The Issue The issue in this case is whether Respondent Laniger Enterprises of America, Inc. (Laniger), is liable to Petitioner Department of Environmental Protection (Department) for penalties and costs for the violations alleged in the Department's Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (NOV).
Findings Of Fact The Parties The Department is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of Chapter 403, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62. Laniger is a Florida corporation that owns and operates the WWTP that is the subject of this case, located at 1662 Northeast Dixie Highway, Jensen Beach, Martin County, Florida. The WWTP is referred to in the Department permit documents as the Beacon 21 WWTP. The WWTP Laniger acquired the WWTP in 1988 in a foreclosure action. At that time, the WWTP was in a "dilapidated" condition and was operating under a consent order with the Department. After acquiring the WWTP, Laniger brought it into compliance with the Department's requirements. Laniger's WWTP is commonly referred to as a "package plant."3 The WWTP's treatment processes are extended aeration, chlorination, and effluent disposal to percolation ponds. The WWTP does not have a direct discharge to surface water. It was permitted to treat 99,000 gallons per day (gpd) of wastewater. Its average daily flow during the past year was about 56,000 gallons. The east side of the WWTP site is adjacent to Warner Creek. On the north side of the WWTP site, an earthen berm separates the WWTP's percolation ponds from a drainage ditch that connects to Warner Creek. Warner Creek is a tributary to the St. Lucie River. The St. Lucie River is part of the Indian River Lagoon System. The Indian River Lagoon Act In 1989, the St. Johns River Water Management District and the South Florida Water Management District jointly produced a Surface Water Improvement and Management (SWIM) Plan for the Indian River Lagoon System ("the lagoon system"). For the purpose of the planning effort, the lagoon system was defined as composed of Mosquito Lagoon, Indian River Lagoon, and Banana River Lagoon. It extends from Ponce de Leon Inlet in Volusia County to Jupiter Inlet in Palm Beach County, a distance of 155 miles. The SWIM Plan identified high levels of nutrients as a major problem affecting the water quality of the lagoon system. Domestic wastewater was identified as the major source of the nutrients. The SWIM Plan designated 12 problem areas within the lagoon system and targeted these areas for "research, restoration and conservation projects under the SWIM programs." Department Exhibit 2 at 11-13. Neither Warner Creek nor the St. Lucie River area near Laniger's WWTP is within any of the 12 problem areas identified in the SWIM Plan. With regard to package plants, the SWIM Plan stated: There are numerous, privately operated, "package" domestic WWTPs which discharge indirectly or directly to the lagoon. These facilities are a continual threat to water quality because of intermittent treatment process failure, seepage to the lagoon from effluent containment areas, or overflow to the lagoon during storm events. Additionally, because of the large number of "package" plants and the lack of enforcement staff, these facilities are not inspected or monitored as regularly as they should be. Where possible, such plants should be phased out and replaced with centralized sewage collection and treatment facilities. Department Exhibit 2, at 64. In 1990, the Legislature passed the Indian River Lagoon Act, Chapter 90-262, Laws of Florida. Section 1 of the Act defined the Indian River Lagoon System as including the same water bodies as described in the SWIM Plan, and their tributaries. Section 4 of the Act provided: Before July 1, 1991, the Department of Environmental Regulation shall identify areas served by package sewage treatment plants which are considered a threat to the water quality of the Indian River Lagoon System. In response to this legislative directive, the Department issued a report in July 1991, entitled "Indian River Lagoon System: Water Quality Threats from Package Wastewater Treatment Plants." The 1991 report found 322 package plants operating within the lagoon system and identified 155 plants as threats to water quality. The 1991 report described the criteria the Department used to determine which package plants were threats: Facilities that have direct discharges to the system were considered threats. Facilities with percolation ponds, absorption fields, or other sub-surface disposal; systems located within 100 feet of the shoreline or within 100 feet of any canal or drainage ditch that discharges or may discharge to the lagoon system during wet periods were considered threats. * * * Facilities with percolation ponds, absorption fields, or other sub-surface disposal systems located more than 100 feet from surface water bodies in the system were evaluated case-by-case based on [operating history, inspection reports, level of treatment, and facility reliability]. Laniger's package plant was listed in the 1991 report as a threat to the water quality of the lagoon system because it was within 100 feet of Warner Creek and the drainage ditch that connects to Warner Creek. The Department notified Laniger that its WWTP was listed as a threat to the water quality of the lagoon system soon after the 1991 report was issued. The Department's 1991 report concluded that the solution for package plants threats was to replace them with centralized sewage collection and treatment facilities. To date, over 90 of the package plants identified in the Department's 1991 report as threats to the water quality of the lagoon system have been connected to centralized sewage collection and treatment systems. The 1999 Permit and Administrative Order On August 26, 1999, the Department issued Domestic Wastewater Facility Permit No. FLA013879 to Laniger for the operation of its WWTP. Attached to and incorporated into Laniger's 1999 permit was Administrative Order No. AO 99-008- DW43SED. The administrative order indicates it was issued pursuant to Section 403.088(2)(f), Florida Statutes. That statute pertains to discharges that "will not meet permit conditions or applicable statutes and rules" and requires that the permit for such a discharge be accompanied by an order establishing a schedule for achieving compliance. The administrative order contains a finding that the Beacon 21 WWTP is a threat to the water quality of the lagoon system and that the WWTP "has not provided reasonable assurance . . . that operation of the facility will not cause pollution in contravention of chapter 403, F.S., and Chapter [sic] 62-610.850 of the Florida Administrative Code." The cited rule provides that "land application projects shall not cause or contribute to violations of water quality standards in surface waters." Most of the parties' evidence and argument was directed to the following requirements of the administrative order: Beacon 21 WWTP shall connect to the centralized wastewater collection and treatment within 150 days of its availability and properly abandoned facility [sic] or provide reasonable assurance in accordance with Chapter 62-620.320(1) of the Florida Administrative Code that continued operation of the wastewater facility is not a threat to the water quality of the Indian River Lagoon System and will not cause pollution in contravention of chapter 403, F.S. and Chapter 62-610.850 of the Florida Administrative Code. * * * (3) Beacon 21 WWTP shall provide this office with semi annual reports outlining progress toward compliance with the time frames specified in paragraph 1 of this section, beginning on the issuance date of permit number FLA013879-002-DW3P. The