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.
The Issue Whether, under the facts and circumstances of this case, Respondent's license to practice engineering in the State of Florida, should be revoked, suspended, or otherwise disciplined.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, L. Thomas Hubbard d/b/a The Hubbard Association, was licensed to practice professional engineering in the State of Florida, having been issued license number PE 006634 on August 17, 1962. Certificate of authorization number EB0003297 was issued to the firm, The Hubbard Association, Inc., on September 25, 1981. In March 1986, Respondent prepared a set of plans for the proposed City of Macclenny Wastewater Treatment Works Improvement Program, Sewage Treatment Facility ("Macclenny project"), and one volume of "Contract Documents and Specifications" ("specifications"), which were submitted to the State of Florida Department of Environmental Regulation, Bureau of Wastewater Management and Grants (Bureau) on or about April 24, 1986. All wastewater treatment plans designs must go to the DER for approval prior to construction, and if a public entity wants grant funding for its wastewater treatment facility, the project must be reviewed and approved by the Bureau (now called Bureau of Local Government and Waste Water Financial Assistance) which administers State grant programs for wastewater treatment facilities. The Bureau reviews grant project plans and specifications to ensure that they: (a) comply with administrative requirements of the grants programs; (b) comply with minimum Federal and/or State technical standards for wastewater facilities; (c) are suitable for bidding; and (d) present a constructible project. The plans for the Macclenny project depict an existing treatment facility, a new clarifier to improve the removal of solids (an expansion of about 130,000 gallons per day in treatment capacity), and a new effluent pumping station to pump to an overland flow field (field) through a force main pipeline to spray risers. The risers would spray the water laterally across the field. Water would collect in a central collection ditch, and run through a final chlorine contact chamber prior to discharge in Turkey Creek. A new agricultural building for equipment storage, and a new holding pond, which is an off-line pond for storage of inadequately treated water, are also depicted. The field in the Macclenny project is roughly 24 acres and is located in a large area between the chlorine contact chamber and the holding pond. The field in this system has 5 cells. A cell is an area of land that can be independently controlled to allow loading/resting cycles in the treatment process. Each cell in a given field should be as near equal in size as possible to provide for equal treatment of the wastewater during the loading/resting cycles. Loading/resting cycles allows a cell within the field to "rest" (no effluent being pumped on to that cell) so maintenance mowing or harvesting can be accomplished and to "load" the other cells to revitalize the bacteria that renews the treatment process. "Load" means to apply the effluent or treated wastewater from the existing facility to the field. Generally, forty percent of the field would be loaded with wastewater at any one time. On December 9, 1985, the Bureau had a predesign conference with Respondent in Macclenny to discuss design items. No plans or specifications for the Macclenny project had been submitted at that time, nor were they submitted at this conference. On February 18, 1986, an in-progress design review was held at Macclenny, with the Bureau staff available to answer Respondent's questions. On March 5, 1986, another in-progress design review meeting was held in Macclenny, with the Bureau staff present, at which time the plans were "fifty percent" (50%) complete. The unsigned and unsealed plans were given to the Bureau for a preliminary review. On March 25, 1986, the Bureau issued a few preliminary comments on the 50% completed plans and specifications. The purpose of the 50% complete review is to help the design engineer complete his plans and specifications. On March 31, 1986, Respondent transmitted to the Bureau a set of plans for the proposed Macclenny project. Respondent's transmittal letter, which the Bureau received with the plans on April 11, 1986, stated that "completed plans" were being transmitted. On April 21, 1986, Respondent transmitted to the bureau an additional set of the same plans for the Macclenny project, which Respondent again referred to as "completed plans" on his transmittal letter form which were received by Bureau on April 24, 1986. This transmittal also included specifications, a design data check list, design calculations, cost estimate, and plan of operation. The plans in this submittal are referred to as "the plans." It was Respondent's understanding that signing and sealing a set of engineering drawings signified a legal obligation that if someone takes the plans and builds a project it will work. Respondent's signature and seal are on the first sheet of the set of plans which was in the April 1986 submittal but not on the specifications. The plans were prepared, signed, sealed and submitted to the Bureau for review by Respondent. Respondent did not place any conditional language or qualification on the plans or write a letter advising the Bureau that the plans were not complete. It was Respondent's understanding that the Bureau would not review a set of plans unless they were signed and sealed, notwithstanding the completeness of the plans. Respondent did not consider the plans as completed, notwithstanding that he had signed, sealed and submitted them to Petitioner as "completed". It was Respondent's understanding that the plans were being submitted for review only, not complete for construction. An engineer may get answers from the Bureau without submitting plans that are signed and sealed as completed, such as the predesign conference or 50% review that occurred in this case. The Bureau considers plans that are signed, sealed and submitted as "completed" for review to be 100% complete and ready to bid. The Bureau considered the plans and specifications which Respondent submitted on April 24, 1986 as being final, complete plans and specifications for final review by the Bureau. The Bureau reviewed the plans assuming them to be complete and followed normal procedures for reviewing a complete set of plans and specifications. On June 19, 1989, the Bureau issued 52 written comments based on its review of the plans and specifications it had received in the April 24, 1986 submittal from Respondent. The plans and specifications were submitted to the Department of General Services (DGS) by the Bureau for a review and opinion because the Bureau was concerned about the structural design. DGS responded to this request through Jim Berkstresser, P.E. on June 25, 1986. By cover letter dated July 18, 1989, Respondent filed written responses to the Bureau's 52 comments. The Bureau did not approve Respondent's plans and specifications for the Macclenny project submitted on April 24, 1986. On September 5, 1986, Respondent resubmitted plans in response to the Bureau's 52 comments. These plans had the same configuration as the April submittal regarding the overland flow treatment. On September 29, 1986, Respondent met with David Wolfe to discuss the field configuration for the proposed overland flow system and other outstanding issues related to the revised contract documents. The principal concerns were non- uniform flow and significant erosion potential. Respondent's plans did not follow accepted design criteria. At this meeting field configurations were discussed, as well as guidelines to be followed in design of the overland flow field, and a general field layout were developed. Respondent submitted another set of plans which the Bureau received on October 30, 1986, and that set was approved and stamped accepted by DER-BWMG on December 22, 1986. All sheets in the approved set are dated August 20, 1986, with the exception of the cover sheet on which Respondent failed to date his seal and signature, and sheets G-6 and G-7 which are dated October 24, 1986. Respondent signed and sealed the cover sheet and sheet G-7 of the approved set of plans, but did not seal any other sheets in the approved set of plans. A signature and seal on a set of plans indicates that the plans were prepared by, or under the direct supervision of the person signing and sealing them, and that the plans are complete and depict a project that will perform its intended function. A signature and seal on a set of plans means the engineer assures that the design is his design and that the plans and specifications are ready to be bid for construction. The design should contain criteria and information significant to ensure the project will work. Sheet flow is the primary treatment mode in an overland flow system. Sheet flow is where a thin layer of water is induced to flow in a very controlled atmosphere across a length of land that is functioning very similarly to a trickling filter. The acceptable range of slope of an overland flow system is 2% to 8% with the best results obtained in the lower range because of a longer "residence time". "Residence time" is the amount time the wastewater is on the field for treatment. The slopes must be even and uniform to maintain a constant velocity so as to minimize the potential for erosion and to maintain a constant depth of water throughout the filed so as to maximize the treatment. Cross slopes should be minimized and topographic lines should be as close to parallel as possible on the field. The plans for the Macclenny project shows: (a) slopes ranging from less than 2% up to 6%; (b) multiple compound slopes across the field and; (c) topographic lines that are not parallel. The specifications for the field do not set out the acceptable tolerances on the slopes or the acceptable level of compaction of the field for the contractor who is to construct the field and; therefore, lacks control over the final product. Contours in an overland flow field are important, and while it is desirable for them to be on 1-foot intervals, contours at intervals of 2 feet are acceptable provided the plans and specifications address what happens between the contours. Respondent's plans and specifications show contours at intervals of 2 feet but do not address what happens between the contours. The plans of the facilities that were approved prior to the submittal of any plans by Respondent called for a 2- 3 week loading/resting cycle. The standard practice is to have all cells within an overland flow field to be of equal size so that the area to be loaded at any given period of time is the same size. The cells in the overland flow field in the Macclenny project as depicted by the plans are not of equal size, and if operated on a 2-3 week loading/resting cycle would not provide a consistent amount of treatment and thereby result in varying levels of treatment of the effluent. It is standard practice to provide performance specifications for seeding the field with the primary grass cover and for overseeding when necessary to prevent wind and water erosion. There were no performance specifications in the plans and specifications on the Macclenny project submitted by the Respondent. Agricultural equipment is an integral part of the overland flow field system and has a direct bearing on whether the system will function over the long run. Specifications for agricultural equipment are necessary to determine if the system will work properly. There were no specifications for agricultural equipment submitted by the Respondent in the plans. It is standard practice to furnish spray nozzle specifications, such as nozzle size, degree of fanning, characteristics under varying pressures and how much water will be discharged by the nozzle, in a set of plans and specifications for an overland flow field. Respondent's specifications for the Macclenny project did not contain the necessary specifications for the spray nozzles. Compacting is a standard practice, and it is standard practice to show compaction requirements on plans or specifications. The usual practice is to investigate the soil and specify compaction, usually based on a foundation report by a geo-technical engineer, showing the safe beading capacity of the soil in what condition, with recommendations for compaction. The Respondent's specifications do not call for compaction of the soil under the clarifier slab. However, the Respondent's specifications do call for compaction in the holding pond and situations where an area is over-excavated and backfilled. Should the area under the clarifier slab be over- excavated and backfilled, then compaction is covered in the specifications but compaction would not be covered unless this occurs. Therefore, since the weight of the slab is carried by the soil beneath it, specifications for compaction should have been included in Respondent's specifications for any situation. Changes in temperature causes concrete to expand or contract which may result in cracking. Placement of a concrete slab may result in the slab bending which may result in cracking. Therefore, reinforcing a concrete slab is required to maintain the slab's integrity. The thickness of a concrete slab will determine the distribution of the reinforcing so that cracking is minimized. The clarifier slab in the Macclenny project is depicted as being 12 inches thick and shows number 6 bar reinforcing on 6 inch centers in the top of the slab but no reinforcing in the bottom of the slab. Failure to require reinforcing in the bottom of the slab could result in the slab cracking due to significant changes in temperature and soft spots in the soil beneath the slab. Failure to place reinforcing in the bottom as well as in the top of the slab is not in accordance with standards of the code of the American Concrete Institute (ACI), revised in 1983, and is a structural weakness. The chlorine contact chamber as detailed on sheets 5-6 and 5-7 is like a rectangular concrete box beneath the earth where the earth is within a few inches of the top of the walls. The walls are vertically reinforced with number 4 bars on 12 inch centers placed in the center of the 8 inch thick wall. When the tank is empty the reinforcing bars will be approximately 160 per cent overstressed from the active pressure of the earth. Additional reinforcing is needed in the walls to meet ACI standards. There are deficiencies in the vertical wall reinforcing of the chlorine contact chamber as detailed on sheets 5-6 and 5-7 of the Plans. On sheets 5-3, 5-4 and 5-7 of the plans, reinforcement through the construction joints is incorrectly detailed to assure that cracking of the concrete will not occur. Construction joints occur between different pours of concrete, such as where the walls meet the top of the bottom slab. The concrete bottom of the holding pond as detailed in sheet 5-8 of the Plans is large enough to require expansion joints to prevent cracking as the slab expands and contracts due to changes in the weather, yet no expansion joints are shown for the slab as detailed on sheet 5-8 of the plans. Neither the collection ditches nor the spray riser bases as detailed on the plans show any reinforcing to maintain the integrity of the concrete. While this is not a major structural weakness, it indicates a failure to comply with standard structural engineering practices. Although the plans call for relocation of an existing drainage ditch, the Respondent failed to consult DER regarding the permitting of such drainage ditch. A detention time of 30 minutes is required to properly disinfect wastewater and is-basic knowledge for all civil engineers, yet the plans called for only a fifteen minute detention time. It is standard engineering practice to provide flood level elevations on the site plans. Respondent failed to provide flood level elevations for the Macclenny facility site plans. The plans failed to: (a) provide elevations for high water alarm and pump off settings; (b) provide specifications for flume liner on sheet M-4; (c) show how to close an existing outlet on the chlorine contact chamber; (d) show where an effluent pump station was to be located; (e) show pressure relief valve locations and; (f) indicate quantities for purpose of contract bidding. The specifications list equipment and work items, such as pumping equipment, grit storage tank, case-out assembly, telescoping valve, air diffusers, portable pump, hose and couplings, that are inapplicable to the Macclenny project. There are inconsistencies in the plans and specifications, such as: (a) the plans showing one clarifier while the specifications call for two clarifiers, (b) the plans showing a 150 pound chlorine cylinder as opposed to a 1-ton chlorine cylinder in the specifications and; (c) the plans showing the clarifier with a 38-foot diameter while the specifications calls for a clarifier with a 40-foot diameter. Respondent was negligent in submitting incomplete plans to the Bureau as "completed plans" and in failing to utilize due care and failing to have due regard for acceptable standards of engineering principles, with regard to the content of those plans which he submitted as "completed plans".
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the circumstances surrounding this case, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, L. Thomas Hubbard guilty of violating Section 471.033(1)(g), Florida Statutes, and for such violation impose an administrative fine of $1,000.00 and suspend from the practice of engineering for a period of thirty (30) days, stay the suspension and place the Respondent on probation for a period of one year under terms and conditions the Board deems appropriate. DONE AND ENTERED this 20th day of June, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 20th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0096 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1. Rejected as not being necessary to the conclusions reached in this Recommended Order. 3.-12. Adopted in Findings of Fact 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, respectively, but modified. 13. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 14.-19. Adopted in Findings of Fact 12, 13, 14, 15, 16, and 17, respectively, but modified. Rejected as being immaterial or irrelevant or subordinate or unnecessary. Adopted in Findings of Fact 17 and 18 but modified. 22.-33. Adopted in Findings of Fact 19, 20, 21, 22, 23, 24, 24, 25, 26, 27 and 27, respectively, but modified. 34. Adopted in Findings of Fact 17 and 18, but modified. 35-37. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 38. Adopted in Findings of Fact 28 and 29, but modified. 39.-40. Rejected as being immaterial or irrelevant or unnecessary or subordinate, but see Findings of Fact 37 and 38. 41.-5O. Adopted in Findings of Fact 28, 32, 29 (28-31), 29, 29, 32, 30, 32 and 32, respectively, but modified. 51. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 52.-53. Adopted in Findings of Fact (28-33) and 32, respectively, but modified. 54.-55. Rejected as being immaterial or irrelevant or unnecessary or subordinate. Adapted in Finding of Fact 55. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 58.-62. Adopted generally in Findings of Fact 28-33. 63.-66. Adopted generally in Findings of Fact 34-36. 67.-72. Adopted generally in Finding of Fact 37. 73.-74. Adopted generally in Finding of Fact 38. 75.-76. Adopted generally in Finding of Fact 39. 77.-79. Adopted generally or covered in Findings of Fact 13-15 and 28-39. 80.-82 Adopted generally or covered in Findings of Fact 40- 41. 83.-90. Adopted generally or covered in Findings of Fact 42 and 43. 91.-96. Adopted generally or covered in Findings of Fact 44 and 45. 97.-104. Adopted generally or covered in Finding of Fact 46. 105.-107. Adopted generally or covered in Finding of Fact 47. 108.-109. Adopted in Finding of Fact 48. 110.-115. Adopted generally or covered in Finding of Fact 55. 116.-117. Adopted in Finding of Fact 49 and 50. 18. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 119. Adopted in Finding of Fact 51. 120.-124. Adopted in Finding of Fact 52. 125. Rejected as immaterial or irrelevant or unnecessary or subordinate. 126.-127. Adopted in Finding of Fact 52. Adopted in Finding of Fact 53. Adopted in Finding of Fact 54. Adopted in Finding of Fact 53. Adopted in Finding of Fact 55. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 13-15. Adopted in Finding of Fact 19 except last sentence that is rejected as being immaterial or irrelevant. Rejected as being a restatement of Administrative Complaint and not a Finding of Fact but see Findings of Fact 15 and 19. Rejected as being a restatement of John Sowerby's testimony and not a Finding of Fact, but see Findings of Fact 15, 17 and 18. Adopted in Finding of Fact 15. 6. Restatement of David Wolfe's testimony COPIES FURNISHED: Rex Smith Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0750 Wings S. Benton, Esquire 1020 D. Lafayette Street, Suite 205 Post Office Box 5676 Tallahassee, Florida 32314-5676 L. Thomas Hubbard, pro se THA Building 3110 Spring Glen Road Jacksonville, Florida 32207
Findings Of Fact On September 16, 1983, respondent/applicant, Brevard County (County), filed an application for a permit with respondent, Department of Environmental Regulation (DER), seeking authorization to modify and expand its Fortenberry Road wastewater treatment plant from 0.80 million gallons per day (MGD) to 1.40 MGD, which is designed to provide treatment necessary to meet effluent limits based on receiving water quality. The facility is located on Fortenberry Road in Merrit Island, Florida, and is classified as a Class B, Level II treatment plant. On October 14, 1983, DER acknowledged receipt of the application, plans and related material and requested certain additional items to be filed within 30 days. These items were subsequently submitted by the County. On or about January 11, 1984 DER issued its proposed agency action in the form of a draft permit wherein it gave notice that it intended to issue Permit/Certification No. DC0S-75483 and authorize the proposed activity subject to fifteen general and ten specific conditions. These are set forth in detail in the draft permit which has been received in evidence as DER Exhibit 2. Generally, the permit would authorize the County to construct ". . .a 1.40 MGD design activated sludge wastewater treatment plant with chemical additives, a tertiary sand filter, disinfection by chlorination and effluent disposal to a drainage canal and thence to Newfound Harbor." The permit will expire on July 15, 1985. On January 18, 1984, notice of intended agency action to issue the permit was published by the County in Today, a newspaper publication in Brevard County. Upon reading that notice, petitioners, Craig Zabin, Judy Ryan and Robert B. Sampson, all homeowners in Merritt Island, filed petitions requesting a hearing to contest the permit. In their petitions, petitioners generally contended the proposed construction would result in the discharge of effluent containing toxic substances into an Outstanding Florida Water (Newfound Harbor) in violation of Rule 17-4.242, Florida Administrative Code, that the plant has no operating permit, that the plant has violated "discharge standards" for the last three years, and that the plant's present discharge is harmful to human health and aquatic life in violation of various DER rules. The draft permit indicates that the plant effluent will continue to be discharged into a ditch which eventually intersects Newfound Harbor. At that point the Harbor waters are classified as Class III waters within the meaning of Chapter 17-3, Florida Administrative Code. A portion of the Harbor, well to the south of the discharge point, is classified as an Outstanding Florida Water. Uncontradicted expert testimony established that the discharge would not have an impact that was technically measurable on the portion of Newfound Harbor classified as an Outstanding Florida Water. At the present time the County has no valid temporary operating permit (TOP) or operation permit authorizing the operation of the Fortenberry Plant. Although the County applied for such a permit, DER has issued a notice of intent to deny the most recent application for a TOP and that case remains pending before the Division of Administrative Hearings (Case No. 82-2850) According to Specific Condition No. 9 of the draft permit, the County must meet the following flow requirements: 9. Initial flows shall be limited to 1.0 MGD. Additional flows, in the 0.10 MGD increments, may be authorized upon receipt of written assurance from the permittee, based on actual test data, that the treatment plant will achieve the required level of treatment at such higher flows. Therefore, upon completion of construction activities, the County will be authorized a maximum flow of 1.0 MGD at the facility which is a 0.20 MGD increase over the most recently expired TOP. This approximates the current average flows of almost 1.0 MGD. Additional increases, in increments of 0.10 MGD, may be earned by the County by demonstrating with test data that the plant will continue to comply with the effluent limitations established by Specific Condition No. 10 of the draft permit. 2/ The latter limitations are based on a waste load allocation study that was completed in the late 1970s. The draft permit does not increase the allocation of the plant--rather the limits are the same that were formulated when the waste load study was originally completed. The existing facility consistently violates the limits of its allocated waste load. Construction of the additional treatment systems should bring the effluent from this plant into compliance with its waste load allocation. The amount of nitrogen, phosphorus and total suspended solids contributed to Newfound Harbor will be significantly reduced if the additional treatment facilities are constructed. Failure to improve and expand the existing facility will result in the plant continuing to contribute the same poor quality effluent to the waters of Newfound Harbor. Testing by the Department and the County has revealed the presence of high levels of lindane and malathion in the plant's effluent. These substances are spawned by insecticides and are highly toxic to aquatic organisms and invertebrates. Despite considerable investigation by the County, the source of these toxic chemicals is not known. The County is now a party to an enforcement action instituted by the Department on February 28, 1983, and it is in that proceeding, rather than the case at bar, that the appropriate steps to rid the effluent of these prohibitively high levels of malathion and lindane should be determined. In this regard, the Department has represented that it will take all reasonable steps in the enforcement action to insure that the toxic chemicals are eliminated or reduced to tolerable levels by the County, including the requirement that specially designed improvements be made to the plant. 3/ This action should be completed at the very earliest possible date since additional flows from the plant may be authorized at a later date thereby increasing the amount of toxic chemical discharge assuming all other variables remain constant. While the petitioners' concerns about the chemicals are well- founded and legitimate, the issuance of the permit should not be delayed since the plant is currently violating its wastewater load allocation and polluting the waters of Newfound Harbor. The applicant has provided reasonable assurance that the proposed construction would comply with the standards of Chapter 17-6, Florida Administrative Code, and not emit or cause pollution in contravention of Department standards or rules. Such assurances were not controverted by petitioners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a permit be issued to Brevard County for its Fortenberry Plant in accordance with the terms and conditions of the draft permit. DONE and ENTERED this 4th day of April, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 7th day of April, 1984.
