Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This controversy arose as the result of an application being filed by respondent/applicant, G. T. Williams (Williams or applicant), seeking a permit to construct a biological waste incinerator at 1530 North Beal Street Extension, Fort Walton Beach, Florida. The original application reflected that applicant intended to incinerate type 4 cardboard, paper and plastics furnished by area hospitals, laboratories and doctors' offices at a rate of 440 pounds per hour. Also, the proposed unit included a secondary chamber with a 3,000,000 BTU burner and controls for one second retention at 1800 degrees. However, on August 20, 1990, applicant amended its application to reflect that, instead of a one second retention chamber, it would employ a two second retention chamber to ensure total combustion in the secondary unit. After receiving the application and conducting a review and on-site inspection, respondent, Department of Environmental Regulation (DER), gave notice of its intent to grant the permit on August 23, 1990. The agency action also required applicant to publish notice of such intended action in a local newspaper of general circulation and to provide the agency with proof of publication. Because applicant had obtained a draft of the notice prior to its formal issuance by DER, it published notice of the intended action on August 1, 1990, or more than three weeks prior to the date of the formal proposed agency action. Considering such publication to be ineffective, DER gave notice on October 15, 1990, that it was reversing its earlier action and denying the permit. On October 20, 1990, applicant published notice of the agency action. After DER issued a final order denying the permit, applicant filed an appeal but later dismissed it after DER agreed to issue the permit subject to a petition for hearing filed by a third party prior to the issuance of the final order. On November 1, 1990, petitioner, Okaloosa County (County), the county in which the facility will be located, filed its petition for administrative hearing. As later amended on December 12, 1990, the petition contested the proposed issuance of a permit generally on the grounds that its employees working in nearby areas would be exposed to harmful emissions from the facility and the applicant had not given reasonable assurances that the facility would comply with all DER pollution standards. The Application Type of permit being sought In order for the facility to become operational, Williams is required to obtain both a construction and operating permit. This application concerns only a construction permit and, if approved, Williams will be allowed to construct the facility, have an initial start-up period, and perform compliance testing within the start-up period to demonstrate that the facility can meet the requirements and limitations set forth in the permit. Before obtaining an operating permit, Williams must first perform compliance testing under the auspices of a certified testing consultant employed by DER and submit those results to the agency. If the testing results do not meet all DER standards, an operating permit will not be issued until and if all deficiencies are corrected. The unit Applicant proposes to utilize an incinerator manufactured by Cleaver- Brooks, model CBU-500, with a design capacity to burn 500 pounds of Class 4 biological waste per hour. 1/ As a unit designed to burn no more than 500 pounds of waste per hour, the unit falls in the smallest of the three categories of incinerators regulated by DER. The unit was described by a DER witness as being a "relatively small" one and the size typically found "behind your medium sized hospital". It costs in excess of one hundred thousand dollars. The unit is a modular, factory built, packaged and tested system that burns combustible waste of varying heat content. The basic system consists of the main (pyrolysis) chamber, secondary chamber, which is the primary pollution control device, burners, stack and controls. The incinerator employs a two-stage waste combustion process. In more technical terms, the first stage is a pyrolysis process whereby combustible gases are generated under controlled air and temperature conditions. The main chamber receives waste through a manual batch door or from an optional hydraulically powered feeder, and with the aid of a temperature controlled burner and sub-stoichiometric underfire air supply, combustible gases with minimum particle entrainment are produced. Complete destruction of the fixed carbon and less volatile material takes place continually in the firebed. The second stage is an excess air combustion process whereby the combustible gases generated in the main chamber are ignited in the secondary chamber producing a high temperature carbon dioxide and water vapor flue gas. The secondary chamber supplies all the air for this combustion through temperature controlled forced air jets and employs temperature controlled burners to ensure complete ignition of the gases. The flue gas is then ducted to the stack and exhausted to the atmosphere. Although the applicant originally proposed to use a thirty foot stack on the unit, he has agreed to install a stack having a height that will be a minimum of two and one-half times the height of any building within one hundred fifty feet. Location The proposed site for the incinerator is on a flat, three-acre lot within an industrial park located approximately 1,150 feet east of North Beal Street Extension, a paved collector road that serves an industrial area north of the City of Fort Walton Beach. This location was selected by Williams because it was "run down", was basically "heavy industrial", and was "already polluted" with junk cars and plastic. Indeed, adjacent to or in the general vicinity of the site are undeveloped Eglin Air Force Base property, a plastic recycling plant, a landfill operated by the County, a City of Fort Walton Beach sewer plant and an auto salvage yard. According to the County engineer, the surrounding area "looks pretty bad" but is "probably an average industrial site." There is also an older residential area known as Pine Subdivision which, at its closest point, lies approximately 200 feet southeast of the edge of applicant's property. Applicant owns a 3,000 square foot metal frame building of an undisclosed height on the southeast end of his property and intends to lift up one of the garage bay doors in the front, slide the lower unit in place, peel back three or four sections of metal roof, set the horizontal unit on top, and replace the roof. A stack will then be added to the unit. The property is fenced and access may be had only by a dirt road leading into the area. Treatment process Applicant intends to provide service to various hospitals, physicians, and laboratories in the area. At the present time, approximately one-half of the medical waste in the Panhandle portion of the state is being transported to incinerators in central and south Florida for disposal because there are inadequate facilities in the Panhandle area. Williams will use a panel truck registered with the Department of Transportation to transport all materials to the site. He will also give all customers special sealed containers in which to place their waste materials. These containers, which are known as sharps containers, are designed to hold syringes, scalpels, and other objects capable of penetrating the skin, as well as cotton swabs saturated to the point of dripping. After arriving at the site the truck will be unloaded and the material and containers placed in the incinerator and burned. Because Williams contemplates burning waste as often as needed, waste materials will not be stored on premises except for very short periods of time. In addition, the unit will be operated by a state certified gas operator who has received special training from the manufacturer. The unit into which the waste is fed is approximately eight feet in diameter, nine feet high and cylindrically shaped. Through the use of natural gas, the burn chamber reaches a temperature of sixteen hundred degrees, a temperature at which no organisms can survive. The gases from the first burn chamber then circulate into the secondary burn chamber for two seconds, which is greater than the one second retention time required by DER rules. The only visible emission seen from the stack will be heat waves. All emissions will be well within the air quality standards utilized by DER. Any glass slag or ashes remaining in the unit can be handled as regular waste and disposed of in a class 2 landfill. Finally, the prevailing winds throughout most of the year are from the south and southeast and thus all emissions will blow primarily to the northwest across the sewage treatment plant area. d. DER's review of the application In connection with the processing of the