administrative order contained a "Notice of Rights" which informed Laniger of the procedures that had to be followed to challenge the administrative order. Laniger did not challenge the administrative order. As a result of an unrelated enforcement action taken by the Department against Martin County, and in lieu of a monetary penalty, Martin County agreed to extend a force main from its centralized sewage collection and treatment facility so that the Laniger WWTP could be connected. The extension of the force main was completed in April 2003. The force main was not extended to the boundary of the Laniger WWTP site. The force main terminates approximately 150 feet north of the Laniger WWTP site and is separated from the WWTP site by a railroad. Correspondence Regarding Compliance Issues On August 21, 2001, following an inspection of the Laniger WWTP, the Department sent Laniger a letter that identified some deficiencies, one of which was Laniger's failure to submit the semi-annual progress reports required by the administrative order. Reginald Burge, president of Laniger and owner of the WWTP, responded by letter to William Thiel of the Department, stating that, "All reports were sent to the West Palm Beach office. Copies are attached." Mr. Thiel testified that the progress reports were not attached to Laniger's letter and he informed Laniger that the reports were not attached. Mr. Burge testified that he subsequently hand-delivered the reports. At the hearing, it was disclosed that Laniger believed its semi-annual groundwater monitoring reports satisfied the requirement for progress reports and it was the monitoring reports that Mr. Burge was referring to in his correspondence and which he hand-delivered to the Department. Laniger's position in this regard, however, was not made clear in its correspondence to the Department and the Department apparently never understood Laniger's position until after issuance of the NOV. On April 10, 2003, the Department notified Laniger by letter that a centralized wastewater collection and treatment system "is now available for the connection of Beacon 21." In the notification letter, the Department reminded Laniger of the requirement of the administrative order to connect within 150 days of availability. On May 9, 2003, the Department received a response from Laniger's attorney, stating that the administrative order allowed Laniger, as an alternative to connecting to the centralized wastewater collection and treatment system, to provide reasonable assurance that the WWTP was not a threat to the water quality of the lagoon system, and Laniger had provided such reasonable assurance. It was also stated in the letter from Laniger's attorney that "due to the location of Martin County's wastewater facilities, such facilities are not available as that term is defined in the [administrative] Order."4 On May 29, 2003, the Department replied, pointing out that the administrative order had found that reasonable assurance was not provided at the time of the issuance of the permit in 1999, and Laniger had made no "improvements or upgrades to the facility." The Department also reiterated that the progress reports had not been submitted. On September 29, 2003, the Department issued a formal Warning Letter to Laniger for failure to connect to the Martin County force main and for not providing reasonable assurance that the WWTP will not cause pollution in contravention of Chapter 403, Florida Statutes. The progress reports were not mentioned in the Warning Letter. The Department took no further formal action until it issued the NOV in August 2005. Count I: Failure to Timely File for Permit Renewal and Operating Without a Permit Count I of the NOV alleges that Laniger failed to submit its permit renewal application at least 180 days prior to the expiration of the 1999 permit, failed to obtain renewal of its permit, and is operating the WWTP without a valid permit. The date that was 180 days before the expiration of the 1999 permit was on or about February 27, 2004. Laniger did not submit its permit renewal application until February 15, 2005. In an "enforcement meeting" between Laniger and the Department following the issuance of the warning letter in September 2003, the Department told Laniger that it would not renew Laniger's WWTP permit. It was not established in the record whether this enforcement meeting took place before or after February 27, 2004. When Laniger filed its permit renewal application in February 2005, the Department offered to send the application back so Laniger would not "waste" the filing fee, because the Department knew it was not going to approve the application. Laniger requested that the Department to act on the permit application, and the Department denied the application on April 6, 2005. The Department's Notice of Permit Denial stated that the permit was denied because Laniger had not connected to the available centralized wastewater collection and treatment system nor provided reasonable assurance that the WWTP "is not impacting water quality within the Indian River Lagoon System." Laniger filed a petition challenging the permit denial and that petition is the subject of DOAH Case 05-1599, which was consolidated for hearing with this enforcement case. Laniger's permit expired on August 25, 2004. Laniger has operated the plant continuously since the permit expired. Count II: Failure to Submit Progress Reports Count II of the NOV alleges that Laniger failed to comply with the requirement of the administrative order to provide the Department with semi-annual reports of Laniger's progress toward connecting to a centralized sewage collection and treatment facility or providing reasonable assurances that continued operation of the WWTP would not be a threat to the water quality of the lagoon system. Laniger maintains that its groundwater monitoring reports satisfied the requirement for the semi-annual progress reports because they showed that the WWTP was meeting applicable water quality standards. The requirement for groundwater monitoring reports was set forth in a separate section of Laniger's permit from the requirement to provide the semi-annual progress reports. The monitoring reports were for the purpose of demonstrating whether the WWTP was violating drinking water quality standards in the groundwater beneath the WWTP site. They served a different purpose than the progress reports, which were to describe steps taken by Laniger to connect to a centralized sewage collection and treatment facility. Laniger's submittal of the groundwater monitoring reports did not satisfy the requirement for submitting semi-annual progress reports. There was testimony presented by the Department to suggest that it believed the semi-annual progress reports were also applicable to Laniger's demonstration of reasonable assurances that the WWTP was not a threat to the water quality of the lagoon system. However, the progress reports were for the express purpose of "outlining progress toward compliance with the time frames specified in paragraph 1." (emphasis added) The only time frame mentioned in paragraph 1 of the administrative order is connection to an available centralized wastewater collection and treatment facility "within 150 days of its availability." There is no reasonable construction of the wording of this condition that would require Laniger to submit semi-annual progress reports related to reasonable assurances that the WWTP is not a threat to the water quality of the lagoon system. Count III: Department Costs In Count III of the NOV, the Department demands $1,000.00 for its reasonable costs incurred in this case. Laniger did not dispute the Department's costs.
