Findings Of Fact Respondent is an individual who owns or operates a water system that provides piped water for human consumption to the Hardy House Diner in Washington county, Florida. The water system serves at least 35 persons daily at least 60 days out of the year. Respondent has owned or operated the water system since at least October 28, 1976. Respondent does not continually apply effective disinfectant measure to the water distributed to the customer of the Hardy House Diner, nor is Respondent's water system equipped with any disinfection equipment. Respondent's water system has a daily flow greater than 2,500 gallons per day, but less than 100,000 gallons per day. The operation, maintenance and supervision of the water system is not performed by a person who has passed an examination that entitles such a person to be a certified operator. Neither the Department nor the Washington County, Florida Health Department has received from Respondent reports which contained information about the operation and maintenance of the Respondent's water system. The water system's lack of disinfectant equipment and the absence of a certified operator for the system and Respondent's failure to file operation reports have existed continuously since "October, 1976. Representatives of the Department conducted a public water systems inspection of Respondent's water system on October 26, 1976. At that time, the system was found to be unsatisfactory in several categories, including general plant condition, existence of safety hazards, lack of chlorination, failure to submit regular reports, failure to submit monthly bacteriological samples, failure to perform chemical analysis of drinking water and failure to install a raw water tap between the pump and point of chlorination. A second inspection was performed on April 7, 1977, in which it was determined that Respondent still had not installed a chlorinations system, had failed to submit monthly operating reports had failed to employ a certified operator, had failed to submit monthly bacteriological samples, and had failed to perform annual chemical analysis of water disposed from the system. On December 7, 1977, a representative of the Department whose job responsibilities included inspecting public water systems was refused permission to enter and inspect the water system serving the Hardy house diner and its customer. The Department representative was refused entry after he had identified himself and made his purpose known to Respondent. The Department has incurred expenses of $117.58, including personnel time and travel expense, in the course of investigating Respondent's alleged violations.
Recommendation RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation, finding the Respondent to be in violation of the above-referenced statutes and regulations, and requiring Respondent to pay the state its reasonable costs and expenses, in the amount of $117.58 incurred in investigating and prosecuting this administrative proceeding. RECOMMENDED this 26th day of February, 1979, at Tallahassee, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 2230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1979. COPIES FURNISHED: Vance W. Kidder, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Eugene Hardy 1005 Highway 90 West Chipley, Florida 32428 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, vs. CASE NO. 78-1209 DER Case No. WC-10-78 EUGENE HARDY, Respondent. /
Findings Of Fact The Petitioner, Phillip G. Panos, recently moved from Michigan to Florida and is now a Florida resident. On December 9, 1989, prior to moving to Florida, he applied to the Respondent, Department of Environmental Regulation for certification as a Class C domestic waste water treatment plant operator. The Respondent is an agency of the State of Florida charged, among other duties, with regulating the certification, the practice standards and the educational standards of Class C domestic waste water treatment plant operators. The Respondent agency reviewed the Petitioner's application and denied it for failure to demonstrate the requisite three years of experience required by the rule cited below. From April, 1974 to June, 1990 the Petitioner was employed at the Chapaton Pumping Station in St. Clair Shores, Macomb, Michigan. The Chapaton Pumping Station duties involved the Petitioner monitoring the distribution of sewage flows, collecting sludge samples, chlorinating the effluent and pumping it into Lake St. Clair. When the Petitioner left the Chapaton Pumping Station, in June of 1990, he held the position of Senior Station Operator II. The Chapaton Pumping Station receives a combination of storm water flow and sanitary sewage flows. It is a pumping and storm water retention facility for combined sewage. The facility provides primary treatment and disinfection for this combined sewage effluent. The effluent is chlorinated and then pumped to nearby Lake St. Clair while the solids that have settled out of the effluent are retained, collected and sent to the Detroit waste water treatment facility for advanced waste treatment. Chapaton is classified by the state of Michigan's Department of Natural Resources as an "industrial/commercial facility". The industrial classification was originated by the U.S. Environmental Protection Agency (EPA) and has been adopted as a designation or classification by both Michigan and Florida. The Petitioner holds an industrial/commercial waste water treatment certification from the state of Michigan in the category of "plain clarification and disinfection." The Petitioner's experience in Michigan is in the area of industrial waste water treatment and does not constitute actual experience in on-site operational control of a domestic waste water treatment plant (that is a sewage treatment plant). The Petitioner's experience in Michigan does not qualify as industrial waste water treatment plant experience, that could be used to meet the actual experience requirement, because the Chapaton plant performs only primary treatment and disinfection. Secondary or advanced waste treatment is performed at the Detroit waste water treatment plant, with which the Petitioner has no experience. In a typical domestic waste water treatment plant in Florida, "primary treatment" involves primary clarification or settling. Primary clarification occurs in a circular or rectangular tank where soluble solids settle out to the bottom of the tank and floating solids are removed by a skimming device. The soluble solids are called sludge. Primary clarification can remove 40% of BOD and suspended solids. It is not a form of advanced treatment or even secondary treatment. At the Chapaton plant, during primary treatment, a minimum of 70% BOD and suspended solids are removed. The sludge is not treated at the Chapaton plant but is pumped to the Detroit waste water treatment plant. Thus Chapaton could not be classified as a domestic waste water treatment plant by Florida standards, since it only provides primary clarification and no secondary or advanced waste water treatment. Secondary treatment consists of two types. Activated sludge or trickling filter treatment. Both types deal with oxygen being introduced to the sludge to achieve stabilization and more settling out of the sludge elements. Since June 18, 1990 the Petitioner has been employed as a waste water treatment plant operator I in a training program at the George L. Lohmeyer Waste water Treatment Plant in Ft. Lauderdale, Florida. In that training program the Petitioner is being trained in all phases of operation of the Lohmeyer plant. It is a 34-million-gallon-per-day (MGD) activated sludge treatment plant. In his duties, the Petitioner monitors the plant treatment processes, takes samples and submits them to the city's laboratory. The Petitioner is capable of testing the samples himself for dissolved oxygen, chlorine and ph. Reports are signed by the regional chief or the regional facilities manager. The Petitioner's present position qualifies as actual, appropriate experience in the operational control of a waste water treatment plant. The Petitioner has accumulated approximately 3-1/2 months of the 12 months of actual experience required for certification as a Class C waste water treatment plant operator, through the exercise of his duties at the Lohmeyer plant. The Petitioner must accumulate 12 months or 2,080 hours of actual experience before he can qualify for the Class C certification. The Petitioner is a high school graduate and has successfully completed Volumes I and II of the California State University correspondence course in waste water treatment, which is included on the Respondent agency's list of approved courses. Petitioner's 3-1/2 months of actual appropriate experience in Ft. Lauderdale, plus his educational background, including the courses taken in California, yield a total of 36 months or 3 years of constructive experience. Petitioner does not yet have the 12 months of actual experience required by the rules but rather, is approximately 8-1/2 months short of the actual experience requirement. Thus, the Petitioner fails to meet the experience requirement necessary for certification as a Class C domestic waste water treatment plant operator at this time, although in approximately 8-1/2 months, he should be able to meet that requirement.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is therefore RECOMMENDED: That a Final Order be entered by the Department of Environmental Regulation denying Petitioner's application for certification as a Class C domestic waste water treatment plant operator without prejudice to reapplication at such time as his one year of actual experience at such a treatment facility is completed. DONE and ENTERED this 11 of December, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11 day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-479 (The Petitioner filed no proposed findings of fact.) RESPONDENT'S PROPOSED FINDINGS OF FACT 1. - 21. are accepted. COPIES FURNISHED TO: Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Phillip G. Panos 2315 N.W. 115 Drive Coral Springs, FL 33065 Francine M. Ffolkes, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The ultimate issue is whether Celebrity Resorts, Inc., (Celebrity) is entitled to a permit to construct a wastewater treatment and reuse/disposal facility in Marion County, Florida.
Findings Of Fact Proposed Project Celebrity is seeking a DER permit to construct a 0.065 million gallon per day wastewater treatment and reuse/disposal facility to serve a proposed recreation vehicle (RV) park. The facility is to be located in northern Marion County on the southern border of Orange Lake, an Outstanding Florida Water. The RV park is to be located on 75 acres of land, and is to contain 372 RV and "park model" sites, four bath houses, a clubhouse, and an expanded boathouse. The sewage treatment plant (STP) and effluent disposal system, consisting of a spray irrigation system, are to be located on the southern end of the site, away from Orange Lake. There is a "break" in the watersheds of the Celebrity property caused by a ridge across the approximate center of the project site. The effect of this "break" is that approximately one-half of the property drains toward the lake while the approximate southerly half of the property drains into an independent depression creating a watershed separate from the lake. Some underground pipes for a sewage collection system were installed at the site without an appropriate DER permit. Celebrity stopped the installation upon notice from DER that a permit was required for such installation. The permit needed for the installation of the collection system pipes was not the permit for the sewage treatment project which is being considered in this proceeding. Celebrity was penalized for its collection system violation, which was resolved with a consent order. Sewage Treatment Plant (STP) The STP is an extended aeration plant. It is designed to meet secondary treatment standards (90% removal of BOD and suspended solids from raw sewage) and basic disinfection. This type of treatment plant is very reliable. All mechanical components have a 100% backup so if a pump or blower fails, another is available to operate. The STP is designed to be capable of treating the flow from this RV park. Additionally, the facility has a holding pond for treated sewage effluent that can store five days of flow. Furthermore, because the RV park is a transient facility, it is possible in an emergency to shut down the entire plant and have people leave. By its nature, this is much more convenient in an RV park that in a residential or commercial neighborhood. The holding pond is to be lined with a 60 millimeter high density polyethylene liner, so there should be no leakage to the ground or groundwater even if there is an accident in the STP causing release of untreated sewage into the holding pond. The STP is to be maintained five days a week and must be attended for three nonconsecutive visits a week by a Class D certified plant operator. The amount of dissolved/undissolved heavy metals in the effluent is typically not a problem in domestic sewage effluent such as from the proposed RV park. To the extent that trace amounts of metals will exist, the STP will remove some heavy metals from the effluent during the treatment process and entrain them in the sludge (which will be taken to appropriately licensed landfill). There is no possibility of effluent leaking or discharging from the plant to directly discharge to Orange Lake, even if the STP completely malfunctions. Although the proposed STP is not a highly sophisticated plant, reasonable assurances have been provided that the STP will comply with DER's requirements for secondary treatment and basic disinfection and proper operation. Effluent Disposal System (Spray Irrigation System) Phase I of the effluent disposal system (spray irrigation system) is 3.66 acres in size, with an additional 1.7 acres designated if Phase II is implemented. Approval under this permit authorizes only the 3.66 acres on Phase I. Numerous separate sprinkler heads will spray the treated effluent on the field. The heads can be separately controlled and shut down. The sprayfield is sited on the southwestern corner of the 75-acre site and is separated hydrologically from the Orange Lake drainage basin by the "break" referred to in Paragraph 4 above. Therefore, surface water drainage in the area of the sprayfield drains away from the lake and does not connect back to the lake. The permitted loading rate is 1.7 inches per week, or approximately 24,000 gallons per day at full capacity. This amount corresponds to only approximately 170% of natural rainfall, but is more evenly distributed and controlled. After uptake of nutrients by green plants and evaporation (evapo- transpiration), the average amount of treated effluent that will percolate below the "uptake zone" to the surficial aquifer (to the extent that such exists on the site) is 0.3 to 0.4 inches per week. The surficial water table in the area of the sprayfield generally flows to the north toward the lake, although the flow is not immediately direct toward the lake. The Floridan Aquifer (which is beneath the intermittent surficial water table) in the area of the sprayfield generally flows away from the lake to the south and southeast. There are four sinkholes on the 75-acre site, although none of these four sinkholes have been identified on the 3.66-acre sprayfield. The four sinkholes on the 75-acre site and the majority of sinkholes in the area are "subsidence sinkholes." These sinkholes do not result in an open void down to the limerock after the collapse forming the sinkhole, but instead continue to have unconsolidated material above the limerock, even though a depression forms on the surface. One of the sinkholes has standing water within it and could possibly represent a connection with the lake water table or the Floridan Aquifer, but that sinkhole is separated hydrologically from the sprayfield site by the "break" across the property. There will generally be a slight increase in hydrologic conductivity through a subsidence sinkhole, since the unconsolidated material on the surface remains and is loosened. In some cases there may be even less hydrologic transmissivity due to a "jamming up" of the unconsolidated material, and in some cases there may be an increase in transmissivity when the unconsolidated material