The Issue The issue in these consolidated cases is whether Respondent Florida Keys Aqueduct Authority ("FKAA") is entitled to issuance, by Respondent Department of Environmental Protection ("DEP"), of permit numbers 295404-018-DWC/CM ("Permit 18"), 295404-019-DWC/CM ("Permit 19"), 295404-025-DWC/CM ("Permit 25"), and 295404-027- DWC/CM ("Permit 27") (hereafter "Permits at Issue") authorizing the dryline construction of domestic wastewater collection and transmission systems in the lower Florida Keys.1/
Findings Of Fact The Parties Petitioners Petitioner Dump the Pumps, Inc. ("DTP") is a not-for- profit corporation incorporated under the laws of the state of Florida. DTP challenged the issuance of each of the Permits at Issue. Therefore, DTP is a Petitioner in each case in these consolidated proceedings. Petitioner Theresa Raven is a member of DTP and an individual petitioner in DOAH Case No. 14-2415, challenging the issuance of Permit 18. Petitioner Daniel Fitch is a member of DTP and an individual petitioner in DOAH Case No. 14-2415, challenging the issuance of Permit 18. Petitioner Jim Skura is a member of DTP and an individual petitioner in DOAH Case No. 14-2416, challenging the issuance of Permit 19. Petitioner Margaret Schwing is a member of DTP and an individual petitioner in DOAH Case No. 14-2417, challenging the issuance of Permit 27. Petitioner Gail Kulikowsky is a member of DTP and an individual petitioner in DOAH Case No. 14-2417, challenging the issuance of Permit 27. Petitioner Deborah Curlee is a member of DTP and an individual petitioner in DOAH Case No. 14-2420, challenging the issuance of Permit 25. Respondent Florida Keys Aqueduct Authority Respondent FKAA is a special district created by special act of the Florida Legislature. FKAA is charged with, among other things, providing wastewater service to the Florida Keys.4/ Ch. 98-519, Laws of Florida. Pursuant to this authority, FKAA is responsible for the design, construction, operation, and maintenance of the CRWS. FKAA is the applicant for the Permits at Issue being sought to implement the CRWS. Respondent Department of Environmental Protection Respondent DEP is the state agency charged with administering the domestic wastewater program in Florida pursuant to chapter 403, Florida Statutes, Florida Administrative Code Chapters 62-4, 62-604, and 62-555, and various industry standards manuals incorporated by reference into DEP rules. DEP's proposed agency actions to grant the Permits at Issue are the subject of these proceedings. The Projects Background and Overview The projects at issue are proposed to be located in the Florida Keys, in Monroe County, Florida. In recognition of, and to protect, the Florida Keys' unique, sensitive ecology, Congress enacted the Florida Keys National Marine Sanctuary and Protection Act, designating the Florida Keys, including the submerged lands and waters and living marine resources within those lands and waters, a National Marine Sanctuary. To further protect the Keys' unique habitat and environmental resources, Congress also enacted the National Key Deer Refuge, designating much of Big Pine Key and other areas within the lower Florida Keys as a refuge for the conservation and management of the Key Deer and other wildlife. 16 U.S.C. § 696. The State of Florida also has recognized the need to protect the Florida Keys' unique, sensitive environmental resources. To that end, portions of the Florida Keys are designated by DEP rule as Outstanding Florida Waters. Fla. Admin. Code R. 62-302.700(9). Additionally, the Florida Legislature has designated the Florida Keys an Area of Critical State Concern ("ACSC"). § 380.0552, Fla Stat. A stated purpose of the ACSC designation is to protect and improve the Florida Keys nearshore water quality through construction and operation of wastewater management facilities that meet the requirements of section 403.086(10), Florida Statutes. § 380.0552(2)(i), Fla. Stat. The June 2000 Monroe County Sanitary Master Wastewater Plan ("Master Plan"), which was prepared as directed in the Monroe County Comprehensive Plan, addressed elevated nutrient levels in Monroe County nearshore waters resulting from discharges of raw sewage and inadequately treated wastewater. A primary purpose of the Master Plan was to plan for a central wastewater collection and treatment system to serve portions of Monroe County. The Master Plan considered the potential use of a number of different types of wastewater systems, including gravity systems, vacuum systems, and low pressure systems. In 2003, Monroe County adopted Ordinance No. 027-2003, authorizing assessment of an annual wastewater fee on properties to be served by the wastewater facilities being installed to implement the Master Plan. In 2010, the Florida Legislature enacted section 403.086(10). In that statute, the Legislature found that the discharge of inadequately treated and managed domestic wastewater from small wastewater facilities and septic tanks and other onsite systems in the Florida Keys compromises the coastal environment, including the nearshore and offshore waters, and threatens the quality of life and local economies that depend on these resources. The statute further finds that the only practical and cost-effective way to improve wastewater management in the Florida Keys is for the local governments in Monroe County——which includes FKAA——to timely complete the wastewater and sewage treatment and disposal facilities pursuant to the Master Plan. To that end, the statute mandates that certain wastewater facilities identified in the Master Plan, including those at issue in these proceedings, be completed by December 31, 2015. To implement the Master Plan and this legislative mandate, Monroe County and FKAA entered into an interlocal agreement, which establishes and specifies FKAA's responsibilities to design, construct, operate, and maintain the central wastewater collection and treatment system. The CRWS is a component of this central wastewater collection and treatment system. It will serve the Cudjoe Regional Wastewater Service Area, which covers portions of Lower Sugarloaf Key, Upper Sugarloaf Key, Cudjoe Key, Summerland Key, Ramrod Key, Little Torch Key, and Big Pine Key. The CRWS consists of three elements: a collection system, which collects wastewater from serviced properties; a transmission system, which transmits wastewater from the collection system to the treatment plant; and a wastewater treatment plant. These proceedings only involve challenges to certain components of the wastewater collection system. The transmission system permit previously was challenged, but that case was dismissed before the final hearing.5/ The wastewater treatment plant is not at issue in these proceedings. Project Planning and Design In furtherance of its responsibilities under the Monroe County interlocal agreement and the 2010 legislation, FKAA engaged Mathews Consulting, Inc. ("Mathews") to undertake planning, design analysis, and preliminary design for the CRWS wastewater collection systems. Mathews prepared the Central Cudjoe Regional Wastewater Collection System Analysis of Alternative Wastewater Collection Systems, dated February 2009 ("Mathews Report"), setting forth the planning and design analysis for implementing the wastewater collection systems portion of the CRWS. A key aim of this analysis was to identify a cost-effective wastewater collection system design, considering project magnitude, physical features of the islands being served, system reliability, operational costs, and socioeconomic factors.6/ In arriving at the proposed design for the CRWS wastewater collection system, Mathews engaged in an exhaustive analysis of the reliability, functional feasibility, physical features and impacts, and affordability of various types of collection systems, including gravity systems, vacuum systems, low pressure systems, septic tank effluent pump systems, and onsite nutrient reduction systems.7/ System reliability, which encompasses environmental considerations, was a fundamental threshold consideration in Mathews' analysis. As part of its analysis of various types of wastewater collection systems, Mathews concluded that low pressure systems are reliable. Based on the Mathews Report, FKAA concluded that, given system reliability, a hybrid system constituted the best alternative for the CRWS. A hybrid system was the most cost- effective system over the 20-year planning horizon and fit within Monroe County's budget of approximately $150 million allocated for the project.8/ Facilities Authorized by the Permits at Issue The CRWS wastewater collection system is a hybrid system because it does not consist of only one type of wastewater system, but instead consists of a combination of types of systems. Specifically, the CRWS consists both of a gravity system, which is being implemented in more densely populated service areas, and a low pressure system, which is being implemented in remote, less populated service areas. These proceedings involve challenges to certain components of the low pressure system portion of the wastewater collection system. The low pressure system at issue in these proceedings consists of multiple components: a residential grinder pump and wet well located on each serviced property; a service pipe lateral from each residential grinder pump wet well to a local force main, which runs beneath the public right of way and conveys the wastewater to the neighborhood lift station; neighborhood/area lift stations containing additional grinder pumps to pump wastewater from the serviced neighborhoods or areas; and transmission mains to convey wastewater from the neighborhood or area lift stations to the wastewater treatment plant. Of these components, all but the transmission mains have been challenged by Petitioners as not meeting the applicable permitting requirements and standards. Permit 19 authorizes the dryline construction of the Upper Sugarloaf Key wastewater collection system. The project consists of 9,300 linear feet ("LF") of eight-inch polyvinylchloride ("PVC") SDR 26 gravity sanitary sewer; 31 sanitary manholes; two neighborhood grinder pump stations; 121 E/One simplex grinder pump stations and 13 E/One duplex grinder pump stations; 27,253 LF of two-inch force main; 1,837 LF of three-inch force main; and 4,737 LF of four-inch force main. Permit 19 constitutes a modification of a previously issued permit, Permit 6, which originally permitted the wastewater collection system for Upper Sugarloaf Key.9/ Permit 19 was sought because after Permit 6 was issued, Monroe County opted to fund additional gravity components of the Upper Sugarloaf Key wastewater collection system. Accordingly, Permit 19 has the effect of increasing the number of gravity sanitary sewer components (which are not at issue in these proceedings) and decreasing the number of low pressure system components of the Upper Sugarloaf Key wastewater collection system. Permit No. 25 authorizes the dryline construction of a wastewater collection system on Cudjoe Key. The project consists of 58,825 LF of eight-inch PVC gravity sanitary sewer; 222 sanitary manholes; 20 neighborhood grinder pump stations; 63 residential E/One low pressure simplex grinder pump stations and 11 E/One duplex grinder pump stations for commercial areas; 28,815 LF of two-inch HDPE SDR 11 force main; 8,615 LF of three- inch HDPE SDR 11 force main; 1,488 LF of four-inch HDPE SDR 11 force main; 1,298 LF of six-inch HDPE SDR 11 force main; and 2,316 LF of eight-inch HDPE SDR 11 force main. Permit 25 constitutes a modification of a previously issued permit, Permit 8, which originally permitted the wastewater collection system for Cudjoe Key.10/ Permit 25 has the effect of increasing the number of gravity sanitary sewer components (which are not at issue) and decreasing the number of low pressure system components of the Cudjoe Key wastewater collection system. Permits 19 and 25 collectively comprise the "inner islands" portion of the CRWS. Permit 18 authorizes the dryline construction of the Big Pine Key North wastewater collection system, to be located in north Big Pine Key. The project consists of 28,375 LF of eight- inch PVC gravity sanitary sewer; 108 sanitary manholes; six neighborhood grinder pump stations; 1,053 residential E/One low pressure simplex grinder pump stations; 11 commercial low pressure lateral connections; 5,267 LF of two-inch HDPE SDR 11 force main; 3,942 LF of three-inch HDPE SDR 11 force main; 11,918 LF of four- inch HDPE SDR 11 force main; 1,588 LF of six-inch HDPE SDR 11 force main; 236 LF of eight-inch HDPE SDR 11 force main; 69,403 LF of two-inch low pressure HDPE SDR 11 force main; 31,065 LF of three-inch HD3PE SDR 11 force main; 5,228 LF of four-inch HDPE SDR 11 force main; and 3,977 LF of six-inch HDPE SDR 11 force main.11/ Permit 27 authorizes the dryline construction of the Big Pine Key South wastewater collection system, to be located on south Big Pine Key.12/ The project consists of 59,651 LF of eight- inch PVC gravity sanitary sewer; 222 sanitary manholes; 15 neighborhood grinder pump stations; 355 residential E/One low pressure simplex grinder pump stations; 101 commercial low pressure lateral connections; 10,521 LF of two-inch HDPE SDR 11 force main; 14,155 LF of three-inch HDPE SDR 11 force main; 14,207 LF of four-inch HDPE SDR 11 force main; 5,339 LF of six-inch HDPE SDR 11 force main; 43,771 LF of two-inch low pressure HDPE SDR 11 force main; 13,481 LF of 3-inch HDPE SDR 11 force main; and 317 LF of four-inch SDR 11 force main. Permits 18 and 27 collectively comprise the "outer islands" portion of the CRWS. The Permitting Process The Notification/Application for Constructing a Domestic Wastewater Collection/Transmission System, which has been adopted by DEP rule,13/ is the application form that must be completed and submitted to DEP to receive authorization to construct a domestic wastewater collection and transmission system. The overarching purpose of the dryline construction permitting process is to ensure that the collection/transmission system is designed in accordance with applicable DEP rule standards, which incorporate reasonable industry standards, so that once the system becomes operational, it functions as intended and does not harm the environment. The application form includes a list of 84 requirements, some——but not necessarily all——of which apply to a specific project. The form requires the applicant's certifying engineer to initial the space next to each applicable requirement, signifying that the requirement is met. The application form also requires the engineer responsible for preparing the engineering documents to sign and seal the application, signifying that the engineer is in responsible charge of the preparation and production of the engineering documents for the project; that the plans and specifications for the project have been completed; that the engineer has expertise in the design of wastewater collection/transmission systems; and that to the best of the engineer's knowledge and belief, the engineering design complies with the requirements of chapter 62-604.14/ Once the application form is submitted, DEP permitting staff reviews the application and determines whether items on the application form and any materials submitted to support those items are incomplete or need clarification. In that event, staff sends the applicant a request for additional information ("RAI"), requesting the applicant to provide additional information to address incomplete or unclear aspects of the application. Once the applicant has provided information sufficient to enable DEP to determine whether to issue or deny the permit, DEP determines the application complete and reviews the project for substantive compliance with all applicable statutory and rule permitting requirements. DEP is authorized to issue the permit, with such conditions as the Department may direct, only if the applicant affirmatively provides reasonable assurance, based on the information provided in the application, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards or rules proposed in the application. Fla. Admin. Code R. 62-4.070(1). If the applicant fails to provide such reasonable assurance, the permit must be denied. Conversely, if the applicant provides such reasonable assurance, it is legally entitled to the permit and DEP must issue the permit. Once the dryline collection/transmission system has been constructed, the permittee must obtain certification from DEP to operate the system as a wetline that pumps wastewater to the treatment plant. To obtain certification, the permittee must provide DEP with an operation and maintenance ("O & M") manual establishing the operation and maintenance protocol for use of the system. Proposed Wastewater Collections Systems FKAA, as the applicant for the Permits at Issue, retained Mathews to design the wastewater collection systems for the "inner islands" and to prepare and submit the applications for these systems to DEP on FKAA's behalf.15/ In preparing the applications for these wastewater collection systems, David Mathews, a licensed professional engineer in Florida employed with Mathews Consulting, completed the application forms for each system. In doing so, Mathews initialed the application checklist, indicating that all applicable requirements were met; signed and sealed the application documents where and as required; and signed and sealed the certification that he is the engineer in responsible charge of the preparation and production of the engineering documents for the project. Initialing the checklist also indicates that the plans and specifications for the project were complete; that Mathews has expertise in the design of wastewater collection/transmission systems; and that to the best of Mathews' knowledge and belief, the engineering design for the application complies with the requirements of chapter 62-604. Mathews submitted the application for the Upper Sugarloaf wastewater collection system16/ to DEP on March 13, 2014, and submitted the application for the Cudjoe Key wastewater collection system17/ to DEP on April 3, 2014. FKAA retained Chen Moore and Associates ("Chen Moore") as the design engineer and Layne Heavy Civil as the contractor for the wastewater collection systems for the "outer islands." On behalf of FKAA as the applicant, Chen Moore prepared and submitted the applications for these systems.18/ Oscar Bello, a licensed professional engineer in Florida, previously employed by Chen Moore,19/ prepared and completed the application forms for each wastewater collection system for the outer islands. In doing so, Bello initialed the application checklist, indicating that all applicable requirements were met; signed and sealed the application documents where and as required; and signed and sealed the certification that he is the engineer in responsible charge of the preparation and production of the engineering documents for the project. Initialing the checklist also indicated that the plans and specifications for the project were complete; that Bello has expertise in the design of wastewater collection/transmission systems; and that to the best of Bello's knowledge and belief, the engineering design for the application complies with the requirements of chapter 62-604. Chen Moore submitted the application for the north Big Pine Key wastewater collection system20/ to DEP on February 12, 2014, and submitted the application for the south Big Pine Key wastewater collection system on April 21, 2014.21/ Each wastewater collection system proposed in the applications is comprised of a gravity system and a low pressure system. As previously noted, the gravity systems are proposed for use in the more densely populated portions of the areas to be serviced by the systems, and the low pressure systems are proposed for use in the less densely populated areas to be serviced by the system. The low pressure systems are comprised in part of progressive cavity pumps manufactured by Environment One Corporation referred to as "E/One" grinder pumps. Each residence served by a low pressure system will be served by an E/One grinder pump and wet well housing the grinder pump located on the serviced property.22/ The grinder pump and wet well are buried, with the top portion positioned slightly above ground to vent gases and prevent surface water flow into the wet well. The grinder pump contained within the wet well is continuously submerged. The pump is connected to an electrical panel inside or outside of the residence, so that the residence provides the electricity to power the pump. Wastewater from the residence flows through a service line into the wet well housing the grinder pump. Once the wastewater reaches a certain level in the wet well, the pump turns on and pumps the wastewater out of the wet well into the force main located under the neighborhood street. E/One grinder pumps are used in wastewater collection systems throughout the United States, including low pressure systems located in other parts of the Florida Keys. They are recognized in the Alternative Wastewater Collection Systems manual, a 1991 publication of the United States Environmental Protection Agency, as appropriate for use in low pressure wastewater collection systems. To prevent wastewater backflow into the residential wet wells, check or safety valves are located in the lines conveying the wastewater from the wet wells and at the street right-of-way where the service lines connect to the neighborhood force main. The low pressure systems also contain piping components consisting of service laterals, local force mains, and transmission mains, of various diameters comprised of extruded high density polyethylene ("HDPE"). HDPE pipes are flexible and are pieced together by welding section ends together. They do not have joints with rubber gaskets, which may shrink, deteriorate, or leak over time. Due to their flexibility, HPDE pipes can be horizontally drilled under roadways and wetlands, eliminating the need to disturb the surface and to dewater in order to lay the pipes. As such, these pipes are particularly suitable for projects in which the pipes will be placed in areas having roadways or surface development, or in areas that are environmentally sensitive or have a high water table, such as the Florida Keys. The low pressure systems also feature neighborhood/area lift stations. The residential grinder pumps generate sufficient force to pump the wastewater collected in the neighborhood force mains to neighborhood/area lift stations.23/ Each lift station contains a series of submersible grinder pumps that activate based on wastewater level in the lift station. The lift stations are designed and located to pump wastewater from the serviced neighborhoods or areas to transmission mains that ultimately convey the wastewater to the treatment plant. For each of the proposed wastewater collection systems, the system capacity exceeds 100 gallons per day per capita. Exceeding the 100 gallons per day flow quantity is permissible, per the application form, if the applicant is able to better estimate the flow using water use data or other justification. Here, FKAA estimated the stated system capacity for each application based on historic actual water use data, which provides a more accurate estimate of wastewater system capacity; accordingly, the proposed systems are not limited to a design capacity of 100 gallons per day per capita. Review and Proposed Issuance of the Permits at Issue Upon receiving the applications from Mathews Consulting and Chen Moore, DEP staff reviewed them for compliance with all applicable statutory and rule requirements and standards. DEP's review included a substantive design accuracy review by two licensed professional engineers in Florida, each having extensive wastewater systems design permitting experience. Ultimately, DEP determined that FKAA provided reasonable assurance that each wastewater collection system for which FKAA submitted an application met the applicable statutory and rule requirements and standards. Accordingly, DEP issued a Notice of Intent to Issue for each of Permits 18, 19, 25, and 27. At the final hearing, DEP's assistant director for the Southern District and a wastewater systems design expert, Al McLaurin, opined that FKAA had provided reasonable assurance to support the issuance of Permits 18, 19, 25, and 27. Mr. McLaurin persuasively testified that, based on results of the Little Venice Water Quality Monitoring Report showing a substantial improvement in water quality in canals of a subdivision as a result of installation of a central wastewater system, implementing the CRWS should result in a substantial improvement in water quality in the nearshore waters of the Florida Keys. Establishment of Prima Facie Entitlement to Permits at Issue The relevant portions of each of the permit files, including the permit application, supporting information, and Notice of Intent to Issue for each of the Permits at Issue were admitted into evidence at the final hearing. With the admission of these documents into evidence, FKAA established its prima facie case demonstrating entitlement to each of the Permits at Issue. See § 120.569(2)(p), Fla. Stat. The Challenges to the Permits at Issue Once FKAA demonstrated prima facie entitlement to the Permits at Issue, the burden shifted to Petitioners to present evidence proving their case in opposition to the Permits at Issue.24/ See id. To prevail in these proceedings, Petitioners bear the ultimate burden of persuasion to prove their case by a preponderance of the competent substantial evidence. They have raised numerous bases that they contend mandate denial of the Permits at Issue. As an overarching matter, Petitioners argue that DEP's review of the applications for the Permits at Issue was not sufficiently rigorous, and that as a result, DEP did not accurately review the applications, did not catch errors or require the projects to adhere to the appropriate permitting standards and requirements, and incorrectly determined that FKAA provided reasonable assurance for issuance of the Permits at Issue. Petitioners base their argument in part on McLaurin's testimony that DEP's review is "cursory." However, following this characterization, McLaurin went on to describe the nature and depth of agency review to which the applications were subjected. DEP review staff reviewed the applications to ensure that the projects were accurately designed and will function without causing adverse environmental impact as required by the applicable permitting rules.25/ DEP's review process does not entail re- designing or re-engineering the project, or questioning the design engineer's judgment on design matters, as long as the projects are accurately designed and functional in accordance with the applicable permitting requirements and standards. When inaccuracies or incomplete items are discovered in the review process, they are addressed with the applicant through the RAI process.26/ If the deficiencies are not addressed in a manner sufficient to meet the applicable permitting requirements and standards, the permit is denied. As a matter of practice, DEP relies, to a large extent, on the design engineer's certification that the system is accurately designed according to the permitting standards and requirements——as is authorized and appropriate pursuant to the certification provisions on the application form, rules 62-604.300 and 62-4.050(3), chapter 471, and Florida Board of Engineering rules. Accordingly, the undersigned rejects the contention that DEP's review of the applications for the permits at issue was insufficient. Scouring Velocity Petitioners allege that the system, as designed, will not achieve a two-feet-per-second ("2 fps") minimum wastewater flow rate, such that it will experience insufficient velocity to scour and prevent accumulation of solids in the pipes. In support, Petitioners presented the testimony of Donald Maynard, who relied