Findings Of Fact Petitioner's application for a Class B waste water treatment plant operator was received by Respondent on September 20, 1991. Ms. Setchfield who is in charge of reviewing and approving and/or denying all applications, reviewed Petitioner's application. Based on the documentary evidence submitted by Petitioner, he was given constructive credit for 58 months and actual credits received was 27.6 months for a total credit time of 85.6 months. To receive credit for educational experience, an applicant must demonstrate that his major area of study is in science or biology. Alternatively, an applicant may receive credit provided he furnish Respondent a transcript which would delineate the areas of his studies he successfully completed and the credits received. However, in such instances, an applicant only receives partial credit. Petitioner has been advised (by Respondent) that if he furnish a copy of his transcript, it will be reviewed and if it demonstrates that he is entitled to credit for courses he successfully completed, he would be awarded such credit. Petitioner steadfastly refuses to provide a transcript to Respondent. To be eligible for certification as a Class B waste water treatment plant operator, an applicant must demonstrate, at minimum, that he/she has the required minimum of 96 months total creditable time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent enter a Final Order denying Petitioner's application for certification as a Class B waste water treatment plant operator, as he has failed to satisfy the minimum total time requirement for such certification. 1/ DONE and ENTERED this 29th Tallahassee, Leon County, Florida. day of May, 1992, in JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1992.
Findings Of Fact Petitioner Ferncrest Utilities, Inc. owns and operates a sewage treatment plant at 3015 Southwest 54th Avenue, Fort Lauderdale, Florida. It presently services the needs of a population of about 2500 primarily located in three trailer parks, certain warehouses, a 153 room hotel, and several other business establishments. The plant was constructed and operated by a lessee of Petitioner's owners, but, in July 1979, Petitioner became the owner and operator of the facility. At that time, it was determined necessary to secure new operators and upgrade the plant equipment and method of process in order to properly service the existing and anticipated future number of customers in the area covered by a Public Service Commission franchise. Although the plant had been operating at a permitted capacity of 0.25 million gallons per day (MGD), Petitioner planned to expand the capacity to 0.60 MGD by modifying the aeration tank, and adding tertiary sand filters and equipment for clarification. Upon assuming control of the plant, Petitioner found that the 0.25 MGD permitted capacity had been exceeded by approximately 120,000 gallons per day for a number of years. Petitioner estimates that a population of 6,000 could be served under its new proposed design capacity. (Testimony of Forman, Exhibit 1) Pursuant to Petitioner's application for a construction permit, dated May 25, 1979, to modify the existing treatment plant, Respondent issued permit No. DC06-21789 on August 6, 1979. The permit specified that it was for construction of additional tank capacity for an existing 0.25 MGD wastewater treatment plant intended to approve effluent quality, and further stated that plant design capacity would remain at that figure. A subsequent letter from Respondent's subdistrict manager to Petitioner on January 15, 1980, stated that an evaluation of the quality of the surface waters receiving the plant discharge and the effect of such increased discharge would have to be made before processing a request for an increase in permitted flow. (Exhibit 7) On February 8, 1980, Respondent issued a temporary operating permit for Petitioner to temporarily operate a 0.25 MGD contact stabilization sewage treatment plant, including additional tank capacity and tertiary filtration. Specific conditions attached to the permit stated that it was issued to give the permittee a reasonable period of time to complete construction of the modification outlined in DER Permit DC06-21789 and for subsequent assessment of the effects of discharge on receiving waters. The conditions further required that the facility continue to achieve 90 percent removal of BOD5 and total suspended solids at all times with specified average daily discharges of such substances. Another condition required that the effluent from the plant be adequately chlorinated at all times so as to yield the minimum chlorine residual of 0.5 parts per million after a minimum contact period of 15 minutes. (Exhibit 8) Thereafter, on July 21, 1980, petitioner filed the instant application for an operation permit for the facility at a design capacity of 0.60 MGD. On October 7, 1980, Petitioner filed a certificate of completion of construction. By letter of December 16, 1980, Respondent's South Florida Subdistrict Manager advised Petitioner that the application for an operating permit had been denied for the reason that monitoring of the Class III receiving waters by the Broward County Environmental Quality Control Board indicated that the dissolved oxygen concentration was frequently below the minimum of 5 milligrams per liter required by Section 17-3.161(1), Florida Administrative Code, and that Petitioner's plant contributed to the substandard conditions in those waters. Petitioner thereafter requested a Section 120.57(1), F.S., hearing. (Exhibits 1-2, 4, 8) Petitioner's plant discharges into the North New River Canal through a six inch effluent pipe. The canal extends from Lake Okeechobee to the intracoastal waterway approximately five miles in distance from the point of discharge of Petitioner's plant. Monitoring of water quality in the canal for the past several years by the Broward County Environmental Quality Control Board shows that the dissolved oxygen concentrations at various sampling stations have ranged from below one part per million to in excess of five parts per million, depending upon the season of the year. However, at no station did the dissolved oxygen concentration reach an average of five parts per million. In addition, the tests also showed that BOD5 is generally low in the canal waters. (Testimony of Mazzella, Exhibits 1, 3, 5) Petitioner's modified plant is now capable of treating 0.60 MGD and meets current basic state requirements of 90 percent (secondary) removal of BOD and total suspended solids. In fact, the plant has tertiary treatment and can consistently operate at a level of 95 percent treatment. The data submitted by the applicant as to effluent water