falls into an even less consolidated state. A "lineament" may exist on the 75-acre site. A lineament is a fracture zone, which indicates an increase in ground water transmissivity, resulting in an increase in solution of limestone and therefore indicating a more likely location for sinkhole formation. If a sinkhole develops within the sprayfield and if the sinkhole results in an increased area of ground water transmissivity, it could be a conduit for treated effluent to reach the surficial aquifer or Floridan Aquifer. Sinkholes which may form on the site are subject to being repaired with impervious material which prevents their becoming routes of contamination to the aquifer. In addition, the loading rate of any single sinkhole that forms within the spray irrigation field is so light and so easily shut down that there is a high confidence rate that no new sinkhole will act as a conduit for even the small immediate discharge over the area of the new sink to reach the Floridan Aquifer. A spray irrigation effluent disposal system is appropriate for this area which is subject to sinkhole formation. Spray irrigation allows dispersal of the effluent over a large area as opposed to a percolation pond which concentrates in the percolation area and therefore increases the chance of sinkhole formation and the chance of larger amounts of effluent reaching the Floridan Aquifer if all the intervening safeguards should fail simultaneously. In addition, the repair of any sinkhole forming within the sprayfield is simplified by the ability to simply shut off the sprinkler head or heads affecting that sinkhole while repair is being effected. Permit conditions further limit excessive effluent application rates by limiting the amount of flow, prohibiting application during storm events, and requiring monitoring of the flow. Spray irrigation is a common method of effluent disposal which generally has fewer problems than use of percolation ponds. No evidence has been presented that discharge from the sprayfield will cause violations of groundwater quality standards or violations of surface water quality standards, including the Outstanding Florida Water requirements in Orange Lake. Reasonable assurance has been provided that the proposed effluent disposal system will not violate DER water quality standards or other applicable DER rules. Standing Petitioner Suto could be substantially affected by this proposed facility if it causes pollution to Orange Lake since she uses the lake for nature photography. Additionally, she resides to the southeast of the proposed sprayfield and has concerns over contaminated ground water reaching her property and affecting her drinking water. Petitioner Riley could be substantially affected by this proposed facility if there is pollution to the Floridan Aquifer since she lives southeast of the proposed facility and has two drinking water wells on this property. Additionally, Petitioner Riley is a user of Orange Lake and therefore could be substantially affected by the proposed facility if it impacts the lake. Petitioner Solomon could be substantially affected by the proposed project if the project impacts Orange Lake since Mr. Solomon earns his living on the lake as a commercial fisherman and bass fishing guide.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order granting to Celebrity Resorts, Inc., a permit to construct a wastewater treatment facility and spray irrigation disposal system subject to the conditions set forth in the Intent to Issue. RECOMMENDED this 15th day of July, 1991, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2722 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Celebrity Resorts, Inc. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(1); 5(2); 6(4); 7(5&6); 8- 12(7-11); 13(12); 14(13); 15(14); 16(15&16); 17(17); 18(18); 19-21(20-22); and 22-27(26-31). Proposed findings of fact 1-3 are unnecessary. Proposed finding of fact 28 is subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4-6(1-3); 7-13(5-11); 14(12); 15-17(13-15); 18(17); 19(18); 20-26(19-25); 27-32(26-31); and 33-35(32- 34). Proposed findings of fact 1-3 are unnecessary. COPIES FURNISHED: Delcie J. Suto, Pro Se 2400 N.W. 165th Street Citra, FL 32113 Carol B. Riley, Pro Se 2250 N.W. 165th Street Citra, FL 32113 Crawford Solomon, Pro Se 1303 N.W. 186th Place Citra, FL 32113 Karen English 3680 West Highway 318 Citra, FL 32113 Marilyn Nehring P. O. Box 481 Orange Lake, FL 32112 John Monsees 2400 NW 165 Street Citra, FL 32113 William L. Townsend, Jr. Attorney at Law Post Office Box 250 Palatka, FL 32178-0250 Douglas H. MacLaughlin Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues are whether Georgia-Pacific Corporation is entitled to the issuance of an industrial wastewater facility permit under the National Pollutant Discharge Elimination System program that would authorize it to discharge industrial wastewater to the St. Johns River in Putnam County, Florida, and whether Georgia-Pacific Corporation has met the statutory criteria for a related administrative order for the interim discharge to Rice Creek in Putnam County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Respondent, Department of Environmental Protection (Department), is the state agency authorized under Chapter 403, Florida Statutes, to regulate discharges of wastes to waters of the State. Under approval from the United States Environmental Protection Agency (EPA), the Department administers the National Pollutant Discharge Elimination System (NPDES) permitting program in the State. The Department also enforces specific water quality standards that have to be achieved in order to ensure protection of the designated uses of surface waters in the State. Respondent, Georgia-Pacific Corporation (Georgia- Pacific), owns and operates a bleached and unbleached kraft pulp and paper mill in Putnam County, Florida. The plant presently discharges treated wastewater to Rice Creek, a Class III water of the State, and a tributary of the St. Johns River. Petitioner, Putnam County Environmental Council, Inc. (PCEC), alleged in the Petition for Formal Administrative Hearing (Petition) that it is a non-profit Florida corporation headquartered in Palatka, Florida. However, other than a statement by one witness that PCEC was incorporated on an undisclosed date prior to the hearing, PCEC failed to present any evidence to establish its corporate status or residency in the State of Florida. According to the same witness, the organization was created in an unincorporated status in 1991, and it currently has 65 members who use and enjoy the St. Johns River for recreational purposes. Petitioner, Stewards of the St. Johns River, Inc. (SSJR), also alleged in the Petition that it is a non-profit Florida corporation with headquarters in Jacksonville, Florida. Like PCEC, SSJR failed to prove its corporate status or residency in the State of Florida. Although the number of members in SSJR is unknown, "many" of its members are boaters and "most" live along the St. Johns River. Petitioner, Linda Young, is Southeast Regional Coordinator for the Clean Water Network and a citizen of the State of Florida. As such, she has standing to "intervene" in this action under Section 403.412(5), Florida Statutes. In this complex case, the parties have presented extensive and conflicting evidence regarding the factual issues raised by the pleadings. In resolving the numerous conflicts in that testimony, the undersigned has accepted the more credible and persuasive evidence, as set forth in the findings below. The Applicant's Mill Operation Georgia-Pacific's Palatka mill was built in the 1940's before the establishment of Department water quality standards and classifications. Because of the nature of the pulping process, the mill has not been able to fully meet water quality standards in Rice Creek because of poor dilution. Georgia-Pacific receives wood chips from a sister facility and purchases residual chips from local wood products facilities. Those chips are separated into pine and hardwood, conveyed into the pulp processing facility, and loaded into digesters, that is, industrial-sized pressure cookers, which cook the chips for several hours. Pulp from the digesters goes to the brown kraft, bleached kraft, and tissue manufacturing facilities. Water in the manufacturing process is used, re-used, and recirculated until it cannot be used again, at which point it is conveyed into a primary wastewater clarifier, which is used to settle out fiber and other settleable solids. Additional wastewater sources are collected in sumps located in the facility, which are discharged into the primary clarifier. The underflow from the primary clarifier flows into a solids settling area (sludge pond) while the water from the primary clarifier passes into a secondary treatment system. The secondary treatment system uses aerobic and facultative biological treatment. Stormwater at the facility also flows into the treatment system. The secondary treatment system consists of four ponds in series: Pond 1, 485 acres, aerated with over 1600 horsepower of aeration; Pond 2, 175 acres, with 140 horsepower of aeration; Pond 3, 130 acres, with 120 horsepower of aeration; and Pond 4, 100 acres. Pond 4 is a quiescent basin, used to settle solids in the wastewater before discharge. The treatment system has a very long hydraulic detention time; once water enters the system, it remains there for 50 to 60 days. After treatment, a side stream of roughly 8,000,000 gallons per day of treated effluent is withdrawn, oxygenated with liquid oxygen, and discharged at two locations in Rice Creek: 3.4 miles upstream from the St. Johns River (Outfall D-001); and 2.4 miles upstream from the St. Johns River (Outfall D-002). Under low flow conditions, effluent from the Georgia-Pacific mill dominates the flow in Rice Creek. The Application Process Rice Creek is a small tributary of the St. Johns River, particularly in its upper reaches where Georgia- Pacific's effluent discharge occurs. Over the years, there have been exceedances of certain Class III water quality standards including specific conductance, color, and periodically whole effluent toxicity. Because of this, and during the permit review process, the Department began considering alternatives for mitigating or eliminating those existing concerns with the facility's discharge. In October 1992, Georgia-Pacific applied to the Department for the renewal of its existing wastewater discharge permit. In June 1994, Georgia-Pacific submitted an application to the Department for the construction and operation of an industrial wastewater treatment and disposal system. This application included a request to relocate Georgia-Pacific’s existing discharge to the St. Johns River. Because Georgia-Pacific submitted timely permit applications, it is authorized to continue operations based on an "administratively extended permit." In June 1994, Georgia-Pacific also applied to the EPA for a permit under the NPDES program. In October 1994, the EPA acknowledged receipt of a timely application for the renewal of Georgia-Pacific's existing NPDES permit, advising Georgia-Pacific by letter that its permit was automatically extended and that continued operation was authorized in accordance with the existing permit and 5 U.S.C. Section 558(c). On May 24, 1995, the Department advised Georgia- Pacific that the EPA had granted the Department the authority to administer the NPDES program and that its state permit and existing NPDES permit were deemed combined into one order. In response to a Department request, in November 1995, Georgia-Pacific submitted to the Department an antidegradation review for the relocation of its discharge. After Georgia-Pacific applied to the Department for a renewal of its NPDES permit, the Department directed Georgia-Pacific to provide alternatives that would ensure compliance with water quality standards. Georgia-Pacific submitted a proposal to construct a pipeline that would enable it to discharge its effluent to the middle of the St. Johns River. Under that proposal, Georgia-Pacific would achieve compliance with water quality standards as a result of greater dilution in the St. Johns River. Based on a review of Georgia-Pacific's submittal, the Department determined that Georgia-Pacific could in fact achieve water quality standards by constructing a pipeline to the St. Johns River. Likewise, the EPA concluded that Georgia-Pacific could receive a permit to discharge to the St. Johns River through a pipeline, without additional process improvements. Although the Department concluded that compliance could be achieved solely by the construction of a pipeline, it began discussions with Georgia-Pacific and EPA in order to examine other approaches that might lead to compliance in Rice Creek. These discussions culminated in a decision that Georgia-Pacific would invest substantial funds in the installation of additional technology and also be assured of some ultimate means to achieve compliance with water quality standards. On May 1, 2001, the Department issued a Notice of Intent to Issue an industrial wastewater permit, together with an Order Establishing Compliance Schedules Under 403.088(2)(f), Florida Statutes (the Administrative Order). In late January 2002, Georgia-Pacific submitted a request to the Department asking for consideration of two changes to the proposed permit: first, a request to relocate a groundwater monitoring well; and second, a request to review the Department's proposed mixing zone in the St. Johns River for the transparency standard. The Department also proposes a minor change in permit conditions to allow approval of the bleach plant monitoring plan to take place within sixty days after the issuance of the final permit. Both of Georgia- Pacific's requests were reviewed by the Department, and it has recommended that they be included in the proposed permit. Technology-Based Effluent Limits and Water Quality- Based Effluent Limits When considering a permit application such as the one here, the Department reviews the application to determine compliance with technology-based effluent limits (TBELs) and water quality-based effluent limits (WQBELs). TBELs are minimum industry standards that all facilities must meet regardless of their discharge location. They are predominantly production-based, and they limit the mass of pollutants that may be discharged based on the mass of product produced. Those limits generally reflect EPA's assessment of the industry standard regarding what can be met in a given discharge. In the preparation of a permit, the Department practice is to first determine the TBELs that would apply. In contrast, a WQBEL reflects how low the discharge must be (or how effective treatment must be) for a given parameter to meet water quality standards. Relief mechanisms such as mixing zones are inherent in WQBELs. A WQBEL is necessary only for those parameters for which there is a reasonable potential for the facility either to exceed the water quality standard or come close to exceeding the standard. As a matter of agency practice, the Department does not impose a limit unless there is a reasonable potential to exceed a standard. In order to determine whether there is such a reasonable potential for exceeding a standard, the Department will review past operations and other information it may have regarding the characteristics of the discharge. For a discharge such as the one proposed in the present case, a "Level II" WQBEL is required. The Department's Point Source Section, with expertise in the field of water quality modeling, analyzes the Level II WQBEL. Georgia-Pacific must meet certain technology-based standards, such as those set forth in the Cluster Rule. The Cluster Rule has been promulgated by the EPA and adopted by the Department and requires the installation of technologies to eliminate the use of elemental chlorine in the bleaching process. The Palatka facility far exceeds (performs better than) technology-based effluent limits. In March 1998, the Department created a document titled "Level II Water Quality Based Effluent Limitations for the Georgia Pacific Corp. Palatka Mill" (the WQBEL Technical Report]. The WQBEL Technical Report has a typed notation on the title page reading "March 1998 -- Final." The WQBEL Technical Report contained the following effluent discharge limitations: The following are the effluent limitations for the Georgia-Pacific Palatka mill discharge to the