application, DER reviewed it for completeness and accuracy and was satisfied that the application was complete and accurate in all respects, including the submission by applicant of a topographic map. In addition, DER staff conducted an on-site inspection of applicant's property. Also, during the course of the review, DER technical staff had a number of discussions with Williams to clarify the information submitted with the application. Finally, based upon its review of the data originally filed together with information provided by Williams during the review process, DER staff reached the preliminary conclusion that Williams had satisfied all applicable rules and statutes. Petitioner's Concerns In its amended petition, the County raised two principal concerns regarding the construction of the facility. First, it contended that its employees who worked in areas adjacent to the facility would be subject to harmful emissions from the unit. Second, it argued that the applicant had failed to give reasonable assurance that the unit would comply with all DER standards. During the course of the hearing, the County focused principally on the issues of (a) "hot spots", which are high concentrations of pollutants which may occur at a distance of ten feet up to as far as five hundred feet downwind from the point of emission if the stack height on the unit is not at an adequate height, (b) applicant's lack of a storage facility for waste to prevent the potential leaching into the ground of medical waste waiting to be incinerated, and (c) the agency's failure to require Williams to post proof of financial responsibility through a bond. These concerns will be addressed below. The agency does not have a have a specific stack height rule applicable to the incineration process but rather requires that the unit be constructed in accordance with good engineering practices and that it meet all emission requirements. At hearing petitioner's expert agreed that any potential "hot spots" problem would be resolved by applicant agreeing to utilize a stack having a height of at least two and one-half times the height of any building within one hundred fifty feet of the unit. Moreover, DER has required that Williams place a monitoring device on the stack so that all emissions can be measured 24 hours per day. Since the applicant has agreed to both of these conditions, this issue has been resolved. County employees occasionally work on several roads within Pine Subdivision, one of which is only 250 feet from the proposed facility. They also are engaged in the periodic maintenance of ditches which run along the sides of North Beal Street Extension, and eight to ten employees regularly work at the County landfill approximately 1,350 feet away. To this extent, then, it may be reasonably inferred that any potential injury suffered by County employees would differ in degree and kind from that suffered by members of the general public. Even so, with the resolution of the "hot spots" problem, the County's expert agreed that the proposed incinerator would meet all applicable requirements contained in Chapter 403, Florida Statutes, and that all pertinent agency rules would be satisfied. Thus, the employees would not be exposed to emissions that contravene DER's air pollution requirements. There is no evidence of record to support a finding that applicant should file a bond as a prerequisite to being issued a permit. Indeed, the only evidence on this issue suggests that DER requires a bond from an applicant when it believes the applicant has not proceeded in good faith or has a history of violating DER regulations. Neither situation is applicable here. As to the storage issue, the evidence shows that applicant will incinerate materials as often as needed, and waste materials will be kept on the premises only for brief periods of time when the unit is already filled and then only until those materials are burned and the unit is ready to receive new waste. Thus, as a practical matter, the facility will not be used to "store" waste materials within the meaning of that term. In addition, the area where waste materials will be kept until being fed into the unit will be an integral part of the treatment facility, and DER represents it has no authority to require Williams to submit information regarding storage areas associated with the incinerator. Put another way, in the construction permit review process, DER is concerned only with the air pollution source and the adequacy of the proposed control equipment. This was not contradicted. Finally, there was no evidence to suggest that the materials will leak into the ground. Indeed, petitioner's expert suggested only that the facility should be "secure" and that the material should be covered in the event of rain. The Required Reasonable Assurance Effective on an undisclosed date in 1991, new and more stringent DER rules became applicable to all new medical waste incinerators, including that proposed by Williams. Thus, his application was reviewed to determine its consistency with those new standards. An agency rule [rule 17-2.600(1)] provides that facilities with a capacity equal to or less than 500 pounds per hour, such as the Cleaver-Brooks 500 model, shall not have particulate matter emissions exceeding 0.100 grains per dry standard cubic foot of flue gas, corrected to 7% 0 or hydrochloric acid (HCL) emissions that exceed 4 pounds per hour. When operated as proposed by Williams, and as guaranteed by the manufacturer, emissions of small amounts of particulate matter and hydrocloric acid will not exceed those amounts allowed by rule. In addition, any emissions of water vapors and carbon dioxide will be in very small amounts and will not result in unlawful emissions. This finding is based upon the testimony of witnesses Middleswart and Dzurik which has been accepted as being persuasive on this issue. Thus, Williams has given reasonable assurance that the proposed facility will not cause air pollution in contravention of DER standards. The applicant has given reasonable assurance that the proposed facility will comply will all other applicable DER standards and rules. This was not controverted. Therefore, Williams has demonstrated his entitlement to the permit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that G. T. Williams' application for a permit to construct a biological waste incinerator adjacent to North Beal Street Extension, Fort Walton Beach, Florida, should be GRANTED subject to the following condition: That the applicant utilize a stack height of two and one-half times the height of any building within 150 feet of his unit. DONE AND ENTERED this 13th day of January, 1992, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1992.
Findings Of Fact Respondent Jackson County proposes to build a Class I landfill in western Jackson County, about 1.5 miles south of Campbellton on the west side of State Road 273. The named petitioners live near the proposed site, and all parties stipulated to petitioners' standing or party status on account of the proximity of their homes. The forecast is that the proposed landfill would be in service for 15 years, during the last of which it would receive wastes generated by 16,000 persons. Contingent on issuance of the construction permit it seeks in these proceedings, Jackson County has agreed to purchase 85 to 89 acres in section 15, township 6N, range 12W, of which 55 acres would be devoted to the proposed landfill. About ten of the remaining acres are covered by the southern reaches of Grant Pond. Grant Pond may be a sinkhole, but there is no connection between its waters and the Florida aquifer. There is no evidence of sinkhole activity on the site at the present time. One hundred ten feet from the southwest boundary of the proposed site long-time residents have shallow wells from which they once drew water with buckets. There are mostly small farms in the area. A trailer and 6 to 8 homes are located within 1,000 yards of the proposed site. LEACHATE NOT ANTICIPATED Jackson County contemplates eventually dumping 215 cubic yards daily of residential, commercial and agricultural wastes including sewage sludge, in a series of "cells" to H developed seriatim on the site. Developing a cell would entail digging a pit 15 feet deep, 200 feet wide and 650 feet long, lining it with some of the clay removed in excavating, and compacting the two-foot-thick clay bottom liner to 90 percent Proctor. The uncontroverted testimony was that such a liner would be impermeable. A cell is expected to accommodate about a year's worth of refuse. The plan is to have one cell in operation and another in reserve at all times. Waste would be compacted and then covered over with clay soils daily to minimize the possibility of leachate formation. In addition, a six-inch layer of clay would be put down at the end of each "lift," more or less weekly. Once