in violation of statutory provisions or Departmental rules or standards designed to protect surface and ground water quality. As discussed elsewhere herein, IMCF will include an extensive groundwater quality containment/protection system in this project, the essential elements of which include the slurry wall, synthetic liner and underdrain system. Surface waters will not be adversely affected by dewatering of the project area prior to construction, nor by rainfall that strikes disturbed areas during construction due to the diversion of such waters into the Kings ford Mine water recirculation system, thereby preventing direct discharge to surface waters of the State. Construction of the new gypsum stack will increase the area at the New Wales Complex that will catch rainfall and direct it towards the pond water recirculation system. However, based on the evidence presented by Dr. Fuleihan, even under extreme rainfall conditions there is a very low probability that IMCF would have to discharge pond water from the emergency holding pond, and even under this unlikely condition, IMCF has the capability of implementing a program to treat and reuse pond water in its production processes, and will not have to discharge pond water to surface waters of the State. The proposed one layer synthetic liner which IMCF will install with the new stack can reasonably be expected to prevent pollution of the ground water which would violate applicable statutory provisions, rules or standards. It was established through the testimony and evidence presented on behalf of IMCF, and particularly the evidence presented by Dr. Fuleihan, that the proposed liner to be used by IMCF is at least five times more protective (less permeable) than clay liners, and eight times more protective (less permeable) than the design liner which would be required by the Department's policy statement concerning the lining of gypsum stack expansion projects. This project will essentially involve zero discharge to ground water due to the extremely low permeability of the liner material. Based upon the testimony of Dr. Garlanger, any impacts reasonably expected to occur through liner seepage and defects would not result in an exceedence of applicable primary drinking water quality standards at the base of the surficial aquifer underlying the gypsum stack expansion area. No impacts at all were projected at any point lateral to the edge of the gypsum stack expansion area. In accordance with the terms of the permit the Department proposes to issue, IMCF will be required to monitor ground water quality in order to demonstrate compliance with all applicable standards. IMCF has provided reasonable assurance that it can locate and cap all uncapped recharge wells in the project area, and has proposed a method for capping such wells which is appropriate, and which can reasonably be expected to be effective in preventing the intrusion of pollutants into the ground water through these presently uncapped recharge wells.
Recommendation Based upon the foregoing, it is recommended that Department enter a Final Order approving IMCF's permit application and issuing permit number 1C53-154132. DONE AND ENTERED this 23rd day of May, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1990. APPENDIX TO RECOMMENDED ORDER Rulings on Petitioner's Proposed Findings of Fact: 1-5 Preliminary matters which are not proposed findings. Adopted in Findings 4, 6, 8, 24-28. Adopted in Findings 3, 8. Statement of issues and not a proposed finding. 9-10 Adopted in Finding 11, but otherwise Rejected as unnecessary and immaterial. Adopted in Finding 15. Rejected as immaterial and unnecessary. 14-15 Adopted in Finding 16. Adopted in Findings 1, 11. Adopted in Finding 11, but otherwise Rejected as immaterial and unnecessary. Adopted in Findings 13, 34. Adopted in Finding 13. Rejected in Finding 22 and otherwise as not based on competent substantial evidence. Adopted in Finding 29. 22-23 Adopted and Rejected in part in Findings 34, 37. 24-31 Adopted and Rejected in part in Findings 18-20, and otherwise Rejected as immaterial and unnecessary. 32 Rejected as not based on competent substantial evidence. 33-34 Adopted in Finding 23, but otherwise Rejected in Finding 22 and as not based on competent substantial evidence. Adopted in Finding 19, but Rejected in Finding 22 and as not based on competent substantial evidence. Adopted in Findings 24, 29, 30. Rejected as irrelevant. 