St. Johns River based upon results from the Level II WQBEL. Review comments from EPA Region 4 are included in the correspondence section. Parameter Limitation Discharge 60 MGD Daily Maximum BOD5 Summer (June 1 - November 30) 3,500 lbs/day maximum thirty day average Winter (December 1 – May 31) 7,170 lbs/day maximum thirty day average TSS Summer (June 1 - November 30) 5,000 lbs/day maximum thirty day average Winter (December 1 – May 31) 10,000 lbs/day maximum thirty day average Dissolved Oxygen 2.7 mg/l minimum Specific conductance 3,220 umhos/cm daily maximum Un-Ionized Ammonia Nitrogen Summer (June 1 - November 30) .11 ug/l daily maximum Winter (December 1 – May 31) .13 ug/l daily maximum Iron (Total Recoverable) 2.91 mg/l daily maximum Cadmium (Total Recoverable) 3.46 ug/l daily maximum Lead (Total Recoverable) 5.87 ug/l daily maximum Zinc (Total Recoverable) 480 ug/l daily maximum When the WQBEL Technical Report was approved in 1998, the Department's Northeast District Office did not prepare a separate formal notice of approval. The WQBEL Technical Report was transmitted by memorandum from the Water Quality Assessment Section to the Department's Director of District Management for the Northeast District on April 13, 1998, where it remained on file. The WQBEL Technical Report complied with the plan of study previously approved by the Department, and it met the requirements of Rule 62-650.500, Florida Administrative Code. Both the Department and EPA staff concurred with the approval of the WQBEL Technical Report. They agreed that the construction of a pipeline and the relocation of the discharge to the St. Johns River would yield a net environmental benefit without additional process improvements. Upgrades Implemented and Required in the Proposed Agency Actions As described more fully below, Georgia-Pacific has modified its production and treatment processes in such a manner as to improve its overall environmental performance. In installing some of those modifications, Georgia-Pacific undertook what was required by federal and state law. For others, Georgia-Pacific has exceeded what it was required to do under state or federal law. To comply with the Cluster Rule, Georgia-Pacific eliminated two bleach plants and installed a new bleach plant, one which uses chlorine dioxide as opposed to elemental chlorine. The implementation of this technology is primarily aimed at eliminating the mechanism for the formation of dioxin in the bleaching plant. Compliance with the Cluster Rule generally requires, among other things, conversion to an elemental chlorine-free bleaching system. Georgia-Pacific is in compliance with the Cluster Rule. Under the Cluster Rule, Georgia-Pacific is required to sample for dioxin at its bleach plant, with a limit of under 10 picograms per liter. Georgia-Pacific has experienced reductions in the color of its effluent as the result of the chlorine dioxide conversion as well as reductions in specific conductance. The reductions in specific conductance are particularly significant because Georgia-Pacific has decreased its effluent flow, which would ordinarily increase specific conductance in the absence of additional improvements. After conversion to chlorine dioxide, Georgia- Pacific began monitoring for parameters defined by the Cluster Rule. In that monitoring, Georgia-Pacific has tested "non- detect" for dioxin and chlorinated phenolics. Specifically, Georgia-Pacific has monitored dioxin in its effluent, as well as within its process –- before dilution with other wastewater –- and the monitoring results at both locations are likewise "non-detect" for dioxin. Furthermore, levels of chloroform and adsorbable organic halides (AOX) have been well within the limits imposed by the proposed permit and the Cluster Rule. Georgia-Pacific has voluntarily agreed to install by April 15, 2006, an oxygen delignification system, or a like system that produces similar or better environmental benefits. Oxygen delignification is a precursor to bleaching, which removes lignins from the fiber before the product is bleached. This process is significant because lignin consumes chemicals, impedes bleaching, and prohibits achieving brightness targets in the bleach plant. The cost associated with the oxygen delignification system is $22,700,000. This commitment is reflected in the proposed Administrative Order and Permit. Oxygen delignification has been identified as having significant benefits in terms of reducing the color and specific conductance of effluent. Georgia-Pacific voluntarily agreed to install by August 15, 2003, a new brownstock washing system to replace four existing brownstock washing lines. A brownstock washer is a piece of equipment that washes organics away from fiber, after pulping and before oxygen delignification. The cost of this equipment is approximately $30,000,000. This commitment is reflected in the Administrative Order and Permit. The new brownstock washers are not required by Department rules, but they will be helpful in reducing the specific conductance of effluent. Georgia-Pacific has also voluntarily agreed to install a green liquor dregs filter. This system would remove dregs from the effluent system and reduce specific conductance and color in the effluent. The cost of the green liquor dregs filter is $1,100,000. This commitment is reflected in the Administrative Order and Permit. Under the proposed agency action, Georgia-Pacific is likewise required to install additional equipment for the implementation of its best management practices program to minimize leaks and spills in the process sewer. This equipment, including controls on the brownstock washer system, and the installation of a spill control system, pumps, and piping, has been installed at a cost of $7,100,000. Georgia-Pacific has also optimized the performance of its treatment system through the relocation of its aerators in the treatment ponds and modifying its nutrient feed system. This has led to reduced levels of biological oxygen demand (BOD) in the discharge, as well as improved treatment for total suspended solids. In addition, Georgia-Pacific has voluntarily installed a reverse osmosis system to recycle certain internal streams, which in turn has led to reductions in specific conductance, at a cost of $3,300,000. To comply with the proposed agency actions, Georgia- Pacific expects to expend a total of approximately $170,000,000 for upgrades for the purpose of producing environmental benefits. Additional money is earmarked for other environmental performance issues, such as water conservation. Except for technology-based limits adopted by rule, the Department does not dictate how a facility achieves compliance with water quality standards. Georgia-Pacific demonstrated that its environmental performance is substantially better than required by technology-based limits. Based on the foregoing, it is reasonable to find that Georgia-Pacific’s commitments to process improvements will lead to a general improvement in water quality in the receiving waters. Relocation of the Discharge As noted above, because of the minimal dilution available in Rice Creek, Georgia-Pacific has never been fully able to achieve water quality standards in Rice Creek, a Class III water body. Rice Creek continues to exceed water quality criteria for specific conductance and color; historically, the discharge had experienced exceedences for the chronic toxicity criterion. Under present conditions, with Georgia-Pacific discharging to Rice Creek and Rice Creek flowing to the St. Johns River, elevated levels of color are experienced along the shoreline of the St. Johns River in the area of existing grass beds. Modeling shows that under current flow conditions from Rice Creek, those color effects are observed on the northwest bank near the confluence of Rice Creek with the St. Johns River. If the discharge is relocated to the St. Johns River and discharged near the river bottom through a diffuser, it will beneficially change the distribution of color impacts both to Rice Creek and the St. Johns River. Color in Rice Creek will improve, returning to its background color of 100 to 150 platinum cobalt units (pcu). Specific conductance within Rice Creek will also be markedly reduced. Because the input will occur in the middle of the St. Johns River, with higher flows and greater turbulence, there will no longer be relatively highly colored water flowing along the shoreline. Therefore, the relocation will provide a significant benefit of moving highly colored water away from grass beds and will mitigate against any existing effects on those grass beds. It is beneficial to relocate discharges to the middle of a stream, as opposed to the edge of a shoreline, where effluent tends to hug the shoreline. Therefore, regardless of the process improvements, there will be a net environmental improvement by relocating the discharge to the middle of the St. Johns River The discharge from the proposed diffuser will be comparatively benign, in comparison to the present flow from Rice Creek into the St. Johns River. This is because the effluent would not reach or hug the shoreline in such a scenario but rather would be diluted in rising to the surface, as well as by its lateral movement in the direction toward the river bank. The relocation of the discharge to the middle of the St. Johns River will cause improvements through localized changes in concentrations near the diffuser and the confluence of Rice Creek and the St. Johns River. Based on the foregoing, it is found that Georgia- Pacific’s proposed discharge into the St. Johns River will not result in water quality degradation, but will instead lead to a general improvement in water quality. Proposed Conditions in the Permit and Administrative Order Before certifying completion of the required manufacturing process improvements, Georgia-Pacific is required to submit to the Department a report on its ability to optimize the modifications, as well as a separate report which would determine whether Georgia-Pacific can meet certain limits that would enable a continuing discharge to Rice Creek. If the water quality improvements are sufficient to achieve standards in Rice Creek, the permit would be reopened and Georgia-Pacific would be required to maintain the present discharge location to Rice Creek. Otherwise, Georgia-Pacific would be authorized to construct the pipeline to the St. Johns River. The permit is drafted so that Georgia-Pacific will verify the need for mixing zones, as well as the dimensions of proposed mixing zones, after process improvements are complete. The Administrative Order imposes interim effluent limitations during the compliance period described in that Order. The Administrative Order contains "report-only" conditions for certain parameters. For those parameters which do not have interim limits, there is no appropriate standard to apply because information on effluent and water quality conditions is incomplete. The Department also found it unreasonable to impose interim limits that will be met only after Georgia-Pacific completes the improvements requested by the Department. Under Department practice, it is reasonable to impose "report only" conditions for parameters when it is unclear whether the discharge for the facility presents a concern for potential exceedences of water quality standards. In addition, "report only" conditions are used when a facility is undertaking an effort to address problems for certain parameters during a period necessary to achieve compliance. The proposed permit includes mixing zones in the St. Johns River for dissolved oxygen, total recoverable iron, total recoverable cadmium, total recoverable lead, un-ionized ammonia, turbidity, and specific conductance. The length of each of those mixing zones is 16.5 meters, that is, limited to the rise of plume. A mixing zone is also required for transparency, which will require a length of 734 meters. Within 12 months after certifying completion of the manufacturing process improvements, Georgia-Pacific will be required to re-evaluate the need for mixing zones and effluent limits and re-open the permit as necessary to include final mixing zones, effluent limits, and monitoring requirements. Compliance with Ambient Water Quality Standards The Petition contends that Georgia-Pacific has not provided reasonable assurances that it would comply with the following standards: nutrients (paragraph 18); dissolved oxygen (paragraph 20); chronic toxicity (paragraph 21); total suspended solids (paragraph 23); iron (paragraph 25); and phenolic compounds (paragraph 26). Although no water quality standard is directly applicable, Petitioners also addressed the following water quality issues: biological oxygen demand (BOD) (paragraph 20); dioxin, "related compounds," chlorinated organics, AOX, and chemical oxygen demand (COD) (paragraph 22); color (paragraph 24); and total suspended solids (TSS), which is alleged to include total organic carbon (TOC) (paragraph 94). Petitioners asserted that dioxin, chlorinated organics, TSS, and AOX are significant in considering compliance with the "free-from" standard in Rules 62- 302.500(1) and 62-302.530. In determining whether water quality standards will be met, those allegations should only be considered in reference to those adopted standards for the "free-from" standard. The effluent data establishes that Georgia-Pacific will consistently meet the proposed permit limits for discharge to Rice Creek. Georgia-Pacific's treatment facility has the capacity to comply with the proposed permit limits for discharge to Rice Creek, and there is a very high degree of assurance that it has the capability to comply with those standards in the future. In addition, Georgia-Pacific's treatment facility is able to meet the WQBELs established for discharge into the St. Johns River. Evaluation and modeling demonstrate that if a discharge to the St. Johns River is undertaken, the St. Johns River will meet Class III water standards at the edge of the mixing zone if Georgia-Pacific complies with its proposed effluent limits. Also, the effluent will meet all applicable effluent guidelines and technology-based standards adopted in the Florida Administrative Code. The effluent will not settle, form deposits, or create a nuisance, and it will not float as debris, scum, or oil. Finally, the effluent will not produce color, odor, taste, or other conditions so as to create a nuisance. Georgia-Pacific performed an analysis to determine the effluent limits that would be necessary to achieve water quality standards. This analysis included water quality modeling, which is a method of summing up inputs and losses, calculating the amount of material in a system, and determining the concentration of a substance. The model was used to geometrically represent the St. Johns River, Etonia Creek, and the reach of the St. Johns River within the study area, which extended from Buffalo Bluff (15 miles upstream of the confluence of Rice Creek and the St. Johns River) to Mile Point 50. Rice Creek enters the St. Johns River at Mile Point 74. When a model is performed, the model will yield estimates or predictions of concentrations throughout a water body. Those predictions can be compared to field observations and measurements; if the model is done properly, the calculated numbers should agree with the measured numbers. Modeling is used to evaluate future conditions based on hypothetical future changes to the system. The modeling methods and advanced time-variable models employed by Georgia- Pacific's consultants were approved by the Department. Georgia-Pacific prepared a plan of study to obtain field data in the St. Johns River for the purpose of assuring that the models would simulate observed concentrations of constituents. The Department approved that plan of study and published a notice of approval. The Department also approved the quality assurance project plan for the collection of water quality data in Georgia-Pacific's modeling efforts. After approval of the plan of study and quality assurance project plan, Georgia-Pacific's consultants performed water quality surveys in November 1994 and May 1995. The models employed by Georgia-Pacific's consultants were calibrated and produced the observed water quality results. The proposed diffuser would be located about one foot from the bottom of the channel. As designed, the plume would leave the proposed diffuser and spread out, with the upper part of the plume