the cell was completely filled, it would be covered with an even thicker layer of clay and/or other materials specified by applicable regulations. Against the possibility of leachate formation before the cell is finally sealed off, the bottom of the cell would be sloped (4:1) so that any leachate generated would accumulate at one point in the cell, from which it could be pumped to a leachate holding pond. The leachate holding pond is also to be lined with impermeable clays. The engineer who designed the project predicts that no leachate whatsoever will be generated and the project plans do not identify the specific method for disposing of leachate, once it reaches the holding pond. Depending on the quality and consistency of any leachate, it could be left in the holding pond to evaporate, or be removed by truck for disposal off site; or be treated biologically and/or chemically before being spread on site. STORMWATER The stormwater management system consists of a series of elongated detention ponds and two ditches, or swales, that drain into Grant Pond. The detention ponds are to be 1.2 feet deep, have varying widths (26.5 to 64 feet), with sides sloping at a 4:1 ratio, and vary in length from 1,000 to 1,600 feet. Water that would accumulate in them as a result of 3.2 inches of rainfall (the amount a 25-year one-hour storm would bring) would fill the ponds. The ponds are designed to overflow through baffled culverts along the swales into Grant Pond. The soils are such that 3.2 inches of rainfall could percolate into the unsaturated soil from the holding ponds in 72 hours. The closest baffle to Grant Pond would be some 200 feet distant; significant sheet flows would also enter Grant Pond. The landfill is designed to insulate stormwater runoff from contamination by waste or leachate. Only when wastes in an almost filled cell had not yet been covered would there be danger that stormwater falling on wastes would end up in the flow of stormwater draining across the surface of the proposed site and ultimately into Grant Pond. This danger could be all but eliminated by placing the last layer of wastes deeply enough in the cell. The plan is to ring the cells with excavated material, as well. If leachate is generated and pumped to the leachate holding pond and if there is enough of it to fill the pond or nearly to fill it, a storm might result in an overflow from the leachate holding pond that would drain eventually into Grant Pond. This danger, too, could be all but eliminated by operating the landfill so that the level of leachate in the holding pond always remained low enough, and by disposing of all leachate, if the facility generates any, off site, rather than "by landspreading on site." Jackson County's Exhibit No. 6. The same people who manage the landfill in eastern Jackson County would manage the landfill here proposed. No leachate has been generated at Jackson County's eastern landfill, but litter that can blow out of the cells at the eastern landfill does. If the same practices obtain at the new site, airborne litter that does not reach Grant Pond on the wing, may later be washed into the Pond by stormwater, even though the baffles would eliminate floatables in the water flowing out of the detention ponds. TWO AQUIFERS The parties are in agreement "that the leachate and or other pollutants will probably never reach the Floridan Aquifer." Petitioners' Closing Argument, p. 4. The Floridan aquifer is a limestone rock formation underlying the proposed site at depths varying between 30 and 130 feet, and separated by a layer of stiff clay from the overlying silts and sands. The stringers of saturated sands lying near the surface comprise a distinct, surficial aquifer that lies between five and twenty feet below ground over most of the site but crops out as Grant Pond on the northern edge of the property. No cell would be built within 200 feet of the highwater line of Grant Pond. The water table in the surficial aquifer, which yields potable water, is a subdued replica of the ground topography. Surface water from the southwest part of the proposed landfill site, where wells are closest, flows into Grant Pond. Water sometimes stands on the southeast part of the site, an area one witness described as boggy. A trailer stands on a parcel adjoining the property to the southeast with its near boundary 300 or 400 feet from the site proposed for the first working cell. No cell is to be dug within 500 feet of any existing or proved potable water well. The application contemplates monitoring wells. Groundwater in the Floridan aquifer flows south. Three wells to a depth of about 45 feet each are planned for south of the cells so that, in the unlikely event that pollution reached the Floridan aquifer, it could be promptly determined. There will also be a monitoring station in Grant Pond so the effect of stormwater runoff on water quality in the pond can be gauged. One well, 250 feet east of the west property boundary and 250 feet south of the north boundary, is planned for monitoring the surficial aquifer. TOXIC WASTES Toxic wastes are generated in Jackson County. Hundreds of drums with a little something still left in them are brought to the County's eastern landfill. No toxic wastes can lawfully be dumped at landfills like the one Jackson County proposes to build near Campbellton, but containers which once held toxic substances can lawfully be disposed of at such landfills, provided they have been rinsed out with water three times. Signs to this effect are to be posted. The landfill would have a single entrance. An attendant would be on duty during the landfill's hours of operation (8 to 5, five days a week), but would not be expected to have sampling equipment or to enforce the triple rinsing requirement, if past practice at the eastern landfill is any indication. When the landfill is not open, according to the applicant's engineer, green boxes will nevertheless be available for dumping. SCREENING Litter fences are planned only "if needed." A green belt 100 feet wide is proposed along the southern and the eastern perimeter of the property. "Appropriate trees and shrubs" are to be planted there, perhaps bamboo or oleander. SEPTAGE DISPOSAL PITS In a letter dated December 1, 1982, under the heading "septage disposal pits", C. G. Mauriello, the engineer who designed the proposed landfill, wrote DER's Wayne Hosid: This item was not shown on the original application but should be included. It has been recognized by the County that disposal of this type waste material should be handled at the new west site and therefore, provisions will be made for the disposal. Basically, a trench type operation similar to the East Site will be provided. The location of the disposal area will be to the south of the Future Holding Pond and north of the Salvage Area. Jackson County's Exhibit No. 6. A drawing prepared by the same person in July of 1982 shows a "septic tank/drainfield" southeast of the location described for the "septage disposal pits." DER's Exhibit No. 1. The permit DER proposes to issue contains numerous conditions, including the following: Construction of septage drying beds will be identical to those permitted under Permit No. 5032-22067 for Jackson East Sanitary Landfill as modified on July 20, 1981. Jackson County's Exhibit No. 9. Permit No. 5032-22067 was not made a part of the record in these proceedings. Incidentally, the word "septage" does not appear in Webster's Third New International Dictionary (1971). A septic tank or any similar system would differ significantly from the systems described by the witnesses who testified at hearing. Septic tanks eventually discharge their contents into surrounding soils, after treatment by anaerobic bacteria. Septic tanks cannot be sealed off by clay or anything else from the earth around them, if they are to function properly. Sooner or later discharge from any septic tank on site could be expected to enter the surficial aquifer and, ultimately, through the groundwater, Grant's Pond. Nothing in the evidence indicates how long it might take for any such effluent to reach the groundwater or leach into Grant Pond; or what its chemical composition might be. MORAL OBJECTION STATED Petitioners' witness Frederick L. Broxton, Sr. testified that, even conceding the absence of a scientific or legal basis for objection to the proposed project, it was immoral for the County Commission to choose a site so close to people's homes, when there was so much land available in that part of the county, where nobody lived. PROPOSED FINDINGS CONSIDERED All parties filed posthearing submissions which have been considered in preparation of the foregoing findings of fact. Respondent Department of Environmental Regulation filed proposed findings which have been adopted, in substance, for the most part. Where proposed findings have not been adopted, it is because they have been deemed immaterial, unsupported-by the weight of the evidence, subsidiary or cummulative.