38-39 Adopted in Finding 11. Adopted in Finding 24, but otherwise Rejected as immaterial and unnecessary. Adopted in Finding 29, but otherwise Rejected as speculative and not based on competent substantial evidence. Rejected in Finding 36, and otherwise as immaterial. Adopted in Finding 36, but otherwise Rejected as immaterial and as a conclusion of law. Rejected in Finding 35. Rejected as not based on competent substantial evidence, and without citation to the record as required by Rule 221-6.031(3). Rejected in Findings 21-23 and 35-37. Rejected as not based on competent substantial evidence and as a conclusion of law. Adopted in Finding 17. Adopted in Findings 21 and 23, but otherwise Rejected as without citation to the record. Rejected as not based on competent substantial evidence and without citation to the record. Rejected as a conclusion of law. 52-53 Rejected as immaterial since the circumstances of the Gardinier permit differ significantly from the facts in this case. 54 Rejected as not based on competent substantial evidence and as immaterial. There was no explication of any nonrule policy which requires closure of an existing stack. 55-56 Rejected as immaterial. 57-58 Rejected as not based on competent substantial evidence and as a conclusion of law. 59-60 Rejected as a conclusion of law and without citation to the record. Rejected as immaterial and not based on competent substantial evidence. Rejected as simply argument rather than a finding of fact. Rejected as an incorrect conclusion of law. 64-68 Rejected as immaterial, not based on competent substantial evidence, and without citation to the record. Rulings on the Department's Proposed Findings of Fact: 1 Adopted in Finding 1. 2 Adopted in Finding 9. 3 Adopted in Finding 10. 4-5 Adopted in Findings 13, 14. 6-7 Adopted in Finding 12. 8 Adopted in Findings 24, 30. 9 Adopted in Finding 31. 10 Adopted in Finding 32. 11 Adopted in Finding 33. 12-13 Adopted in Finding 34. 14 Adopted in Finding 35. 15 Adopted in Finding 28. 16-17 Adopted in Finding 25. 18 Adopted in Finding 26. 19 Adopted in Finding 27. 20-22 Adopted in Finding 36. Adopted in Findings 14, 35. Adopted in Findings 1, 11, 13, 17. Adopted in Finding 18. Adopted in Finding 19. Adopted in Finding 20. 28-29 Adopted in Finding 21. 30 Adopted in Finding 22. 31-32 Adopted in Finding 23. Rulings on IMCF's Proposed Findings of Fact: 1 Adopted in Finding 1. 2 Adopted in Finding 9. 3 Adopted in Finding 10. 4 Adopted in Finding 13, 14. 5-6 Adopted in Finding 12. 7 8 Adopted in immaterial. Adopted in Finding Finding 4, but otherwise 6. Rejected as 9 Adopted in Finding 8. 10 Adopted in Findings 24, 30. 11 Adopted in Finding 31. 12 Adopted in Finding 32. 13 Adopted in Finding 33. 14-18 Adopted in Finding 34. 19 Adopted in Finding 35. 20 Adopted in Finding 28. 21-22 Adopted in Finding 25. 23 Adopted in Finding 26. 24 Adopted in Finding 27. 25-27 Adopted in Finding 36. 28-29 Adopted in Findings 14, 35. 30 Adopted in Findings 35, 36. 31 Adopted in Findings 1, 11, 13, 17. 32 Adopted in Finding 18. 33 Adopted in Finding 19. 34 Adopted in Finding 20. 35-36 Adopted in Finding 21. 37 Adopted in Finding 22. 38-39 Adopted in Finding 23. COPIES FURNISHED: Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, FL 33701 Richard T. Donelan, Jr., Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Robert L. Rhodes, Jr., Esquire Lynda L. Goodgame, Esquire P. O. Drawer 810 Tallahassee, FL 32302 Daniel H. Thompson, Esquire General Counsel 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dale H. Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact The parties stipulated, and it is so found, that Petitioner, DER, has jurisdiction over both the issues and the Respondents Dey and KWC. KWC owns and operates a water system which supplies water to both residential and commercial customers in the City of Keystone Heights, Florida. Virginia Key is the President of KWC, a member of the Board of Directors of the corporation, and one of the five stockholders. The other stockholders are her sisters. The five sisters are the daughters of the late G. E Wiggins, and inherited the company from him at his death in 1969. Mr. Wiggins developed the water company in the 1920's and operated it until his death. KWC came under the jurisdiction of the Florida Public Service Commission (PSC) just prior to Mr. Wiggins' death. At that time, pursuant to a PSC requirement, it was assessed and valued at a sum in excess of $250,000.00 by a consultant firm hired for the purpose. As of late November, 1984, KWC served approximately 752 residential customers which, when multiplied by an average 2.5 persons per family factor, results in a total of approximately 1,880 residential inhabitants served by the water system. In addition, the system serves 105 commercial customers. It is impossible to estimate with any reasonable degree of accuracy the number of individuals involved in the commercial service. The system consists of three wells drilled in 1940, 1946, and 1960 to a depth of 350, 450, and 492 feet respectively. Total yield from the three wells is normally 1,350 gallons per minute. The wells are generally well protected against surface water infusion, are normally not subject to inundation, and have had no salt water infiltration problems in the past. At the present time, well number 2, drilled in 1946, with a 350 gpm yield is out of service. The