quality characteristics showed removal of 98 percent BOD, 97 percent suspended solids, 50 percent total nitrogen, and 25 percent total phosphorus with an average chlorine residual in the effluent of 0.2 parts per million. The dissolved oxygen level in the effluent has been established at 6.5 milligrams per liter. (Testimony of Hermesmeyer, Dodd, Exhibit 1) Respondent's district personnel took one 24-hour sample of the effluent from Petitioner's plant in March 1981 and determined that a concentrate of 14.6 milligrams per liter of ammonia was being discharged to receiving waters. Respondent therefore determined that the dissolved oxygen levels of the canal would be further degraded because approximately 48 to 50 parts per million of dissolved oxygen would be necessary to offset the effects of oxygen removal resulting from the ammonia discharge. Respondent further found that, although the effluent from the plant had 6.5 milligrams per liter of dissolved oxygen, the amounts of phosphorus and nitrogen being discharged could lead to algal blooms and consequent eventual eutrophication of its waters. Respondent's reviewing personnel therefore considers that there would be negative impacts upon the receiving waters if Petitioner discharged its prior licensed capacity of 250,000 gallons per day, and that a discharge of 600,000 gallons per day would double such impacts. Respondent's personnel therefore believes that although Petitioner's facility meets the basic secondary treatment requirements of Rule 17-6.01, Florida Administrative Code, it does not meet the water quality-based effluent limitation specified in Rule 17-6.10. In order to meet such requirements, it would be necessary to redesign the plant for more efficient removal of nutrients or to redirect the discharge. (Testimony of Mazzella) Other facilities adjacent to or near the North New River Canal discharge directly or indirectly into the canal waters and contribute to an unknown degree to the poor quality of the canal waters. Additionally, agricultural use of land produces stormwater runoff containing fertilizer residue into the canal in an unknown amount. A sewage treatment plant operates at optimum level of treatment when it discharges at about 50 percent of its treatment capacity. (Testimony of Mazzella) In 1983, Broward County will require Petitioner's plant to conform to state advanced waste treatment criteria which will provide for additional removal of nitrogen and phosphorus from effluent. To meet this requirement, Petitioner, plans to investigate the possibilities of utilizing a landlocked lake on its property near the treatment plant as a seepage pond. Although Petitioner's plant is identified in area regional plans to be diverted to the Hollywood wastewater treatment plant in the future, there is presently no target date for tying in to such a regional facility. (Testimony of Hermesmeyer, Exhibit 1)
Recommendation That Respondent issue a permit to Petitioner for the operation of its sewage treatment plant, with appropriate conditions as designed to protect the receiving waters. DONE and ENTERED this 27th day of May, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM 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 27th day of May, 1981. COPIES FURNISHED: Alfred Clark, Esquire Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Martin S. Friedman and R.M.C. Rose, Esquires Myers, Kaplan, Levinson, Kenin and Richards 1020 East Lafayette Street Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
The Issue The issue for determination in this case is whether Florida Administrative Code Rule 62-302.300(6) is an invalid exercise of delegated legislative authority because the rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency.
Findings Of Fact The Parties The Department is the state agency authorized under Chapter 403, Florida Statutes, to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency, the Department administers the National Pollution Discharge Elimination (NPDES) permitting program in Florida. The Department promulgated the rules in Florida Administrative Code Title 62 that are applicable to the permitting of wastewater discharges. FOPB is a non-profit Alabama corporation established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the president of FOPB. Jacqueline Lane and James Lane live on property adjacent to Perdido Bay. IP owns and operates a paper mill in Cantonment, Escambia County, Florida. IP is the applicant for the Department authorizations that are the subject of DOAH Case Nos. 08-3922 and 08-3923. Background When this rule challenge was filed, DOAH Cases Nos. 08-3922 and 08-3923 (the permit cases) involved challenges by these same Petitioners to four Department authorizations for IP: an NPDES permit, a Consent Order, an approved exemption for the experimental use of wetlands pursuant to Florida Administrative Code Rule 62-660.300, and a waiver related to the experimental use of wetlands. IP later withdrew its request for the experimental use of wetlands exemption and the related waiver. Petitioners were ordered to show cause why their claim regarding the invalidity of Florida Administrative Code Rule 62- 660.300 was not rendered moot by IP’s withdrawal of its request for the exemption. Subsequently, the challenge to the validity of Florida Administrative Code Rule 62-660.300 was dismissed as moot. At the commencement of the final hearing on June 22, 2009, FOPB and James Lane announced that they were withdrawing their rule challenges except with respect to Florida Administrative Code Rule 62-302.300(6), and that the only legal ground being asserted for the invalidity of the rule is that it is vague and vests unbridled authority in the Department. Petitioners’Standing Jacqueline Lane, James Lane and a substantial number of the members of FOPB swim, boat, and make other uses of Perdido Bay. Perdido Bay would be affected by IP's wastewater effluent. The challenged rule was applied by the Department to determine that IP's proposed industrial wastewater discharge was in the public interest. The Challenged Rule Florida Administrative Code Rule 62-302.300, is entitled "Findings, Intent, and Antidegradation Policy for Surface Water Quality." Subsection (6) of the rule states: Public interest shall not be construed to mean only those activities conducted solely to provide facilities or benefits to the general public. Private activities conducted for private purposes may also be in the public interest. Most of the permits that are issued by the Department are issued to private entities whose primary purposes are personal uses or the production of private incomes and profits, rather than solely to provide facilities or benefits to the general public.