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation issue Jackson County a permit for construction of a landfill at the site proposed subject to the conditions (except condition No. 24) stated in the proposed permit, Jackson County's Exhibit No. 9, and subject to the following additional conditions: (a) any leachate generated shall be disposed of off site (b) the whole landfill shall be fenced, and the view from State Road 273 shall be obstructed (c) portable fences shall be placed around any cell in use (d) an additional monitoring well shall be placed between the well southeast of the site and the nearest cell and (e) no septic tank or "septage" disposal pits shall be built on site. DONE and ENTERED this 17th day of August, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 17th day of August, 1983. COPIES FURNISHED: Robert L. Travis, Jr., Esquire 229 East Washington Street Quincy, Florida 32351 J. Paul Griffith, Esquire P. O. Box 207 Marianna, Florida 32446 E. Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The petitioner is a non-profit corporation consisting of individual members who are residents of Tallahassee and Leon County and organizational members who have chapters in Tallahassee and Leon County. The primary purpose of petitioner is to bring about a balanced transportation system in Tallahassee and Leon County taking into consideration certain criteria which include the following: the prevention of neighborhood disruption and deterioration; the prevention of environmental degradation; and the prevention of harm to historical sites. In conjunction with this purpose and these criteria, one of petitioner's primary concerns is the prevention of degradation of air quality in the Tallahassee, Leon County area. Some members of the petitioner use that part of Thomasville Road to be affected by the subject application. The project for which the Department of Transportation seeks a Complex Source Permit is the four-laning of Thomasville Road from Eighth Avenue to Interstate 10 in Tallahassee, Florida. The Complex Source Permit was originally submitted to the Department of Environmental Regulation on March 22, 1976. The Department of Environmental Regulation did not accept that application, however, due to unacceptable modeling and monitoring. Thereafter, two supplements to the application were submitted to the Department of Environmental Regulation. The first, dated September 21, 1976, and the second, dated November 16, 1976, contained additional monitoring and a repeat of the modeling effort. Because of allegedly incorrect counts and speeds, the Department of Transportation submitted yet another application with revised monitoring and modeling data on January 4, 1978. This latest revised application is the subject of this hearing. The Department of Transportation did not monitor for or project the concentrations of any pollutant listed in Section 17-2.05, F.A.C., except carbon monoxide. The Department of Environmental Regulation did not require the monitoring for or projection of concentrations of any pollutant listed in Section 17-2.05, F.A.C., except carbon monoxide. The evidence presented in this proceeding does not establish that construction of the project for which a Complex Source Permit is sought herein would result in or cause an increase in ambient pollutant concentrations of any pollutant listed in Section 17-2.05, F.A.C., with the exception of carbon monoxide. The evidence presented indicates that remaining pollutants listed in the foregoing section would be emitted in insignificant quantities having no effect on the ambient air quality standard for that pollutant. The Department of Environmental Regulation has not independently monitored for any of the pollutants considered by Section 17-2.04(8), F.A.C., but has relied entirely on data submitted by the Department of Transportation. The Department of Transportation has based its carbon monoxide projections upon the use of the California Line Source Model, also known as Calair I, which is a mathematical computer model. It appears from the evidence presented that the Calair I computer model was used in a reasonable and proper manner and produced data which could be relied upon by the Department of Environmental Regulation. The Complex Source Permit application as finally submitted on January 4, 1978, projects the following concentrations for carbon monoxide: one-hour concentration for 1979, 6.7 ppm and for 1939, 4.8 ppm; for eight-hour concentrations in 1969, 2.8 ppm and for 1989, 2.0 ppm. The ambient air quality standard for carbon monoxide set forth in Section 17-2.05(1)(c), F.A.C., is 9 ppm maximum eight-hour concentration and 35 ppm maximum one-hour concentration, both not to be exceeded more than once per year. The testimony indicates that even if the calibration factor with the Calair I model were doubled, the projected carbon monoxide concentrations would not exceed the foregoing standard. No evidence was presented on the issues initially raised in this proceeding involving the Major Thoroughfare Plan, the Transportation Improvement Plan, and the Urban Area Transportation Plan. The testimony and evidence presented in this proceeding establishes reasonable assurance that the subject project will not cause a violation of the ambient air quality standards for the major pollutants to be emitted.
The Issue The parties have raised myriad issues hare. Petitioner has alleged being capriciously and arbitrarily denied its permit because similar treatment plants have been licensed nearby. The parties disagree over whether local Lake County Pollution Control Board rules are applicable to Petitioner's plant. If the rules are applicable, they disagree over their interpretation. The parties further disagree over whether Petitioner has pending an application for a waste water treatment plant operating permit. It is this last issue which is discussed below because it is dispositive of the case.
Findings Of Fact Petitioner operates a waste water treatment plant in Lake County, Florida which serves four motels at the intersection of U.S. Highway 27 and SR 19 immediately to the south of Interchange 27 on the Florida Turnpike. On October 27, 1972, DER issued a construction permit to Petitioner to construct the plant at a design capacity of 250,000 gallons per day (gpd). The treated effluent was proposed to be discharged via a spray irrigation system to the ground water on Petitioner's site. The plant has never operated at capacity. Its normal volume has ranged from between a low of 40,000 gpd to a peak of 140,000 gpd. Petitioner's plant is situated on a 12.5 acre site over a clay hard pan. The hard pan which is immediately below the ground surface prevents adequate percolation of the plant's effluent down to the underlying ground water. During periods of heavy rain the effluent from the plant has breached a retaining dike and flowed directly into a marsh area known as the Little Everglades to the north. Petitioner has submitted four permit applications to the Department. The first, submitted in September of 1972 was for the construction permit already mentioned. The next applications dated October 22, 1973, was for an operation permit. The application indicated that there would be no discharge to surface waters but there would be a discharge to ground waters. The application also indicated that the availability of space for the expansion of the plant was limited to the site at that time. Petitioner later purchased additional land not reflected in this application. The operation permit was never granted by the Respondent. As stated by Mr. Potter, President of Lake County Utilities, Inc., "In the fall of 1973, I made an application as engineer for the utility company to the Florida DPC [Department of Pollution Control] and to Lake County for an operation permit. That permit was denied by the Department on the ground that we had not satisfied Lake County as to the total containment of our effluent." Subsequently on August 30, 1976, Petitioner submitted a construction permit application to DER for permission to add a 1.32 acre oxidation-polishing pond, to regrade and regrass the existing spray irrigation field, to construct a 0.40 acre denitrification pond and to add a nutrient uptake. No increase in the design capacity was proposed. On that application Petitioner indicated that there would be a discharge to the surface waters of the state. In answer to that part of the application which asked for proposed drainage path of the effluent Petitioner stated, "From treatment plant to 'on-site' ponds to 'on-site' grassy pond and marsh would overflow to ajacent Florida DOT [Department of Transportation] borrow pit: thence via developed drainage waste to the 'Little Everglades' swamp: then, via developed canal and ditches and