water, when pumped from the ground, is stored in two tanks-one with a 60,000 gallon capacity and the other with a capacity of 800 gallons. Both tanks are steel. Chlorine is added to the water in each storage situation by a hyper-chlori- nation system before the water is sent to the storage tank. The distribution system is made up of 6" and 2" diameter pipe. In March, 1984, two different inspections of the water system, done by, in one case, an environmental specialist and in the other, an Engineer I with DER, revealed several deficiencies in the maintenance and operation of the system all of which constitute violations of DER rules. Specifically, these include (1) failure to provide an auxiliary power source in the event the main pumping capability of the system is lost, (Rule 17-22.106 (3)(a); (2) failure to utilize for the system an operator certi- fied by the state with a Class C license, (Rule 17-22.107(3)(b); (3) failure to maintain a free chlorine residual in the water of at least 0.2 ppm in the system, (Rule 17-22.106(3)(c); (4) failure to maintain a minimum pressure of 20 ppi in the distribution system, (Rule 17-22.106(3)(f); (5) failure to have a gas chlorination facility, (Rule 17-22.106(3)(d); and (6) failure to obtain proper permits to expand the distribution system, (Rule 17-22.108 (1)(b) Rule 17-22, F.A.C., sets up requirements for safe drinking water and was designed to establish guidelines and standards for facilities and water and to bring water into compliance with the Federal Act. Twenty ppi of pressure in the system was adopted as a standard minimum for residual pressure to protect against outside contaminants getting into the water system. Such contaminants could come from ground water, leaks, and water in storage tanks attached to the system such as toilet tanks, being aspirated into the system. Also a certain amount of pressure is required to operate appliances. Normally minimum pressure is found in areas at the edge of the system and in those areas where inadequate chlorination is located. They interact and both pressure and chlorinization are required. Chlorine can be injected into the system generally in two ways: the first is through gas chlori- nation and the second, through hyper-chlorinization as is used in the instant system. The effectiveness of hyper-chlorinization is limited, however, by the size of the system. Basically, hyper- chlorinization is effective when the demand in the system for pressure is no more than 10 ppi. Above this, gas chlorinization is necessary. As late as January 4, 1985, Mr. Dykes went to Keystone Heights to test the system. His tests showed that 11.9 ppi is the average daily flow per 24 hours for the last 12 months. Since this figure is above 10 ppi, in his opinion, a gas chlorinization system would be needed. Chlorine is used to purify water because it has been shown, through long use, to prevent disease. The requirement for a residual chlorine level in water, therefore, is consistent with that concept to insure chlorine is always in the water in sufficient quantity to prevent disease. Respondent's plant has less than the 0.2 residual that is required under the rule. This insufficiency is caused by the inadequate chlorinization system which has insufficient capacity to provide the appropriate amount of chlorine. At the current level, it is providing only approximately 60 percent of the needed chlorine. To correct this deficiency Mr. Dykes recommends installation of a gas chlorinization system. In addition, the pneumatic tank storing the water from the number 3 well does not give sufficient detention time to allow for appropriate reaction of the chlorine contained in the water before the water is released into the distribution system. Another factor relating to the lack of adequate pressure in the system is the fact that, in Mr. Dykes' opinion, too much of the system is made up of 2" diameter water line. A line of this small diameter prevents the maintenance of adequate pressure especially in light of the fact that there are numerous old lines in the system some with corrosion and scale in them which tends to reduce pressure. This latter factor would be prevalent even in the 6" lines. The current plant manager, Mr. Cross, who has been with Respondent for approximately 4 years is, with the exception of one part time employee, the only operations individual associated with the plant. As such, he repairs the meters and the lines, checks the pumps, the chlorinator, and checks and refills the chlorine reservoir on a seven day a week basis. Be learned the operation of the plant from his precedessor, Mr. Johnson, an unlicensed operator who was with the company for 10 years. Mr. Cross has a "D" license which he secured last year after being notified by DER that a license was required. It was necessary for him to get the "D" license before getting the required "C" license. At the present time, he is