going to the surface of the water. The plume model calculates the dilution at the centerline of the plume, where there would be a minimum of dilution. This method of using the centerline as a reference point leads to a conservative analysis, and it would require the Applicant to achieve more dilution than might otherwise be necessary to achieve water quality standards. For regulatory purposes, the Department usually uses the maximum height of the rise of the plume to determine a mixing zone, the point at which concentrations along the centerline of the plume would level off. Because of that practice, for certain parameters where the required mixing zone is less than the distance of the rise of the plume, a decrease in effluent limits would not lead to a decrease in the size of the mixing zone. Tidal actions will cause re-entrainment, that is, the movement of dissolved substances back into the plume area. This factor reduces the dilution factor that otherwise would apply to the system. This factor is accounted for in modeling by tying in a diffuser computation to a water quality model. The modeling employed by Georgia-Pacific assumes 7Q10 conditions, that is, a conservative assumption that flow is equal to the lowest one-week average for a ten-year period, where there is little dilution. The employment of this conservative method would minimize the probability of exceedences in the receiving water body. The projection employed by Georgia-Pacific's consultants was even more conservative because the 7Q10 flow rate is assumed to apply through a 60-day average flow, a condition that may never occur, and would not be expected to occur once in ten years. In contrast, the use of time-variable simulations would lead to less stringent permitting requirements. The permit provides reasonable assurance that the construction, modification, or operation of the treatment system will not discharge or cause pollution in violation of Department standards. The permit provides reasonable assurance that, based on the effluent limitations determined by the Department in the WQBEL Technical Report, water quality standards would be met outside the area of the proposed mixing zone for specific conductance, dissolved oxygen, un-ionized ammonia, iron, cadmium, lead, and zinc. Based on additional analysis as reflected in Georgia-Pacific's proposed amendment to the draft permit, Georgia-Pacific would achieve compliance with the transparency standard with the mixing zone described in its proposed amendment, that is, with a total length of 734 meters. The chronic toxicity criterion is a biological measurement which determines whether organisms are impaired by effluent. If impairment is demonstrated, the test does not indicate what component of the effluent is causing the effect. Georgia-Pacific is required to conduct testing for acute and chronic toxicity twice a year. Current tests undertaken in May and October 2001 are representative of effluent conditions after Georgia-Pacific undertook conversion of the bleach plant to chlorine dioxide. Those tests demonstrate that Georgia-Pacific is in compliance with the acute and chronic toxicity criterion since the conversion to chlorine dioxide bleaching. Georgia-Pacific is also in compliance with the biological integrity standard, based on the most recent fifth-year inspection. Because of the flow characteristics and the characteristics of pulp mill effluent, the pollutants associated with the effluent are not assimilated as the effluent travels from the point of discharge, through Rice Creek, to the St. Johns River. The particulates associated with pulp mill effluent are so small or fine that they will remain in suspension and thus not settle out in Rice Creek. In addition, because Rice Creek is channelized, there is no sloping side that would enable the growth of vegetation that would filter the water. Furthermore, even if there was a sedimentation process occurring in Rice Creek, no additional sedimentation would occur after the system reaches an equilibrium point. Although Rice Creek does cause a small decrease in BOD through oxidation, Georgia-Pacific has compensated for that factor by the injection of oxygen in the effluent. Thus, the direct piping of effluent to the St. Johns River (as opposed to a discharge into Rice Creek, which flows into the St. Johns River) would not result in any significant increase in pollutant loading to the St. Johns River. In addition, the construction of a pipeline would take place only after additional technologies have been implemented to maximize pollutant reduction. Compliance with the Reasonable Assurance Standard Georgia-Pacific has provided reasonable assurances for the proposed permit to be issued for a discharge into the St. Johns River. This finding is based upon Georgia-Pacific's ability to meet the effluent standards described in the draft permit, and modeling results demonstrating that, with the proposed mixing zones for certain parameters, a discharge into St. Johns River, as designed, will not result in a violation of Class III standards. Mixing Zones In Section H of their Petition, Petitioners challenged the proposed mixing zones set forth in the proposed Permit. Petitioners generally alleged that the proposed mixing zones were "enormous" and that they failed to comply with certain rules restricting mixing zones. In their Petition, Petitioners articulated three theories to support the proposition that the mixing zones were illegal: first, that the mixing zones would include a nursery area of indigenous aquatic life, including beds of aquatic plants of the type listed in Rule 63-302.200(16); second, that the mixing zone, by itself, would lead to a violation of the minimum criteria in Rule 62-302.500; and third, that the mixing zones, or a combination of those mixing zones, would result in a significant impairment of Class III uses in the St. Johns River. Petitioners were authorized to amend their Petition to add additional allegations to paragraphs 17 and 67 of their original Petition regarding the mixing zone. Under those amendments, Petitioners alleged that Georgia-Pacific’s proposed amendment to the draft permit would (a) improperly expand the mixing zone; (b) fail to account for the length of the diffuser; (c) improperly substitute "transparency" for "color"; and (d) prevent isolation of transparency impacts from color in the discharge. However, there is no evidence which ties those allegations to any regulatory standard that would affect the proposed agency action. Petitioners also contended that color was a surrogate for chemical oxygen demand, as well as for substances that are alleged to cause chronic or acute toxicity. However, as shown by the testimony of Department witness Maher, the permit condition for "color" was a surrogate only for the transparency standard. No evidence to support a contrary inference was presented. Petitioners also made general allegations that the proposed mixing zones are illegal, without a clear indication of what is deemed illegal about the mixing zones. Although the Petition includes a general argument in opposition to mixing zones, Petitioners were unable to suggest a legal basis for alleging that the mixing zones were illegal. For example, Petitioners alleged that certain mixing zones are enormous but failed to articulate why they are so enormous as to be illegal. They did not allege that the Department had erred by allowing a larger mixing zone than Georgia-Pacific should have received under applicable rules. Indeed, such a position would be antithetical to Petitioners' allegations that Georgia-Pacific had failed to achieve water quality standards for a number of parameters. The accepted testimony establishes that Georgia-Pacific's proposed mixing zones will comply with Department rules. No persuasive evidence was presented to the contrary. Because the effluent quality will differ from present conditions after completion of the process improvements, the proposed mixing zones will not be final until after process improvements have been made, the operation has been stabilized, and the mixing zones have been re- verified. No mixing zones are authorized in the Administrative Order. The Administrative Order contains a table setting forth potential mixing zones that are used as a benchmark to determine whether Georgia-Pacific can meet water quality standards in Rice Creek. The table sets out a series of hypothetical mixing zones at 800 meters, that is, the maximum presumptive distance afforded without additional relief mechanisms. Because no mixing zones are proposed to take effect in Rice Creek, there can be no issue of "illegal" mixing zones in Rice Creek. Within a range of potential discharge flows, from 20 MGD to 60 MGD, water quality standards will be met within the area of the proposed mixing zones for all parameters for which mixing zones are required. Mixing zones are allowed by Department rules and are considered a part of Florida water quality standards. In the context of the Department's permitting review, if a modeling analysis shows that the concentration of a pollutant in effluent is greater than the water quality criterion, the Department will determine if the amount of dilution in the receiving water is sufficient to assimilate the pollutants of concern. The Department will then determine either the length (in the case of a river) or area (in the case of an estuary) of a water body that would be necessary to achieve compliance through dilution. Based on chloride levels, the St. Johns River at the area of concern would not be considered an estuary under Department rules. Each of the proposed mixing zones would be less than 800 meters in length (as allowed by Department rule) and less than 125,600 square meters in area (a limitation that would apply only if the area was an estuary). The proposed discharge will comply with all minimum rule requirements with respect to mixing zones, such as those for dissolved oxygen, turbidity, and the absence of acute toxicity. Likewise, the proposed mixing zones will not impact any nursery areas for indigenous aquatic life. Nutrient Issues In Section I, Petitioners contested the Department's decision to not require effluent limits to prevent a violation of the narrative water quality criterion for nutrients. For reasons addressed in the undersigned's Order dated February 14, 2002, that issue is waived based because of Petitioners' failure to file a timely challenge to the WQBEL Technical Report. In addition, based on the findings set out below, Georgia-Pacific has provided reasonable assurances that it will not violate the narrative standard for nutrients. Further, the evidence shows that effluent limits for nutrients are not presently warranted. Petitioners presented testimony that the St. Johns River may be nitrogen-limited or phosphorous-limited at different times of the year, which means that concentrations of one or the other would limit algae growth at different times of the year. Relative light levels, as well as the penetration of light, also affect algae growth. Georgia-Pacific’s treatment system requires the addition of ammonia because ammonia or nitrate is a necessary nutrient for the growth of bacteria in the treatment system. Ammonia and nitrate are both nutrients. Although there can be a conversion from one form to the other, that conversion does not affect the net loss or gain of nutrients. Although nutrient issues are of concern to water bodies, it is absolutely necessary in a biological treatment system to have sufficient nutrients for the operation of the system to treat parameters such as BOD. The Georgia-Pacific facility is achieving a high level of treatment while managing its system at a minimum level of nutrient addition. Management of a treatment system requires attention not only to the influent and effluent, but also monitoring of conditions within the system itself to assure adequate treatment. Georgia-Pacific is continuing to refine its procedures for doing so. The State has adopted what is referred to as the "5- 5-3-1" (advanced wastewater treatment) limitation for municipal treatment plants that discharge to surface waters. This standard refers to five milligrams per liter for BOD, five milligrams per liter for suspended solids, three milligrams per liter for total nitrogen, and one milligram per liter for total phosphorous. This limitation has been in effect for many years and remains one of the most stringent state standards in the nation. Georgia-Pacific's facility would be in compliance with those standards for nitrogen and phosphorous. Effluent from the Georgia-Pacific mill increases the concentration of total nitrogen in Rice Creek, relative to background conditions. However, because of the relatively higher flow of the St. Johns River, when the load from the mill is transported to the St. Johns River, the increase in nitrogen concentration is so small as to be imperceptible. Nitrogen loading from Georgia-Pacific's Palatka mill on a long-term average (prior to upgrades of its treatment plant) has been measured at 1,196 pounds per day. The average loading at Buffalo Bluff, which is far upstream of Rice Creek and the Georgia-Pacific Palatka mill, is 36,615 pounds per day. Additional nonpoint sources contribute approximately 12,000 pounds per day in the study area. Thus, the loading from the Georgia-Pacific mill represents a 2.4 percent increase in nitrogen levels on the St. Johns River, a difference that cannot be measured. The largest point source of nutrients in the lower St. Johns River is the Buckman wastewater treatment plant in Duval County. That facility does not have nutrient limits on its discharge permit. Rice Creek does not provide any treatment (as opposed to dilution) for nitrogen in Georgia-Pacific's effluent. A review of probability distributions for nitrogen concentrations upstream and downstream of Rice Creek demonstrated that Rice Creek had no influence on nitrogen levels in the St. Johns River. Phosphorous concentrations from the effluent, if discharged to the St. Johns River, would dilute rapidly, decreasing to .2 milligrams per liter within the water column, five to six feet below the surface, after discharge from the diffuser, below the area in which light is absorbed at the surface of the water column. Chlorophyll-A is a parameter that is typically used as a measure of phytoplankton in the water column. Concentration distributions for chlorophyll-A at Buffalo Point (upstream of Rice Creek) matched concentrations for the same parameter at Racey Point, a station far downstream of Rice Creek. This analysis confirms that the inputs coming into the St. Johns River System from Rice Creek do not have a significant influence on the water quality of the St. Johns River, with respect to nutrients. With a discharge coming directly to the St. Johns River, and with nutrient loading being the same as from Rice Creek, the nutrient loading would not influence the St. Johns River. The Department does not have sufficient information at the present to impose a nutrient limit on Georgia-Pacific. The draft permit accounts for this issue through a re-opener clause which would authorize a limit when that information is available, if such a limit is necessary. Allegations Regarding "Deformities in Fish" Section J of the Petition includes allegations that Georgia-Pacific failed to provide reasonable assurances regarding adverse physiological response in animals under Rule 62-302.530(62), and that Georgia-Pacific has failed to provide reasonable assurances that its discharge will not be mutagenic or teratogenic to significant, locally occurring wildlife or aquatic species, or to human beings, under Rule 62- 302.500(1)(a)5. Petitioners suggest that the permit cannot be granted as proposed because it lacks effluent limits for (unstated) substances that are alleged to create potential violations of the free-from standard. This argument is barred as a matter of law for the reasons stated in the Order dated February 14, 2002. In addition, based on the following findings, this argument has been rejected because Georgia- Pacific has met the reasonable assurances standard without effluent limits on those unstated (and unknown) substances that are alleged to cause violations of those rules. Petitioners presented evidence that paper mill effluent in general contains chemicals which could cause the masculinization of the females in certain fish species, as well as hormonal effects in males. However, witness