Findings Of Fact All parties involved concurred that there is a necessity for expanded generating capacity to serve Gulf's customers and that the two initial units of 500mw each can meet this requirement. The parties stipulated that the power plant site certification application submitted by Gulf (Exhibit 1) deals sufficiently with the issue of operational safeguards and further that DER's proposed conditions of certification contain a condition that adequately addresses that issue. All agencies involved recommended certification; however, DER's recommendation was predicated upon Gulf complying with the general and special conditions or certifications contained in Exhibits 4 and 5. Gulf agreed to all those conditions but three, viz: 1. That the water intake and return lines to the river cross the wetlands on a trestle instead of the causeway proposed by Gulf; 2. A more extensive monitoring program and without termination date than the fixed period monitoring program proposed by Gulf; and 3. Restrictions upon use of herbicides to clear transmission line corridors in excess of those placed by federal and state authorities. In addition DER proposed in general conditions of certification 11(a) and (b) to modify in the future the conditions of certification by any new or more stringent department rule enacted pursuant to Chapter 120 F.S. Gulf objected to this condition of certification and submitted a brief in opposition thereto. I With respect to Item number 1 the proposed causeway will occupy some 8 acres of wetlands. It is proposed to commence the causeway at elevation + 58 feet (above MSL), which is the 25 year predicted high water flood level in the Choctawhatchee River flood plain, and continue the causeway some 2400 feet at this elevation tot he river bank. The base of the proposed causeway will have a maximum width of 130 feet at a point near the river's edge where the causeway height will be 23 feet (T91). The top width is roughly 60 feet (T90) of which 18 feet will be paved surface. To the north of the access road will be a buried electrical service to carry electricity to the pumps. In the causeway to the south of the access road will be buried two intake lines of 30 inch diameter and one water discharge line. Near the river end of the causeway a vehicle turn-around area will be provided. The causeway across the wetlands will run in a southwesterly direction from plant site parallel to the principal direction of flood water flow when the river is out of its banks. Five oval-shaped culverts will be placed in the causeway at the lowest points of natural contour and permit water to pass through the causeway to equalize levels on both sides of the causeway. These culverts will be 6 feet wide by 3 feet 8 inches high. During the wet season water will be standing in most of these culverts. If the causeway were built in the same location, but without culverts, so as to block any flow normal to the causeway, the build up of water on the north side of the causeway would be only 1 or 2 inches at full flood stage of 57 feet (T146).1 Accordingly, the causeway would have little, if any, effect on the water flow in the wetlands over which this causeway passes; and, but for the 8 acres of wetlands eliminated by the construction of the causeway, the ecological function of these wetlands will be virtually unimpaired. As a collector of sediment from the flood waters the flood plain would also be unimpaired by the construction of the causeway (T154). The cost of constructing the causeway as proposed is $216,000. As a condition of certification (Ex 5 D 1 b) DER prescribed "a trestle shall be used for access to the platform for all areas west of station 14 + 00." This includes the access across the wetlands and presumably it is DER's position that the intake and discharge pipes from the Choctawhatchee River shall be placed upon a trestle structure rather than upon a causeway. The only evidence presented with respect to the cost of the trestle structure was presented by Gulf that a concrete pile trestle to support the pipes and access road would cost some $900,000. A creosoted pile trestle to perform the same function would cost approximately $600,000 and to provide fire protection for the piling would cost another $250,000, which would place the cost of either type trestle some four times the cost of the causeway. No maintenance costs or useful life comparisons of the trestle and causeway were presented. Both trestle and causeway would require the same corridor to be cleared thus the construction of either would result in the same ecological damage. Thereafter, however, the vegetation and other indicia of wetlands could return under the trestle. While evidence was presented that the causeway would occupy 8 acres of former wetlands no evidence was presented of the area occupied by the piling of the trestle. It is obvious that this would be a small fraction of the area occupied by the causeway, but not necessarily insignificant. Gulf opposed the trestle concept for two additional reasons. The exposed pipe on the trestle, if of steel, would require painting and would conduct heat from the sun to the water passing through the pipe. Testimony was presented that ecologists not present had evaluated wetlands in general as having an ecological value of between $1,000 and $20,000 per acre per year. If these figures have economic reality all wetland should have a market value of at least $10,000 per acre. Regardless of this if we assume the values presented are real and the cost for the access corridors are correct, the following economic comparisons can be made. The difference in the cost of the causeway and trestle is approximately $700,000. If this money is borrowed by Gulf at 8 1/2 percent interest the interest cost is almost $60,000 per year. Since this would be a valid capital expense this interest cost will be reflected in the rates of Gulf's customers. If the wetlands are ecologically worth $7,500 per acre per year the 8 acres here involved would also have a value of $60,000 per year. In this connection it should be noted that DER's condition of certification specifying trestle across wetlands was based solely on ecological factors and cost was not considered (T308). During the course of the hearing considerable evidence was presented regarding a third alternative for piping water to and from the river, viz. in pipes buried across the wetlands. This evidence was insufficient in numerous aspects to give it viability; however, several aspects of this proposal are worthy of note. Any pipe that is used to carry cooling water requires some degree of slope to permit the pipe to be drained. From a position near SR 179 (where if underground pipes are used the pumps would have to be placed to provide access for maintenance) the pipe could be buried; but, at some point in the flood plain, the pipe would have to be placed upon a trestle to maintain slope to the river's edge (T287). Burying pipes across the wetlands would have the least ecological impact upon the wetlands. Once the pipe path was trenched, suitable bearing material placed in the trench to support the pipe, the pipe laid and the trench back filled the wetlands would return to natural state and the area involved resume most of the characteristics of wetlands. Problems associated with this proposal include providing all-weather access to the inside of the pipe; obtaining suction on pumps located 2400 feet laterally and 12 + feet above the level of the water to be pumped; long periods of shutdown in case a section of pipe required replacement; and routine engineering problems in obtaining a constant slope upon installation. Regardless of the path taken by these pipes some difficulties with corbicula clams are expected. These creatures are endemic to the Choctawhatchee River and will be entrained in the pipe. There they will attach themselves and as they grow restrict the flow in the pipes. Although chlorination at the inlet is expected to help control this problem periodic cleaning of the intake pipes may be required. Accordingly, access to these pipes at all stages of the water level in the flood plain