through natural ponds and marshes to 'Little Lake Harris' and ultimately the Atlantic Ocean." This permit was denied by DER because the Lake County Pollution Control Board did not approve the plan. Finally on September 29, 1978, Petitioner applied for another construction permit. Thee construction would include: Construction of storm water control structures and culverts: Regrading of water and sewer plant sites; Construction of percolation pond "A" and enclosing dikes; and Construction of percolation pond "B" and enclosing dikes. This application was made in response to advice from DER that Petitioner's plant should be in a no discharge condition in order to comply with Lake County Pollution Control rules. On November 2, 1979, the Department issued a Letter of Intent to deny the last permit application because the application was deemed to be incomplete and because the further data which DER requested was not provided. In response to DER's intent to deny the construction permit Petitioner on November 20, 1979, filed its Petition for an Administrative Hearing. Petitioner does not now intend to construct the proposed facilities for which it requested the construction permit in September of 1978. The following colloquy is from the final hearing. Mr. Stephens Have you-- Can you describe briefly the nature of the changes proposed in your 1978 construction permit application? Mr. Potter 1978 construction permit application on nominally the five acre parcel to create a diked pond or lake. Mr. Stephens Uh-huh. Mr. Potter Solely that. The part on the nominally two and a half acre parcel, give or take, was to create a deep percolation pond in which I proposed digging through the clay to the sand and shell below. Mr. Stephens Uh-huh. Mr. Potter So that waters that entered that pond, A, because of its depth, would denitrify and release nitrogen contents to the atmosphere; and, the water would, because of its hydraulic head in relation to the soil below, would push its way into the soils below. Mr. Stephens Uh-huh. Mr. Potter But in the event I could not dispose of the water through that form of percolation, it would overflow into the five acre diked area. And thereby I hoped to satisfy Lake County and the D.E.R. and solve this lingering festering problem. Mr. Stephens Uh-huh. You are the Petitioner in this case. Is it your desire or intention to complete those. . .that construction? Mr. Potter Now that I have been made aware of the law, the law of Chapter four oh three, the rules of Florida D.E.R. and become clear as to the ordinances adopted by the County Commission and the Lake Pollution Board of Lake County as to Class 3-B waters, I have no intention of squandering my money, and, in effect, the money of my customers, in such a wasteful pursuit. Mr. Stephens So you're saying here under oath you don't intend to perform that work even if granted a permit? Mr. Potter Not shy of a court order. As the result of Mr. Potter's testimony on behalf of the Petitioner at the final hearing, it is found that Petitioner has withdrawn its September 1978 application for a construction permit. There is not now pending before the Department of Environmental Regulation a valid permit application for the Petitioner to operate its waste water treatment plan. On May 9, 1980 Lake County Utilities, Inc. served Petitioner's Fourth Interrogatories to Respondent which asked by Interrogatory 10: Please state when and by whom the Department of Environmental Regulation has caused field studies to be made and samples to be taken out of the waters of Lake County (and specifically the geographical vicinity of U.S. 27 - S.R. 19 - Fla. Turnpike) periodically and in a logical geographic manner so as to determine the levels of water quality of the waters as such studies and sampling is within the powers and duty of the Department as mandated by the Florida Legislature in Chapter 403 of the Laws of Florida. (emphasis in original) The Department responded: 10. The Department conducts sampling in the waters of Lake County in conjunction with individual permit applications and not on a systematic basis throughout the County. Respondent objects to this interrogatory as being irrelevant to this proceeding in that the subject permit was not denied on the basis of anticipated water quality violations, but rather, as a result of the pollution control ordinances of Lake County, Florida, which prohibit any discharge to surface waters from the subject facility, and which the Department is required to enforce pursuant to Section 403.182(6), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it Is RECOMMENDED: That the State of Florida, Department of Environmental Regulation enter a Final Order dismissing the Amended Petition for Administrative Hearing without prejudice, however, to the filing of a new application by Petitioner for a waste water treatment plant operating permit. DONE and RECOMMENDED this 12th day of May, 1981, in Tallahassee, Florida. MICHAEL P. DODSON 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 12th day of May, 1981.
Findings Of Fact At final hearing, the parties stipulated to the following facts: The Department of Environmental Regulation is an administrative agency of the State of Florida created by Chapter 75-22, Laws of Florida, and vested with the power and duty to implement and enforce the provisions of the Florida Air and Water Pollution Control Act, Part I, Chapter 403, Florida Statutes. Pursuant to these Acts, the Department is authorized to regulate the construction and operation of solid waste disposal facilities and stationary installations reasonably expected to be sources of pollution. Respondent, City [of North Miami], owns the property on which is located a solid waste facility known as "Munisport Sanitary Landfill" located at 14301 Biscayne Boulevard, North Miami, Dade County, Florida; latitude 25 degrees 54' 9" North, longitude 80 degrees 9' 5" West in Sections 21 and 22, Township 52 South, Range 42 East. Respondent, Munisport, operates a solid waste disposal facility under contract with the City. On March 7, 1977, the Department issued to the City of North Miami permit/certification number 13-31-028GM (hereinafter "dredge and fill permit") which modified and superseded permit/classification number 13-31-0286. The permit was issued under the provisions of Sections 253.123, 253.124, and 403.087, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The permit also provided water quality certification required by Public Law 92-500. The dredge and fill permit was issued for the purpose of constructing a continuous 5,000 foot-long earthen dike with a modified top width of 12 feet aligned waterward of the mean high water line such that the waterward toe of the dike would be on or landward of the property line. Approximately 6,000 cubic yards of material would be dredged from the 63-acre tract located behind the dike and waterward of the mean high water line. Portions of the tract would be excavated to minus 35 feet mean low water to form nontidal lakes. Approximately 1,000,000 cubic yards of fill material would be enplaced as follows: Clean fill to be utilized to produce an elevation of a minimum of two feet above the calculated ground water table, after which fresh refuse and a two-foot final cover of clean fill would be placed. Within a zone of 100 feet from the landward crest of the dike, yard trash and construction debris would be the only types of solid waste acceptable as fill, and A ten-foot wide by three-foot deep circulation canal would be dredged on the outside perimeter of the dike. General condition 13 of the dredge and fill permit provides that the permit does not indicate an endorsement or approval of any other Department permit/approval that may be required for other aspects of the total project. A solid waste operation permit would also be required. On June 8, 1979, the City and Munisport received from the Department Operation Permit No. SWO-13-5152 (hereinafter "solid waste operation permit"). The purpose of the solid waste operation permit was to allow and regulate the placement of solid waste (refuse, yard trash and construction debris) in the area behind the dike described above and on adjacent uplands in order to generate an appropriate elevation for a golf course. General condition number two of the solid waste operation permit states that: This permit is valid only for the specific processes and operations indicated in the attached drawings or exhibits. Any authorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit shall constitute grounds for revocation and enforcement action by the Department (emphasis added). Specific condition number six of the solid waste operations permit provides that the subject facility be operated at all times at the maximum level of efficiency so as to minimize the adverse effect on the environment of contaminated storm water runoff or