on the application form, Force Mains section, item no. 78, which references the Recommended Standards for Wastewater Facilities, dated 1997——the so-called "Ten States Standards." Maynard testified that portions of the proposed systems do not meet the Ten States Standards, which establishes a 2 fps minimum flow rate, the minimum he claimed is necessary to prevent sedimentation and plugging of the systems piping. On this basis, Petitioners contend that the systems do not meet the mandatory regulatory requirements regarding minimum flow rate. However, pursuant to DEP rules, the Ten States Standards manual does not mandatorily apply to this project. As previously noted, the CRWS is an "alternative collection/transmission system" under DEP rules because it is "not comprised of strictly conventional gravity sewers, pump stations, and force mains." Fla. Admin. Code R. 62-604.200(1). Rule 62-604.400(4) states: "[t]he manuals referenced in rule 62-604.300(5)(b), (c), and (j), F.A.C., shall be used in the evaluation of the design and construction of alternative collection/transmission systems in Florida." The Ten States Standards manual is not among the list of technical manuals that mandatorily apply to alternative systems, so the standards established in those manuals are not mandatory regulatory standards, but may be used as guidance. Thus, the 2 fps minimum flow standard established in the Ten States Standards is not a requirement applicable to the Permits at Issue. As such, item no. 78 on the application form, requiring a 2 fps flow rate based on the Ten States Standards, is inapplicable to these systems. Rene Mathews, president of Mathews Consulting, acknowledged that in some extreme street ends and cul-de-sacs, the systems will not meet the 2 fps flow rate. However, she credibly testified that this rate is not a requirement but may be used as guidance——and, in fact, was used as guidance in designing the wastewater collection system. She explained that in areas where 2 fps velocity cannot be achieved, FKAA will be required to clean more frequently. Mathews' testimony is consistent with that of Al McLaurin, who also stated that the 2 fps flow rate is not a mandatory regulatory standard and that DEP's rules afford discretion to allow it to permit systems having lower flow rates where, as here, the permittee provides reasonable assurance that it will clean and maintain the system's pipes with sufficient frequency to prevent them from becoming plugged. Oscar Bello, formerly of Chen Moore and the responsible engineer for the applications for the outer islands wastewater collection systems for which Permits 18 and 27 are proposed to be issued, concurred with Ms. Mathews' testimony regarding the inapplicability of the 2 fps standard. He also concurred in the need for additional cleaning in areas where the 2 fps flow rate will not be achieved. Mr. Gary Maier, a professional engineer supervisor with DEP's South District who manages wastewater permitting groups and reviews wastewater systems permit applications, also confirmed that the 2 fps flow rate is not a mandatory DEP regulatory requirement on which permit denial can be based. Ms. Mathews is a licensed professional engineer in Florida and has been practicing as a civil engineer for over 14 years. Her firm has handled over 150 wastewater projects, including the wastewater collection systems for the inner islands at issue in these proceedings. Over the course of her career, she has designed between 30 and 40 wastewater pump stations. Although she is not the engineer whose seal and certification appear on the applications for the inner islands wastewater collection systems, her firm designed, prepared, and submitted the applications for these systems, and she worked on these projects. She is knowledgeable about and understands the systems at issue. Mr. McLaurin is a licensed professional engineer in Florida with many years of engineering and engineering-related experience that includes wastewater systems design in the private and public sectors and wastewater systems applications review with DEP. Through his experience, he has gained extensive understanding of the statutes and DEP rules applicable to wastewater permitting. Although McLaurin was not directly involved in DEP's review of the applications for the Permits at Issue, he is thoroughly familiar with, and possesses complete understanding of, the permit applications and supporting documentation. Mr. Bello is a licensed professional engineer in Florida. He has approximately ten years of experience in infrastructure permitting in the public and private sectors. Bello is the design engineer responsible for designing the outer islands wastewater collection systems and preparing and submitting the applications to DEP on FKAA's behalf. As such, he possesses extensive, in-depth understanding of the systems' design and functionality. Mr. Maier is a licensed professional engineer in Florida with over 20 years of environmental regulatory experience, including extensive experience in interpreting and applying DEP's wastewater rules and reviewing wastewater systems permit applications. Mr. Maynard is a professional engineer licensed in Maine and Vermont, and has many years of engineering experience. Although he is experienced in a wide range of engineering-related fields, his experience appears primarily concentrated in hydrogeologic design, environmental site assessment, and contaminated sites assessment and remediation. He has some experience with septic system design and indirect discharge experience; however, that experience appears to be largely limited to on-site septic systems. He lacks experience in designing or implementing low pressure wastewater collection systems like those at issue in these proceedings. Maynard has no significant understanding of, and lacks experience in, interpreting or implementing Florida's wastewater statutes and rules. He was contacted to testify approximately two weeks before his deposition. He acknowledged that he spent only a few days reviewing pertinent documents and that he had not reviewed all of the information prior to being deposed. His testimony evidences that while he has extensive knowledge of engineering principles regarding fluids, piping, and pumps, he is only superficially familiar with the projects at issue and possesses very little understanding of the wastewater permitting rules applicable to these projects. The undersigned finds persuasive the testimony of Mathews, McLaurin, Bello, and Maier that the 2 fps flow rate is not a mandatory standard applicable to the projects authorized by the Permits at Issue, and that in areas of the systems in which a 2 fps flow rate will not be achieved, requiring more frequent cleaning to ensure that the pipes do not become plugged is adequate to meet DEP's rule requirements. The undersigned finds Maynard's testimony on this issue unpersuasive due to his lack of experience with projects similar to the CRWS wastewater collection systems, his lack of knowledge of and experience with DEP's wastewater permitting rules and requirements, and his lack of anything more than superficial familiarity with the projects at issue. Petitioners did not show that the Permits at Issue should be denied due to inadequate scouring velocity in violation of DEP rules and applicable technical manual standards and requirements. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the systems, as designed, will not experience wastewater backups or releases into the environment as a result of inadequate scouring velocity. FKAA has demonstrated that the systems, in compliance with DEP rules and applicable technical manual standards and requirements, will have wastewater flow of sufficient velocity to scour and prevent sedimentation in the piping, and that in the few remote areas where the velocity may be lower than recommended, more frequent cleaning of the piping will prevent sedimentation. Pipe Separation Petitioners allege that the Permits at Issue violate rule 62-604.400(2)(g), which requires a minimum ten-foot horizontal separation distance between wastewater collection/transmission pipes and public water system pipes.27/ Petitioners presented the testimony of Donald Maynard to support their position. Maynard identified several locations in the Upper Sugarloaf and north Big Pine Key wastewater collection systems where the rule's horizontal separation distances between the wastewater lines and public water system lines are not met. In Petitioners' view, this constitutes a fatal flaw warranting permit denial. In rebuttal, Mr. Maier testified that a six-foot horizontal separation between the wastewater and public water systems pipes meets DEP's wastewater permitting rules. This is because the ten-foot separation distance established in rule 62- 604.400(2)(g) applies "[e]xcept as provided in subsection 62- 604.400(3)." Rule 62-604.400(3) provides, in pertinent part, that if there are conflicts in the separation requirements between wastewater collection systems and drinking water facilities established in rule 62-604.400(2) and those established in Florida Administrative Code Rule chapter 62-555, the requirements in chapter 62-555 apply. Rule 62-555.314(1)(g) states that new or relocated underground water mains shall be laid to provide a horizontal distance of at least six feet, and preferably ten feet, between the outside of the water main and the outside of any existing or proposed wastewater force main. DEP interprets these rules as establishing a minimum six-foot separation distance between public water system lines and wastewater lines, regardless of whether a new water line is being laid in proximity to an existing wastewater line, or vice versa. Maier explained that the purpose of requiring minimum separation distances between water and wastewater lines is to separate the lines a safe distance from each other to enable work on one line to be done without inadvertently damaging the other line. In recognition that construction practices have improved over the years, so there is less chance for such damage than when the rule initially was adopted, DEP amended the separation distance in the public water systems rule to six feet, but inadvertently failed to amend the wastewater collection system rule to reflect the same distance. In an effort to clarify that the six-foot minimum is the standard applicable to construction of wastewater lines as well as drinking water lines, DEP amended rule 62-604.400 to add subsection (3), which states that in the event of a conflict between the rules, the drinking water rule provisions (which establish the six-foot separation minimum) control. Petitioners contend that this interpretation is incorrect because rule 62-604.400(2)(g) does not conflict with rule 62-555. Petitioners assert that there is a logical basis for interpreting these rules as establishing different, non- conflicting standards: specifically, that the construction of new sewer lines near old, potentially leaking drinking water lines raises the potential for sewage to contaminate drinking water, whereas installing new water lines near old, leaking sewage lines raises the potential for drinking water to infiltrate sewage lines. Maier disagreed, persuasively testifying that there is no rational basis for the different separation standards in the rules; thus, DEP treats them as conflicting and the six-foot separation standard in rule 62-655 controls. Maier testified, credibly, that under any circumstances, both the new and old water lines are pressurized so any leakage will force water out of the lines rather than allowing sewage to infiltrate the lines. Per the explanation provided by Mr. Maier, DEP's interpretation of its own rules is reasonable and therefore is accepted.28/ Mr. Maynard's testimony is not afforded weight due to his lack of experience with and understanding of DEP's wastewater collection/transmission systems permitting rules. Conversely, based on his experience with DEP wastewater regulation over many years, Mr. Maier's testimony is deemed persuasive on the pipe separation distance issue. Petitioners failed to show that the Permits at Issue should be denied for noncompliance with applicable pipe separation requirements. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the wastewater collection systems proposed to be authorized by the Permits at Issue meet the applicable wastewater line and drinking water line horizontal distance requirements in DEP's wastewater collection system rules. Friction Coefficient Standard Petitioners allege that the friction coefficient of 140, also called the "C Factor,"29/ submitted as part of the wastewater systems design exceeds the maximum value of 120 established in the Ten States Standards, and, therefore, does not meet DEP's rule standard for this value. Petitioners assert that as a result of using too large a C Factor in the system design, head loss that occurs as the wastewater flows through the system pipes is underestimated, so the systems will not function as anticipated. As previously discussed, because the wastewater collection systems at issue in these proceedings are alternative systems, the Ten States Standards do not mandatorily apply. Accordingly, the C Factor of 120 in the Ten States Standards is inapplicable to the systems. The C Factor used in designing the systems was chosen based on the material that comprises the piping——here, HDPE, which has an industry standard C Factor of between 140 and 150. The systems were designed using the more conservative value in the allowed C Factor range for HDPE piping. Under any circumstances, the difference in system performance of using a 140 C Factor instead of a 120 C Factor in designing the system is negligible. Using HDPE piping for low pressure systems is standard, and the use of the 140 C Factor in the system design complies with the industry standard for such piping. Petitioners did not demonstrate that the use of a C Factor of 140 in the wastewater collection systems design violates DEP's applicable requirements and standards, or that the systems will malfunction due to underestimated head loss, causing environmental harm or property damage. FKAA demonstrated, by a preponderance of the competent substantial evidence, that using the 140 C Factor in the wastewater collection systems design complies with DEP rules and applicable technical manuals, and adequately addresses head loss due to friction. Thus, it is not anticipated that the systems will malfunction due to head loss and release sewage, causing environmental harm or property damage. System Design Capacity Petitioners allege that the wastewater collection systems, as designed, will have insufficient capacity to handle the volume of wastewater put into the system. The application form, item 1, requires the system to be designed based on an average daily flow of 100 gallons per capita plus wastewater flow for other specified uses, unless water use data or other justification is used to better estimate the flow. Rather than designing the system based on an assumed average daily flow of 100 gallons per capita, design engineers Chen Moore and Mathews Consulting instead used actual water consumption data from FKAA's historic water consumption records for the past four years on a bimonthly basis for each parcel that will be served by the systems. Overall calculations of daily flow were based on the assumption that every dwelling unit contributed to the flow. Water consumption was converted to gallons per day per equivalent dwelling unit ("EDU"), each house connected to the system was identified, and the average EDU per house was determined. Chen Moore and Mathews took a localized approach in determining flow rate per area contributing to the wastewater collection systems. Homes using water to irrigate landscaping were identified through aerial photographs and by on-the-ground surveys. The estimated amount of flow into the systems was reduced to address irrigation water consumption for landscaping that would not be returned to the wastewater flow from the dwelling unit. Petitioners' witness Donald Maynard testified that Census Bureau information provides a more accurate estimate of the actual population for purposes of system design capacity than relying on historic water use data. He opined that using historic water consumption data underestimates the amount of flow into the system because the data are based on historic population figures that are lower than the current population of the lower Keys. He also testified that considering landscape irrigation in estimating wastewater flow artificially reduced the estimate of wastewater volume that will flow into the systems. He concluded that these flow estimation methods were unreliable and resulted in undersized collection systems. Maynard acknowledged that he does not have any experience in designing low pressure sewer systems, that he did not perform any independent system design flow estimate calculations, that he did not independently research or investigate information relevant to determining system capacity, that he relied on information provided by others regarding Keys population trends, and that he had assumed, without verifying, that the Keys population has increased. In fact, the credible evidence showed that Monroe County's population, including certain areas of the lower Keys, decreased between 2000 and 2010. Rather than relying on general information, such as census data, to estimate system capacity, the CRWS system design engineers used years of parcel-specific data regarding actual water consumption to determine system capacity. This is a more precise and accurate method of determining system capacity than that suggested by Mr. Maynard. Petitioners have not shown that the systems' design capacity is insufficient to handle the volume of wastewater that will flow into them, in violation of DEP rules and applicable technical manual standards and requirements. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the systems, as designed, have sufficient capacity to accommodate the amount of wastewater that will flow into and be conveyed by the systems, and therefore meet DEP rules and all applicable technical manual standards and requirements. Peaking Factor Petitioners also allege that the wastewater collection systems, as designed, are based on an incorrect peaking factor of 4.0, and, thus, are undersized to handle peak flow that occurs at certain times, such as seasonally when the Keys occupancy rate is greater than average or immediately following power outages. As a result, Petitioners contend, wastewater will back up into homes, onto the ground, and into groundwater, and will flow into surface and nearshore waters, causing environmental harm and endangering human health. Petitioners offered the testimony of Donald Maynard to support their position. Maynard testified that, based on a preliminary design study performed by Brown and Caldwell in 2008, the correct peaking factor for the collection systems is 4.5, rather than 4.0, as proposed. Oscar Bello, design engineer for the outer islands wastewater collection systems, explained that the 4.5 peaking factor recommended in the Brown and Caldwell study related to the capacity of the wastewater treatment plant,30/ not the collection systems. Bello testified, credibly, that using a peaking factor of 4.0 to design the wastewater collections systems is sufficient to address peak usage conditions and will not undermine the systems' performance under those conditions.31/ Mr. Bello's testimony was buttressed by testimony by Tom Walker, assistant executive director for FKAA. Walker explained that it is prudent to build in a larger safety margin for treatment plant capacity. This is to ensure that under extreme conditions, if all systems components are working at——or, in some places over——capacity, the flow into the plant does not exceed its capacity. As previously discussed, Mr. Bello has extensive experience in infrastructure permitting in the public and private sectors. As the design engineer responsible for the outer islands wastewater collection systems, he possesses great understanding of the design and function of these particular systems. Mr. Walker is a licensed professional engineer in Florida. He has been a practicing engineer since 1976 and has extensive experience with municipal wastewater systems in Florida, as well as in Texas and overseas. He has been employed by FKAA since 2006, and has been deeply involved in the design and implementation of the CRWS. The testimony of Bello and Walker was credible and persuasive regarding the adequacy of the peaking factor proposed for the systems. By contrast, Maynard is only superficially familiar with the systems at issue and lacks substantial experience with, and understanding of, the rules applicable to the systems. As such, his testimony on this issue was not persuasive. Petitioners failed to demonstrate that the peaking factor of 4.0 proposed for the wastewater collections systems at issue does not comply with any applicable regulatory standards or will result in undersized systems that will not function properly and will result in discharge of wastewater into homes and the environment. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the systems are designed to accommodate peak wastewater flows without malfunctioning, and that the peaking factor to which the systems have been designed meets DEP rules and all applicable standards and requirements. Quick Connect for Emergency Pump Out Petitioners allege that the system, as designed, violates DEP rules because it does not provide rapid pump out connection for the individual residential "pump stations" to enable them to be quickly accessed and pumped out in emergency circumstances. Petitioners posit that each individual residential single grinder pump and wet well constitutes a "pump station" and that DEP rules require every "pump station" to have emergency pumping capability. The term "pump station" as used in DEP's wastewater rules means a station consisting of two or more pumps, not an individual residential pump and wet well. This is apparent from the context in which the term is used in the Notification/Application Domestic Wastewater Collection/ Transmission form section titled "Pump Stations" and in the rules and technical manuals applicable to alternative collection systems. Mr. McLaurin confirmed that DEP rules do not require individual residential grinder pumps and wet wells to have emergency pumping capability. The lift stations serving the neighborhoods and other areas contain two or more pumps and thus are "pump stations" subject to the emergency pumping capability requirement. Ms. Mathews credibly testified, and other credible evidence in the record shows, that each lift station is equipped with a system that allows a pump to be dropped into the lift station, where a hose is extended and the pump is connected to the pump quick connect, enabling the wastewater to be pumped out of the station through the system pipes. A hatch must be opened in order to access the lift station to use the quick connect pump out system, but there is no credible evidence showing that this constitutes an impediment to rapidly engaging the pump out system. Petitioners have not demonstrated that the pump stations lack emergency pumping capability in violation of applicable DEP rules. FKAA demonstrated, by a preponderance of the evidence, that the neighborhood/area lift stations meet the DEP rule requirement to have emergency pump out capability. Explosion Potential of Pumps Petitioners allege that the residential grinder pumps and the neighborhood/area lift station grinder pumps are unsuitable for the conditions to which they will be exposed because they are not explosion-proof, and that including them in the systems design violates DEP rules, the Ten States Standards, the National Electrical Code ("NEC"), and the National Fire Protection Association ("NFPA") Standards. Specifically, Petitioners assert that methane will accumulate in the residential grinder pump wet wells and in the lift stations, and, as such, these areas are considered "Classified Hazardous Area, Class I, Division 2, Group 2" under NFPA Standards. Petitioners contend that the mechanics of the grinder pumps make them susceptible to explosion under such conditions, so they are not suitable for use as proposed in the systems. In support, Petitioners presented the testimony of Michael Boismenu, who opined that use of grinder pumps in this type of environment constitutes a violation of NEC section 501.125 for motors and generators. Boismenu testified that the grinder pumps have the potential to ignite if they are exposed to a hazardous environment, which includes areas in which combustible gases, such as methane, accumulate. As such, Boismenu opined that grinder pumps should be classified as "Class I, Division 1" under the NEC and NFPA Standards. Under this classification, grinder pump use in an environment in which combustible gases accumulate would violate the NEC. Contrary to Mr. Boismenu's position, the credible evidence, consisting of the testimony of Rene Mathews and supporting documentation, shows that the residential grinder pumps are "unclassified," per NEC section 820-11, table 4.2. This means that the risk of fire and explosion is so low that there is no requirement for any particular fire protection measures to be implemented in using the individual residential grinder pumps. Also contrary to Boismenu's position, Ms. Mathews' testimony and the supporting documents show that the neighborhood/area lift station grinder pumps and wet wells are classified as "Class I, Division 2" under the NEC and NFPA Standards. Under this classification, there is a potential for fire and explosion under abnormal circumstances, such as if the pumps were not operating properly.32/ To address this potential—— which is remote——the lift station grinder pumps' electrical components were specifically designed to meet the Class I, Division 2 standard and also will be continuously submerged, mitigating the risk of fire or explosion.33/ Mr. Boismenu is an engineer and previously was a licensed professional engineer in New York. He has extensive experience in the energy production field, but never has worked on a wastewater project similar to the CRWS and has no experience applying the NEC or NFPA standards to wastewater projects. He first received specific information from Petitioners on the projects at issue on or around September 9, 2014, so his familiarity with the projects is based on two weeks of review in preparation for his deposition. His testimony revealed that he lacks specific knowledge about, or understanding of, the electrical features of the individual residential or neighborhood/area lift station grinder pumps or their classifications under the NEC and NFPA Standards. By contrast, Ms. Mathews' testimony was specific, detailed, and accurate, and was buttressed by documentation addressing the NEC and NFPA Standards applicable to residential and neighborhood/area lift station grinder pumps. This evidence, which was credible and persuasive, demonstrates that the residential and neighborhood/area lift station grinder pumps do not pose a significant threat of fire or explosion, and, thus, meet DEP's rules and the NEC and NFPA Standards. As previously discussed, the Ten States Standards manual——which Petitioners contend imposes an "explosion proof" standard——does not mandatorily apply to these systems. DEP rules and technical manuals applicable to these systems do not impose such a standard. Accordingly, the fact that the grinder pumps are not completely "explosion-proof" is not a cognizable ground for denying the Permits at Issue. Petitioners did not demonstrate that the residential and neighborhood/area lift station grinder pumps violate DEP rules and applicable technical manuals, the NEC, or the NFPA Standards regarding potential for fire and explosion. FKAA demonstrated, by a preponderance of the competent substantial evidence, that using E/One grinder pumps in the wastewater collection systems does not present a substantial fire or explosion risk and does not violate DEP rules or applicable technical manual standards and requirements. Air Release Valves Petitioners allege that the wastewater collection systems, as designed, inadequately provide for the release of combustible gases from the collection lines. As a result, Petitioners contend, gases may become trapped in the lines, obstruct wastewater flow, create an explosion risk, and endanger the public health and safety. Petitioners presented Mr. Maynard's testimony to support this contention. Maynard testified that methane and hydrogen sulfide would be generated by the wastewater and would accumulate in pockets in the wastewater lines. According to Maynard, this is mostly a problem at high points in the lines, particularly if there is not enough velocity to purge the gas from the line. He stated that "normally, you would put in vents to allow that gas to escape." The evidence shows that wastewater collection systems design does, in fact, include measures for releasing air and gases from the system. Specifically, in compliance with DEP's Design and Specification Guidelines for Low Pressure Sewer Systems, the design provides for air release valves to be located at the high points in the lines and at dead ends in the system lines. It is standard practice to add air release valves to pipes as necessary during pipe installation because the best locations for the valves are more accurately determined during the installation process. FKAA provided specific protocol for ensuring the correct operation of these valves and will submit as-built drawings showing location and proper placement of air release valves when it requests certification to operate the CRWS. Petitioners did not prove that the wastewater collection systems, as designed, fail to adequately provide for the release of air and gases, in violation of DEP rules and applicable technical manuals. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the systems, as designed, will include air release valves in compliance with DEP rules and applicable technical manuals. As such, gases will not accumulate and obstruct wastewater flow or explode. System Pressure Capacity Petitioners allege that E/One grinder pumps create pressure that exceeds the pressure capacity of the force main pipes, so that the pipes will burst and release sewage into the environment and onto property served by the pumps. In support, Petitioners presented the testimony of Donald Maynard and of Dr. Gunnar Hovstadius, both of whom testified that an E/One grinder pump34/ can generate pressures as high as 180 to 200 pounds per square inch ("psi"). According to both witnesses, if many grinder pumps are running simultaneously ——which they allege could occur as power is restored following a power outage——the pressure generated by the pumps could exceed the pressure capacity of the pipes, causing them to burst. Dr. Hovstadius relied on his experience with grinder pumps in Westport, Connecticut, following Hurricane Irene. There, sewage backed up into a home served by a grinder pump after power was restored following a lengthy outage. According to Hovstadius, numerous grinder pumps started up and simultaneously exerted substantial pressure on the wastewater system piping and other components, causing failure of the residence's grinder pump connection with the lateral pipe and allowing sewage accumulated in the force main to back up into the home. In rebuttal, Rene Mathews credibly testified that the normal operating pressure range for the E/One grinder pump is zero to 80 psi. Beyond 80 psi, the pump's performance falls into a non-typical operating range and the pump begins to heat up, causing thermal switches in the pump to shut the motor down at 100 to 120 psi. Thus, while it is remotely possible that the E/One grinder pumps could generate pressures in the range of 180 to 200 psi before failing, as a practical matter, operation of the pumps' thermal switches render this scenario highly unlikely. The system piping is certified for a working pressure of 160 psi, which exceeds the maximum 100 to 120 psi that may occur before pump shutdown; moreover, the piping must meet the American Water Works Association ("AWWA") standards C-901 and C-906, which means that the piping has a much higher pressure capacity——as high as 240 to 400 psi——specifically to withstand certain surge conditions. Additionally, even if many grinder pumps were simultaneously running when power is restored following an outage, the pumps would not exert a sudden maximum pressure surge on the system piping. This is because as each pump restarts and begins to run, the pressure in the pump gradually builds; if a pump reaches the 100 to 120 psi range——which, as previously noted, is outside the normal operating range——the thermal switch causes it to shut down. Also, as a practical matter, after a massive outage, power typically is restored to one neighborhood or area at a time rather than simultaneously to the entire power grid. Thus, any scenario involving all pumps simultaneously running at maximum pressure is highly unlikely. For these reasons, it is highly unlikely, under any reasonable circumstances, that pressure generated by the grinder pumps would cause the system piping to burst. Petitioners further assert that since the HDPE piping comprising the collection systems is only being tested to 150 psi, rather than to failure pressure of between 250 and 500 psi, it is not being adequately tested to ensure it can withstand higher pressure levels that may occur under extreme operating circumstances. Rene Mathews explained, and Al McLaurin confirmed, that pressure testing of the pipes, which takes place after construction is complete and before the systems are certified as operable by DEP, is performed to detect leaks that may have been created during the construction process——not to determine the failure pressure of the piping. The piping being used in the system is certified for a working pressure of 160 psi and meets the AWWA pressure capacity standards of 240 to 400 psi. Testing system pipes to failure pressure is neither necessary nor required under DEP rules or the applicable technical manuals, and is not desirable because it would damage or destroy system piping, unnecessarily adding to system cost. Dr. Hovstadius is a recognized expert in pumping systems, with worldwide experience in wastewater pump technology. He is knowledgeable about E/One grinder pumps and has experience with their use in one wastewater system in the northeastern U.S., where one grinder pump failed and flooded a home with sewage. However, he is not familiar with the specific details of the CRWS, having spent only a small amount of time before his deposition familiarizing himself with some of the documentation and information regarding the projects. He did not perform an independent engineering analysis of, or calculations regarding, the wastewater collection systems, and he was not aware of certain design features of the CRWS, such as check valves and the High Tide Technologies around-the-clock monitoring system,35/ which reduce the risk of a scenario as described in his testimony. By contrast, Ms. Mathews has extensive wastewater engineering experience, and the firm with which she is employed is the design engineer for the inner islands systems. She has previous experience designing systems with grinder pumps and possesses extensive knowledge and in-depth understanding of the CRWS and details specific to the wastewater collection systems. Mr. McLaurin has years of experience in wastewater systems engineering and extensive experience in regulatory review of wastewater water systems, so is very knowledgeable about DEP rule requirements and their application to wastewater systems. For these reasons, the testimony of Mathews and McLaurin is deemed more persuasive than that of Maynard and Hovstadius on the issue of system pressure capacity. Petitioners failed to demonstrate that the E/One grinder pumps will exert pressures exceeding the systems' piping pressure capacity, causing system piping bursting or failure. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the E/One grinder pumps used in the systems design will function as anticipated, will not exert pressures that exceed the systems' piping capacity, and will not cause system piping to burst or fail. Wastewater Service During Power Outage Petitioners allege that because E/One grinder pumps require electric power to operate, they are inappropriate for use in the Florida Keys, due to the likelihood of power outages during significant weather events such as hurricanes. Petitioners allege that during power outages, sewer service to homes served by grinder pumps will be interrupted, in violation of DEP rules and technical manuals, including the Ten States Standards and the Design and Specification Guidelines for Low Pressure Sewer Systems. They further allege that continued use of residential wastewater systems during power outages will result in the release of sewage from grinder pumps wet wells into the environment and onto properties served by the pumps. The CRWS design and operating protocol contain measures specifically directed to these issues. Specifically, the neighborhood/area lift station design includes a quick connect riser pipe that will be used to periodically flush the systems and can be used in emergencies to pump water out of the lift stations into the force mains and to the treatment plant, thus preventing lift station overflow. Additionally, each residential grinder pump includes an outlet connection for a mobile generator. During a power outage, FKAA can pump out residential grinder pump wet wells using mobile generators, pump trucks, or vacuum trucks. As a practical matter, residential grinder pump wet wells can contain wastewater volumes of two days' normal use without pump out and, with conservative use, can go for longer periods without being pumped out before overflowing. If pump out becomes necessary, the pump design and FKAA's operating protocol provides for such service.36/ FKAA has over 150 trucks it can deploy to pump out residential pump wet wells and lift stations, and will purchase an adequate number (estimated at 30 to 40) of 10,000 kilowatt generators for emergency use. FKAA has determined that it will need thirty utility personnel crews working in two shifts to maintain the CRWS system, and has undertaken the planning and budgeting necessary to ensure adequate personnel availability during emergencies. Additionally, FKAA anticipates having volunteer assistance in such situations. In the event FKAA requires further assistance in addressing widespread pump out issues during emergencies, Layne Heavy Civil and Gianetti Contracting37/ are obligated by contract to provide generators to FKAA for use to pump out residential wet wells and lift stations. FKAA also is a member of FlaWARN, Florida's network for wastewater emergency response, through which wastewater utilities provide mutual assistance during emergencies. Through this membership, FKAA is ensured that it will receive assistance from other utilities as needed to address pump out and other wastewater related issues during emergencies. The wastewater collection systems also incorporate the Grinder Pump Guardian monitoring system by High Tide Technologies for each residential grinder pump and each neighborhood/area lift station. Under this monitoring system, each pump is continuously (24 hours a day, 7 days a week) wirelessly monitored. If a pump malfunctions, such as when wastewater inflow exceeds wet well capacity while the pump is running, alarm data is transmitted by satellite to a computer central server, which automatically notifies utility personnel of the specific type of malfunction by high water alarm, communication alarm indicating power failure, or alarm indicating excessive runtime or starts and stops. Notifications will include the street address location of the pump for which the alarm was sent, as well as the type of event triggering the alarm. This monitoring system will enable pump malfunctions to be immediately detected and rapidly addressed by maintenance personnel, significantly decreasing the likelihood of wastewater spill or release into homes or the environment. FKAA has undertaken extensive planning and activity to establish specific procedures and protocol for addressing collections systems operation, even though it is not required under DEP rules to provide this information until it submits a request to DEP for certification to place the CRWS into operation. By that time, FKAA will have fully prepared its operations and maintenance procedures and protocol addressing all aspects of CRWS operation, including operation during emergency circumstances. This information is required by DEP rule to be kept in a manual that is available for use by operation and maintenance personnel and for inspection by DEP personnel. See Fla. Admin. Code R. 62- 604.500. Petitioners did not demonstrate that sewer service will be interrupted in violation of DEP rules. FKAA demonstrated, by a preponderance of the competent substantial evidence, that uninterrupted sewer service will be provided, including during extended power outages and other emergency circumstances, as required by DEP rules.38/ Shutoff Valves and Backflow Prevention Devices Petitioners allege that the systems design does not include backflow prevention devices, so that if lines become plugged, sewage will back up into residences and may, under certain circumstances, cause residential wastewater lines to burst. They presented Donald Maynard's testimony in support of this position. Maynard's testimony was contradicted by Mr. McLaurin's persuasive testimony and other credible evidence showing that the system design does contain backflow and shutoff valves to prevent wastewater from backing up from the force mains into the residential wet wells and into the residences served by the grinder pumps. FKAA demonstrated, by a preponderance of the competent substantial evidence that, in compliance with DEP rules and applicable technical manual requirements and standards, the systems design incorporates safety valves to prevent the backflow of wastewater into residences and spillage and release into the environment. Petitioners did not demonstrate that the systems, as designed, do not contain backflow and shutoff valves to prevent backflow of wastewater into residences, in violation of DEP rules and applicable technical manuals. Shaft Seal Leakage Petitioners allege that the grinder pumps' design violates DEP rules because the pumps do not contain shaft seal leakage device detectors. Petitioners' only evidence presented to substantiate this allegation is Hovstadius' testimony that he heard of an incident in which flushing dental floss into a sewage system resulted in the floss wrapping around the pump shaft, opening the seal, and allowing the pump motor to be flooded. However, Petitioners did not present any competent substantial evidence showing that not including shaft seal leakage devices on grinder pumps violates any applicable permitting requirements and standards. The competent, credible evidence establishes that shaft seal leakage devices are not required for the grinder pumps proposed to be used in the proposed collection systems, for two reasons: first, shaft seal leakage devices are not required for alternative wastewater collection systems; and second, the E/One grinder pumps that will be used in the systems are smaller than the five and ten horsepower pumps for which shaft seal leakage devices typically are required. Rather than including shaft seal leak detection devices, the systems instead incorporate the Grinder Pump Guardian monitoring system by High Tide Technologies for each residential grinder pump and each neighborhood/area lift station. As previously discussed, this monitoring system immediately notifies utility personnel of pump malfunction issues so that they can be rapidly addressed. Petitioners did not demonstrate that the lack of shaft seal detectors on the grinder pumps being used in the systems violates applicable DEP rules or requirements in the technical manuals applicable to alternative wastewater collection systems. Other System Design and Function Issues Petitioners allege other collection systems design flaws that they assert will cause system components to malfunction, resulting in environmental harm and property damage in violation of DEP rules. Dr. Hovstadius strongly criticized the use of E/One grinder pumps in wastewater collection systems to be located in the Florida Keys, due to the potential for flooding during storm surges. He contended that the pumps are not submersible for extended periods, so will leak and malfunction if submerged for long periods. Hovstadius opined that under such conditions, the pumps may short out and cease to function, causing sewage to back up onto the properties served by the pumps. In rebuttal, FKAA's witness Rudy Fernandez credibly testified that the E/One grinder pumps are submersible and will function properly while fully and continuously submerged. Mr. Fernandez is a licensed professional engineer in thirteen states, including Florida. He has approximately 40 years of public and private sector engineering experience in wastewater systems design, operation, and compliance. He is a member of the Water Environment Federation, having served on its technical practice committee at the time the committee published a revised version of the Manual of Practice No. FD-12, Alternative Sewer Systems (1986),39/ which applies to alternative collection/ transmissions systems pursuant to rule 62-604.400(4). As such, he is very knowledgeable about alternative wastewater collection systems, including the use of E/One grinder pumps in such systems. Although Dr. Hovstadius is an expert in pumping systems, his experience with E/One grinder pumps is relatively limited, particularly when compared to that of Mr. Fernandez. Further, Fernandez is very knowledgeable about the specific components of the CRWS, including the design and operation of the grinder pumps. By contrast, Hovstadius had only general knowledge about the CRWS, and was unaware of key details, such as the inclusion of safety check valves, to prevent sewage backflow into homes served by grinder pumps. Accordingly, Fernandez's testimony is deemed more persuasive than that of Hovstadius regarding E/One grinder pump submersibility. Petitioners have not shown that the E/One grinder pumps will malfunction as a result of being continuously submerged, thus releasing sewage into the environment and cause property damage. Petitioners also assert, through Hovstadius' testimony, that E/One grinder pumps are prone to malfunction from flushing common items such as baby wipes, dental floss, and tampons, or rinsing cooking grease down the kitchen drain. Rene Mathews credibly testified that such items are a problem for all types of wastewater system, not just low pressure systems or systems using E/One grinder pumps. To reduce the likelihood that such items are deposited into the wastewater collection system, FKAA will distribute flyers and host public education events to educate residents and the transient population regarding proper use of the wastewater collection systems. The O & M manual, which has been provided in draft form, includes a list of items that should not be introduced into any sewer system, and this list will be distributed to all properties served by the collection systems. Petitioners have not shown that E/One grinder pumps are any more susceptible to malfunction than other wastewater system components as a result of items being flushed or washed down drains. Additionally, FKAA has established that its systems operation protocol will include measures to reduce the likelihood of malfunction due to items being deposited in the systems. Petitioners also allege that E/One grinder pumps are inappropriate for use in the neighborhood/area lift stations. In support, they presented the testimony of Donald Maynard, who testified that having multiple grinder pumps in lift stations may be problematic during low occupancy periods in the Keys. The grinder pumps in each lift station function as a series, with a lead pump being activated at a particular wastewater level and each successive grinder pump thereafter activated by increasing wastewater levels in the lift station. Maynard contended that during low occupancy periods, the wastewater levels in the lift stations will be too low to activate the grinder pumps in the stations, causing sediments to accumulate and pipes to plug. Rene Mathews countered Maynard's position with credible testimony that grinder pumps are commonly used in designing lift stations in low pressure wastewater collection systems. She explained that the neighborhood/area lift stations have been designed so that the grinder pumps will be continuously submerged as required to meet the Class I, Division 2 NEC and NFPA Standards. Shop drawings submitted during construction will depict neighborhood/area lift station water levels sufficient to fully submerge the grinder pumps, in compliance with the lift stations' design. As additional support for their position that grinder pumps are inappropriate for use in the neighborhood/area lift stations, Petitioners cite a provision in the O & M manual stating that "grinder pumps are not designed to be small lift stations." This statement must be considered in context. The statement appears in the E/One grinder pump "Product Introduction" chapter in the Service Manual for the pumps, which is part of the O & M manual. The full discussion in which this statement appears reads: "Environment One Grinder Pumps are designed to grind and pump domestic sewage. The grinder pumps are not designed to be small lift stations. They are not capable of handling waters with high concentrations of mud, sand, silt, chemicals, abrasives, or machine waste." In context, it is apparent that this statement is directed at informing the user regarding the types of materials that should not be disposed of in a system using E/One grinder pumps; it does not state that E/One grinder pumps are inappropriate for use in lift stations. As previously discussed, FKAA's O & M manual contemplates public education and outreach efforts to help assure that materials and items that would damage the pumps, as well as other wastewater system components, are not discarded in the systems. To verify that the wastewater collections systems have been correctly designed for their intended use and will not cause environmental or property damage, FKAA retained Stephen Wallace to perform an independent analysis and evaluation of every aspect of the proposed systems. Mr. Wallace is a wastewater systems engineer having over 30 years of experience in hydraulic systems design. Over his career, Wallace has designed and constructed over 140 low pressure systems, including more than 100 systems using E/One grinder pumps. Although Wallace has not previously been involved with projects in the Florida Keys, while visiting the Keys, he personally observed physical and environmental conditions, such as high ground water levels, sandy soils, flat topography with threat of flooding, sensitive flora and fauna, and seasonal population fluctuations, that are comparable to those attendant to projects on which he has worked in Australia. Under Wallace's direction, a professional team consisting of engineering specialists in pumps and pump stations, low pressure wastewater systems design, and hydraulic modeling, and a mathematician independently analyzed and evaluated the CRWS low pressure systems design to determine whether they would provide long-term satisfactory performance. The team selected two representative project areas in Upper Sugarloaf Key and Ramrod Key and independently performed a hydraulic engineering analysis using a model specifically developed for modeling the performance of low pressure systems, then compared their results to the designs by FKAA's design engineers, Mathews Consulting and Chen Moore. Their results validated the designs prepared by Mathews and Chen Moore. Based on his team's analysis and evaluation, Wallace credibly and persuasively opined that the CRWS, as designed, will be successfully implemented and will not cause environmental pollution. FKAA witness Rudy Fernandez also testified, credibly, that the wastewater collection systems have been correctly designed and adequately cover all concerns that Petitioners have raised. Fernandez verified that the systems design includes safety valves to prevent backflow from the system into homes served by the systems. He concurred with Mathews and McLaurin that testing the transmission piping to 150 psi is sufficient to determine whether leakage points were created during construction, and confirmed that it is inappropriate to pressure test the pipes to failure because, as a practical matter, the system will not experience pressures high enough to cause pipe bursting or other failure. He agreed with Mathews' and Chen Moore's system design 4.0 peaking factor, and disagreed with Petitioners' witnesses' testimony that the pumps will exert pressure sufficient to cause system pipes to burst upon power restoration following an outage. Fernandez opined that there is a substantial likelihood that the systems, as designed, will function successfully, and that it is unforeseeable that the collections systems, as designed, will cause pollution. Petitioners failed to prove that including E/One grinder pumps in the wastewater collection systems is inappropriate and will result in systems' malfunction and consequent spillage and release of wastewater into the environment and onto the properties served by the systems. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the E/One grinder pumps will function normally when fully submerged and are appropriate for use in lift stations. Accordingly, including them in the systems' design will not cause the systems to malfunction and release wastewater into the environment and onto the properties served by the pumps, in violation of DEP rules. Petitioners' Standing Respondents challenge the standing of DTP40/ and the individual petitioners in these proceedings. DTP is a not-for-profit corporation incorporated under the laws of the state of Florida. Its mailing address is Post Office Box 1956, Big Pine Key, Florida 33043. DTP's corporate purpose is to oppose the use of grinder pump systems proposed by FKAA and permitted by DEP as part of the implementation of the CRWS. In addition to challenging the Permits at Issue in these proceedings, DTP actively participated in hearings before the Monroe County Board of County Commissioners ("BOCC") in an effort to convince the BOCC to reduce or eliminate the use of grinder pumps as part of the CRWS. DTP has approximately 265 members, a substantial number of whom own and/or reside on property that may be serviced by a grinder pump as proposed by the Permits at Issue. The evidence also establishes that a substantial number of DTP's members own or reside on property proximate to properties that may be served by grinder pumps. DTP alleges that, for a variety of reasons, using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps. This, in turn, would harm groundwater, the nearshore environment, and DTP's members' properties. A substantial number of DTP's members may be requested to grant an easement to FKAA for the installation and maintenance of the grinder pumps that will serve their property. These members assert they will be injured by losing their ability to control who has access to their property. They also allege they will be injured due to the potential for collection systems malfunction alarms to interfere with their enjoyment of their property. As discussed above, grinder pumps require electricity to operate and therefore cannot operate during power outages unless alternative sources of electric power, such as generators, are used. Therefore, during extended periods of electrical outages, DTP members whose property is served by the grinder pumps may be asked to conserve water usage until electric power is restored. Continued use of residential systems served by grinder pumps during extended power outages, absent pump out according to operating protocol, could result in discharge of raw sewage from the wet wells. If not promptly and adequately cleaned up, this may create a human and environmental health risk and adversely affect nearshore waters. A substantial number of DTP's members use and enjoy the nearshore waters of the lower Florida Keys for various water-based recreational activities including fishing, kayaking, boating, canoeing, bird watching, swimming, and lobstering. Petitioner Theresa Raven is a resident and owner of property on Big Pine Key. Her address is 29462 Geraldine Street, Big Pine Key, Florida 33043. Her home is served by the CRWS. If Permit 18 is issued, Raven's property will be serviced by an E/One grinder pump. Accordingly, she will be asked to grant an easement over her property to FKAA for the installation and maintenance of the grinder pump, and during extended periods of electrical outages she may be asked to conserve water usage until electric power is restored. Raven uses and enjoys the nearshore waters of Big Pine Key for water-based recreational activities such as swimming, snorkeling, boating, and nature observation. She asserts that using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps, causing harm to groundwater, the nearshore environment, and her property. Petitioner Daniel Fitch is a member of DTP and an individual petitioner in DOAH Case No. 14-2415, challenging the issuance of Permit 18. Fitch is a resident and owner of property on Big Pine Key. His address is 29462 Geraldine Street, Big Pine Key, Florida 33043. His home is served by the CRWS. If Permit 18 is issued, Fitch's property will be serviced by an E/One grinder pump. Accordingly, he will be asked to grant an easement over his property to FKAA for the installation and maintenance of the grinder pump, and during extended periods of electrical outages he may be asked to conserve water usage until electric power is restored. Fitch uses and enjoys the nearshore waters of Big Pine Key for water-based recreational activities such as swimming, snorkeling, boating, and nature observation. He asserts that using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps, causing harm to groundwater, the nearshore environment, and his property. Petitioner Jim Skura is a member of DTP and an individual petitioner in Case No. 14-2416, challenging issuance of Permit 19. Skura is a resident and property owner on Sugarloaf Key. His address is 19860 Caloosa Street, Sugarloaf Key, Florida 33042. His home is served by the CRWS. If Permit 19 is issued, Skura's property will be serviced by an E-One grinder pump. Accordingly, he will be asked to grant an easement over his property to FKAA for the installation and maintenance of the grinder pump, and during extended periods of electrical outages he may be asked to conserve water usage until electric power is restored. Skura uses and enjoys the nearshore waters of Big Pine Key for water-based recreational activities such as swimming, snorkeling, boating, and nature observation. He asserts that using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps, causing harm to groundwater, the nearshore environment, and his property. Petitioner Margaret Schwing is a member of DTP and an individual petitioner in DOAH Case No. 14-2417, challenging the issuance of Permit 27. She is a resident and property owner on Big Pine Key South. Her address is 29756 Springtime Road, Big Pine Key, Florida 33043. Her home is served by the CRWS. If Permit 27 is issued, Schwing's property will be serviced by an E/One grinder pump. Accordingly, she will be asked to grant an easement over her property to FKAA for the installation and maintenance of the grinder pump, and during extended periods of electrical outages she may be asked to conserve water usage until electric power is restored. Schwing uses and enjoys the nearshore waters of Big Pine Key for water-based recreational activities such as swimming, snorkeling, boating, and nature observation. She asserts that using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps, causing harm to groundwater, the nearshore environment, and her property. Petitioner Gail Kulikowsky is a member of DTP and an individual petitioner in DOAH Case No. 14-2417, challenging the issuance of Permit 27. She is a resident and property owner on Big Pine Key. Her address is 30788 Pinewood Lane, Big Pine Key, Florida 33043. Her home is served by the CRWS. If Permit 27 is issued, Kulikowsky's property will be serviced by an E/One grinder pump. Accordingly, she will be asked to grant an easement over her property to FKAA for the installation and maintenance of the grinder pump, and during extended periods of electrical outages she may be asked to conserve water usage until electric power is restored. Kulikowsky uses and enjoys the nearshore waters of Big Pine Key for water-based recreational activities such as swimming, snorkeling, boating, and nature observation. She asserts that using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps, causing harm to groundwater, the nearshore environment, and her property. Petitioner Deborah Curlee41/ is a member of DTP and an individual petitioner in Case No. 14-2420, challenging the issuance of Permit 25. She is a resident and owner of property on Cudjoe Key. Her address is 1052 Spanish Main Drive, Cudjoe Key, Florida 33042. Her property will not be served by an E/One grinder pump; however, she lives less than a quarter-mile from a proposed lift station and less than a mile from two other proposed lift stations. She is concerned that if there is a pump failure at these lift stations resulting in a sewage spill, the area in which she lives, including her property, would be negatively impacted and the sewage would flow into the groundwater and nearshore waters. She uses and enjoys the nearshore waters of Big Pine Key for water-based and other recreational activities, including fishing, boating, kayaking, snorkeling, picnicking, and engaging in nature observation and enjoyment activities as a member of entities whose purpose is to protect the environment. Entitlement to Permits at Issue As discussed above, FKAA met its burden under section 120.569(2)(p) to present a prima facie case demonstrating entitlement to the Permits at Issue by entering into evidence the applications and supporting materials for the wastewater collection systems and the notices of intent for each of the Permits at Issue. In addition, FKAA presented persuasive, competent, and substantial evidence far beyond that necessary to meet its burden under section 120.569(2)(p) to demonstrate entitlement to the Permits at Issue. As discussed above, Petitioners failed to prove, by a preponderance of the competent substantial evidence, that the wastewater collection systems at issue, as designed, do not comply with DEP rules and applicable technical standards and requirements, resulting in environmental harm and property damage. On rebuttal, FKAA and DEP thoroughly addressed and rebutted each of the grounds that Petitioners allege justify denial of the Permits at Issue. Accordingly, Petitioners did not meet their burden of persuasion under section 120.569(2)(p) in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order: Approving the issuance of Permit No. 295404-018-DWC/CM (Permit 18), at issue in Case No. 14-2415; Approving the issuance of Permit No. 295404-019-DWC/CM (Permit 19), at issue in Case No. 14-2416; Approving the issuance of Permit No. 295404-027-DWC/CM (Permit 27), at issue in Case No. 14-2417; and Approving the issuance of Permit No. 295404-025-DWC/CM (Permit 25), at issue in Case No. 14-2420. DONE AND ENTERED this 3rd day of February, 2015, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2015.
Findings Of Fact B. D. Taylor, Respondent, is the owner of a wastewater treatment facility near Panama City, Florida, which serves a community of some 125-150 mobile homes at Lane Mobile Home Estates. The facility has a 24,000 gallons per day capacity to provide secondary treatment of wastewater with percolating ponds. It was first permitted in 1971 upon construction and has been in continuous operation since that time. In 1980 Respondent employed the services of a consultant to apply for a renewal of its temporary Permit to operate a wastewater treatment facility. This application stated the temporary operating permit (TOP) was needed to give Respondent time to connect to the regional wastewater treatment facility. The schedule contained in the following paragraph was submitted by Respondent at the time needed to accomplish this objective, Following inspection of the facility, a TOP was issued December 5, 1980 (Exhibit 1), and expired January 1, 1983. TOPs are issued to facilities which do not comply with the requirements for Wastewater treatment. Exhibit 1 contained a schedule of compliance to which Respondent was directed to strictly comply to stop the discharge of pollutants from the property on which the facility is located. These conditions are: Date when preliminary engineering to tie into regional will be complete and notification to DER. July 1, 1981; Date when engineering to tie into regional system will be complete and notification to DER - June 1, 1982; Date construction application will be submitted to phase out present facility - March 1, 1982; Date construction will commence - June 1, 1982; Date construction is to be complete and so certified - October 1, 1982; and Date that wastewater effluent disposal system will be certified "in compliance" to permit - January 1, 1903. None of these conditions or schedules has been met by Respondent. The regional wastewater treatment facility was completed in 1982 and Respondent could have connected to this system in the summer of 1982. This wastewater treatment facility is a potential source of pollution. The holding ponds are bordered by a ditch which is connected to Game Farm Greek, which is classified as Class III waters. The size of Game Farm Creek is such that any discharge of pollution to this body of water would reduce its classification below Class III. On several occasions in the past there have been breaks in the berm surrounding the holding ponds which allow the wastewater in the holding ponds to flow into the ditch and into Game Farm Creek. Even without a break in the berm, wastewater from these holding ponds will enter Game Farm Creek either by percolation or overflow of the holding ponds caused by the inability of the soil to absorb the effluent. On January 28, 1983, this facility was inspected and the results of the inspection were discussed with the operators of the facility. The plant was again inspected on February 8 and February 18, 1983. These inspections disclosed solids were not settling out of the wastewater in the settling tanks; inadequate chlorination of the wastewater was being obtained in the chlorination tanks; samples taken from various points in the system, the ditch along side the holding tanks and in Game Farm Creek, disclosed excess fecal coliform counts; and that very poor treatment was being afforded the wastewater received at the plant as evidence by high levels of total Kejhdal nitrogen and ammonia, high levels of phosphates, high biochemical oxygen demand, and low levels of nitrates and nitrites. In July, 1983, in response to a complaint about odors emanating from the plant, the facility was again inspected. This inspector found the aeration tanks anaerobic, effluent had a strong septic odor, the clarifier was cloudy, the chlorine feeder was empty, no chlorine residual in contact tank, final effluent was cloudy, both ponds were covered with duckweed and small pond was discharging in the roadside ditch (Exhibit 14) Expenses to Petitioner resulting from the inspections intended to bring Respondent in compliance with the requirements for wastewater treatment facilities are $280.32 (Exhibit 9)
The Issue The issue to be resolved in this proceeding concerns whether the applicant, Craig Watson, has provided reasonable assurances in justification of the grant of an Industrial Waste Water Facility permit for a rotational grazing dairy to be located in Gilchrist County, Florida, in accordance with Section 403.087, Florida Statutes, and the applicable rules and policies of the Department of Environmental Protection. Specifically, it must be determined whether the applicant has provided reasonable assurances that the operation of the industrial waste water facility at issue will comply with the Department's ground water quality standards and minimum criteria embodied in its rules and relevant policy, including draft permit conditions governing the proposed zone of discharge for the project. It must be determined whether the ground water beyond the proposed zone of discharge will be contaminated in excess of relevant state standards and criteria and whether the water quality of the G-II aquifer beneath the site will be degraded. Concomitantly it must be decided whether the applicant has provided reasonable assurances that the proposed project will comply with the Department's effluent guidelines and policy for dairy operations as industrial waste water facilities, pursuant to the Department's policy enacted and implemented pursuant to its rules for granting and implementing industrial waste water facility permits, as they relate to dairy operations.
Findings Of Fact The Respondent Craig Watson has applied for an Industrial Waste Water Facility permit to authorize the construction and operation of an 850-cow, rotational grazing dairy, with accompanying dairy waste management system, to be located in Gilchrist County, Florida. The system would be characterized by ultimate spray application of waste effluent to pastures or "paddocks" located on a portion of the 511-acre farm owned by Mr. Watson. The rotational grazing method of dairy operation is designed to prevent the ground water quality violations frequently associated with traditional dairy operations. Traditional dairy operations are often characterized by intensive livestock use areas, which result in denuding of vegetation and consequent compacting of the soil, which prevents the effective plant root zone uptake method of treating dairy waste and waste water for prevention of ground water quality violations. Such intensive use areas are typically areas around central milking barns, central feeding and watering troughs, and other aspects of such operations which tend to concentrate cows in relatively small areas. The rotational grazing dairy attempts to avoid such problems by dividing a dairy farm's surface area into numerous pastures which cows can graze upon with constant and frequent rotation of cows between such pastures. This avoids overgrazing or denuding of the cover crop upon which cows graze, which is so necessary to proper treatment of wastes through root zone uptake. A rotational grazing dairy is designed to re-cycle cow manure for use as fertilizer to grow and re-grow the forage established on the site in the paddocks or pastures. The rotational grazing method is based on the theory that nutrients from cow manure can be captured in the root zone and uptaken as fertilizer for the plant upon which the cattle graze. The waste from the barn area is collected in a waste storage pond or lagoon and sprayed as liquid effluent on the grassy cover crops established in the various pastures, as is the sludge or more solid waste removed periodically from the waste storage lagoon. The applicant, the 511 acres and the project itself would use approximately 440 acres of that tract. The site is approximately 6 miles south of the Santa Fe River. The majority of the soil on the site consists of fine sand and clay-sand type soils. The dairy would contain approximately 850 cows. Lactating cows (cows being milked) would be grazed in some 36 pastures divided by fencing. They would be grazed in the pastures approximately 85 percent of the time and lactating cows would be in the milk and feed barn located in the center of the lactating cow pastures approximately 15 percent of the time. The manure from the barn, approximately 15 percent of the total animal waste, would be collected and placed in the collection lagoon for spray irrigation on the forage crops grown in the pastures. The remaining 85 percent of the waste would result from direct deposition on the pastures by the cows. The rotational grazing dairy would contain permanent watering troughs in each of the 36 pastures. This creates the possibility of numerous "high intensity areas" or areas characterized by a high level of cattle traffic. This circumstance can result in denuding the cover crop or grasses around such water trough areas which would result in a failure, for that area, of the root-zone-uptake means of waste treatment of nitrates. In order to minimize that eventuality, the cattle would be rotated on a frequent basis from paddock to paddock in an effort to maintain nitrate balance and maintain the sanctity of the cover crop, as would the option of employing movable watering troughs so that areas of denudment of the grass or forage cover can be avoided. Manure would be flushed from the milking and feeding barn with approximately 2,000 to 5,000 gallons of water after each milking and at the end of each shift. Wastewater would then flow into a sand trap or filter and thence through an underground pipeline into an 80 foot x 84 foot concrete-lined storage lagoon. The final site of the storage lagoon has not been firmly determined. The site proposed in the application is located in part over a depression which is a suspected karst feature or area that may be subject to sink hole formation. Therefore, consideration should be given locating the waste lagoon so as to avoid that depression and the permit should be conditioned on installation of the lagoon so as to avoid known karst features. Effluent from the storage lagoon would be applied to 245 acres of pasture with a movable spray gun. The settled sludge from the lagoon would be spread on the same land periodically. The primary grass crop on the site intended for cattle forage would be Coastal Bermuda grass. Coastal Bermuda grows through a large part of the year and is normally dormant, in the climate prevailing in the Gilchrist and Alachua County area, from mid-October until early March. There would thus be little nutrient uptake during that time but to off-set that dormant state rye, wheat, rye grass, sorghum and other small grains could be grown on the site during the winter months in order to continue the waste treatment function of the cover crops. MANAGEMENT PLAN The Department currently does not have in effect a specific rule requiring dairies in north Florida to obtain permits to construct and operate per se, although such a rule does prevail for dairies in the Okeechobee Basin in south Florida. Since 1990, however, the Department has, by policy, required permits for new dairy facilities in the Suwannee River Water Management District as industrial waste water facilities. This policy is derived from the general regulatory authority contained in Section 403.087, Florida Statutes, and Chapter 62-670, Florida Administrative Code.1 The Department policy is described in a letter in evidence from the Department to applicant Watson containing the required conditions on any grant of the permit, to which the applicant has agreed. Those requirements are as follows: Management Plan A site-specific plan, with design calculations, providing for collection, storage and disposal of all wastewater from milking parlor and of runoff from the 25-year 24-hour storm event from all "high intensity" areas within the dairy farm. The calculations should include stormwater computer model SCS TR-55 or similar. Supporting documentation for the plan shall include but not be limited to the following: Water budget and balance, detailed and itemized. Nutrient budget, including wastewater and solids management. Crop management plan with projected crop nutrient uptake rates. Herd management plan, including locations of barns, travel lanes, feed areas, pastures, and management of dry cows and heifers. Treatment and disposal system details, construction details and methods, pumping systems and capacities, irrigation system details, lagoon design and capacity, and site plans. Ground Water Monitoring Plan Determination of ground water depth, variability and direction(s) of flow. Topographic site plan which includes the location of facility property boundaries, sinkholes and cooling ponds. Ground penetrating radar (GPR) if located within Suwannee River Water Management District. Site borings for determination of soil properties, depth and extent of low permeability zones, and confirmation of GPR results. Proposed locations, construction, and development criteria for monitor wells. Inventory of potable wells within 1/2 mile of site. Determination of current ground water quality and compliance. Such plan shall be prepared in accordance with the standards of the USDA NRCS, at a minimum, and shall include detailed instructions for construction, operation, and maintenance of wastewater/runoff collection, storage and disposal systems. DEP Exhibit 1. The various expert and fact witnesses for the Respondents described in their testimony the constituency of that Management Plan and the reasons, within their various scientific discipline areas and their personal factual knowledge concerning why it should be required for the site and project at issue. The 850-cow herd which would be contained on the proposed dairy consists of 550 lactating cows which are milked on a daily basis but also contains 80 dry cows and 220 heifers. Thus some 300 cattle on the dairy will not be milked at any given time and consequently will not contribute to use of the high intensity barn area and the waste collected in the anaerobic lagoon to the extent that those non-milking cattle are not fed and watered in the central barn area. Their waste would more typically be deposited directly on the pastures by those cattle themselves. 10 The project is proposed to provide for on-site containment of all wastes generated by the dairy. There will be no discharge of effluent or other pollutants from the dairy to "waters of the state." The proposed permit requires that no surface water runoff be permitted from the dairy site. The anaerobic or waste collection lagoon is designed to contain all effluent from the milking barn and other high intensity cattle areas in the event of a 25-year, 24-hour storm occurrence. Additionally, a safety factor of one-foot of "free-board" or additional wall height on the anaerobic lagoon is to be provided as an additional safety factor over and above the level expected to be achieved by the above-referenced storm event. The adequacy of the design capacity of the lagoon system is not in dispute. The proposed project and design calls for four monitoring wells to be located along the northern boundary of the property, which is essentially co-extensive with the boundary of the discharge zone at issue. There would be three compliance wells and one background sampling well. The Department's expert geologist, Mr. Davis, was of the belief that an intermediate monitoring well would not be necessary since the four wells would in his view be sufficient to enforce water quality standards. Those wells are located down-gradient according to the known direction of the ground water flow underneath the site, as required by Rule 62-522.600(6), Florida Administrative Code. Although no intermediate wells are provided for by the plan, they have been required at the other two rotational grazing dairies already permitted by the Department in the Suwannee River Water Management Region at least one of which was within a mile of the outstanding Florida water of the Suwannee River. Intermediate monitoring wells at other dairies have shown increased levels of nitrate, although there is no evidence to show that nitrate levels have exceeded state standards at the boundaries of those dairies or their discharge zones. In any event, however, the totality of the expert testimony demonstrates that intermediate wells would provide an efficacious early warning system to predict increases in nitrate contamination. Thus adjustments in the waste and commercial fertilizer nitrate application could be made so that prevention of violation of nitrate standards, by the time waste water migrated to compliance wells around the boundary of the site, could be effected. This would have a substantial predictive value to avoid future nitrate contaminant violations before they occur and they should be installed as a condition on permitting. The proposed dairy design and operation involving rotational grazing is undisputed to be more beneficial to environmental water quality considerations than a traditional cattle confinement type of dairy. The rotational grazing dairy is characterized by cattle spending minimal time in high intensity milking, feeding, and watering areas. Additionally, there will be a significantly lower level of nutrient loading on the pastures with little accumulation of effluent on the land surface. In fact, the deposition of waste through spray irrigation and through the urination and defecation of the cattle directly will still result in a deficit in nitrates needed for adequate plant growth of the grass, and other crop, ground cover necessary for feeding the cattle and making the operation succeed in a waste treatment sense as well. Consequently, it will have to be supplemented by the addition of some commercial fertilizer, the costs of which will result in a natural incentive for the farmer/applicant to ensure that the nutrient loading on the pastures is at a low, environmentally acceptable level in terms of potential contamination of ground water. The proposed dairy has been demonstrated to be consistent with the Natural Resources Conservation Services' requirements and policies concerning dairies and rotational grazing dairies. It is also undisputed that phosphorus is not of an environmental concern with this application and project. There is sufficient iron and aluminum coating on the soils involved so that excess phosphorus will be retained on the site and it is undisputed that nitrogen is the only limiting factor in the design of the dairy. NITROGEN BALANCE The specific concern with regard to the application and the dairy operation is nitrate leaching below the root zone of the crops grown on the surface of the dairy. The dairy is designed to use nitrogen and nitrates by growing crops in the pastures which will then be eaten by the dairy cows, so that the nitrogen is re-cycled with the resulting animal wastes being used as fertilizer for the same grass or crops which the cattle continuously graze. It is anticipated that the amount of nitrogen produced by the dairy cows will be insufficient to optimize that plant growth. Therefore, additional fertilizer will be required to be applied to the land surface in the pastures at times. The additional nitrogen fertilizer will only be applied when testing of soil, and particularly plant tissue analysis, which will be done a regular basis, shows that application of commercial fertilizer is needed to supplement the natural cattle-waste nitrogen. Nitrogen is a concern because if too much of it is applied to the land surface, it may leach below the plant root zone and eventually migrate to ground water. Nitrogen in high concentrations can be potentially harmful to human health, so state drinking water standards have been established for nitrogen with regard to the issuance of industrial waste water permits. The state