is an important concern. While testimony presented that it was possible to obtain suction with pumps located 2400 feet laterally and 12 feet higher than the level of the water to be pumped, it was also acknowledged that this 2400 feet of 30 inch pipe would "probably" have to be primed before the pumps could pick up suction. (T305-306). Cost and feasibility of providing all weather access to the buried pipes, and of providing capability to prime the remote pumps was not presented. Furthermore the cost associated with burying the pipes across the wetlands was not presented. Accordingly this concept should not be further considered. II With respect to the biological monitoring program to be carried out by Gulf to determine the effects of the power plant on river organisms, DER, as a condition of certification, proposes a program that will continue for the life of the plant regardless of the conclusions reached from such monitoring. Gulf, on the other hand, proposes a monitoring program to commence prior to the operation of Unit I to determine the base line conditions and continue for one year after commencement of operations of Unit I. Thereafter when Unit II comes on line the monitoring program would be reinstituted and continue for one more year. Since Unit II is scheduled to come on line one year after Unit I the monitoring program proposed by Gulf would actually be continuous for about 2 1/2 years. All parties generally agreed that monitoring is required to ascertain the ecological effects of the plant on the aquatic life in the river. One type monitoring is needed to determine the effect of impingement and entrainment at the intake. The intake structure is designed so the plant of the intake screen is parallel to the current flow. This largely eliminates impingement of fish and other aquatic life on the intake screen as the current flow would tend to wash aquatic life off the screen. Since water is drawn into the intake at a speed of 1/2 foot per second those aquatic life in the volume of water entering which are small enough to pass through the screens will be entrained and killed in the filters. It is to determine the quantity and composition of the aquatic life so destroyed that this part of the monitoring program is intended. The second part of the monitoring program involves ascertaining the aquatic life in the river above the plant and below the point of discharge of the returned cooling water in order to ascertain the effect of the discharged water on the aquatic organisms. With respect to the entrainment monitoring there was considerable confusion in the testimony regarding anticipated findings. Gulf's witness stated that at low river and low flow conditions the greatest number of organisms would be entrained. While it is obvious that the greatest percentage of available water will be removed from the river during low flow conditions (since the same quantity or volume of water will be withdrawn as at high flow conditions) it is not obvious that there will be a higher density of aquatic organisms in the river at this same time; and no one so testified. In fact the testimony was that various organisms in the water may change radically (of a magnitude of 1,000 to 1) at various times throughout the year. It would appear that whatever concentration of aquatic organisms that exist in the thalweg of the river would exist in the water withdrawn through the intake pipes and be entrained. Those organisms that exist in slack water portions of the river, swim or otherwise remain out of the current passing near the intake would not be entrained. Thus a sampling point in the current near the intake would provide adequate information on the effects of entrainment. The program proposed by Gulf and contained in Exhibit 21 appears adequate for this determination. With respect to the monitoring required to ascertain the effects of the plant operation on the river ecosystems Gulf proposed sampling only periphyton while DER's condition or certification (Exhibit 5) provides for a sampling to include phytoplankton, zoo plankton, ichthyoplankton, nutrient analysis, benthos and fish. These samples would be taken at points above and below the plant intake and discharge for the obvious determination of the effects on the river ecological system resulting from the discharge of the used cooling water back into the system. In this regard it should be pointed out that the water to be discharged will be treated to remove heat, solids, and other concentrations that would affect compliance with the EPA standards. No valid cost estimates for the monitoring program proposed by either Gulf or DER was presented. One witness upon cross examination gave a ball park "guesstimate" of $50,000 per year for Gulf's proposed program and $100,000 per year for DER's program. The witness expressly disallowed any credit for the accuracy of these figures and accordingly they are disregarded. They are inserted here simply because cost of the end product, electricity, is a factor to be considered in determining under what conditions this certification should be granted. As noted above, Gulf proposes to continue the monitoring program for approximately 30 months (until one year after Unit II has come on line) while DER proposes a monitoring program that will continue for the life of the plant. The biological community sampling program contained in Exhibit 5, part II C should be followed. The time during which these programs should be continued will be discussed under Conclusions. III All parties generally agreed that the use of herbicides was required to clear vegetation from transmission line corridors in wet areas where mechanical equipment cannot operate. Gulf proposes to use Kuron, a herbicide approved by both state and federal authorities. It will be used in wet areas only at a frequency not to exceed once per year and in accordance with manufacturer's instructions admitted into evidence as Exhibit 22. At the hearing DER appeared to take the position that approval by DER should be obtained prior to each time the herbicide is used. The evidence presented clearly shows that Kuron is a safe non- persistent herbicide which, when applied in accordance with instructions, will cause no harm to untargeted vegetation. All of the transmission line routes were not finalized at the time of the hearing but when the remainder of these corridors are finalized there appears to be no reason that Gulf should not provide DER with a map of these corridors indicating thereon those areas in which herbicides will be used. IV No factual evidence regarding general conditions of certification 11(a) and (b) was presented. Accordingly these will be treated solely as a matter of law.
Recommendation It is RECOMMENDED that the application of Gulf Power Company for a power plant site certificate be granted so as to authorize the construction and operation of a coal-fired steam generating electrical power plant near Carryville, Florida in accordance with Exhibit 1. It is further RECOMMENDED that this approval be conditioned upon compliance by Gulf with the conditions of certification contained in Exhibit 4 and 5 except conditions II D 1 (b) (Exhibit 5), general conditions 11(a) and (b), (Exhibit 4), and that condition II C (Exhibit 5) be modified to provide such monitoring shall commence not less than six months prior to completion of Unit I and continue for a period of three years after completion of Unit II. At this time Gulf may petition DER for authority to discontinue said monitoring or to modify same and if such request is not approved Gulf shall be entitled to a hearing at which evidence shall be presented from which a determination can be made whether the benefits of said monitoring program justify the costs involved. DONE AND ENTERED this 19th day of January, 1976, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida (904) 488-9675
The Issue Whether the rules promulgated by the Department of Environmental Regulation require the Respondent to employ the services of a state certified water system operator to operate the water systems at the two business locations involved in these proceedings.