Koenig did not offer any testimony that Georgia-Pacific’s effluent, in particular, contained such chemicals. Dr. Koenig had collected no data and had not conducted any field studies in Rice Creek to support his testimony; rather, he relied on articles published by others and provided by Petitioner Linda Young. In agency practice and interpretation of the free- from standard in Rule 62-302.530(62), Florida Administrative Code, the question of whether a change is adverse depends on the overall community or population of that particular species. Tellingly, Petitioners did not present any competent evidence, through Dr. Koenig's testimony or otherwise, that Georgia-Pacific's effluent presents the potential for adverse effects on the overall community or population of any species. Dr. Koenig testified at length from his reading of studies performed by other scientists regarding changes in the hormone levels and gonadosomatic index (the relative weight of gonads) of fish in the St. Johns River in the vicinity of Rice Creek. In his testimony, Dr. Koenig relied on two published articles to address conditions in the vicinity of Rice Creek, both of which were primarily authored by M. Sepulveda. One of those articles showed hormonal changes taking place in a laboratory study where largemouth bass were exposed to mill effluent. That study also showed a change in the gonadosomatic index in the subject fish. Dr. Koenig did not offer any opinion that such changes would be adverse or that they would affect the reproduction of those fish. The other study was a field study with samples of fish at various regions in the vicinity of Rice Creek. This study did not include any fish from Rice Creek, but did include fish from the confluence of Rice Creek and the St. Johns River, as opposed to reference streams. The study showed lower levels of hormones in fish from the area of that confluence, but also showed similar effects at a reference stream 40 kilometers away. No testimony was presented to support the inference that the effects represented in the two studies were adverse, within the meaning of the free-from rule. Moreover, the data from those two studies were collected in 1996, 1997, and 1998, or before Georgia-Pacific converted its bleach plant to chlorine dioxide bleaching in March 2001. Therefore, Dr. Koenig had no data to support any theory that under current effluent conditions, Georgia-Pacific is producing or will produce compounds that would cause any changes of hormone concentrations in fish. With respect to the phenomenon of fish masculinization in Rice Creek, Petitioners' experts had no data to support a competent opinion on this subject. To support his testimony, Dr. Koenig only read one article that purported to demonstrate fish masculinization in 11-Mile Creek and the Fenholloway River, and one letter from an employee of the St. Johns River Water Management District [Young Exhibit 8A] that referred to "external anatomical anomalies" near Georgia-Pacific discharge points. The article attached to that letter and included in Young Exhibit 8A addressed data collected in Escambia County, and does not address conditions in Rice Creek. Petitioners attempted to present the theory that the potential for endocrine disruption or fish masculinization resulting from paper mill effluent would violate the free-from standard. As a condition to issuance of the permit, the Department proposes to require Georgia-Pacific to obtain approval of a plan of study to analyze the potential for significant masculinization effects from the discharge. Under the proposed conditions, Georgia-Pacific is required to determine the minimum concentration at which such effects may be detected. By its terms, the proposed permit may be reopened to adjust effluent limitations or monitoring requirements if the masculinization study shows a need for them. Department witness Brooks acknowledged a general concern for endocrine disruption resulting from paper mill effluent. In particular, Mr. Brooks referred to studies which showed that paper mill effluent could cause the elongation of an anal fin in the females of certain fish species. However, Mr. Brooks observed that although this appeared to be a physiologic response, there was no evidence or reason to believe that this effect was an adverse effect. Reports regarding masculinization, that is, the elongation of anal fins in female fish, are suspect because (among other reasons) the studies do not account for variances that would be expected based on the independent variables of sex, age, and growth. In any case, the data from those reports do not demonstrate significant, adverse effects in exposed populations. A critical and unbiased review of the published literature shows that impacts of masculinization are biologically interesting but preliminary in nature. Department witness Maher observed that the masculinization effect occurs naturally, and that the Department's plan of study is intended to determine whether this natural phenomenon becomes problematic or is enhanced by activity at the mill. Initial information reviewed by the Department indicates that the phenomenon is no longer experienced when a mill converts to a chlorine dioxide (ECF) bleaching process, as Georgia-Pacific has done in converting to ECF. According to witness Brooks, the observed effect known as "fish masculinization" is not confirmed to result from endocrine disruption. The Department has concluded that it has reason to be concerned about the potential for fish masculinization. From the Department's viewpoint, it is not clearly understood what is causing this effect. It has been shown that there is a direct relationship between concentration (or dilution) and the observation of those effects. This conclusion is consistent with Dr. Koenig's testimony, which observed a decline in observed effects based on the dosage or concentration of effluent. The Department has reviewed evidence showing that, with dilution, the effect of fish masculinization "go[es] away." In the Department's analysis of the fish masculinization issue in the present permit, the Department is requiring process improvements that would reduce this phenomenon, if it exists, in Rice Creek. In addition, if the discharge is relocated to the St. Johns River, the additional dilution would ameliorate the concern regarding fish masculinization, and the phenomenon will "go away." To give an even higher level of assurance that the resource will be protected, the Department is requiring a study to evaluate and confirm that the issue is resolved. The process changes required in the permit, the potential for further dilution in the St. Johns River if it becomes necessary, and the evaluations required in the permit condition render it very likely that any potential for fish masculinization will be mitigated. Thus, to the extent that fish masculinization could be deemed a violation of the free- from standard, Georgia-Pacific has provided reasonable assurances that it will not cause the masculinization of fish in the St. Johns River. Petitioners did not offer any credible evidence establishing that any specific compound or substance would cause the alleged effects of endocrine disruption or fish masculinization. Indeed, Dr. Koenig acknowledged that he was unable to find in his literature search the mechanism or chemical that is alleged to cause fish masculinization. Likewise, Petitioners were unable to suggest any concentration of that substance which would lead to those alleged effects. Dr. Koenig expressed a belief that chlorinated organic compounds from the paper manufacturing process may be responsible for endocrine disruption. Dr. Koenig also opined that within the general process of paper manufacturing, the bleaching process in particular was a concern. To the extent that Dr. Koenig may have had a concern regarding endocrine disruption from his review of studies performed using data from 1996 through 1998, it is reasonable to conclude that this concern is ameliorated by Georgia-Pacific's conversion to chlorine dioxide bleaching in March 2001. There is no evidence to establish a relationship between the presence or absence of dioxin and fish masculinization. Compliance with Dissolved Oxygen Standard (and BOD Concerns) In Section K, Petitioners disputed whether Georgia- Pacific had provided reasonable assurance of compliance with the adopted dissolved oxygen standard. The proposed permit contains different permit limits for BOD for winter and summer, because the impacts of discharges are different during those parts of the year. Georgia-Pacific has shown a substantial downward trend for BOD. The Georgia-Pacific facility discharges mass loadings of BOD at quantities which are much less than what is required to meet discharge standards. A review of effluent data shows that even for the worst period for performance, Georgia-Pacific's effluent was well below the proposed permit limits for BOD. A review of BOD discharges over the period of January 2000 to August 2001 demonstrates a consistent ability of the facility to meet the proposed permit limits, as well as a general trend of improvement that reflects Georgia-Pacific’s upgrade of the treatment system. Georgia-Pacific will meet the minimum standards for dissolved oxygen in mixing zones. With additional process improvements, Georgia-Pacific will also experience additional environmental benefits in the reduction of chemical oxygen demand. N. Dioxin and "Related Compounds" As to dioxin, Petitioners alleged in Section L of their Petition that Georgia-Pacific may discharge dioxin in concentrations that could cause a violation of the free-from standard. The proposed permit includes a permit condition for a plan of study to assess levels of "TCDD" and "TCDF" in fish tissue in the receiving waters. Department witness Brooks was unaware of any regulatory authority to require fish tissue sampling for dioxin. Department engineer Kohn was also uncertain of any regulatory authority for the Department to test for dioxin in fish tissue. Mr. Kohn agreed with the proposition that when a proposed permit condition is not specifically authorized by rule or statute, the condition must be withdrawn if the applicant objects. However, in this case, Georgia-Pacific did not object to the inclusion of a permit limit of .014 picograms per liter of dioxin in its final effluent. As noted above, Georgia-Pacific established that under its current effluent conditions, following conversion to chlorine dioxide bleaching, the facility is "non-detect" for dioxin. The Department does not have any adopted standards for fish tissue concentrations. Petitioners presented very little evidence of dioxin concentration in fish tissue following Georgia-Pacific's conversion to ECF bleaching, and they opposed the introduction of such data into evidence. A review of available data shows that there was not a statistically significant difference between the level of bioaccumulation of dioxin in fish tissue in Rice Creek versus a reference creek. The Florida Department of Health has concluded, based on review of prior fish tissue data, that a fish consumption advisory for Rice Creek was not warranted. Total Suspended Solids In Section M, Petitioners have alleged that TSS in the effluent would cause various environmental problems. However, Petitioners did not allege that TSS in the effluent would lead to a violation of water quality standards, and they did not present any accepted testimony or other evidence to support such a theory. There is no adopted water quality standard for TSS. According to the WQBEL Technical Report, effluent levels of TSS are generally comparable to background levels in the St. Johns River. The primary wastewater clarifier is designed to remove fiber or other settleable solids from the effluent before it travels to the secondary treatment system. Total suspended solids in Georgia-Pacific's effluent are primarily derived from biota in the treatment system, rather than fiber from the industrial process. Georgia-Pacific has shown a substantial downward trend for TSS. The facility reliably discharges TSS at quantities which are much less than what is required to meet proposed effluent limits. A review of discharge data for TSS demonstrates that Georgia-Pacific would perform in full compliance with the proposed permit limits. Petitioners presented no evidence to the contrary. Petitioners likewise presented no evidence to quantify any impacts from TSS. Color, the Transparency Standard, and Related Issues Petitioners have also alleged that the color in Georgia-Pacific's effluent would lead to nuisance conditions in violation of Rule 62-302.500(1)(a). However, they did not allege any potential violation of the one parameter traditionally associated with effluent color: the Department's transparency standard. Elevated levels of color in the effluent reduces the ability of light to penetrate into the water column, with potential effects on the growth of aquatic plants. This is translated into a "compensation point," that is, the water depth at which the light level reaches one percent. The state transparency standard prohibits a discharge from causing a decrease in the compensation point of more than ten percent, relative to natural background. The rate of decrease of light within a water column is related to increased color levels. Analysis performed by Georgia-Pacific's consultants shows that a ten percent change in compensation depth corresponds to a seventeen percent increase in color above natural background levels. Under the proposed permit, color was used as a surrogate, or alternative measure, for compliance with the transparency standard. Color was not used as a surrogate for any parameter other than transparency. Georgia-Pacific will, with additional process improvements, see additional environmental benefits in reducing the color of its effluent. For the purpose of the application, Georgia-Pacific's modeling analysis assumed that based on process improvements, its effluent would have a color of 1202 pcu. EPA's technical team had opined that Georgia- Pacific would, with process improvements, achieve a reduction in color to 500 pcu. Georgia-Pacific had opined that the improvements would achieve a color of 1202 pcu. Department witness Owen opined that the color reduction would be in a range between those two figures. Petitioners did not present any contrary evidence as to the ability of additional process improvements to reduce effluent color. Accordingly, using the most conservative (least optimistic) figure, Georgia-Pacific has provided reasonable assurances that before a discharge to the St. Johns River would be authorized, it will reduce the color of its effluent to 1202 pcu. The proposed permit takes into account the potential that Georgia-Pacific's process improvements will achieve greater improvements in color than anticipated. Under the proposed permit, the Department would reduce the size of the proposed mixing zone if Georgia-Pacific demonstrates that the color of its effluent is lower than projected. The modeling analysis further demonstrates that based on a discharge to the St. Johns River, assuming an effluent color of 1202 pcu, the change in compensation depth is greater than ten percent in the vicinity of the proposed diffuser. A 734-meter mixing zone for transparency would be required for a discharge to the middle of the St. Johns River. The required area for such a mixing zone is 64,000 square meters. Antidegradation Review In Section P, Petitioners have generally alleged that the Department failed to conduct a proper antidegradation analysis. More specifically, they alleged that the proposed discharge would reduce the quality of the receiving waters below the classification established for them. Because Georgia-Pacific presently discharges to Rice Creek, and because a separate relief mechanism (the Administrative Order) authorizes the discharge to Rice Creek, it appears that the antidegradation issues relate solely to the proposed discharge into the St. Johns River. If the relocation had resulted in degradation of the receiving water, the Department would have regulatory authority in its Rule 62-4.242(1)(c) to consider whether Georgia-Pacific could minimize its discharge through other discharge locations, the use of land application, or reuse. However, Petitioners failed to allege in their Petition that the Department misapplied that regulatory authority. Moreover, under Department