enrolled to take courses leading toward the "C" license. At the present time, however, he is not, nor is anyone else associated with KWC, holding a license as required. The rule regarding auxiliary power provides that all community systems serving 350 or more persons shall have standby pumping capability or auxiliary power to allow operation of the water treatment unit and pumping capability of approximately one-half the maximum daily system demand. Respondent has admitted that the system is not equipped with an auxiliary power source and it has already been established that more than 350 persons are served by the system. Respondent also admits that subsequent to November 9, 1977, it constructed main water lines for the system which required the obtaining of a permit from either the Petitioner or the county health unit. Respondent admits that it did not obtain or possess a permit to do the additional construction referenced above from either DER or the Clay County Health Department prior to the construction of the water lines referenced. The inspections referenced above, which identified the problems discussed herein, were accomplished by employees of Petitioner, DER, at a stipulated cost of $898.10. Respondent contends, and there is no evidence to the contrary, that there have been no complaints of contaminated water and that the monthly water samples which Mr. Cross forwards to the Clay County Health Department have been satisfactory. Mr. Cross also indicates that a September, 1983 DER analysis of water samples taken from the system was satisfactory. However, bacteriological analysis reports on water collected from Respondent's system on July 11 and 27, 1983, reflect unsatisfactory levels of either coliform or non-coliform bacteria in the water requiring resubmission of test samples. Respondent also contends that no one has ever gotten sick or died from the water furnished by the system and there is, in fact, no evidence to show this is not true. Even though so far as is known, no one has ever been made sick from the water in the system, in Mr. Dykes' opinion, the risk is there. As a result of the defects identified in this system, insufficient chlorine is going into the system to meet reasonable health standards. Though this does not mean that the water is now bad, it does mean that at any time, given a leak or the infusion of some contaminant, the water could become bad quickly, and the standard established by rule is preventive, designed to insure that even in the case of contamination, the water will remain safe and potable. Respondent does not deny that it is and has been in violation of the rules as set out by the Petitioner. It claims, however, that it does not have sufficient funds available to comply with the rules as promulgated by DER. Respondent has recently filed a request for variance under Section 403.854, Florida Statutes, setting forth as the basis for its request that it does not have the present financial ability to comply with any of the suggested or recommended corrective actions to bring its operation into compliance with the rules. Mr. Protheroe, the consulting engineer who testified for Respondent has not evaluated the system personally. His familiarity with it is a result of his perusal of the records of the company and the Petitioner. Based on his limited familiarity with the system, he cannot say with any certainty if it can be brought into compliance with, for example, the 20 ppi requirement. There are too many unknowns. If, however, the central system was found to be in, reasonably good shape, in his opinion, it would take in excess of $100,000.00 to bring it within pressure standards. To do so would require replacement of the 2" lines, looping the lines, and cleaning and replacing some central system lines as well. In his opinion, it would take three months to do a complete and competent analysis of the system's repair needs. Once that was done, he feels it would take an additional three months to bring the plant into compliance with DER requirements. Other repairs, such as those to the lines outside the plant, would take longer because some are located in the downtown area and have interfaced with other utilities. This could take from three to four months if the money were available to start immediately. Here, however, it has been shown that it is not. Consequently, to do the study and then, if possible, procure the funds required, could take well in excess of six months or so. Mr. Protheroe contends, and there is little if any evidence to indicate to the contrary, that to replace the current system with a new one entirely as it is currently constituted would cost at least $250,000.00. However, in his opinion, no one would ever put in a new system similar to the one currently there. He cannot say how much it would cost to buy the system and make the necessary corrections to it to rectify the deficiencies. His