Findings Of Fact At all times material to these proceedings, the Respondent was responsible for the operation of two water systems. One water system is located on Highway 92 West, Winter Haven, Polk County. The other water system is located on State Road 37 South, Mulberry, Polk County. The restaurant and bar business operated at the Winter Haven location is known as the Rainbow Club. Customers eat food and drink beverages prepared with water from the on site water system. The system serves at least twenty- five individuals daily, at least sixty days out of the year. The convenience store business operated in Mulberry serves ice tea, juices, and coffee to customers which is prepared with water from the on site water system. The system serves at least twenty-five individuals daily, at least sixty days out of the year. During the recent past, the Respondent retained a certified operator to meet the state requirements. He was not satisfied with the operator for the following reasons: (1) He had to show the man how to chlorinate the water. (2) The operator took the required chlorine samples from water that had not been chlorinated. (3) Visits were not made to the site as scheduled. (4) The pump at one of the establishments was harmed by the certified operator. (5) The expense of four hundred dollars a month for the testing of three sites operated by the Respondent was too much money. The Respondent wants to be able to chlorinate the water and maintain the systems himself. He has professional experience regulating the chemical balance of water in swimming pools. The samples he turned into the lab himself were good. The Respondent also wants to keep the old well next to the convenience store in Mulberry. He disagrees with the Department's request that he abandon the well because he needs it for an adjoining piece of property. This well is used for lawns, not for the convenience store business. The Department is amenable to the Respondent maintaining his own systems if he is certified to do so. The next examination is scheduled for November 1990.
Findings Of Fact The Petitioner, Phillip G. Panos, recently moved from Michigan to Florida and is now a Florida resident. On December 9, 1989, prior to moving to Florida, he applied to the Respondent, Department of Environmental Regulation for certification as a Class C domestic waste water treatment plant operator. The Respondent is an agency of the State of Florida charged, among other duties, with regulating the certification, the practice standards and the educational standards of Class C domestic waste water treatment plant operators. The Respondent agency reviewed the Petitioner's application and denied it for failure to demonstrate the requisite three years of experience required by the rule cited below. From April, 1974 to June, 1990 the Petitioner was employed at the Chapaton Pumping Station in St. Clair Shores, Macomb, Michigan. The Chapaton Pumping Station duties involved the Petitioner monitoring the distribution of sewage flows, collecting sludge samples, chlorinating the effluent and pumping it into Lake St. Clair. When the Petitioner left the Chapaton Pumping Station, in June of 1990, he held the position of Senior Station Operator II. The Chapaton Pumping Station receives a combination of storm water flow and sanitary sewage flows. It is a pumping and storm water retention facility for combined sewage. The facility provides primary treatment and disinfection for this combined sewage effluent. The effluent is chlorinated and then pumped to nearby Lake St. Clair while the solids that have settled out of the effluent are retained, collected and sent to the Detroit waste water treatment facility for advanced waste treatment. Chapaton is classified by the state of Michigan's Department of Natural Resources as an "industrial/commercial facility". The industrial classification was originated by the U.S. Environmental Protection Agency (EPA) and has been adopted as a designation or classification by both Michigan and Florida. The Petitioner holds an industrial/commercial waste water treatment certification from the state of Michigan in the category of "plain clarification and disinfection." The Petitioner's experience in Michigan is in the area of industrial waste water treatment and does not constitute actual experience in on-site operational control of a domestic waste water treatment plant (that is a sewage treatment plant). The Petitioner's experience in Michigan does not qualify as industrial waste water treatment plant experience, that could be used to meet the actual experience requirement, because the Chapaton plant performs only primary treatment and disinfection. Secondary or advanced waste treatment is performed at the Detroit waste water treatment plant, with which the Petitioner has no experience. In a typical domestic waste water treatment plant in Florida, "primary treatment" involves primary clarification or settling. Primary clarification occurs in a circular or rectangular tank where soluble solids settle out to the bottom of the tank and floating solids are removed by a skimming device. The soluble solids are called sludge. Primary clarification can remove 40% of BOD and suspended solids. It is not a form of advanced treatment or even secondary treatment. At the Chapaton plant, during primary treatment, a minimum of 70% BOD and suspended solids are removed. The sludge is not treated at the Chapaton plant but is pumped to the Detroit waste water treatment plant. Thus Chapaton could not be classified as a domestic waste water treatment plant by Florida standards, since it only provides primary clarification and no secondary or advanced waste water treatment. Secondary treatment consists of two types. Activated sludge or trickling filter treatment. Both types deal with oxygen being introduced to the sludge to achieve stabilization and more settling out of the sludge elements. Since June 18, 1990 the Petitioner has been employed as a waste water treatment plant operator I in a training program at the George L. Lohmeyer Waste water Treatment Plant in Ft. Lauderdale, Florida. In that training program the Petitioner is being trained in all phases of operation of the Lohmeyer plant. It is a 34-million-gallon-per-day (MGD) activated sludge treatment plant. In his duties, the Petitioner monitors the plant treatment processes, takes samples and submits them to the city's laboratory. The Petitioner is capable of testing the samples himself for dissolved oxygen, chlorine and ph. Reports are signed by the regional chief or the regional facilities manager. The Petitioner's present position qualifies as actual, appropriate experience in the operational control of a waste water treatment plant. The Petitioner has accumulated approximately 3-1/2 months of the 12 months of actual experience required for certification as a Class C waste water treatment plant operator, through the exercise of his duties at the Lohmeyer plant. The Petitioner must accumulate 12 months or 2,080 hours of actual experience before he can qualify for the Class C certification. The Petitioner is a high school graduate and has successfully completed Volumes I and II of the California State University correspondence course in waste water treatment, which is included on the Respondent agency's list of approved courses. Petitioner's 3-1/2 months of actual appropriate experience in Ft. Lauderdale, plus his educational background, including the courses taken in California, yield a total of 36 months or 3 years of constructive experience. Petitioner does not yet have the 12 months of actual experience required by the rules but rather, is approximately 8-1/2 months short of the actual experience requirement. Thus, the Petitioner fails to meet the experience requirement necessary for certification as a Class C domestic waste water treatment plant operator at this time, although in approximately 8-1/2 months, he should be able to meet that requirement.