practice, when a new discharge or relocation of a discharge will result in an environmental benefit, it is not necessary to conduct a review of other discharge options. The Department undertakes an antidegradation analysis in, among other scenarios, cases where a discharge will result in achievement of minimum water quality standards for a given designated use but will lead to an incremental lowering of water quality. The purpose of this analysis is to assure that the societal benefits of the discharge outweigh the cost of that incremental lowering. The proposed permit will not lead to the increase in discharge of any parameter, and the permit is more stringent and adds additional parameters or limits. In addition, there is a trend of improved performance for the treatment system. In the present case, the Department has concluded that the proposed project will result in a significant improvement in water quality by the reduction of pollutants associated with exceedences of water quality standards in Rice Creek. Regardless of whether the discharge remains in Rice Creek or is relocated to the St. Johns River, the proposed Permit and Administrative Order will lead to an improvement in water quality as opposed to a degradation of water quality. Based on improvements with respect to specific conductance parameters, the ability to relocate the discharge into the middle of the St. Johns River where better mixing will occur (relative to the confluence of Rice Creek), and anticipated improvements in grass beds, the proposed pipeline will lead to a net environmental benefit in the St. Johns River and Rice Creek. The project as set forth in the proposed Permit and Administrative Order will be clearly in the public interest because it will result in full achievement of water quality standards and full compliance with the designated use of the receiving water body. The project will result in a substantial reduction in pollutant loading in Rice Creek and the St. Johns River, regardless of the whether the discharge will be located in Rice Creek or in the St. Johns River. The Department adequately evaluated other discharge locations, alternative treatment, and disposal alternatives. Studies, including a land application pilot project, demonstrated that land application was not feasible based upon impacts to groundwater resources. In their Petition, Petitioners did not dispute the Department's analysis of those factors under applicable rules. Given these considerations, it is found that Georgia-Pacific has provided reasonable assurances that it will meet water quality standards, and it is evident that Georgia-Pacific will not reduce the quality of the St. Johns River below its Class III designation. Further, the proposed discharge will be clearly in the public interest for the purpose of antidegradation analysis. Further, the proposed discharge into the St. Johns River is important to and beneficial to the public health, safety, and welfare, taking into account the policies set forth in Rules 62-302.100 and 62-302.300, Florida Administrative Code. The proposed discharge into the St. Johns River will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Instead, the proposed discharge would provide a benefit to fish and wildlife, and their habitats. No persuasive evidence was presented that the proposed discharge to the St. Johns River would adversely affect the fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge. Indeed, the record demonstrates a beneficial effect as to those factors. The proposed discharge has not been shown to be inconsistent with the applicable Surface Water Improvement and Management Plan (SWIM plan). Rather, the evidence shows that the proposed discharge would promote the implementation of the applicable SWIM plan. Monitoring Issues Section Q in the Petition generally challenged the adequacy of proposed monitoring requirements. As to this issue, the monitoring conditions imposed in the proposed permit are sufficient to ensure compliance with the proposed permit. Petitioner Young's witness Gilbert agreed that the proposed monitoring conditions were adequate to determine the result of process changes, that the proposed monitoring conditions were comprehensive, and that those conditions were beyond what the Department normally required. The Department does not propose to engage in water quality sampling at the end of the diffuser or at the edge of the mixing zone because of the technical difficulties associated with such an endeavor. Instead, the process for determining compliance is to determine the condition of the effluent and simulate water quality conditions of the receiving water body under low-flow conditions (when the river would be most vulnerable to pollution discharges). Such an approach is more protective because it eliminates variables that may not be representative of worst-case conditions. The evidence shows that the size of Georgia- Pacific's facility renders it impracticable for Georgia- Pacific to compromise the integrity of sampling results, as suggested by Petitioners. Flow Limitations In their Petition, Petitioners also contended that the proposed agency action violates Rules 62-4.240(3)(a) and 62-620.310(9)(a) by failing to specify the volume of discharge or flows. Under Department practice, flow must be specified but is not necessarily limited. Flow was adequately specified in the proposed permit, where the facility is described as 40 MGD wastewater treatment facility with a 22 MGD expected average flow. Volume limits are indirectly set through the establishment of a mixing zone and through mass loading limits in the permit, such as the loading limits for BOD and suspended solids. When flow is increased and the concentration of the effluent remains constant, the flow would be limited by the mass limits in the permit. Furthermore, the pipe and diffuser will have a hydraulic limitation, that is, a physical limitation on the amount that can physically be discharged. The pipeline and diffuser are hydraulically limited to 60 MGD based on the current design. Over a ten-year period, Georgia-Pacific has shown a trend toward reduced effluent flow. For example, in 1991, Georgia-Pacific discharged just under 40,000,000 gallons per day (GPD). In 2001, the discharge was less than 24,000,000 GPD. As a result of water conservation measures, Georgia- Pacific has been able to achieve a substantial reduction in effluent flow even when it experienced increased storm water flow into the treatment system. Because of stormwater inputs into the treatment system, it is very difficult to set a flow limit on the discharge from a pulp and paper mill. Indeed, the Department does not typically impose volume limits on NPDES permits for pulp and paper mills. Where volume or flow limits are imposed on pulp and paper mills, they are necessary in order to assure compliance with a specific standard. The Administrative Order Georgia-Pacific has submitted plans and a reasonable schedule for constructing, installing, or placing into operation an approved pollution abatement facility or alternative waste disposal system. No contrary evidence was presented, and no alternative construction schedule was proposed by Petitioners. In assessing a schedule to achieve compliance, the Department considered the time necessary to construct additional improvements as well as the reasonableness of the time period in light of Georgia-Pacific's capital investment. As part of this analysis, the Department also considered Georgia-Pacific's commitment to go beyond what they were legally required to do in environmental upgrades. The schedule of compliance is reasonable, given the cost and magnitude of the improvements required of Georgia-Pacific. Georgia-Pacific needs permission to continue its discharge to Rice Creek for a period of time necessary to complete research, planning, construction, installation, and operation of an approved and acceptable pollution abatement facility or alternative waste disposal system. The time period described in the Administrative Order will enable Georgia-Pacific to maximize the operation of the process improvements in order to determine if the discharge can meet water quality standards in Rice Creek. Given the cost and magnitude of the improvements required in the permit and Administrative Order, the schedule of compliance set forth in the Administrative Order is reasonable. There is no present, reasonable alternative means of disposing of wastewater other than to discharge it into waters of the State. In their Petition, Petitioners contested the Department's general antidegradation analysis but did not allege that any alternative means of disposal were improperly overlooked. The Department does not have specific regulatory authority to require facilities such as Georgia-Pacific to consider re-use as part of its antidegradation analysis, as it does with domestic waste discharges. Nonetheless, the Department did look at re-use and land application and determined that they were not feasible alternatives. Although it was not specifically required to do so by rule, Georgia- Pacific had exhausted every reasonable means to re-use (rather than discharge) water from its facility. Under earlier authorizations, Georgia-Pacific was not required to achieve standards for color, conductance, and chronic toxicity in Rice Creek. The granting of an operation permit will be in the public interest. This is because Putnam County will suffer an adverse economic impact if the facility is shut down and there will be net environmental benefits achieved through compliance with the requirements set forth in the Permit and Administrative Order. The Permit requires Georgia-Pacific to submit a written report to the Department if it appears that a mixing zone is needed for chronic whole effluent toxicity.
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 (1) issuing proposed permit number FL0002763 to Georgia-Pacific Corporation, as set forth in Department Exhibit 175, and with the change in the permit conditions as requested in Georgia-Pacific Exhibit 102 and proposed by the Department during the hearing, and (2) approving Administrative Order No. 039-NE as set forth in Department Exhibit 176. DONE AND ENTERED this 3rd day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2002. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Timothy Keyser, Esquire Keyser & Woodward, P.A. Post Office Box 92 Interlachen, Florida 32148-0092 Ralf G. Brookes, Esquire 1217 East Cape Coral Parkway, No. 107 Cape Coral, Florida 33904-9604 Jessica C. Landman, Esquire 1200 New York Avenue, Northwest Suite 400 Washington, D.C. 20005 Terry Cole, Esquire Jeffrey Brown, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 Teri L. Donaldson, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Francine M. Ffolkes, Esquire Thomas R. Gould, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact J. Armand Martin is the owner of a lot located in Pasco County, Florida, which includes an island surrounded by a body of water known as Sleepy Lagoon and a 15-foot strip of land on the mainland. This case arose out of Martin's efforts to develop this lot and construct a personal residence on the island. Residential dwellings surround the lagoon and Martin's island. In order to build a residence on the island, Martin had to install a septic tank. To install a septic tank Martin had to apply for a permit to install an individual sewage disposal system. It was Martin's original intent to locate the sewage treatment facility on the mainland and pipe the sewage over the bridge he planned to build to access his island. Martin made application for the required septic tank permit to the Pasco County Health Department. The inspector from the Pasco County Health Department was taken aback by the situation she encountered when she did the preliminary inspection and called in her supervisor, Donald Van Kampers, for assistance. Van Kampers eventually inspected the island and suggested that Martin put his individual sewage disposal system on the island itself, pointing out that because the island was so low the installation would probably have to include a sand filter system and possibly a chlorinating system. Van Kampers also advised Martin that he would have to seek a variance from the Staff Director of the Health Program Office pursuant to Rule 10D-6.21, Florida Administrative Code, because the island was so narrow that the system would be within 50 feet of the lagoon's waters contrary to Rule 10D-6.24(4), Florida Administrative Code. Martin received assistance from Van Kampers on his application for the variance. This application called for the filing of a site plan drawn to scale. In addition to being surrounded by Sleepy Lagoon, Martin's island circumscribes a small body of water variously referred to as a pond, lagoon and even "wetlands." Martin transmitted to Van Kampers a surveyor's drawing of his island which did not show the island's own small body of water. In an effort to assist Martin, Van Kampers filled in the proposed location of Martin's house and the individual sewage disposal system (septic tank with sand filter) on this surveyor's drawing, attached it to Martin's request for a variance and forwarded it to the Staff Director for the Health Program Office together with a recommendation of approval by the Pasco County Health Unit. This drawing did not show the body of water on the island. The Staff Director forwarded the application to the Review Committee which he appoints to review applications for variances. There is no evidence that Martin saw this drawing prior to the Review Committee's approval of the variance which, with the affirmative recommendation of the Pasco County Health Unit, was summarily granted. Subsequently, several of the residents surrounding Sleepy Lagoon and Martin's island became concerned about the potential problems which Martin's individual sewage disposal system would have on their lagoon, its environment and its ecology. Their complaints eventually came to the attention of the Staff Director of the Health Program Office, who in turn forwarded the matter to John Heber, the Department's representative to the Review Committee, for investigation. Heber conducted a personal inspection of Martin's island and compared it with the drawing filed by Van Kampers in Martin's behalf. Heber found that according to the drawing the individual sewage disposal system would be located in the middle of the water on Martin's island. Having made this discovery, Heber initiated actions which resulted in the Issuance of an Administrative Complaint to have the variance issued Martin rescinded. The Administrative Complaint alleged that Martin had "misrepresented" facts on his application for the variance by not showing the water on his island. Martin made a timely request for a formal hearing on the allegations. Martin did not fill out the drawing which accompanied his application. It was filled out by Van Kampers, who did not draw in the island's water and put the individual sewage disposal system in the middle of where the water is currently located. Van Kampers and his supervisor, both of whom visited the island, did not consider the water on the island subject to the rules which call for the reporting of lakes, streams or canals. See Rule 10D-6.23(2)(a), Florida Administrative Code. In regard to their classifications of surface waters, they are the officials charged under the regulatory scheme with determining when applicants must seek a variance. Applicants must seek a variance when, like Martin, their septic tanks are too close to certain surface waters. See Rule 10D-6.24(4), Florida Administrative Code. Clearly, they determine when a permit will be issued, when an applicant is required to seek a variance, and what waters must be reported on the scale drawing. In the instant case they classified Sleepy Lagoon as protected waters requiring Martin to seek a variance and the water on the is land as unprotected waters not requiring their inclusion on the drawing, because they determined the water was not a lake, stream or canal. The facts show that this water is not a lake, stream or canal. Under the Department's policy a sewage system can only be constructed as drawn and presented in the application for a variance. If the system in question were constructed, it would require the filling of the area where the water is located. The drawing accurately reflects the post-construction situation with the water not shown.