familiarity with the system is not sufficiently complete to do this. He cannot say exactly how much the system is worth in its current state, but he is satisfied that it is worth more than $65,000.00. In that regard, Mrs. Dey indicated that in her opinion, the fair market value of the system is currently at $250,000.00. At the present time, there are current outstanding loans in excess of $9,000.00 at 16 percent interest. This current loan basis has been reduced from a higher figure. In 1977, the company borrowed $15,000.00 at 9 percent. In 1981, it borrowed $5,000.00 more at 18 percent. In 1982, the loans were consolidated at an increased rate of 16 percent and the officers have been advised by their current creditors that they cannot borrow any more money for the system in its current state. They would sell the system if a reasonable price could be realized. However, any inquiries on prospective purchases have been chilled by a low rate base assigned by the PSC. In that regard, the City of Keystone Heights offered to purchase the system for $59,000.00. This offer was declined as being unreasonable. Nonetheless, in light of the low rate base assigned by the PSC in its order issued on December 21, 1981 of slightly over $53,000.00 the offer by the city of $59,000.00 is not completely out of line. A certified public accountant, in KWC's December 31, 1983 financial report assigned a valuation of approximately $62,000.00, again a figure only slightly higher than that offered by the city, but substantially less than the $175,000.00 price asked of the city by Respondent Dey and her sisters. Mrs. Dey indicated that to the best of her knowledge the PSC denied rate increases for the purposes of improvements. In the presentation before the commission, respondents relied exclusively on the services of their attorney and accountant. Evidence from Mr. Lowe, of the PSC, however, indicates that KWC has never requested a rate increase to finance any of the improvements called for here. In the PSC order referred to above, Respondent was awarded a 12.25 percent rate of return on its rate base. This figure was an amalgam of a more than 13 percent rate on equity and a lesser figure for cost of doing business, including debt. At the time of that hearing, however, the debt cost was based on a 9 percent interest figure. The 16 percent interest figure came afterwards and no hearing has been requested based on the higher interest rate and it is so found.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is, therefore: RECOMMENDED that Respondents Virginia W. Day and the Keystone Water Company be ordered to comply with the Orders for Corrective Action previously filed herein to bring the water system in question in compliance with the Florida Safe Water Drinking Act without delay or suffer the penalties for non- compliance called for by statute and, in addition, pay costs of investigation in the amount of $898.16. RECOMMENDED in Tallahassee, Florida this 19th day of February, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1987. COPIES FURNISHED: Debra A. Swim, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 John E Norris, Esquire 10 North Columbia Street Lake City, Florida 32055 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner Harold F. Brown is a custom agricultural applicator, and has been in the business for approximately 27 years. He has applied the pesticide aldicarb, known under the brand name of Temik, which is manufactured and sold by Union Carbide, Inc. This pesticide is used in Florida to kill nematodes that attack the roots of plants and trees in the soil. Aldicarb (Temik) is an oxime carbamate which exhibits the neuro- transmitter enzyme cholinesterase, thereby inhibiting the transmission of neurological messages across synaptic junctions. Its effect on humans is to reduce the brain's control of body organs, resulting in neurological disorder which can ultimately cause death. Aldicarb is one of the most toxic substances made for public use. The United States Environmental Protection Agency (EPA) recommends as a guideline a tolerance level of aldicarb residue of 10 parts per billion (ppb). In connection with its pesticide monitoring program the DACS accepts and relies upon residue tolerance levels established by the EPA. HRS also follows the guidelines of the EPA as to residue tolerance levels. Aldicarb was registered for use in Florida in 1975, and has been an effective and desirable product for the growing of citrus and potatoes. It was originally anticipated that the product, when used in accordance with the label instructions, would degrade rapidly under Florida soil and temperature conditions, would be found only in the superficial layers of the soil and would not leach into ground water supplies. The label instructions for the use of Temik on citrus directs an application of 67 pounds of 15G formulation per acre once a year in the springtime. The