drinking water standard for nitrate is ten parts per million at the zone of discharge, that is, the zone of discharge into the ground water aquifer. The dairy is designed in such a way that nitrate levels will not exceed water quality standards. The design is determined by reviewing nitrogen balances and making sure that excess nitrogen will not leach past the root zone. The engineers evaluating and designing the project for the applicant, and testifying concerning it, arrived at a "mass balance" to estimate the nitrogen amounts on the site. This mass balancing is required by the Department in the required estimating of the pounds of nitrate leachate. Nitrogen can be removed from the dairy operating system through atmospheric losses or "volatilization" particularly from the urine component of nitrogen application. It can be removed through milk losses, whereby nitrogen is removed from the digestive system of the cattle through its being bound up to some extent in the milk produced by the cattle and sold off the dairy site, as well as some minimal leaching of nitrate through the soil. The nitrogen that is not removed by volatilization to the atmosphere (excluding the small amount re-deposited by rainfall) will be cycled through the cows and the crops along with any supplemental nitrogen applied from time to time in order ensure optimal plant growth. The mass balance, or amount of pounds of nitrate in the leachate, was determined by considering the amount of water flowing through the system. The re-charge rate was established by the applicant's engineer Mr. Holloway to be 17 inches. This means that there will be 17 inches of rainfall leaching below the root zone of the cover crops to reach ground water. The re-charge rate can be determined by computing the average of the evapo-transpiration and average rainfall and subtracting the difference. It can also be calculated by employing computer models such as the "GLEAMS" model. Mr. Holloway, the applicants engineer, used both sources or methods and reached the figure 17 inches. The GLEAMS model is a computer model that uses local data to determine water budgeting and recharge rates. Mr. Holloway also used a 50 percent volatilization rate for the nitrate losses when determining his mass balance. The applicant's experts also considered the plant uptake rates and concluded that the uptake rate would be between 500 and 700 pounds of nitrogen uptaken per year, per acre, by the plant cover. In order to be conservative and to install a sufficient safety factor in the system to avoid overloading it with nitrates and endangering ground water quality, they employed a lower uptake rate in their calculations and recommendations to the applicant, and thus to the Department, as to the amount of nitrogen applied per acre, per year, from all sources to only be 400 pounds. The conditions imposed by the Department in the "free-form" consideration process and draft permit thus limits the total pounds of nitrogen permissibly applied to this site to 400 pounds per acre, per year. Those 400 pounds of nitrogen are represented by 260 pounds applied from manure from the livestock and no more than 140 pounds applied from commercial fertilizers purchased by the farmer, Mr. Watson. The 400 pounds of nitrogen per acre, per year, as a condition on the permit is less than that allowed at the other rotational grazing dairies previously designed by Mr. Holloway and approved. Additionally, Mr. Cordova of the Department established that there are no rotational grazing dairies that have a higher nitrogen deficit than the Watson dairy. This further provides a significant safety factor not present in other approved dairies. Atmospheric losses of nitrogen up to 80 percent have been documented with similar dairy operations. Atmospheric losses can occur through both volatilization and de-nitrification. Volatilization is the process where nitrogen is removed from the system by the ammonia in the waste products, changing into a gaseous state and migrating into the atmosphere as a volatile gas. De-nitrification is the process where microbes, principally in the absence of oxygen (anaerobic) reduce nitrates to nitrogen gas and to possibly N2O, which is a volatile, and then allow it to escape into the atmosphere. The applicant has agreed, as a condition to the permit, to apply soil testing and crop tissue analysis as well as quarterly reviewing of the monitoring wells before he determines to supplement the natural fertilizer deposited from the animals with additional commercially purchased fertilizer. The commercially purchased fertilizer would represent a substantial investment in purchase costs and in labor costs for its application. This is an additional safety factor because the applicant clearly would not have an interest in applying any more fertilizer than was absolutely needed to secure optimum plant growth for grazing purposes and nitrogen uptake or waste treatment purposes. This is a further method which will prevent excessive nitrate nutrients from being deposited on the site and possibly into the ground water. Dr. Bottcher, an expert witness for the applicant, testified that he expected nitrate levels at the zone of discharge within the boundaries and beneath the surface of the dairy farm to be between 4 and 6 parts per million. Mr. Holloway expected within a reasonable degree of certainty that on a long term average, with about 4,000 pounds of nitrate leaching below the root zone system, that the concentration directly below the farm beneath the root zone would be between 2 and 3 parts per million. Indeed, the proposed operation would be similar to the existing condition at the Watson farm involving grazing beef cattle on a system of pastures, with row crop operations. Row crops typically have a higher impact of nitrates than the proposed dairy operation would have and beef cow grazing would have a similar impact, although it would be slightly less. Thus the proposed operation is similar in its nitrate impact to the existing conditions at the site. Moreover, the applicant is limited by the permit conditions already agreed to, to spray manure on the spray field area at the rate of less than one half of an inch. The spraying to that limitation would probably take from two to five hours per week. One of the important safety mechanisms in achieving a nutrient balance on the dairy site and in its operation, so as to ensure that ground water quality violations do not occur, is the application rate of nitrate to the land surface. As shown by Dr. Bottcher's testimony, the farmer may increase crop production by applying more fertilizer during seasons of heavy growth of the plant cover. The application rate can then be decreased when there is less growth and, therefore, less need for nutrients to grow the cover crops. A smaller application rate will increase the volatilization rate by avoidance of the infiltration of the nitrate bearing effluent into the soil through hydraulic action and through the saturation mechanism, since a smaller amount of application would tend to leave more of the effluent within less than one inch of the land surface, or on the land surface, thereby allowing it to be volatilized more readily. This circumstance will decrease the amount of nutrient leaching below the root zone and thus prevent the nitrates from being transmitted to the ground water. A number of crops can be grown successfully and appropriately on the site in order to provide the grazing forage needed for the operation of the dairy. Examples, depending upon the season of the year, are rye, wheat, grain sorghum, and various grasses, including Coastal Bermuda grass. Coastal Bermuda is a perennial grass, high in protein available for livestock and is already established on the site. The various other crops can be grown as well and some that grow in the winter months, such as rye, will be grown by Mr. Watson. The growing of the various cover forage crops are limited by the limitation in the permit which is conditioned on maintaining a cover crop growth situation where the average annual uptake is at least 400 pounds per acre (the evidence reveals that in reality it would be more on the order of 500 to 700 pounds per acre, per year). Dr. Pollman and Dr. Upchurch, expert witnesses for the Petitioners, question the nitrogen balancing and leachate predictions arrived at by the applicant's expert witnesses, as well as those of the Department. Neither Drs. Pollman nor Upchurch had any prior experience or expertise with testing for a nitrogen balancing on rotational grazing dairies. Instead they utilized various models to attempt to predict leachate amounts. Dr. Pollman's modeling utilized formulas prepared by the applicant's experts. His modeling showed a high percentage of the predicted outcomes to be actually within regulatory standards for nitrates, even though all of his estimates failed to take into account the variable inclusion or application rate for nitrogen through commercial fertilizer which will only be applied on an as needed basis after appropriate plant tissue and soil tests show that commercial fertilizer should be applied. Likewise, Dr. Upchurch's modeling results were also mostly within acceptable standards for nitrate concentrations unless one assumes that the nitrogen application rates exceed the amounts allowed under the permit, which will not be the case in reality because obviously the permit limits must be complied with. Dr. Upchurch also utilized a model, "NLEAP," which was neither designed nor calibrated to be used for predictive capabilities and is still considered experimental by the NRCS. WASTE LAGOON The applicant proposes to construct a waste storage lagoon designed to hold seven days' waste water generation capacity or 26,000 gallons per day. In addition to that required storage for a 25-year, 24-hour storm event, an additional safety factor of one foot of free board has been designed into the lagoon system. The lagoon will be constructed with 6 inch thick, fiber-reinforced concrete. No evidence was offered by the Petitioners that the lagoon design itself was faulty or inappropriate, rather the Petitioners contend that there is a chance that a surface failure beneath the lagoon, by the result of a sink hole developing, particularly in the present preliminary location proposed for the lagoon, could cause the lagoon to crack. The applicant will, however, in order to ensure that the area is suitable for the lagoon have the appropriate engineer "over-excavate" the site in order to minimize the change of a sink hole developing. Additionally, soil borings will be done beneath the surface to provide additional assurance that the lagoon will not fail due to voids or sink holes being present beneath it. Because the lagoon is presently preliminarily located in an area that appears to embody an old, inactive karst depression, consideration should be given to altering the site of the lagoon slightly so as to avoid this area, after soil borings and other investigation is done to ascertain whether the area poses a risk of lagoon failure. Additionally it must be pointed out that because the applicant would need to expend a substantial investment to rebuild the lagoon in the event of such a failure, he has a strong incentive to locate the most suitable geological placement for the lagoon in any event. GEOLOGIC SITE CHARACTERISTICS It is undisputed that the geology underlying the surface of the dairy site is karst in nature: that is, it is characterized by a sub-strate of limestone which can, through the dissolution process caused by percolating water, be susceptible to fissures, voids, underground conduits and sink holes. This, however, is true for essentially all areas used for agriculture in the Suwannee River Area Water Management District, the area to which the subject above- referenced policy concerning installation and permitting of dairies applies. Because of the karst nature of the area, sink holes and other potential surface openings to the ground water could occur at the site. It is most significant, however, that both Mr. Holloway's and Dr. Kwader's testimony established that the soil layer at the site was more than sufficient to protect the ground water. In fact, the soil layer averages from 45 to 50-feet thick over the underlying limestone sub-strate of the Ocala Formation. Further, the proposed permit and its conditions would require a management plan which, with the conditions already placed on the permit and recommended herein, will adequately deal with the possibility of sink holes, "pipes" or "chimneys" developing on the site. The dairy design success is derived essentially from the sufficient nutrient uptake in the root zone of the plant cover, balanced with careful control of the application rates of both the natural fertilizer from the cows and the commercial fertilizer which will supplement it from time to time. Any possibility that the treatment zone for nitrates associated with the plant root zone would be by-passed by the effluent as a result of sink holes or other types of fissures developing can be resolved by proper management practices, which the conditions proposed for the permit and those recommended herein will insure are implemented. For instance, if sink holes, other depressions or holes develop in the site, they will be filled with soil to a depth of five feet, with an impervious clay cap on top of that and then a layer of top soil to allow for re-establishment of the root zone on the surface. The permit should be so conditioned. Moreover, if sink holes or other voids develop that are too large to be so filled and pose a risk of migration of effluent below the root zone to rapidly to the ground water, they will be fenced off and cows will not be allowed in the area. The area will be removed from the irrigation application process until repairs are made, under the presently proposed conditions on the permit. An additional condition should be imposed whereby any sink holes or other voids or similar breaks in the ground surface which pose a risk of effluent rapidly migrating to ground water should be bermed around the circumference to prevent effluent or stormwater laden with nitrates from the land surface from entering the fault or cavity. The applicant is required under the proposed conditions on the permit to report to DEP any sink holes which develop within a certain period of time in the barn area. Cows are not to be permitted to enter into any of the sink hole areas by additional fencing, if necessary. If sink holes develop in the spray field there can be no discharges of fertilizer or irrigation on those areas until the sink holes have been repaired in the manner referenced above. The phosphate pits on the site will also be fenced to prevent discharges past the root zone potentially caused by cattle entering the pits. Additionally, berms are required to be constructed around the phosphate pits to prevent surface water from storm events or other means by which nitrates from the ground surface can be transported into the pits and then possibly to ground water. Any holes which may develop, also called "piping failures," around the periphery of the phosphate pits should be treated in a similar manner to prevent the migration of surface water into those holes whether or not they communicate with the phosphate pits themselves by fencing and berming. These arrangements coupled with the fact that the phosphate pits are characterized by a sufficient soil layer in the bottom of the pits between the bottom surface of the pits and the water table or aquifer will constitute reasonable assurance that the pits will not result in a conduit or path for nitrate-laden, surface water to migrate past the root zone directly into the ground water aquifer. Mr. Holloway, an engineer, testifying for the applicant conducted soil borings on the site to verify the Natural Resources Conservation Service (NRCS) surveys as accurate and to ensure that an adequate root zone for treatment purposes existed. Additionally, the NRCS did a ground penetrating radar survey or study on the property. The Petitioners also did a separate ground penetrating radar study performed by Mr. Windschauer. The Petitioners study identified a number of karst-type "anomalies" on the property. The number of anomalies located by Windschauer was not unusual for a such a karst geologic area, but, in any event, all of them had adequate soil depth to support the crops necessary to establish the root zone and maintain the nitrogen balancing. Soil borings were conducted, as well on four of the anomalies, under Dr. Upchurch's supervision. They confirmed that there was adequate soil depth to support crops and protect groundwater. The conditions already imposed on the permit to which the applicant has agreed, require a minimum of five feet of soil depth to ensure adequate treatment including the soil below the root zone and that soil depth and plant cover will have to be maintained even if repairs are necessary to karst anomalies or "sink holes," or the dairy will have to cease operation. The soil depth on the dairy is approximately 45-50 feet and the water table is approximately 55 feet below the ground surface. While the Department's expert, Mr. Davis, is satisfied that the location of the monitoring wells and the number of wells are adequate to monitor compliance with water quality standards for groundwater at the site, the draft permit conditions allow for a change in the number and the location of the monitoring wells. The evidence in the case, including that which shows that an intermediate well at another similar dairy site has shown elevated nitrate levels (although it has not been shown that other conditions are similar to those proposed in this permit application and in the evidence) would indicate that it would be prudent to install intermediate monitoring wells, upgradient, within the dairy site to serve as an early warning, predictive mechanism to avoid water quality violations at the boundary of the zone of discharge. This will allow time for steps to be taken, through various adjustments in the operation, to prevent any violations of the ten parts per million nitrate groundwater standard. The permit is recommended to be so conditioned. Dr. Kwader performed a photolinear trace analysis. He indicated that he did not find any particular linear features such as fractures. A fracture in the limestone stratum is significant in that it can provide a conduit or preferential pathway through the sub-surface rock and thus transfer contaminants from one point to another at a more rapid rate than simple percolation through soil and pores in the rocks. This could result in excessive nitrates being deposited in the groundwater aquifer before an adequate treatment time and mechanism has had its effect on the nitrates. A fracture or conduit flow will, however, cause dilution and Mr. Davis, for the Department, testified that he did not expect a higher concentration of nutrients in a fracture than in the surrounding rock. Additionally, there will be substantial dilution once the nutrients reach the aquifer and begin moving laterally. The dilution will be proportional to the water moving through the conduit, meaning that if the fracture is relatively large, then the concentration of nutrients will be proportionately smaller because of the higher volume of water. Such linear features or fractures are difficult to observe through 50 or more feet of soil existing at the site above the rock stratum and the top surface of the aquifer. Dr. Upchurch, for the Petitioners, also performed a photolinear trace analysis and identified two areas as being highly probable, in his belief, for linear fracture features beneath the farm and surrounding area. He believes there is a possibility of a number of other fractures beneath the Watson property, although the evidence does not definitely identify such nor the measures or precise locations of any such postulated fractures. The Watson property, however, is not unlike any of the surrounding karst terrain with respect to such potential linear fracture features and, in fact, much of north Florida can be so characterized. Moreover, Dr. Upchurch himself agreed that only a limited area of the Watson farm would be impacted by such features, and further, if they are present, they will not impact the nutrient balance aspect of the dairy design because it will perform above many feet of soils separating it from the fractures, if they exist. Limestone pinnacles protruding to the land surface can provide preferential pathways for water to migrate downward to the groundwater aquifer in a manner similar to that posed by a sink hole. They can also function as a break in the soil and plant root zone covering the spray effluent treatment area if allowed to remain exposed. Limestone was observed within one of the mine pits and in a sink hole. It is not clear whether it is a pinnacle which leads down to the sub-strate containing the aquifer or is merely a remnant boulder. In any event, these pinnacles or limestone outcroppings or boulders, whatever they prove to be, will not result in a preferential pathway for water to migrate to the aquifer because the management plan conditioning the permit requires that any limestone protruding to the surface be sheared off and replaced with top soil and vegetation. The permit conditions require that at least five feet of soil overlaid by vegetation must be present for all areas in the spray field. No exposed groundwater was observed in any of the sink holes. In fact the aquifer water level would be at least ten to twenty feet below the bottom of any pit or sink hole observed on the property. An additional 50-foot buffer from the property boundary surrounds all of the paddocks, providing an additional safety factor before the outside boundary of the zone of discharge is reached. The proposed dairy is located approximately six miles south of the Sante Fe River at its nearest point. The Sante Fe River is an outstanding Florida waterway in accordance with Rule 62-302.700(9)(i)27, Florida Administrative Code. The dairy site is not within the flood plain of the river and there will be no surface water discharged from the dairy, including none to the Sante Fe River. Any impact the dairy might have on a water quality in the Sante Fe River would come from groundwater flowing from the site to river. Groundwater beneath the dairy site flows first in a northeasterly direction thence apparently swinging more northerly in the direction of the river, more or less in a "banana shape" flow pattern and direction. Current permitting requirements for such a dairy require that the groundwater leaving or flowing from the zone of discharge must meet "drinking water standards." Those standards are codified in Rules 62-520.400 and 62-522.400, Florida Administrative Code. Those standards require that nitrates not exceed the standard or level of ten parts per million. Dr. Bottcher's expert opinion, which is accepted, is that the dairy design and operation will provide adequate protection to the Sante Fe River with that perameter in mind. He also established that reasonable assurances exist that the river will be adequately protected and not significantly be degraded alone or in combination with other stationary installations in addition to the dairy in question. The dairy waste management system has been established by preponderant evidence to abate and prevent pollution of the groundwater to the extent required by the applicable statutes, rules and policies, in that water or pollution will not be discharged from the dairy in violation of the above-referenced standard. Especially because of the great thickness of soil cover and because of the conditions and protective measures designed into the draft permit, and the project and recommended as conditions herein, in order to prevent effluent from bypassing the root zone treatment area due to karst features the preponderant, credible geological and hydro- geological evidence, including that of Mr. Davis, shows, within a reasonable degree of professional certainty, that there are not conditions concerning the hydro-geology or geology in the area of the site as to make it unsuitable for the proposed dairy operation in the manner conditioned and recommended herein. SECTION 120.57(1)(E) - FINDINGS The specific permitting requirements for the rotational grazing dairy at issue are embodied in a policy followed by the Department as far back as 1990. Those requirements are not contained in a Department rule. Rather, the policy is presumably enacted pursuant to the statute referenced by the parties, including the Department, in this case as the general pollution abatement statute, Section 403.087, Florida Statutes. The action of the Department in announcing its intent to grant the permit may be deemed an agency action "that determines the substantial interest of a party and that it is based on an un-adopted rule . . ." to the extent that one might deem this policy, consistently followed in a substantial area of the state since 1990, an un-adopted rule for purposes of Section 120.57(e)(1), Florida Statutes. In that context, the agency must demonstrate that the un-adopted rule comports with the statutory definitional of characteristics of a valid rule. Thus the agency must present proof that its un-adopted rule or "policy" would be valid as a rule. In that context the evidence adduced by the Department and indeed by both Respondents, since they presented a joint case, shows that the policy at issue is within the powers, functions and duties delegated by the legislature in Section 403.087,Florida Statutes, which is a generalized grant of authority designed to give the Department the power to regulate in a way to abate the pollution of waters of the state, including groundwater. It has also been adequately shown that the policy or un- adopted rule does not enlarge, modify or contravene the specific provisions of that law being implemented but rather provides sufficient regulatory details so that the general principals, stated in that statute, can be carried out in terms of the installation, regulation and operation of the subject dairy project. It has been adequately proven that the rule is not vague and that it establishes adequate standards for agency decisions on whether or not to permit such a rotational grazing dairy. It does not vest unbridled discretion in the agency nor constitute an arbitrary or capricious act or policy imposition, because the standards and requirements advanced by the Department as being necessary under this policy or un-adopted rule, for a permit to be granted, must, of legal and factual necessity, be predicated on competent, scientific expert and factual evidence. That has been shown, which likewise meets the requirement that the un-adopted rule be supported by competent and substantial evidence. Likewise, the evidence shows that under the circumstances, given the great public necessity in protection of the groundwater and the Floridian aquifer, that the requirements placed upon a grant of a permit for this project and the conditions placed upon its construction and operation do not impose, under the circumstances, excessive regulatory costs on the regulated person, Mr. Watson, or the governmental entity where the project is located, in other words, Gilchrist County.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a Final Order be entered granting the permit requested by Craig Watson to construct and operate the proposed dairy waste management system in accordance with the draft permit proposed by the Department, including the general and specific conditions attached and incorporated therein and also including the general and specific conditions recommended to be adopted and implemented for the proposed system in this Recommended Order, based upon the preponderant, persuasive, credible evidence. DONE AND ENTERED this 23rd day of February, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1999.