Recommendation The foregoing Findings of Fact and Conclusions of Law show J. Armand Martin did not misrepresent his application; therefore, the facts of the allegation are not proven, and the variance should not be revoked. DONE and ORDERED this 3rd day of April, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1981. COPIES FURNISHED: Barbara Dell McPherson, Esquire Department of HRS 2255 East Bay Drive Post Office Box 5046 Clearwater, Florida 33518 Mr. J. Armand Martin 4 Sunset Boulevard Bailey's Bluff Tarpon Springs, Florida 33589
Findings Of Fact The Petitioner is a special tax district created by special act of the Florida Legislature. Chapter 71-822, Laws of Florida. The district covers approximately seventy-two square miles in northern Palm Beach County and southern Martin County, Florida. Petitioner's purpose is to provide water, sewer, drainage and solid waste services within the district. In conformity with its powers, the Petitioner operates an advanced waste water treatment plant on property which it owns in northern Palm Beach County. Petitioner has secured appropriate permits from DER in order to construct and operate the treatment plant. The treatment plant is among the most advanced in southeastern Florida. It has a four million gallon daily capacity, which could be increased to an eight million gallon capacity. In treating waste water the plant utilizes filtration, disinfection, retention in a holding pond, and discharge into a remote off-site area. The present discharge system is to pump effluent from the retaining pond through a canal or drainage system to a recharge or discharge lake which is located approximately three miles north and west of the treatment plant. This is known as the western discharge system, and was installed at a cost of approximately one million dollars. Due to the large amounts of pumping activity, it is an expensive system to utilize. Through its instant application, the Petitioner is seeking a permit allowing it to discharge effluent on-site. Effluent would flow into percolation ponds that have already been constructed. Effluent would settle in the ponds, and eventually would percolate through the soil. This system would he less expensive to operate than the western discharge system. Petitioner is interested in experimenting with the amount of waste water treatment that can be obtained through action of vegetation in the percolation ponds upon the effluent. Such a natural system, if it operated effectively, could save the Petitioner additional money in treating waste water by reducing the need for chemical treatment. Petitioner's waste water treatment presently results in a discharge of effluent which within some parameters meets even drinking water standards. The Petitioner's system very effectively treats bio-chemical oxygen demand ("bod"), suspended solids, nitrogen, and phosphorus in the effluent. Reports have been submitted by the Petitioner to DER which indicate that the system does not meet DER's standards for advanced waste water treatment. Samples upon which these reports were based were taken at a point in the system before the effluent was subjected to the action of the retention pond and the subsequent bumping into the western discharge system. Samples taken beyond the retention pond indicate that DER's standards are met for "bed", suspended solids, total nitrogen, and total phosphorus. The Intervenor owns property adjacent to the Petitioner's waste water treatment plant. The Intervenor operates a well field and drinking water treatment plant on the property, and provides drinking water to residents of the Town of Jupiter and surrounding communities from the well field. The Intervenor acquired its treatment plant, and surrounding well fields from a private utility company. The Petitioner was aware of the well field when it purchased the property upon which it presently operates its waste water treatment plant. While the Petitioner's plant adequately treats waste water in terms of "bod", suspended solids, total nitrogen, and total phosphorus it does not treat the waste water for heavy metals, pesticides, or viruses. These are common elements found in waste water effluent in the south Florida area. The Petitioner's proposal is to discharge its effluent into on-site ponds. The effluent would then percolate into the ground. The retention ponds are located at a distance from 1200 to 1600 feet from the nearest of the Intervenor's wells. Water which percolates from these ponds would flow directly toward the wells, and would eventually find its way into the wells. The flow from the retention ponds to the wells would be increased due to the draw-down effect that the wells have on the surrounding water table. As water is drawn from the wells, the adjoining water table becomes depressed in the area of the wells, and water from the surrounding area flows more rapidly into the area of the wells. Heavy metals will not be filtered out as a result of retention or percolation. Heavy metals in the effluent would eventually find their way into the Intervenor's well fields. Estimates as to the amount of time that it would take for water from the percolation ponds to reach the wells varied from four months to six years. The longer estimate appears the more reasonable; however, the evidence is conclusive that eventually waters from the percolation ponds would reach the wells, and that heavy metals in the water would not be filtered out. The Petitioner proposes to obviate any problems with heavy metals reaching the well fields by operating testing wells between the percolation ponds and the well fields. If any heavy metals were detected in the ground water, Petitioner would again use the western discharge system rather than the percolation ponds. While this would prevent increased contamination of the wells, contamination that had already reached the test wells would reach the Intervenor's wells. It was suggested that the percolation ponds could be drawn down in order to reverse the flow of ground water back into the percolation ponds, thence to be pumped through the western discharge system. In order to accomplish this, however, the percolation ponds would have to be more than forty feet deep, which they are not. The effect of heavy metals intruding into the Intervenor's water supply could be to increase the cost of treatment, or to render the wells unfit for use. Uncontaminated drinking water supplies are rare in the northern Palm Beach County area, and the expense of finding a new water supply is difficult to calculate.
The Issue The issues for determination in this case are whether Respondent Jeffrey Hill should pay the administrative penalty and investigative costs, and should undertake the corrective actions that are demanded by the Florida Department of Environmental Protection (“Department”) in its Notice of Violation, Orders for Corrective Action, and Civil Penalty Assessment (“NOV”).
Findings Of Fact Respondent is the owner and operator of a community water system and its associated piping, designated PWS No. 2124409, located on parcel ID No. 03-4S-17-07486-001 on Country Club Road, in Lake City, Columbia County, Florida (“the property”). Respondent is a “person” as defined in section 403.852(5), Florida Statutes. Respondent is a “supplier of water” as defined in section 403.852(8). The water system is a “public water system” and a “community water system” as defined in sections 403.852(2) and (3), respectively. The community water system is a Category V, Class D water system with a capacity of 28,800 gallons per day that supplies between 25 and 3,300 people, using groundwater as its source. Count I Count I of the NOV charges Respondent with failure to sample for nitrate and nitrite in 2012 and 2013, which was admitted by Respondent. Count II Count II of the NOV charges Respondent with failure to sample for primary inorganic contaminants for the 2011-2013 compliance period, which was admitted by Respondent. Count III Count III of the NOV charges Respondent with failure to analyze for secondary contaminants in the 2011-2013 compliance period, which was admitted by Respondent. Count IV Count IV of the NOV charges Respondent with failure to sample for volatile organic contaminants in the 2011-2013 compliance period, which was admitted by Respondent. Count V Count V of the NOV charges Respondent with failure to sample for synthetic organic contaminants in the 2011-2013 compliance period, which was admitted by Respondent. Count VI Count VI of the NOV charges Respondent with failure to sample for total coliform from June 2013 to date, which was admitted by Respondent. Count VII Count VII of the NOV charges Respondent with failure to employ an operator for the system since May 2013, which was admitted by Respondent. Count VIII Count VIII of the NOV charges Respondent with failure to submit test results required by Florida Administrative Code Chapter 62-550, and failure to file a monthly operation report since April 2013, which was admitted by Respondent. Count IX Count IX of the NOV charges Respondent with failure to issue Tier 3 notices in May 2013 and March 2014, advising customers of the failure to monitor for certain contaminants, which Respondent admitted. Count X Count X of the NOV charges Respondent with failure to provide a consumer confidence report to his customers in 2012 and 2013, which was admitted by Respondent. Count XI In Count XI of the NOV, the Department states that it incurred $530 in investigative costs related to this enforcement matter, which is admitted by Respondent.
The Issue The issue in this case is whether the Department of Health and Rehabilitative Services (HRS) should grant the Petitioner's applications, filed under F.A.C. Rule 10D-6.045, for variances from the F.A.C. Rule 10D-6.046(1)(c) requirement that on-site treatment and disposal systems (OSTDS's) be placed no closer than 200 feet from public drinking water wells serving a facility with a sewage flow of more than 2,000 gallons per day (gpd).