DER has the duty and authority to protect the waters of this State, including ground water, from pollution. It has enacted rules which prohibit discharges to ground water of substances in concentrations which are carcinogenic, mutagenic, teratogenic or toxic to human beings or which pose a serious danger to the public health, safety or welfare. DER also regulates public drinking water supplies, while private drinking water supplies are regulated by HRS. Existing treatment facilities are not now required and are not equipped to remove aldicarb residues from drinking water. According to data from the United States Geological Survey, 87 percent of all public drinking water supplies in Florida comes from ground water. Ground water accounts for 94 percent of the rural water use. There are two primary sources of ground water for drinking water in Florida--the surficial aquifer, also called the water table or shallow aquifer, and the Floridan aquifer. Approximately 37 percent of the State's population obtains its water solely or primarily from the shallow or surficial aquifer. Ground water contamination occurs when rain falls on a source of pollution, such as chemicals. The rainwater dissolves the chemical and creates leachate which percolate into the water table. This leachate moves both vertically and in the direction of the ground water. Ground water generally moves in a downgradient direction, at lateral speeds varying from several inches to several feet per month. The presence of withdrawal points, such as water supply wells, creates a vacuum and accelerates the movement of leachate. Temik is highly soluble in water and would be expected to move along with the ground water. Chemicals in ground water remain much longer than in surface water because there is a smaller degree of dilution and no exposure to sunlight. On or about August 6, 1982, the Commissioner of Agriculture created a "Temik Task Force" for the purpose of testing food products, ground water and drinking water for Temik residues. This Task Force was placed under the direction of the State Chemist and included members representing the DACS, DER, HRS and the University of Florida's Institute of Food and Agricultural Sciences. The Temik Task Force met with the Pesticide Technical Council on various occasions and reported its findings to the Commissioner of Agriculture on a regular basis. The DACS conducted testing on 256 orange juice and grapefruit juice samples taken from retail stores. No traces of aldicarb residues were detected in these samples from the marketplace. Traces of aldicarb residue were detected in some noncommercial orange juice from fruit sampled at the Alcoma Grove near Lake Wales. This detection did not exceed the federal guideline of 10 ppb. Twenty potato samples were tested, and one of these samples showed aldicarb residues. DER instituted a testing program in various orange groves where Temik had been used to determine whether aldicarb was entering into the ground water. Trained DER personnel utilized monitoring wells and techniques designed to avoid contamination of the ground water samples from surface waters, soils or other causes. While many of the samples revealed no detectable traces of aldicarb or traces of less than 10 ppb, samples taken between August 18, 1982 and January 19, 1983 did reveal residues much greater than 10 ppb. These positive findings existed in shallow wells located in citrus groves in Martin County (Indiantown) and Polk County (Alcoma Groves near Lake Wales). Aldicarb residues in the amount of 129 ppb were found in the Indiantown well sample on August 18, 1982. This same well located at a site where the water table is about 4 to 5 feet below soil surface was retested on September 16, 1982, and found to contain aldicarb residues of 35 ppb. On September 29, 1982, aldicarb residues amounting to 81 ppb were discovered from samples from a surface pond in Volusia County. On or about December 8, 1982, aldicarb residues in amounts of 41, 93, 49 and 47 ppb were detected from four different monitoring wells located at the Alcoma Grove ground water testing site near Lake Wales. Testing conducted on or about January 19, 1983, at the Alcoma Grove site revealed aldicarb residue levels of 125, 100 and 65 from samples taken from three monitoring wells. All positive findings came from samples taken below the unsaturated zone or water table in the surficial or shallow aquifer. Although extensive testing has not been completed by DER, residue levels in excess of 10 ppb have not been detected in areas outside an actual area treated with Temik. No residues of Temik have been found in wells located outside a citrus grove. Based upon reports from the Temik Task Force indicating that the pesticide residues were being found in the ground water, the DACS promulgated Emergency Rule 5E-ER-83-1 on January 19, 1983. This rule (which is not the subject of challenge