leachates which cause degradation of surface or ground waters. Specific condition number nine of the solid waste operation permit provides that "no solid waste shall be placed within thirty feet of any existing or future lake". Prior to the issuance of the solid waste operation permit, Respondents' permit application was subjected to a de novo review during a Section 120.57(1), Florida Statutes, hearing requested by the Florida Audubon Society and others. The record of these proceedings explained and expanded upon the application and, therefore, became a part thereof. Respondents' consultant testified in these proceedings as follows: We have an agreement with the Department of Environmental Regulation that goes back several years that we would not dig up any old land fill material nor would we place any land fill material in an area that would eventually become a lake. Testimony of Mr. Thomas Joseph Checca on October 18, 1978; Transcript of proceedings in Florida Audubon Society, et al. v. State of Florida, Department of Environmental Regulation, City of North Miami, Florida and Munisport, Inc., DOAH Case No. 78-316. On October 25, 1979, an inspection of the above-described facility was made by Mr. Scott Quaas, an employee of the Department, who observed that two lakes had been constructed in old waste on the site without the required 30-foot setback as required by the aforementioned permit conditions. A letter of notice was issued by the Department regarding that and other violations on November 16, 1979. On December 18, 1979, a follow-up inspection of the subject facility was made by Mr. Quaas, at which time it was observed that two more lakes had been excavated through waste previously deposited at the site, thereby causing such waste to come in direct contact with the water in the lakes adjacent thereto. It was also observed that no 30-foot setback was provided at the new lakes. Notice of these additional violations was provided to Munisport on January 16, 1980. An on-site meeting regarding the above-described violation was held on January 24, 1980, at which time it was agreed that Respondents would reply by February 1, 1980, as to whether corrective actions would be taken regarding the aforementioned violations. As of the date of final hearing in this cause, corrective action had been taken to eliminate these violations. Specific condition number 13 of the solid waste operation permit requires the posting of a performance bond or other security acceptable to the Department which adequately covers the cost of monitoring and final closing procedures required under the permit and Chapter 17-7, Florida Administrative Code, and procedures listed in the application for permit which may become necessary to correct any pollution detected at the site in violation of Department rules. No such bond or security has been posted with the Department. Extensive discussions between the Department and representatives of the City and Munisport have failed to produce agreement regarding the terms of a performance bond or security. The parties were notified of this violation and were given an opportunity to respond. Leachate (runoff containing pollutants) has been allowed to enter lakes on the site. A leachate plume containing ammonia has been detected beneath the subject sanitary landfill site, which plume has reached ground waters of the State and is being observed to be moving off the site in an east- southeast direction, toward Biscayne Bay. This leachate plume contains total Ammonia-Nitrogen (NH3-N) in amounts which are substantially in excess of the water quality standards of .5 milligrams per litre for Dade county, Florida. See, Chapters 24-11(4), Dade County Code. It was not anticipated when Operation Permit Number SWO-13-5152 was issued that leachate would be allowed to enter the lakes or that a leachate plume would form in the manner which is presently being observed. In addition to being a pollutant, Ammonia-Nitrogen is the first substance generally observed when a leachate plume forms. There exists a significant possibility that other pollutants contained in solid waste deposited at the site will also begin to reach ground waters of the State and the waters of Biscayne Bay. General condition number eight of the solid waste operation permit states that: This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant, or aquatic life or property and penalties therefore caused by the construction or operation of this permitted source, nor does it allow the permittee to cause pollution in contravention of Florida Statutes and department rules, except where specifically authorized by an order from the department granting a variance or exception from department rules or state statutes. Specific condition number 15 of the solid waste operation permit states that: These permit conditions do not exempt the applicant from complying with pollution control requirements of other Federal, State, Municipal, County or Regional water pollution control rules, regulations, ordinances or codes, nor does it authorize any violation thereof.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered revoking the permits and certification which are the subject of this proceeding in their entirety or such lesser action as may be deemed appropriate by the Department in the exercise of its discretion as the State agency charged with the power and duty to control and prohibit the pollution of air and water under Section 403.061, Florida Statutes, and as the agency responsible for the implementation and enforcement of the provisions of the Florida Resource Recovery and Management Act which regulates the appropriate disposal of solid waste and landfill operation in this State. DONE and ENTERED this 24th day of February, 1981, in Tallahassee, Leon County, Florida. WILLIAM E. WILLIAMS, 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 24th day of February, 1981. COPIES FURNISHED: William P. White, Jr., Esq. Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Willard K. Splittstoesser, Esq. 776 N.E. 125th Street North Miami, FL 33161 Marvin P. Sadur, Esq. 2000 L. Street, N.W., Suite 612 Washington, D.C. 20036
The Issue The issue in this case is whether the Variance Review and Advisory Committee and the Department of Health had just cause to disapprove Petitioner's application for a variance.
Findings Of Fact The Department of Health (DOH) is the agency responsible for oversight of the on-site sewage treatment and disposal systems program and the Variance Review and Advisory Committee which meets monthly to recommend agency action on variance requests pursuant to Chapter 381, Florida Statutes. In August 1999, Petitioner applied to the DOH for a second variance to extend a variance previously granted in June 1999, to use an existing septic system for six months. Petitioner's application for the second variance stated that county sewer would be available in 2001, and she would be required to hook into the sewer. Therefore, Petitioner wanted an extension to continue using the existing undersized septic system until the sewer was available. She also attached water usage records for June 1998 through July 1999, for her property. Petitioner owns the commercial property served by the septic system and located on Howland Boulevard in Deltona, Florida. The property consists of a strip mall with five offices and one restaurant. The property originally contained six office spaces in 1990, when Petitioner applied for a permit to install a septic system to handle the building's sewage flow. See Petitioner's Exhibit No. 1. Petitioner was granted a construction permit for the septic system on August 14, 1990, which contained the statement: "no food service operations permitted in this building." Prior to May 1999, Petitioner leased an office in her commercial property to Milagros Martinez to operate a sandwich shop. Ms. Martinez applied to DOH for approval to use Petitioner's existing septic system to handle her sandwich shop sewage, and was denied because of increased water use and septic system demands of a restaurant. Petitioner's septic system contains a 750-gallon tank with 162 square feet of drainfield. In order to handle the additional sewage generated by the sandwich shop, the Florida Administrative Code requires a 1350-gallon tank and a drainfield of 787 square feet. There is enough room on Petitioner's property to install a separate septic system to handle the sewage generated from the sandwich shop. Petitioner applied to DOH for her first variance in May 1999, requesting to utilize the septic system to handle the waste from the sandwich shop. Petitioner appeared before the DOH Variance Review and Advisory Committee in June 1999. The committee recommended, and DOH concurred, to approve the first variance with four provisos. See DOH Exhibit No. 2. The four provisos were: The applicant shall obtain and maintain an annual