Findings Of Fact The Petitioner, Joseph DiGerlando, owns three lots (1, 2 and 26) in the San Remo subdivision in Hillsborough County, which was platted in 1977. There is a public water well located between lots 1, 2 and 26. The well serves the entire San Remo subdivision, a 55-lot residential development having a total sewage flow much greater than 2,000 gallons per day (gpd) (although the sewage flow from homes built on lots 1, 2 and 26 can be expected to total no more than approximately 1350 gpd.) There is no way for the Petitioner to construct an on-site sewage treatment disposal system (OSTDS) on each of the three lots so that no part of any OSTDS will be closer than 200 feet from the San Remo well, measured horizontally across the ground surface to the well head. Measuring horizontally across the ground surface to the well head: an OSTDS on lot 1 could be placed no farther than 156 feet from the well; an OSTDS on lot 2 could be placed no farther than 184 feet from the well; according to drawings in the Petitioners' application, an OSTDS on lot 26 could be placed no farther than approximately 185 feet from the well. (Although lot 26 is larger than the others, it is contiguous to a surface water body, and the required setback from the surface water body decreases the area available for siting an OSTDS on the lot. The evidence was not clear exactly how far an OSTDS on lot 26 would be from the San Remo well.) HRS concedes: (1) that requiring 200-foot setbacks from the San Remo well will place the Petitioner under a hardship that was not caused intentionally by his own actions; and (2) that no reasonable alternative exists for the treatment of sewage on his lots 1, 2 and 26. (It is not clear how or why HRS determined that utilization of a joint OSTDS to serve all three lots through the imposition of cross-easements on the lots would not be a reasonable alternative to at least one or two of the variance applications.) The San Remo well, which is 400 feet deep, has a steel casing from the surface of the well to 100 feet below the ground surface. The steel casing prevents the entry of ground water into the well above the bottom of the casing. If the distances between the proposed OSTDS's and the San Remo well were measured diagonally, through the ground, from the proposed OSTDS's to the bottom of the steel casing of the well: the proposed OSTDS on lot 1 would be 185 feet from the well; the proposed OSTDS on lot 2 would be 209 feet from the well; and the proposed OSTDS on lot 26 would be even farther from the well. (The evidence was not clear exactly how much farther.) In fact, due to the draw-down effect of the well, the path groundwater would travel from the proposed OSTDS's to the bottom of the steel casing of the San Remo well would curve upward somewhat from, and be somewhat longer than, the diagonal line running directly between those two points. (The evidence is not clear exactly how much longer the curved path would be.) If the distances between the proposed OSTDS's and the San Remo well were measured first horizontally across the ground surface to the well head and then vertically down to the bottom of the steel casing of the well: the proposed OSTDS on lot 1 would be 253 feet from the well; the proposed OSTDS on lot 2 would be 281 feet from the well; and the proposed OSTDS on lot 26 would be even farther from the well. (Since the bottom of the OSTDS's will be three feet below the ground surface, the vertical component of the measurement is only 97 feet instead of the full 100 feet between the well head and the bottom of the casing.) When applying the HRS rules on distances required between OSTDS's and existing public water wells, HRS measures from the OSTDS horizontally across the ground surface to the well. The evidence was that HRS's method of measurement is consistent both with the methods used by the federal EPA and with the scientific data on which the technical advisory board based the distances in the HRS rules. The Petitioner's expert witness testified that there is a 17-foot thick layer of sand and clay between 53 and 70 feet below the ground surface in the vicinity of the San Remo well and that the sand and clay layer would prevent contamination from the OSTDS's from reaching the bottom of the steel casing of the well. (He also testified that is a white lime rock layer between 70 and 90 feet below the ground surface and inferred that the white lime rock layer would add some degree of protection.) The opinions of the Petitioner's expert are accepted. Petitioner's expert is a civil, sanitary and environmental engineer, not a geologist or hydrogeologist; however, his experience is in the area of wastewater treatment and disposal is extensive. Meanwhile, HRS presented no competent evidence whatsoever to contradict the Petitioner's expert. The Petitioner proposes to use Norweco Singulair Bio-Kinetic Waste Water Treatment Systems. These systems treat waste better than a standard septic tank system. Instead of the single septic tank, they have three distinct chambers: first, a retreatment chamber; second, an aeration chamber to reduce biological oxygen demand (BOD) and total dissolved solids (TDS); and, finally, a clarification or filter chamber that further reduces BOD and TDS. With the proposed systems, BOD and TDS will be reduced to approximately a fourth of the BOD and TDS levels that would enter the drainfield from a septic tank system. In addition, unlike in a septic tank system, the proposed systems utilize chlorine tablets in conjunction with the clarification chamber to kill bacteria and viruses. It is found that the evidence presented in this case, taken as a whole (and in particular in the absence of any competent evidence to contradict the credible opinions of the Petitioner's expert) was sufficient to prove that the proposed OSTDS's would not adversely affect the health of members of the public. Except for a fleeting reference in its Proposed Recommended Order, HRS has not taken the position that the Petitioner's proposed OSTDS's will significantly degrade the groundwater or surface waters. The reference in the Proposed Recommended Order would seem to reflect that HRS's concern about the impact of the Petitioner's proposed OSTDS's on groundwater quality is limited to its public health concerns.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services (HRS) enter a final order granting the Petitioner's applications for variances, on the condition that the Petitioner utilizes the proposed Norweco Singulair Bio- Kinetic Waste Water Treatment Systems. RECOMMENDED this 30th day of June, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6483 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted but conclusion of law, subordinate and unnecessary. Accepted and incorporated. 3.-6. Accepted but subordinate and unnecessary. Accepted and incorporated. Rejected as to "significantly degrade the groundwater or surface waters"; HRS did not make this an issue, except with respect to public health concerns. Otherwise, accepted and incorporated. Rejected as not proven and contrary to the greater weight of the evidence. However, accepted that HRS presented no evidence sufficient to support a finding on the issue. See Section 120.58(1)(a), Fla. Stat. (Supp. 1994). Accepted but subordinate and unnecessary. Rejected as to "relevant criteria"; not proven and as contrary to the greater weight of the evidence. Otherwise, accepted and incorporated. Accepted and incorporated. Respondent's Proposed Findings of Fact. Accepted but conclusion of law, subordinate and unnecessary. Accepted and incorporated. 3.-7. Accepted but subordinate and unnecessary. Accepted and incorporated. Rejected as contrary to facts found and as contrary to the greater weight of the evidence. (As found, HRS did not contend that the Petitioner's OSTDS's would "significantly degrade the groundwater or surface waters." HRS only raised this issue with respect to public health concerns.) 10.-12. Accepted but subordinate and unnecessary. (These were hearsay statements that were not sufficient to support findings as to the matters asserted. See Section 120.58(1)(a), Fla. Stat. (Supp. 1994).) COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Health and Rehabilitative Services 4000 W. Dr. Martin Luther King, Jr., Boulevard Tampa, Florida 33614 Nelson D. Blank, Esquire Trenam, Kemker, Scharf, Barkin Frye, O'Neill & Mullis, P.A. 2700 Barnett Plaza 101 E. Kennedy Boulevard Tampa, Florida 33601-1102 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner, George H. Hopper, submitted an application for a license to operate a Class "C" wastewater treatment plant to the Respondent on or about April 8, 1977. On November 28, 1977, the Respondent issued a letter of intent to deny the license. This letter of intent was subsequently modified by a letter to petitioner from Respondent dated January 4, 1978. The Respondent, in the above-referenced correspondence, based its letters of intent to deny the Petitioner a Class "C" wastewater treatment plant operator's license based upon two primary grounds. Those grounds are as follows: "This Department has concluded that you have not fulfilled the actual experience requirement of section 17-16.03(2)(b), Florida Administrative Code (F.A.C.), as defined by section 17-16.02(8) F.A.C." (See letter dated November 28, 1977.) "In addition to the above referenced deficiency in actual work experience, it has been noted that you have not completed an approved course related to wastewater treatment plant operation as required by Section 17-16.03(2)(c), Florida Administrative Code." (See letter dated January 4, 1978.) Respecting the second allegation, Petitioner presented testimony during the course of the hearing which, in fact, indicates that he did complete an approved coarse related to wastewater treatment plant operation as required by Section 17-16.03(2)(c), Florida Administrative Code. Additionally, Petitioner presented a diploma supporting this contention. This certificate reflects the fact that the Petitioner satisfactorily completed the course on "Operation of Wastewater Treatment Plants" on or about May 2, 1977. Based thereon, and the testimony of Respondent's certification officer, Robert W. Hall, to the effect that the Respondent did comply with the Code requirement which mandates completion of an approved course related to wastewater treatment plant operation, that ground is no longer a basis for the denial of Petitioner's certification. Petitioner testified, and the other documentary evidence introduced during the coarse of the hearing indicates, that Petitioner was employed from January, 1975, through December 25, 1975, as administrator of the Margate Utility Authority. From December 25, 1975, through February 15, 1976, the Petitioner was employed in a position other than as administrator, his resignation being effective on February 15, 1976. Accordingly, the Petitioner was employed at the Authority for a period in excess of one year. What is at issue, is the Respondent's contention that the Petitioner was not actually performing duties tantamount to fulfillment of the actual experience requirement of Section 17-16.03(2)(b), Florida Administrative Cede, inasmuch as his duties as an administrator were more in the nature of being in charge of the facility, with little practical experience as the term "experience" is meant in Chapter 17 of the Florida Administrative Code. Additionally, it was noted that the Petitioner was re-employed by the City of Margate as a supervisor. During the hearing, the Petitioner outlined his duties as an administrator which included being in charge off the overall operation of the wastewater treatment plant. Petitioner testified that when he was first employed at the Margate Utility Authority, the wastewater treatment plants were not operational. He testified that a water-sewer moratorium had been placed by the Board of Health, citing approximately five violations. Petitioner testified that he instituted numerous changes in the operations of the wastewater treatment facilities which included hiring a contractor to supervise deficiencies in the wastewater treatment plant and its injector systems which were over-pressurized. He testified that within approximately two months of his employment with the Authority, he was able to correct approximately 80 percent of the problems and was able to again make the treatment plant operational. Petitioner testified that he normally worked a five day week; however, he was on duty in excess of forty hours weekly for the resolution of all daily operational problems. Evidence introduced during the course of the hearing reveals that the wastewater treatment facility here involved is fully automated and that the operators have very little to do in terms of manual tasks. In this regard, the Petitioner testified that he was on duty at the facility throughout his employment during the period January, 1975, through December, 1975, to operate the wastewater treatment plant. Additionally, the Petitioner testified that his office, as an administrator, was located in close proximity to the wastewater treatment facilities and he was available to in fact operate the wastewater treatment plant, as needed. Finally, Respondent's certification officer, Robert W. Hall, testified that in his opinion, being available to operate as opposed to actual operation is what is required by the actual experience requirements of the Florida Administrative Code. Based thereon, I shall recommend that the Respondent withdraw its notice of intent to deny Petitioner's application for a Class "C" wastewater treatment plant operator's license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That Petitioner's application for a Class "C" wastewater treatment operator's license be GRANTED. RECOMMENDED this 8th day of May, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Russell L. Forkey, Esquire 3081 East Commercial Boulevard Fort Lauderdale, Florida 33308 Randall E. Denker, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue This case presents two questions for consideration. The first question concerns the Petitioners' contention that the grant of the permit at issue must be considered contemporaneously with the matters of file in the application made by the Respondent, The Deltona Corporation, with the Respondent, State of Florida, Department of Environmental Regulation, File No. 64-24208, pending before the Department. From the point of view of the Petitioners, should this contemporaneous review process be afforded, then the current permit would not be granted due to the alleged deficiencies associated with the application, File No. 64-24208. The second question to be answered in this case concerns the dispute between the Respondents on the issue of water quality monitoring as a condition to granting the permit sought herein. The Respondent Department would have the applicant monitor in six lakes in the area of the project and the applicant would restrict its monitoring activity to three lakes in the project area. The Petitioners support the Department in its position on the monitoring question. 1/
Findings Of Fact The Respondent, The Deltona Corporation, has made application with the Respondent, State of Florida, Department of Environmental Regulation, to effect drainage system improvements to a land locked conveyance network which consists of the enlargement and regrading 990 lineal feet of existing channel cross- section and the installation of additional culverts and control structures at road crossings. The project also involves repairs and replacement of a damaged culvert. The work would be accomplished by land based equipment transported to the work site by existing overland routes. The excavated sand fill would be placed on upland property owned by The Deltona Corporation. The details of the project and data related to the geographical area may be found in the Joint Exhibit I admitted into evidence. The date of the application for permit is December 12, 1979. On January 25, 1980, the Department of Environmental Regulation sent out a notice of the pending review by the Department of the permit application. After receipt of that notice, attorney for the Petitioners, on February 12, 1980, wrote to the Department expressing the objection to the project made by property owners in the area of the project site, together with a list of those owners found in an attached Petition of owners' names and addresses. A copy of this letter and attached Petition may be found as Joint Exhibit No. VII admitted into evidence. Subsequent to the receipt of the statement of objections, the Department issued a construction permit dated April 30, 1980, subject to conditions. A copy of this permit may be found as Joint Exhibit No. VIII admitted into evidence. The Petitioners, through their counsel, then filed a formal petition dated May 6, 1980, which was the vehicle utilized in establishing the details of this dispute and was the basis for the Department Secretary forwarding the case to the Division of Administrative Hearings for consideration by a hearing officer in keeping with the provisions of Section 120.57, Florida Statutes. The hearing was conducted on October 16, 1980, and the Petitioners' position was more specifically defined in the course of that hearing and the claim as described in the issue statement of this order constitutes the substance of the Petitioners' position. 2/ Joint Exhibit No. I; petitioners' Exhibit No. 1 and Respondent Deltona's Exhibits 1, 2 and 4 constitute sketches and aerial photographs of the general project area. Joint Exhibit No. 1 identifies the work area with more particularity. Respondent's Exhibit No. 2 indicates the desired flow pattern of the water through the various lake systems and indicates whether the flow is by gravity flow or pump flow. This drawing depicts the proposed channels and structural improvements that would be involved. The Department has indicated that all the regulatory concerns which it has about the project associated with Permit No. 64-26478-4E, the permit in question, have been adequately addressed, subject to the conditions set forth in the permit document. Joint Exhibit Nos. V and VI; Respondent Deltona's Exhibit Nos. 5, 6 and 7; and the Petitioners Exhibit No. 2 are exhibits pertaining to water quality concerns, to include sample results. The testing and other information provided indicates that the project as contemplaced, would meat the regulatory parameters set forth in Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. The Department in expressing its concern that continued water quality monitoring be conducted has indicated that it feels that future periodic monitoring should be done in Jenkins Pond, Lake Big, Lake Diana, McGarity Lake, Sidney Lake and Lake Mitnik. The Respondent Deltona would only conduct this monitoring in the first three lakes named. By looking at the Respondent Deltona's Exhibit No. 2, it could be seen that all of the aforementioned lakes would be in the same basic flow pattern. Of the system of lakes, the area around McGarity Lake is the most highly developed and and has the greatest potential for causing unacceptable pollution. That pollution could be carried through the other lakes within the system as described in view of the potential of the system, if the project is built, to convey a greater volume of water at a higher rate of flow. A more expansive water quality monitoring system within six lakes as opposed to three lakes would increase the opportunity to discover potential hazards from pollutant at an earlier data. This is particularly so by using lakes such as McGarity Lake where there is a higher level of developmental build-out.