in this proceeding), placed all uses and formulations of aldicarb on the "restricted use pesticide" list and implemented a reporting procedure requiring advance notice of aldicarb use (with the exception of its use in potted plants) and other information regarding its use. HRS tested for traces of Temik residue from approximately 171 drinking water wells. On January 25, 1983, a sample from the Birdsong well in Winter Garden, Orange County revealed aldicarb residue at a level of 5 ppb. This well was located in the middle of a citrus grove and contained a broken casing. Based upon the above positive finding of Temik residue in the Birdsong drinking water well, the DACS promulgated Emergency Rule 5E-ER-83-2 on January 28, 1983. This rule (also not the subject of the instant challenge) temporarily suspended the use of the pesticide Temik statewide, with the exception of authorized experimental use and nursery use in containerized plants. Subsequent to January 28, 1983, 224 samples were taken from some 154 residential drinking water wells in the Hastings area. These wells were representative of approximately 96 percent of the total potato growing acreage in the three counties of Putnam, Flagler and St. Johns. No aldicarb residue was detected from these samples, and the DACS was so informed on February 3, 1983. Based upon the Hastings area sampling and results, coupled with the lower rate of application of Temik for potatoes (as opposed to citrus) and the localized area of intended use, the challenged Emergency Rule 5E-ER-83-3 was promulgated on February 4, 1983. This Rule replaced and superseded the two prior emergency rules concerning aldicarb. It basically provided for the classification of aldicarb as a restricted use pesticide, and temporarily suspended its use statewide with exemptions for nursery use in containerized plants, authorized experimental use and application to potato fields only in St. Johns, Putnam and Flagler Counties, with reports required for potato applications. Testing of food products, ground water and drinking water has continued since the promulgation of Emergency Rule 5E-ER-83-3 and is expected to continue on the part of DACS, DER, HRS, the IFAS, and the manufacturer, Union Carbide. While the DACS and HRS have not discovered any samples from food products or drinking water wells exceeding the EPA guideline of 10 ppb, further aldicarb residues have been discovered. One grapefruit sample taken from the Orange County Packing-house on February 8, 1983, was found to contain 10 ppb. Another private drinking water well, the Sharpe well in Orange County, revealed an aldicarb residue level of 6 ppb on February 8, 1983. This well, located within 10 feet of the Temik-treated area, was also defective in that it had been struck by a tractor and contained a broken casing. Samples from another defective drinking water well in Volusia County revealed an aldicarb residue level of 6 ppb on February 16, 1983. There are no existing statistics or other evidence concerning the number of defective private drinking water wells in Florida. Three non-drinking wells at the same site in Volusia County revealed aldicarb residue levels of 52, 15 and 130 ppb. Ground water samples taken on or about February 23, 1983, from four sandpoint wells in the Newberger Grove in Lutz, Hillsborough County, revealed aldicarb residues of 26, 30,126 and 315 ppb. These samples were taken from depths below the ground surface ranging from 6.9 to 13.2 feet. The EPA and Union Carbide had discovered similarly high levels of aldicarb residue at this Lutz site in 1979 and 1980. There was some evidence that Temik had not been applied to the Lutz grove site since 1981. There was also some indication, or at least inference, that in those areas where high levels of aldicarb residue were discovered in ground water, the application of Temik to the citrus grove had not been performed in accordance with the manufacturer's label directions. This inference was neither proven nor disproven at the hearing.
Findings Of Fact The Respondent, Albert R. Stewart applied to take the examination given on August 3, 1979, to receive a Class "C" waste-water treatment plant operator license. At the examination site of Clearwater, Florida, on the scheduled examination date, the examinees were instructed to print their names on the examination answer sheet and to sign their names on the cover of the examination booklet. At the request of Mr. Stewart, Mr. Alan Ferguson appeared and took the examination in Clearwater, Florida, on August 3, 1979, in the place of and on behalf of Mr. Stewart. Mr. Ferguson signed the examination cover (DER Exhibit 2) and answer sheet (DER Exhibit 3) with the name of "Albert Stewart". The signature on the examination booklet does not resemble any of the signatures of Albert R. Stewart on his application for this examination or for any previous exams. The signature does resemble