onsite sewage treatment and disposal system operating permit in accordance with subsection 64E-6.003(5), F.A.C. The owner shall maintain an annual contract with a licensed septic tank contractor to inspect and service the onsite sewage treatment and disposal system at least once per month or more frequently as necessary. This variance allows operation of the sandwich shop for no more than six months. During that six months, the applicant shall take all necessary steps to increase the capacity of the system to accommodate the additional 230-gallon sewage flow from the sandwich shop. At the end of the six months, the system shall be in compliance or the sandwich shop shall be closed and remain closed until compliance is achieved. The four provisos were additionally explained to Petitioner in a letter dated July 14, 1999, from Sharon Heber, Director of the DOH Environmental Health Division. See DOH Exhibit No. 1. Petitioner accepted the provisions of the first variance on July 20, 1999. See DOH Exhibit No. 4. Petitioner does not have a current annual on-site sewage treatment and disposal system operating permit as required by the first proviso. Petitioner did not contract with a licensed septic tank contractor to inspect and service her system at least once per month as required in the second proviso. Petitioner called a contractor to inspect her system four times in the six-month period since the first variance was granted. Within six months, Petitioner did not take the necessary steps to increase the capacity of her septic system to handle the additional flow as required by the third proviso of the first variance. The system is not in compliance and the sandwich shop is not closed as stated in the fourth proviso. In August 1999, Petitioner filed for a second variance requesting that the first variance be extended until year 2001. That is the date the county plans to install a sewer line on Howland Boulevard in Deltona, which will serve her commercial property. She submitted a letter from the Volusia County Public Works Service Center stating that the "sewer service is planned to be available sometime in the year 2001." See Petitioner's Exhibit No. 4. The Variance Review and Advisory Committee considered Petitioner's request at their September meeting. The variance committee unanimously denied Petitioner's request for a second variance. The Petitioner's system was not designed to handle an increased amount of sewage flow, and that it would eventually collapse or fail. The committee's approval of the first variance was to allow Petitioner adequate time to install the necessary septic system for the restaurant, and not put Petitioner in the position of telling her tenant she could not open her restaurant. See DOH Exhibit No. 5. When Petitioner's existing system fails, sewage will pond on the ground. The ponding fluid will consist of raw sewage. The leaking/ponding sewage may seep into the groundwater and then into drinking water aquifers. In the right conditions, this pollution can cause the spread of waterborne diseases such as typhoid and cholera, or viral infections, such as hepatitis A or polio.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health enter a final order affirming the decision of the Variance Review and Advisory Committee and the Department of Health to disapprove Petitioner's second variance application. DONE AND ENTERED this 17th day of April, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 17th day of April, 2000. COPIES FURNISHED: Connie Biancardi 2820 Howland Boulevard Deltona, Florida 32725-1606 Charlene J. Petersen, Esquire Department of Health Volusia County Health Department 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 William Large, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue Whether the costs incurred by the Department of Environmental Protection, Bureau of Emergency Response (Department) in connection with its response to Incident Number 97-02-0234 may be recovered from Petitioner pursuant to Chapters 376 and 403, Florida Statutes.
Findings Of Fact The Department is a state regulatory agency charged with the responsibility of administering and enforcing the provisions of Chapters 376 and 403, Florida Statutes. Orchard View Development, Limited (Orchard View) is an Ontario, Canada corporation. Its president is William T. Lamsom. Orchard View is now, and has been since approximately two to six months prior to the incident which is the subject of this proceeding, the owner of a triangular, three-quarter acre parcel of undeveloped land (Orchard View's Parcel or the Parcel) located on the fringe of a Boca Raton, Florida residential neighborhood. There are children in the neighborhood who pass by the Parcel on their way to and from school. City streets border Orchard View's Parcel on all sides. Across one of these streets is a creek. Orchard View owns an additional 78 acres of undeveloped land (Orchard View's Acreage or the Acreage) to the north of its Parcel. Only a street separates the Acreage from the Parcel. Orchard View first acquired the Acreage in approximately 1975 and sold it about 14 or 15 years later. During this 14 or 15-year period, the Acreage was used by others, without Orchard View's approval or authorization, as a dumping ground. Numerous items, including boats, automobiles, tires, baby carriages, mattresses and landscaping material, were left abandoned on the property. Steps taken by Orchard View (which was well aware of the problem) to deter such dumping, including posting "no trespassing" signs on the property and erecting a 10-foot dirt barrier on one side of the property, were ineffective. Orchard View also complained to the police about the problem, but the making of these complaints did not result in an amelioration of the situation. Orchard View reacquired the Acreage at approximately the same time it acquired the Parcel. Since Orchard View's reacquisition of the Acreage, unauthorized persons have driven their all-terrain vehicles on the property without the approval or authorization of Orchard View, notwithstanding the "no trespassing" signs on the property. Although aware of the dumping problems in the area, Orchard View has not, at any time after its acquisition of the Parcel, posted "no trespassing" signs on the Parcel or erected a fence or other barrier around the Parcel, nor has it taken any other measure designed to discourage or prevent dumping on the Parcel. On June 9, 1997, at 11:10 a.m., the Department was notified by Lieutenant John Johnson of the Boca Raton Fire Department that four drums, which were labelled “poison and toxic,” had been discovered on the Parcel. The drums did not belong to Orchard View. They had been dumped on the Parcel by some person or persons not associated with Orchard View without Orchard View's knowledge, approval or authorization. Catherine Porthouse, an Environmental Specialist II with the Department, promptly responded to the scene (where she met Lieutenant Johnson) and served as the Department's on-scene coordinator. Because the drums were labelled “poison and toxic” and their contents were unknown, Lieutenant Johnson would not allow anyone, including Porthouse, to approach the drums without "Level B" protective clothing and equipment. Porthouse therefore initially viewed the drums from a distance using binoculars. She noted that three of the drums were leaking and that there was stained soil in the area of the drums. She also saw other solid waste materials nearby. Porthouse learned that Orchard View was the owner of the property on which the drums were located. At 12:49 p.m. on June 9, 1997, Porthouse telephoned Lamson and advised him that the drums were on the Parcel and that they needed to be removed by an "emergency response contractor." When informed about the presence of the drums on the Parcel, Lamson was not surprised. He realized (as he testified at hearing) that the area was "a good dumping ground." Lamson told Porthouse that he would ask his son, a general contractor who lived and worked near the Parcel, to remove the drums. Porthouse, however, explained to Lamson that the removal of the drums needed to be done by someone qualified, under state and federal law, to handle and transport hazardous substances. Lamson thereupon asked Porthouse to provide him with a list of "emergency response contractors" qualified to remove the drums. Porthouse gave Lamson her office and cellular phone numbers and asked him to call her back within no more than three hours to update her on his efforts to hire an "emergency response contractor" to remove the drums. Following Porthouse's telephone conversation with Lamson, the Department faxed to Lamson the list of qualified contractors Lamson had requested during the telephone conversation. After speaking with Porthouse, Lamson attempted to telephone his son. Lamson's son was not in, so Lamson left a message on his