Findings Of Fact The Concerned Citizens of West Escambia County, Florida, is an unincorporated neighborhood association begun in the Spring of 1978. It has been concerned with local sewage and flood water problems. Many of the Citizens' members live in the LiFair subdivision abutting the Fairfield Village project on the south. FFV is a 72-unit low income federally subsidized housing project planned for development on a 7.47 acre site. The site is located on the west side of Fairfield Drive between Jackson Street and the Lillian Highway (U.S. 98) in Escambia County. On February 1, 1980, DER issued permit number CS17-25848 for the construction of a dry sewage collection system to serve Fairfield Village. That permit contained conditions 15, 16 and 17 which state: This permit does not authorize the connection of this collection to the Avondale STP. Separate authorization for the actual connection of this col- lection system to the Avondale STP is required from this department. Such authorization shall be applied for by separate letter to the Department. This permit shall not be construed to infer any assurance that the necessary authorization for connection shall be granted. Any such authorization shall be granted only when adequate treatment in accordance with rules, regulations, and issued permits of the Department is available for any flows transported by by the collection system. The system shall be inspected for any sediment debris and flushed prior to connection to the Escambia County sewer system. Subsequently on March 20, 1980, Paul F. McCartney on behalf of FFV requested that the above conditions be lifted as the moratorium on new connections to the ATP had been lifted. On January 1, 1980, C. H. Wigley, Jr., Director of Utilities for Escambia County gave notice that the two-year moratorium on new sewer taps into the ATP was lifted. This action was the result of a planned diversion of approximately 300,000 gallons per day (GPD) from the ATP to the Warrington Treatment Plant. DER on April 1, 1980, gave notice of its intent to remove conditions 15, 16 and 17 from FFV's permit. Petitioner on April 9, 1980, filed its petition for an administrative hearing on DER's proposed action. The anticipated waste water discharge from FFV is approximately 22,000 GPD. As a result of the 300,000 GPD diversion from the ATP to the Warrington Plant, there is more than adequate treatment capacity at the ATP for handling the FFV inflow. The ATP operates under DER permit number TP17-2080 issued on April 4, 1978 and has operated within its designed capabilities of 1,000,000 GPD since August, 1979. There is no showing that a connection of the FFV transmission line to the ATP will cause any violation of the plant's permit conditions. Evidence was presented by Petitioners that sewage lines in the Citizen's neighborhood frequently overflow. There was no showing however that any instance of overflow was caused by the ATP exceeding its operating capacity. It is more likely that their neighborhood sewage problems result from blockages in the transmission lines or result from pump-outages at the lift station between their neighborhood and the treatment plant. No showing was made that the connection of FFV to the ATP would adversely affect sewage collection in the LiFair subdivision. The monthly operating reports submitted to DER by the ATP were shown to be accurate. DER may reasonably rely on them in determining whether the requested permit modifications should be granted.
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 authorizing the modification of permit number CS17-25848 by eliminating conditions 15, 16 and 17. It is further RECOMMENDED that the Petition of the Concerned Citizens of West Escambia County, Florida, be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this day of 18th of December, 1980. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1980. COPIES FURNISHED: Artice L. McGraw, Esq. CETTI & McGRAW 26 East Garden Street Pensacola, FL 32501 P. Michael Patterson, Esq. 26 East Garden Street Pensacola, FL 32501 William W. Deane, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Alan C. Sheppard, Esq. EMMANUEL SHEPPARD & CONDON Seventh Floor, Century Bank Tower Post Office Drawer 1271 Pensacola, FL 32596
Findings Of Fact Based upon my observation of Respondent's witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Sometime prior to May 7, 1980, Petitioner, Wyatt S. Odom, applied for a permit to construct an individual sewage disposal facility for a houseboat on Drs Lake in Orange Park, Clay County Florida. By letter dated May 7, 1980, Ronald E. Bray, Sanitarian Supervisor for the Clay County Health Department, advised Petitioner that his permit application to construct an individual sewage disposal facility for a houseboat was being denied since the area of Petitioner's property was approximately 26,250 square feet2 A survey of the subject property revealed that the area is 19,890 square feet, which is of course less than one-half acre. (Respondent's Exhibit 2) (0.60 acre) with three individual sewage disposal systems already existing on the property; the land was not suitable for the installation that would allow the proper and required drainfield absorption area and setback requirement could not be maintained due to the existence of buildings, waterlines, wells, a lake and existing sewage disposal facilities which, if permitted, would be in contravention of Chapters 10D-6.23(2) and 10D-6.24(2), (3), (4) and (6), Florida Administrative Code. Supervisor Bray and Sanitarian Thomas Haley, observed the subject property and the survey, and concluded that based on the size of Petitioner's property and the existing wells and septic tanks thereon, it was unsuitable for and could not satisfy the setback requirements and the required drainfield absorption area. (Testimony of Ronald E. Bray.) As stated, Petitioner did not appear at the hearing to contest the Respondent's denial of his permit application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is hereby RECOMMENDED: That the Respondent's denial of Petitioner's request for a permit to construct an individual sewage disposal facility for a houseboat on Drs. Lake in Orange Park, Florida, be UPHELD. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of September, 1980. JAMES E. BRADWELL 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 19th day of September, 1980. COPIES FURNISHED: Wyatt S. Odom P. O. Box 14735 Jacksonville, Florida 32210 Leo J. Stellwagen, Esquire Assistant District IV Counsel Department of Health and Rehabilitative Services Post Office Box 2417F Jacksonville, Florida 32231 Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether SFP's revised application for a permit to construct a sewage treatment plant with percolation ponds should be granted or, for failure of SFP to give reasonable assurances that the plant will not cause pollution significantly degrading the waters of Gator Cove, be denied?
Findings Of Fact About 1,500 feet from Santa Fe Lake's Gator Cove, SFP proposes to build an extended aeration package sewage treatment plant to serve a "private club with restaurant and overnight accommodations," SFP's Exhibit No. l, to be built between the plant and the lake, on the western shore of Santa Fe Lake, just south of the strait or pass connecting Santa Fe Lake and Little Santa Fe Lake. The site proposed for the waste water treatment plant lies at approximately 177 or 178 feet above sea level, north of Earleton on county road N.E. 28 near State Road 200A, some three miles north of State Road 26, in unincorporated Alachua County, Section 33, Township 8 South, Range 22 East. SFP's Exhibit No. 1. Santa Fe Lake, also called Lake Santa Fe, and Little Santa Fe Lake, also called Little Lake Santa Fe, are designated outstanding Florida waters by rule. Rule 17-3.041(4)(i), Florida Administrative Code. Lake Santa Fe "is . . . the sixth largest non-eutrophic lake in the State of Florida . . . [and] the last remaining large non-eutrophic lake in Alachua County." (0.367). Recreation is a "beneficial use" of these waters. The Lakes Santa Fe are at an elevation of approximately 140 feet above sea level, and their level varies within a range of four feet. Input The proposed plant is to treat sewage generated by staff, by diners at a 150-seat restaurant, and by inhabitants of 150 lodge or motel rooms, comprising 100 distinct units. On the assumptions that 150 rooms could house 275 persons who would generate 75 gallons of sewage a day for a daily aggregate of 20,625 gallons, and that a 150-seat restaurant would generate 50 gallons of sewage per seat per day, full occupancy is projected to engender 28,125 gallons of sewage per day. This projection is based on unspecified "D.E.R. criteria; (5.35) which the evidence did not show to be unreasonable. Full occupancy is not foreseen except around the Fourth of July, Labor Day and on other special occasions. An annual average flow of between 15 and 20,000 or perhaps as low as 13,000 gallons per day is envisioned. (S.38) The proposed plant is sized at 30,000 gallons per day in order to treat the peak flow forecast and because package plants are designed in 5,000 gallon increments. Sluice-gate valves and baffling are to permit bypassing one or more 5,000 gallon aeration units so plant capacity can be matched to flow. The composition of the sewage would not be unusual for facilities of the kind planned. As far as the evidence showed, there are no plans for a laundry, as such, and "very little laundry" (S.37) is contemplated. The health department would require grease traps to be installed in any restaurant that is built. Gravity would collect sewage introduced into 2,000 feet of pipe connecting lodging, restaurant and a lift station planned (but not yet designed) for construction at a site downhill from the site proposed for the water treatment plant. All sewage reaching the proposed treatment plant would be pumped 3,000 feet from the lift station through a four-inch force main. Influent flow to the treatment plant could be calculated by timing how long the pump was in operation, since it would "pump a relatively constant rate of flow." (S.39) Treatment Wastewater entering the plant would go into aeration units where microorganisms would "convert and dispose of most of the incoming pollutants and organic matter." (S.40) The plant would employ "a bubbler process and not any kind of stirring-type motion . . . [so] there should be very little:; aerosol leaving the plant," (S.42) which is to be encircled by a solid fence. Electric air blowers equipped with mufflers would be the only significant source of noise at the proposed plant, which would ordinarily be unmanned. If one blower failed, the other could run the plant itself. A certified waste water treatment plant operator would be on site a half-hour each week day and for one hour each weekend. SFP has agreed to post a bond to guarantee maintenance of the plant for the six months' operation period a construction permit would authorize. (0.63) The proposed plant would not "create a lot of odor if it's properly maintained." Id. The specifications call for a connection for an emergency portable generator and require that such a generator be "provide[d] for this plant. . . ." (S. 43). The switch to emergency power would not be automatic, however. A settling process is to follow extended aeration, yielding a clear water effluent and sludge. Licensed haulers would truck the sludge elsewhere for disposal. One byproduct of extended aeration is nitrate, which might exceed 12 milligrams per liter of effluent, if not treated, so an anoxic denitrification section has been specified which would reduce nitrate concentrations to below 12 milligrams per liter, possibly to as low as 4 or 5 milligrams per liter. Before leaving the plant, water would be chlorinated with a chlorinator designed to use a powder, calcium hypochlorite, and to provide one half part per million chlorine residual in the effluent entering the percolation ponds. A spare chlorine pump is to be on site. The effluent would meet primary and secondary drinking water standards, would have 20 milligrams or less per liter of biochemical oxygen demand or, if more, no more than ten percent of the influent's biochemical oxygen demand, and total suspended solids would amount to 20 milligrams or less per liter. (5.294- 295). Half the phosphorous entering the plant would become part of the sludge and half would leave in the effluent. Something like ten milligrams per liter of phosphorous would remain in the effluent discharged from the plant into the percolation ponds. (5.202). Although technology for removing more phosphorous is available (S.298, 0.170-171), SFP does not propose to employ it. Allen flocculation treatment followed by filtration could reduce phosphorous in the effluent to .4 milligrams per liter, but this would increase the cost of building the treatment plant by 30 to 40 percent; and operational costs would probably increase, as well, since it would be necessary to dispose of more sludge. (0.170-172). SFP did agree to accept a permit condition requiring it to monitor phosphorous levels in groundwater adjacent to the proposed plant. (0.63). Land Application Three percolation ponds are planned with an aggregate area of 30,000 square feet. At capacity, the plant would be producing a gallon and a half of effluent a day for each square foot of pond bottom in use. The ponds are designed in hopes that any two of them could handle the output of effluent, even with the plant at full capacity, leaving the third free for maintenance. The percolation ponds would stand in the lakes' watershed, in an area "of minimal flooding, (S.30) albeit outside the 100-year flood plain. Santa Fe Lake, including Gator Cove, and Little Santa Fe Lake are fed by groundwater from the surficial aquifer. All effluent not percolating down to levels below the surficial aquifer or entering the atmosphere by evapotranspiration would reach the lake water one way or another sooner or later. If percolation through the soils underneath the percolation ponds can occur at the rate SFP's application assumes, effluent would not travel overland into Lake Santa Fe except under unusually rainy conditions, which would dilute the effluent. Whether the planned percolation ponds would function as intended during ordinary weather conditions was not clear from the evidence, however. In the event the ponds overflowed, which, on SFP's assumptions, could be expected to happen, if peak sewage flaw coincided with weather more severe than a 25-year rainfall, effluent augmented by rainwater would rise to 179.87 NGVD (S.34), then overflow a series of emergency weirs connecting the ponds, flow through an outfall ditch, drain into a depression west of the ponds, enter a grassed roadside ditch, and eventually reach Lake Santa Fe after about a half a mile or so of grass swales. (5.69). Sheet flow and flow through an ungrassed gulley in the direction of Gator Cove (0.154) are other possible routes by which overflowing waters might reach the lake. (0.263). Since the facilities the plant is designed to serve are recreational, wet weather would discourage full use of the facilities and therefore full use of the water treatment system. Effluent traveling over the surface into Gator Cove would wash over vegetation of various kinds. Plants, of course, do take up phosphorous, but they don't do it forever, and if you leave a plant system alone, it will come to a steady state in which there is no net storage of phosphorous in the plant material. (0.166) Whether by sheet flow or by traversing swales, overland flow would reach Gator Cove within hours. Effluent traveling through the surficial aquifer would not reach the lake for at least five years. (S.238-9). It could take as long as 45 years. (0.316). In the course of the effluent's subterranean passage, the soil would take up or adsorb phosphorous until its capacity to do so had been exhausted. In addition, interaction with certain chemicals found in the soil, primarily calcium, precipitates phosphorous dissolved in groundwater. As between adsorption and precipitation, the former is much more significant: "[W]ith a three-meter distance you can expect at least 70 to 80 percent removal of phosphorous just by a a[d] sorption alone." (0.21). Precipitated phosphorous does not return to solution, unless the soil chemistry changes. (0.19) Adsorption, however, is reversible, although not entirely, because of the "hysteresis phenomenon." (0.19) Eventually, a kind of dynamic equilibrium obtains to do with the binding of the phosphorous to soil constituents, binding or precipitation of phosphorous. At some point . all of the binding sites become saturated . [and] the amount of phosphorous leaving, into the lake really, will be equal to the amount of phosphorous going into the the system. When there is no more place to store the phosphorous in the ground, then the output is equal to the input and that is called the steady state. (0.161) Although precipitation of phosphorous would not reach steady state under "conditions that render the phosphorous-containing compound insolu[]ble," (0.168) these conditions were not shown to exist now "much less . . . on into perpetuity." Id. Spring Seep A third possible route by which the effluent might reach lake waters would begin with percolation through the sand, which is to be placed on grade and on top of which the percolation ponds are to be constructed. Underground, the effluent would move along the hydraulic gradient toward the lake unless an impeding geological formation (an aquiclude or aquitard) forced it above ground lakeward of the percolationi ponds. In this event, the effluent would emerge as a man-made spring and complete its trip to Gator Cove, or directly to the lake, overland. The evidence demonstrated that a spring seep of this kind was not unlikely. Relatively impermeable clayey soils occur in the vicinity. A more or less horizontal aquitard lies no deeper than four or five feet below the site proposed for the percolation ponds. Conditions short of an actual outcropping of clayey sand could cause effluent mounding underground to reach the surface. Nor did the evidence show that an actual intersection between horizontal aquitard and sloping ground surface was unlikely. Such a geological impediment in the effluent's path would almost surely give rise to a spring seep between the pond site and the lakes. In the case of the other percolation ponds in this part of the state that do not function properly, the problem is n [U] sually an impermeable layer much too close to the bottom of the pond," (S.179), according to Mr. Frey, manager of DER's Northeast District. Phosphorous in effluent travelling by such a mixed route would be subject to biological uptake as well as adsorption and precipitation, but again a "steady state" would eventually occur. On Dr. Bothcher's assumptions about the conductivity of the clayey sand (or sandy clay) lying underneath the topsoil, the effluent would accumulate as a mound of groundwater atop the clay unit, and seep to the surface in short order; and "after a matter of probably weeks and maybe months, it would be basically of the quality of the water inside of the percolation pond." (0.278). More Phosphorous in Gator Cove The total annual phosphorous load from all existing sources "to the lake" has been estimated at 2,942 kilograms. Assuming an average effluent flow of 17,000 gallons per day from the proposed plant, "the total phosphorous load [from the proposed plant] will be 235 kilograms per annum," (0.16), according to Dr. Pollman, called by SFP as an expert in aquatic chemistry. Even before any steady state condition was reached, 20.75 to 41.5 kilograms of phosphorous, or approximately one percent of the existing total, would reach the lake annually from the proposed plant, on the assumptions stated by Dr. Pollman at 0.22-23 (90 to 95 percent removal of phosphorous in the soils and average daily flow of 30,000 gallons). Santa Fe Lake is more than two miles across and two miles long, and Little Santa Fe Lake, which may be viewed as an arm of Santa Fe Lake, is itself sizeable, with a shoreline exceeding two miles. But Gator Cove is approximately 200 yards by 100 yards with an opening into Santa Fe Lake only some 50 to 75 yards wide. (0.154). On a site visit, Dr. Parks observed "luxuriant growth of submerged plants" (0.154), including hydrilla, in Gator Cove. If a one percent increase in phosphorous were diffused evenly throughout the more than eight square miles Santa Fe Lake covers, there is no reason to believe that it would effect measurable degradation of the quality of the water. Some nutrients are beneficial, and the purpose of classifying a lake is to maintain a healthy, well-balanced population of fish and wildlife. It's hard to see how 1.4 percent increase would lower the ambient quality. But . . . seepage into Gator Cove, which is a much more confined place [100 by 200 yardsj [would make it] quite probable that there would be a lowering of ambient water quality in the site . R] educed dispersion . . . in this cove would allow . . . phosphorous to build up. (0.156) Overland effluent flow to Gator Cove would increase concentrations of phosphorus there, with a consequent increase in the growth of aquatic plants, and the likely degradation of waters in the Cove, unless rapid and regular exchange of lake and cove waters dispersed the phosphorous widely, promptly upon its introduction Except for testimony that wind-driven waves sometimes stir up phosphorous laden sediments on the bottom, the record is silent on the movement of waters within and between Lake Santa Fe and Gator Cove. The record supports no inference that phosporous reaching Gator Cove would be dispersed without causing eutrophic conditions significantly degrading the water in the Cove. Neither does the record support the inference, however, that effluent moving underground into the lakes would enter Gator Cove. On this point, Dr. Bottcher testified: [T]he further away from the lake that you recharge water the further out under a lake that the water will be recharging into the lake; gives it a longer flow . . . it's going to migrate and come up somewhat out into the lake. (0.281-2) Phosphorous in the quantities the treatment plant would produce, if introduced "somewhat out into the lake" would probably not degrade water quality significantly, notwithstanding testimony to the contrary. (0.349, 354). Sands and Clays DER gave notice of its intent to deny SFP's original application because SFP proposed to place the pond bottoms approximately two and a half feet above an observed groundwater table. Placement in such proximity to groundwater raised questions about the capacity of the ground to accept the effluent. In its revised application, SFP proposes to place sand on the existing grade and construct percolation ponds on top of the sand. By elevating the pond bottoms, SFP would increase the distance between the observed groundwater table and pond bottoms to 5.2 feet. (S.256, 257). This perched water table, which is seasonal, is attributable to clayey sand or sandy clay underlying the site proposed for the percolation ponds. Between January 9, 1985, and January 17, 1985, "following a fairly dry antecedent period," (S.229) Douglas F. Smith, the professional consulting engineer SFP retained to prepare the engineering report submitted in support of SFP's permit applications, conducted six soil borings in the vicinity of the site proposed for the plant. One of the borings (TB 5) is in or on the edge of a proposed percolation pond and another (TB 4) is slightly to the north of the proposed pond site. Three (TB 1, 2 and 3) are east of the proposed pond site at distances ranging up to no more than 250 feet. The sixth is west of the proposed site in a natural depression. Mr. Smith conducted a seventh test boring under wetter conditions more than a year later a few feet north of TB 4. Finally, on September 5, 1986, during the interim between hearing days, Mr. Smith used a Shelby tube to obtain a soil sample four to six feet below grade midway between TB 4 and TB 5. 1/ The sites at which samples were taken are at ground elevations ranging from 173 to 178 feet above sea level. From the original borings and by resort to reference works, Mr. Smith reached certain general conclusions: The top four feet or so at the proposed pond site consists of silty sand, 17 percent silt and 83 percent quartz sand. This topsoil lies above a two-foot layer of clayey sand, 20 percent clay, 6 percent silt and 74 percent sand. Below the clayey sand lies a layer some eight feet thick of dense, silty sand, 23 percent silt, 7 percent clay and 70 percent sand, atop a one and one-half foot layer of clayey sand, separating loose, quartz sands going down 40 feet beneath the surface from what is above. These formations "are very heterogeneous, in the sense of the position and occurrence of the clay layers or the sandy layers . . .," (0.230) and all occur within the surficial aquifer. "There are layers of clay within it, and so perched water tables are rather common." (0.225). In March of 1986, the regional water table was some 17 feet down. SFP Exhibit 1B. Below the surficial aquifer lie the Hawthorne formation and, at a depth of 110 feet, the limestone of the Floridan aquifer. The soils above the Hawthorne formation are not consolidated. (S.254, 255). Conductivity Measurements The applicant offered no test results indicating the composition or conductivity of soils lying between the easternmost test boring and Gator Cove, some 1,200 feet distant. No tests were done to determine the conductivity of the deeper layer of clayey sand beneath the site proposed for the ponds. Tests of a sample of the topsoil in TB 7 indicated horizontal permeability of 38.7 feet per day and vertical permeability of six feet per day. On the basis of an earlier test of topsoil in TB 3, "hydraulic conductivity of the surface soils was measured to be 8.2 feet per day. . . ." SFP's Exhibit No. 1B. From this measurement, vertical hydraulic conductivity was conservatively estimated at .82 feet (9.84 inches) per day. Id. The design application rate, 2.41 inches per day, is approximately 25 percent of 9.84 inches per day. Id. The initial test done on a sample of the clayey sand, which lay beneath the topsoil at depths of 3.5 to 5.5 feet, indicated a permeability of 0.0001 feet per day. Thereafter, Mr. Smith did other testing and "made some general assumptions" (S. 235) and concluded that "an area-wide permeability of this clayey sand would be more on the order of 0.0144 feet per day." (S. 234). Still later a test of the sample taken during the hearing recess indicated hydraulic conductivity of 0.11 feet per day. SFP's Exhibit No. 10. The more than thousandfold increase in measured conductivity between the first laboratory analysis and the second is attributable in some degree to the different proportions of fines found in the two samples. The soil conductivity test results depend not only on the composition of the sample, but also on how wet the sample was before testing began. Vertical Conductivity Inferred On March 6, 1986, ground water was observed on the site about two and a half feet below the surface. SFP's expert, Mr. Smith, concluded that it was "essentially a 1.5 foot water table, perched water table over the clay." (0.422). There was, however, groundwater below, as well as above, the clay. On March 12, 1986, the water table at this point had fallen six inches. In the preceding month rainfall of 5.9 inches had been measured in the vicinity, after 5.1 inches had been measured in January of 1986, but in November and December of 1985 "there was a total of 0.6 inches of rainfall." (0.421). Later in the year, notwithstanding typically wet summer weather, no water table was measured at this point. From this Mr. Smith concluded that, once the clayey sand layer is wetted to the point of saturation, conductivity increases dramatically. If that were the case, a more or less steady stream of effluent could serve to keep the clayey sand wetted and percolation at design rates should not be a problem. But Dr. Bottcher, the hydrologist and soil physicist called as a witness for the Association, testified that the six- inch drop over six days could be attributed, in large part, to evapotranspiration. He rejected the hypothesis that the clayey sand's conductivity increased dramatically with saturation, since "the actual water table was observed . about three weeks after the very heavy rainfall had stopped" (0.290) and had probably been present for at least a month; and because the soil survey for Alachua County reports that perched water tables ordinarily persist for two months (0.227) in this type of soil. Certain soils' hydraulic conductivity does diminish with dessication, but such soils usually regain their accustomed conductivity within hours of rewetting. Dr. Bottcher rejected as unrealistically optimistic the assumption SFP's expert made about the conductivity of the clayey sand on grounds that "the conductivity that . . . [SFP] used, if you went out there you couldn't perch a water table for a month." (0.277). In these respects, Dr. Bottcher's testimony at hearing has been credited. In the opinion of the geologist who testified on behalf of the Association, Dr. Randazzo, a minimum of seven or eight additional augur borings in "definitive patterns to the northeast and to the northwest" (0.240) to depths of 15 to 20 feet, with measurements within each augur boring every two feet, are necessary to determine "how permeable the soils are and how fast the waters would move through them." (0.240). This testimony and the testimony of the soil physicist and others to the same general effect have been credited, and Mr. Smith's testimony that no further testing is indicated has been rejected. Wet Ground In the expert opinion of a geologist who testified at hearing, "it is reasonable to assume that saturation conditions of the surficial aquifer in this area can be achieved," (0.238) even without adding effluent from a wastewater treatment plant. The evidence that soils in the vicinity of the site have a limited capacity to percolate .water came not only from engineers and scientists. Charles S. Humphries, the owner of the property 150 feet from the proposed percolation site, "put a fence post line . . . every ten feet, and every ten feet [he] hit clay." (0.372). Three quarters of an inch of rain results in waters standing overnight in neighboring pastures. In parts of the same pastures, rain from a front moving through "will stay for a week or so." (0.373). It is apparent that the area cannot percolate all the rainfall it receives. This is the explanation for the gully leading down toward Gator Cove. Six-feet deep (0.377), "the gully is a result of natural surface runoff." (0.263).