that of Mr. Ferguson in his prior correspondence with the Department of Environmental Regulation. (Mr. Ferguson presently holds a Class "C" permit). The testimony of Mr. Stewart that he actually took the examination administered on August 3, 1979, is not credible. To allow Mr. Ferguson to be admitted to the examination, Mr. Stewart provided him with his social security card and his driver's license. He also gave Mr. Ferguson twenty dollars ($20.00) for his expenses incurred in traveling to and from Clearwater. At the time of the examination, Mr. Stewart who is presently employed as a supervisor for the Waste-Water Treatment Plant for the City of Inverness, was the supervisor of Mr. Ferguson. Mr. Stewart by his agreement with Mr. Ferguson to take the examination in his place, has falsely represented to DER that he took the August 3, 1979 examination. This false representation occurred in the process of his application for a waste-water treatment plant operator license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation immediately revoking the Class "C" waste-water treatment plant operator's license granted to Respondent, Albert R. Stewart. DONE and ENTERED this 25th day of July, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1980. COPIES FURNISHED: Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Albert Roscoe Stewart Post Office Box 306 Crystal River, Florida 32629 =================================================================
Findings Of Fact Respondent is an individual who owns or operates a water system that provides piped water for human consumption to the Hardy House Diner in Washington county, Florida. The water system serves at least 35 persons daily at least 60 days out of the year. Respondent has owned or operated the water system since at least October 28, 1976. Respondent does not continually apply effective disinfectant measure to the water distributed to the customer of the Hardy House Diner, nor is Respondent's water system equipped with any disinfection equipment. Respondent's water system has a daily flow greater than 2,500 gallons per day, but less than 100,000 gallons per day. The operation, maintenance and supervision of the water system is not performed by a person who has passed an examination that entitles such a person to be a certified operator. Neither the Department nor the Washington County, Florida Health Department has received from Respondent reports which contained information about the operation and maintenance of the Respondent's water system. The water system's lack of disinfectant equipment and the absence of a certified operator for the system and Respondent's failure to file operation reports have existed continuously since "October, 1976. Representatives of the Department conducted a public water systems inspection of Respondent's water system on October 26, 1976. At that time, the system was found to be unsatisfactory in several categories, including general plant condition, existence of safety hazards, lack of chlorination, failure to submit regular reports, failure to submit monthly bacteriological samples, failure to perform chemical analysis of drinking water and failure to install a raw water tap between the pump and point of chlorination. A second inspection was performed on April 7, 1977, in which it was determined that Respondent still had not installed a chlorinations system, had failed to submit monthly operating reports had failed to employ a certified operator, had failed to submit monthly bacteriological samples, and had failed to perform annual chemical analysis of water disposed from the system. On December 7, 1977, a representative of the Department whose job responsibilities included inspecting public water systems was refused permission to enter and inspect the water system serving the Hardy house diner and its customer. The Department representative was refused entry after he had identified himself and made his purpose known to Respondent. The Department has incurred expenses of $117.58, including personnel time and travel expense, in the course of investigating Respondent's alleged violations.
Recommendation RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation, finding the Respondent to be in violation of the above-referenced statutes and regulations, and requiring Respondent to pay the state its reasonable costs and expenses, in the amount of $117.58 incurred in investigating and prosecuting this administrative proceeding. RECOMMENDED this 26th day of February, 1979, at Tallahassee, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 2230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1979. COPIES FURNISHED: Vance W. Kidder, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Eugene Hardy 1005 Highway 90 West Chipley, Florida 32428 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, vs. CASE NO. 78-1209 DER Case No. WC-10-78 EUGENE HARDY, Respondent. /