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is therefore RECOMMENDED: That a Final Order be entered by the Department of Environmental Regulation denying Petitioner's application for certification as a Class C domestic waste water treatment plant operator without prejudice to reapplication at such time as his one year of actual experience at such a treatment facility is completed. DONE and ENTERED this 11 of December, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11 day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-479 (The Petitioner filed no proposed findings of fact.) RESPONDENT'S PROPOSED FINDINGS OF FACT 1. - 21. are accepted. COPIES FURNISHED TO: Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Phillip G. Panos 2315 N.W. 115 Drive Coral Springs, FL 33065 Francine M. Ffolkes, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact On or about December 28, 1987 Hy Kom filed with the Department an application for a permit to construct a .0126 MGD Advanced Waste Water Treatment Plant on Emerson Point, Snead Island in Manatee County. The proposed waste water treatment plant would discharge effluent into the waters of Terra Ceia Bay in Manatee County. The proposed waste water treatment plant would discharge effluent into the waters of Tampa Bay in Manatee County. The proposed waste water treatment plant would discharge effluent into the waters of Manatee River in Manatee County. The waters of Terra Ceia Bay have been designated Outstanding Florida Waters (OFW) by the Department. On or about April 27, 1989 the Department issued a Notice of Permit Denial concerning Hy Kom's permit application. The parties stipulate the Intervenor, Manasota-88, has standing to intervene as a party Respondent and to object to the issuance of the permit. Petitioner's evidence can best be summarized by what was not submitted. First, the expert witness called to identify the application had not prepared any part of the application or verified any of the studies presented therein. Similarly Petitioner's expert on the proposed treatment plant did not testify that Petitioner was committed to using this plant, or that the construction of the plant and the operation of the plant would comply with statutory and rule requirements. The only witness called by Petitioner to testify to the effect the discharge from the proposed advanced waste water treatment plant would have on the receiving waters was also Respondent's expert; and this witness testified that the effluent discharge from this proposed plant would have an adverse effect on the receiving waters, would seriously degrade the receiving waters as a nursery habitat for both crustacea and fishes endemic to the area, and that no reasonable assurances that this would not happen were ever presented by the Petitioner. This witness further testified that no discharge into these receiving waters would be acceptable not only because of the nitrogen level (which was the most significant reason for denying the permit) but also because even a discharge of absolutely pure water would upset the salinity of the receiving waters at the critical time the receiving waters act as a marine nursery.
Recommendation It is RECOMMENDED that a Final Order be entered denying the application of Hy Kom Development Company, for a permit to construct and operate an advanced waste water treatment facility at Emerson Point, Snead Island, Manatee County, Florida. DONE and ORDERED this _15th_ day of September, 1992 in Tallahassee, Leon County, Florida. COPIES FURNISHED: JAMES W. STARNS ESQ 501 GOODLETTE RD SUITE D-100-24 NAPLES FL 33940 W DOUGLAS BEASON ESQ ASST GENERAL COUNSEL K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this _15th_ day of September, 1992. DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 THOMAS W REESE ESQ 123 EIGHTH ST N ST PETERSBURG FL 33701 DANIEL H THOMPSON ESQ GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 CAROL BROWNER SECRETARY DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400
Findings Of Fact The applicant, Island Village Condominiums, prepared and submitted to the Department of Environmental Regulation a completed application for construction of its extended aeration sewage treatment plant. The relative distance and direction from the proposed treatment plant to major bodies of surrounding surface water are depicted in an aerial photograph which accompanied the application. The elevation of the surrounding waters in all directions is 39 feet. When the treatment plant is operated in compliance with its design features, the effluent from the plant will exceed the Department's standards for effluent discharge. The zone of discharge will be confined to the owners' property. Surface waters will not be involved in discharge. There will be no adverse impact upon ground waters. The treatment plant would not create a hazzard to the deep water wells of Point O' Woods Utilities, Inc. The treatment plant, as designed, meets or exceeds the engineering standards established by the Department. The likelihood of geologic subsurface failure is remote. Ground water levels are included on the schematic plan which accompanied the application to the Department. The tops of the holding ponds are above the 100-year flood level. The treatment plant will produce no noticeable odor. No exterior lights are to be used with the plant. The noise from the plant's operation would not travel more than 200 feet. The holding ponds would be more than 120 feet from the nearest surface water. The estimate of the cost is accurate at $98,000. Martin I. Gunn, Inc., is the developer of the property, which is also owned by the corporation, Island Village Condominiums, also known as Island Village of Inverness. The treatment plant will become the property of the home owners association and will be operated by the association from maintenance fees paid by the home owners. Martin I. Gunn/Island Village is not a public utility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the permit for the construction and operation of an extended aeration sewage treatment plant be issued to Island Village Condominiums subject to the general and specific conditions stated in the Department's original notice. DONE and ORDERED this 19th day of February, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1982. COPIES FURNISHED: Thomas V. Infantino, Esquire Post Office Drawer. B Winter Park, Florida 32790 Donald F. Perrin, Esquire New Bank of Inverness Building Highway 41, South Post Office Box 1533 Inverness, Florida 32650 William W. Deane, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria J. Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