Findings Of Fact Upon consideration of the stipulations of fact and the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The applicant is a duly authorized and registered Florida corporation engaged in the business of producing electrical power for sale. It proposes to construct and operate a 486 megawatt (gross) coal fired electrical generating facility immediately adjacent to its existing three coal fired units known a Big Bend Units 1, 2 and 3. The proposed site is located on the eastern shore of Tampa Bay near the mouth of the Hillsborough Bay (designated as a Class III waterbody), and is five miles north of Ruskin, ten miles south of Tampa and fourteen miles from St. Petersburg across Tampa Bay. As noted, the proposed unit will be the fourth unit at the applicant's existing Big Bend site and will share many of the service facilities with the existing units. The shared facilities include the coal dock, loading facilities, the coal storage area, the switchyard, and the existing wastewater treatment pond and spray irrigation field. The existing transmission line towers will be used by Unit No. 4, but approximately 3,000 feet of conductors will be installed to connect the new unit to the existing switchyard located just east of the existing station. Other associated facilities include storage and handling facilities for limestone necessary to operate the flue gas desulfurization system, storage and disposal areas for the by-product produced by that system and storage and disposal for ash. A spur from the Seaboard Coast Line Railroad to the site was constructed for previous projects and will be used in connection with construction of proposed Unit No. 4. An additional spur will be constructed entirely within the site boundaries and no offsite rail construction will be necessary. As a primary energy source, proposed Unit No. 4 will burn high sulfur bituminous coal. The unit will be equipped with an electrostatic precipitator for the purpose of controlling the emission of particulates, and will also be equipped with a flue gas desulfurization system for the purpose of controlling emissions of sulfur dioxide. These pollution control devices have been determined by the Department of Environmental Regulation to constitute the "best available control technology." In order to prevent significant deterioration of air quality from the operation of Unit No. 4, various alternative strategies have been studied by TECO and its consultants. These studies demonstrated that the most economical strategy which will comply with state and federal regulations calls for the use of a 99.74% efficient electrostatic precipitator for the removal of particulate emissions, boiler and burner design for oxides of nitrogen and carbon monoxide and a system for the removal of sulfur dioxide which includes a flue gas desulfurization system, coal washing and retention of certain of the sulfur dioxide in the ash during combustion. The entire sulfur dioxide control system will provide a removal efficiency of 90 percent. Tampa Electric Company and its consultants have modeled and analyzed the projected effects of air pollution from proposed Unit No. 4. The evidence developed from such studies shows that the operation of Unit No. 4 as proposed pursuant to the attached conditions of certification will comply with State and federal standards for ambient air quality and the prevention of significant deterioration of air quality. Big Bend Unit No. 4 will generate three basic byproduct materials. These are fly ash, bottom ash and flue gas desulfurization byproduct. The fly ash generated by Unit No. 4 will be collected in the electrostatic precipitator prior to the boiler gas being discharged to the atmosphere. This material will be marketed as a raw material for the production of cement. However, in the event no market is available, provisions have been made to store fly ash at the site of Unit No. 4. The unsold fly ash will be sluiced to a settling pond and then ultimately transported to the final storage area. Bottom ash is the material resulting from combustion of coal which is collected at the bottom of the boiler. Bottom ash will be sluiced to a bottom ash area which will consist of a pond for settling the material and a final disposal area. The flue gas desulfurization system byproduct, a commercial grade gypsum, will be stored as necessary on site. It is anticipated that this will be a marketable product. Fresh water necessary to operate the facility, other than for cooling purposes, will be obtained from Hillsborough County. This fresh water will be used to supply make-up water to the boiler and in the flue gas desulfurization system. In addition, fresh water will be used to sluice ash and to service the sanitary facilities for the plant, for fire protection and for other limited miscellaneous uses. All such water will be obtained off premises and no production wells will be owned or operated by Tampa Electric Company in connection with Unit No. 4. For some purposes, the applicant will use the lowest quality of water available from the County before drawing from the public potable water supply. Proposed Unit No. 4 will utilize a once through condenser cooling system and fine mesh screens on the intake structures will be installed for existing Unit No. 3 and the proposed Unit No. 4. Saltwater for the cooling system will be withdrawn from the existing intake canal and will be returned to the existing discharge canal. The plant cooling water flow will be pumped from the intake structure screen wells through the plant and discharged to the discharge canal where the flow from Unit No. 4 will combine with the existing flow from Units 1, 2 and 3. There is sufficient water available in Tampa Bay to supply the volume requirements of the Unit No. 4 once through cooling system. The fine mesh screens installed on the intake structures for existing Unit No. 3 and proposed Unit No. 4 will minimize the impact of entrainment and impingement on organisms in the area. A system will be provided to return organisms impinged on the fine mesh screen structures to a location suitable to the Department of Environmental Regulation and the United States Environmental Protection Agency. The cooling water passing through the plant will increase in temperature to an expected level of 17 degrees Fahrenheit above the temperature of the ambient intake cooling water prior to ultimate discharge. This 17 degree temperature rise is the design maximum for the unit at maximum load conditions. The heated water will be discharged to the existing station discharge canal and will then flow in a westerly direction into the Bay where it will mix with ambient water and continue to reduce in temperature. Tampa Electric Company performed a 316 Demonstration in accordance with Section 316 of the Clean Water Act of 1977, to assess the impacts of the thermal discharge from the plant on organisms in the Bay. In addition, the effects of the cooling water intake structure on impingement and entrainment of organisms in the intake water were assessed. These reports were submitted to the Department of Environmental Regulation and the Environmental Protection Agency for evaluation. The Department of Environmental Regulation has approved the use of a once through cooling system with fine mesh screens on the intake structures on Unit No. 3 and Unit No. 4. DER recommends establishment of a thermal mixing zone in accordance with Section 17-3.05, Florida Administrative Code, encompassing an area not to exceed 4980 acres. The conditions of certification proposed by DER require further validation of the size of the mixing zone after Unit No. 4 begins operations. The Environmental Protection Agency has tentatively determined that the use of fine mesh screen technology on existing Unit No. 3 and proposed Unit No. 4 constitutes the best technology available for minimizing adverse environmental impacts for the purposes of Section 316(b) of the Clean Water Act of 1977, and has also tentatively determined that the impact of the thermal discharge from proposed Unit No. 4 is within acceptable limits under Section 316(a) of the Clean Water Act of 1977. The unit will utilize chlorine in the circulating water system to control the growth of marine organisms in the condenser and intake tunnel. The control of this growth, or biofouling, is necessary to ensure that the flow of the cooling water and transfer of heat is not excessively impeded. The chlorine which is inserted into the circulating system is ultimately discharged to the discharge canal and then to the Bay. To ensure compliance with Florida Class III water quality standards applicable to discharges of chlorine, the Department of Environmental Regulation recommends in its conditions of certification that an effluent limitation of 0.2 milligrams per liter be imposed and a mixing zone encompassing 6.1 acres be established. Process waste streams associated with Unit No. 4 will include the boiler blowdown, the bottom ash system blowdown and the flue gas desulfurization system blowdown. These three waste streams will be discharged to the circulating water system and ultimately to the discharge canal currently in existence. Waste streams which are not discharged to surface waters include the various plant drains and waste waters from various plant washing operations that will take place. These waste streams will be collected and transported to the existing waste water pond and, from there, the waste water will be recycled to the extent possible. Final disposal of this waste water will be through the existing stray irrigation system. The existing waste water pond and spray irrigation field are designed to accommodate the additional use. Runoff from the coal pile facility will be contained on the site and transported to the existing waste water pond. A drainage system is provided for the plant for the runoff from the materials storage areas, the byproduct storage areas, and the construction activity associated with the main structure at Big Bend Unit No. 4. Materials and by-product storage area runoff will be intercepted and contained on site. Runoff from the Big Bend Unit No. 4 main construction area will be contained and pumped to the waste water pond. Other areas subject to construction will employ mitigative measures defined by the conditions of certification attached hereto. A potential concern exists that groundwater flow from the waste water treatment facilities and byproduct storage areas may result in leaching of pollutants into the groundwaters of the State. The groundwater at the existing site has been designated as Class I-B waters. The conditions of certification include a groundwater monitoring program designed to assess the ambient water quality and identify the potential impacts of leachate contamination with respect to the State groundwater quality standards. The impact to the existing water quality as a result of the discharge of the boiler blowdown, bottom ash blowdown and flue gas desulfurization system blowdown streams through the circulating water system to the discharge canal and ultimately to the Bay will be undetectable across the plant, from the point where the circulating water is taken into the plant, combined with the three streams and released at the point of discharge. There will be no measurable change in water quality as a result of these discharges. The flue gas desulfurization blowdown stream and the bottom ash blowdown stream will be subject to treatment to meet State and federal effluent limitations. The flue gas desulfurization system will be treated for pH adjustment, suspended solids removal and oil and grease removal prior to discharge. The bottom ash system will include an adequately sized pond to remove suspended solids so that the effluent limitations will be met. Boiler blowdown will not require treatment to meet applicable effluent limitations. In addition to the treatment methods proposed above, Tampa Electric Company evaluated other options relating to the treatment of these streams to meet water quality standards for these discharges. Alternatives investigated included a zero discharge option, further recycling of the waste streams and various treatment methods to remove heavy metals prior to discharge. The cost of these alternatives ranges from $1.2 million to $1.8 million. Even with the treatment systems in place, there will be no detectable change in water quality from the point of intake to the point of discharge, after addition of the discharges from the three identified waste streams. Tampa Electric Company concluded that based upon these factors, and primarily upon the fact that even with additional treatment there will be no detectable change in water quality from the point of intake to the point of discharge, the expenditures are not justified in this circumstance. Tampa Electric Company requested variances from certain regulations of the Department of Environmental Regulation relating to ground and surface water quality standards. The request for variances from water quality standards for groundwater discharges contained in Rules 17-3.071 and 17- 3.101(1),(3),(4),(8),(9) and (13), Florida Administrative Code, can be resolved by defining a zone of discharge and implementation of the groundwater monitoring program as outlined in the attached conditions of certification. This variance request was therefore withdrawn by Tampa Electric Company at the hearing. The variance request from surface water quality standards contained in Rules 17- 3.061(2)(a) (arsenic), 17-3.121(9) (cadmium), 17-3.061(2)(d) (chromium), 17- 3.121(11) (copper), 17-3.121(16) (iron), 17-3.121(18) (mercury), 17-3.121(19) (nickel), and 17-3.121(26) (selenium), Florida Administrative Code, for the discharges of boiler blowdown, bottom ash blowdown and flue gas desulfurization system blowdown are recommended by the Department of Environmental Regulation to be granted for a period of two years after the start of commercial operation during which time TECO shall institute a study program, including monitoring, in accordance with the attached conditions of certification. The request for variances from surface water quality standards contained in Rules 17-3.061(2)(h) and 17-3.121(7) (lead), 17-3.051 (minimum criteria) and 17-3.061(2) (general prohibition), Florida Administrative Code, were withdrawn by TECO at the hearing. Tampa Electric Company also requesting variances from the Hillsborough County Environmental Protection Commission rules relating to noise level standards and surface water quality standards. No representative of the Hillsborough County Environmental Protection Commission appeared at the hearing. A variance from the noise level standards contained in the Hillsborough County Environmental Protection Commissions's Rule 1-10.04A is requested for the steam blowing operation that is necessary prior to commercial operation of proposed Unit No. 4. This procedure is recommended by the equipment manufacturer to minimize damage to the steam turbine resulting from debris which may accumulate during construction of the unit. The noise levels produced from this steam venting operation vary from unit to unit and it is impossible to accurately predict what the noise levels will be. Violation of the provisions of the Commission's Rule 1-10.04A for short durations during the operation is possible. Tampa Electric Company will institute a notification procedure designed to inform residents in the area that the operation will occur over a short period of time. No adverse impact to residents and the environment in the affected area is anticipated and only minor inconvenience to the residents is expected to occur. The entire operation occurs only intermittently prior to initial start up of the unit and should encompass a period not to exceed thirty (30) days from the start of the steam blowing operation. The surface water quality rules from which TECO seeks a variance from the Hillsborough County Environmental Protection Commission relate to the standards for chromium, lead, iron and arsenic for the discharges of boiler blowdown, bottom ash blowdown and flue gas desulfurization system blowdown from Unit No. 4. This variance request is made for the life of the certification for Unit No. 4. The evidence demonstrates that the three waste streams identified above are discharged to the circulating water system and then to the discharge canal existing at the facility. The request for a variance from these pollutant parameters is based upon data compiled by the applicant and submitted to the Department of Environmental Regulation which shows that ambient water quality existing in Hillsborough Bay contains concentrations of the identified parameters (chromium, iron, and arsenic) in amounts which are already above applicable Hillsborough County Environmental Protection Commission surface water quality standards for Hillsborough Bay. The data concerning lead concentrations is inconclusive. The evidence demonstrates that with the exception of lead, the maximum values contained in the applicant's sampling data for chromium, iron, and arsenic are all above the applicable water quality standards. Access roads on the site which have been constructed for previous projects at the Big Bend Station are capable of assimilating additional traffic caused by the Unit No. 4 construction activities. There is very little opportunity for public access to the site during construction and operation. The vehicular traffic will be intercepted and controlled by a guard system at the entrance to the site on a 24-hour basis. In addition, all other fenced areas will be equipped with locked gates and patrolled by roving guards. Except for intermittent traffic congestion, plant construction is not expected to have an impact on the nearest residential communities of Apollo Beach and Adamsville. There are no historic, scenic, cultural, or natural areas or state parks and recreation areas which will be disturbed by the construction of Big Bend Unit No. 4. The construction of Unit No. 4 and its related facilities will involve the loss of approximately 272 acres of vegetation and habitat on the eastern shore of Hillsborough Bay, some of which has been previously disturbed by construction activities associated with existing Units 1, 2 and 3. Sound levels predicted as a result of construction activities are below the maximum permissible sound levels in accordance with the Hillsborough County noise code limit of 60 dBA during the daytime in a residential area. The majority of construction will take place during daylight hours and no significant noise impact is expected at the surrounding residences from onsite construction activities. Most bird and animal species located near the site are expected to have adjusted to the existing sound levels resulting from Units 1, 2 and 3 operation. Although birds and animals nearest the plant may experience periodic "startle reaction" and move away from the noise source, no measurable effects of construction noise levels on organisms occurring near or beyond the immediate site location are anticipated. The area wide effect of construction and operation on wildlife and vegetation is not expected to be significant. Appropriate steps have been proposed to minimize the environmental impact of construction and operation of Unit No. 4. The Florida Public Service Commission has determined that there is a need in the State of Florida for the electric power to be produced by proposed Big Bend Unit No. 4. The Tampa Bay Regional Planning Council has generally concluded that there are no over-riding objections to the proposal for Unit No. 4 so long as adequate steps are taken to mitigate problems associated with air and water pollution. The Hillsborough County City-County Planning Commission has commented on the project and offered no objections to it. The Division of Archives, History and Records Management concluded that the proposed coal fired power plant is unlikely to affect any archeological or historical sites. The National Marine Fisheries Service has made several recommendations regarding once through cooling concerns including the use of fine mesh screens, but does not object to the overall project. The United States Fish and Wildlife Service expressed concerns similar to those of the National Marine Fisheries Service and also does not object to the overall project. The Department of Veteran and Community Affairs has concluded that the application is generally compatible with the State Comprehensive Plan. The Department of Environmental Regulation has made no recommendation concerning the grant of denial of the variance requests from Hillsborough County Environmental Protection Commission Rules. The Department of Environmental Regulation, the Department of Veteran and Community Affairs and the Southwest Florida Water Management District have all recommended certification of the proposed Big Bend Unit No. 4 subject to the stipulated conditions of certification which are attached to this Recommended Order. At the conclusion of the site certification hearing, members of the general public were given the opportunity to comment upon the application for site certification. No public testimony was offered.
Recommendation Based upon the entire record of this proceeding and the above findings of fact and conclusions of law, IT IS RECOMMENDED THAT: Tampa Electric Company be granted certification pursuant to Chapter 403, Part II, Florida Statutes, for the location, construction and operation of Big Bend Unit No. 4, the associated facilities and the directly associated transmission line, as proposed in the amended application and evidence in the record; The certification be subject to the conditions of certification attached to this Recommended Order as Appendix I; The variance request from the Department of Environmental Regulation's surface water quality standards be granted in accordance with the conditions of certification which are attached hereto; The variance request from Hillsborough County Environmental Protection Commission Rule 1-10.04A governing noise requirements be granted for a period not to exceed thirty (30) days from the commencement of steam blowing operations, conditioned upon Tampa Electric Company's agreement to notify the affected members of the public prior to the steam blowing operation; The variance request from Hillsborough County Environmental Protection Commission surface water quality standards contained in Rules 1-5.04,2. (general), 1-5.04,2.n (chromium), 1-5.04,2.q (iron), and 1-5.04,2r (arsenic) be granted for the life of the certification for Big Bend Unit No. 4; and The variance request from Hillsborough County Environmental Protection Commission surface water quality standards pertaining to lead, Rule 1-5.04,2.p., be denied. Respectfully submitted and entered this 21st day of July, 1981, in Tallahassee, Florida. DIANE D. TREMOR 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 21st day of July, 1981. COPIES FURNISHED: Lawrence N. Curtin and Robert P. Murray Holland and Knight Post Office Drawer NW Lakeland, Florida 33802 Louis F. Hubener Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Thomas E. Cone, Jr. Blain and Cone, P.A. 202 Madison Street Post Office Box 399 Tampa, Florida 33601 C., Laurence Keesey Department of Veteran and Community Affairs Room 204, Carlton Building Tallahassee, Florida 32301 Arthur C. Canaday General Counsel Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Prentice C. Pruitt Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Hamilton S. Oven, Jr. Administrator, Power Plant Siting Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE GOVERNOR AND CABINET OF THE STATE OF FLORIDA In the Matter Of: TAMPA ELECTRIC COMPANY POWER PLANT SITING APPLICATION, BIG BEND STATION CASE NO. 80-1723EPP UNIT NUMBER 4 P.A. 79-12. /