son's answering machine telling his son about his telephone conversation with Porthouse concerning the abandoned drums on the Parcel. In his message, Lamson asked that his son look into the matter. Neither Lamson, nor his son, made any arrangements for a qualified "emergency response contractor" to remove the drums from the Parcel; nor did either of them contact Porthouse and advise her that such arrangements had been made or would soon be made. Accordingly, at approximately 4:00 p.m. on June 9, 1997, after having waited over three hours for Lamson to provide her with such information, Porthouse hired Magnum Environmental Services (Magnum), a qualified "emergency response contractor" with whom the Department had a contract, to properly dispose of the four abandoned drums (and their contents), as well as the stained soil, on the Parcel. Magnum personnel (with "Level B" protective clothing and equipment) responded to the scene shortly thereafter. By approximately 6:30 or 7:00 p.m. that day (June 9, 1997), Magnum personnel had overpacked, removed from the Parcel and taken to an off-site hazardous waste storage facility the four abandoned drums (and their contents), as well as a fifth drum which contained the stained soil from the site (which Magnum had excavated). Before it had overpacked the drums and removed them from the Parcel, Magnum had examined and sampled the contents of each drum. The samples that Magnum had collected from the drums were sent to the laboratory for analysis. The analysis revealed the following: drum number 11 contained oil, barium, lead and toluene and had a flashpoint of less than 100 degrees Fahrenheit; drum number 2 contained oil mixed with water, as well as barium, lead and chromium, and had of flashpoint of between 101 and 139 degrees Fahrenheit; drum number 3 contained oil mixed with water, as well as barium and lead, and had of flashpoint of between 101 and 139 degrees Fahrenheit; drum number 4 contained oil mixed with water, as well as barium, lead and chromium, and had of flashpoint of over 200 degrees Fahrenheit; drum number 5 contained the soil that had been contaminated by spillage from drum numbers 2, 3 and 4 and had of flashpoint of between 101 and 139 degrees Fahrenheit. Magnum properly disposed of the drums based upon the results of its analysis. The Department paid Magnum $6,135.00 from the Water Quality Assurance Trust Fund for the services Magnum performed. In requesting Magnum to perform these services and in paying Magnum $6,135.00 for having done so, the Department acted reasonably and prudently. The amount it paid Magnum was not excessive.2 The Department reasonably incurred other expenses (also paid from the Water Quality Assurance Trust Fund) totaling $390.13 in connection with its response to the report it had received concerning the abandonment of the four drums on the Parcel. The total amount the Department paid from the Water Quality Assurance Trust Fund to have these abandoned drums properly removed from the Parcel and disposed of was $6,525.13. The Department is requesting that Orchard View reimburse the Department for these costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department finding that it is entitled to recover from Orchard View, pursuant to Chapters 376 and 403, Florida Statutes, the $6,525.13 in costs it reasonably incurred in connection with its response to Incident Number 97-02-0234. DONE AND ENTERED this 15th day of June, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1998.
The Issue Whether the costs incurred by the Department of Environmental Protection, Bureau of Emergency Response (Department) in connection with its response to Incident Number 95-SE-0248 may be recovered from Petitioners pursuant to Chapters 376 and 403, Florida Statutes.
Findings Of Fact The Department is a state regulatory agency charged with the responsibility of administering and enforcing the provisions of Chapters 376 and 403, Florida Statutes. Spill Response, Inc. (Spill Response) is a corporation which was formed in approximately 1986 or 1987, and is presently inactive and without any assets. At all times material to the instant case, George Gordon has been the sole owner, president and director of Spill Response, and, as such, has directed the operations of the corporation. Spill Response was previously in the oil spill response business, as its name suggests. At such time, it had an office in Port Everglades and stored its equipment on fenced and gated property located at 3211 Southwest 50th Avenue, Davie, Florida, on which approximately a dozen large aboveground petroleum storage tanks (surrounded by concrete containment areas) also were situated. At all times material to the instant case, the property located at 3211 Southwest 50th Avenue, Davie, Florida (FPR site) has been owned by Florida Petroleum Reprocessors, Inc. (FPR), an inactive corporation that previously was in the waste oil recovery business. The FPR site, which is presently FPR's only asset, is the subject of a pending foreclosure action initiated by Charles Green, who, at all times material to the instant case, has held a first mortgage on the property. At all times material to the instant case, George Gordon has been the president and director of FPR, and, as such, has directed the operations of the corporation. In the latter part of 1994, the storage tanks on the FPR site were no longer in commercial use. At that time, Gordon, on behalf of FPR, hired Fred Rice to clean and maintain the site in preparation for its closure. Rice was instructed to remove the petroleum residue and sludge from the tanks and from the containment areas. Rice engaged in these petroleum and sludge-removal activities on a part-time basis until the spring of 1995, when he stopped working on the project after not having received timely payment for work he had performed. Rice placed the petroleum residue and sludge that he had removed, as well the rags and other materials that he had used in the removal process, in 55-gallon drums. He filled approximately six or seven such drums. A number of other 55-gallon drums containing petroleum residue and sludge (that some person or persons other than Rice had filled) were already on the FPR site. Rice put the six or seven drums that he had filled on a truck that was parked on the site and had “Spill Response, Inc.” and “Florida Petroleum Reprocessors, Inc.” markings on its sides. The truck was owned by Spill Response and had been on the site for some time. It had no battery and was inoperable. Rice told Gordon that he had put the drums he had filled with petroleum residue and sludge on the Spill Response truck. The next time Gordon went the FPR site, in late May of 1995, he discovered that the locks on the gates had been changed and that there were vehicles and equipment on the property that did not belong there. Gordon telephoned the Davie Police Department to complain about the unauthorized use of the FPR site. A police officer was dispatched to the site to investigate. When the officer arrived on the scene, he encountered Gordon outside one of the gates. Although the gate was locked, Gordon and the officer gained access to the site by squeezing through an opening in the gate. Upon entering the site, they looked around. Based upon what they saw, they correctly "figured out" that Certified Crane and Rigging, Inc., d/b/a Certified Equipment Management Company (Certified) was storing its crane equipment and trucks on the site. At all times material to the instant case, Certified has been owned and operated by William "Skip" Walton. Walton is an acquaintance of the aforementioned Charles Green, the holder of the first mortgage on the FPR site. Certified's telephone number was painted on the equipment and vehicles it was storing on the FPR site. The police officer called the number and spoke with Walton. Following his telephone conversation with Walton, the officer informed Gordon that Walton had indicated, during the conversation, that he was leasing the FPR site from Green. Gordon advised the officer that he did not want to press criminal charges (for trespassing) against either Certified or Walton. Gordon subsequently telephoned Green. Green told Gordon that it was true that he had leased the FPR site to Walton. Green explained to Gordon that he "needed to earn some money from the property." (It had been some time since Green had received any mortgage payments from FPR or Gordon.) Gordon contacted his attorney to discuss with her what legal action, if any, he could take to regain possession of the FPR site and be compensated for the unauthorized use of the property. Gordon's attorney advised him that he "would have recourse if [he] wished to pursu[e] the matter in court," but that it might not be cost-effective for him to do so. Gordon took no action, "in court" or otherwise, to regain possession and control of the FPR site; nor did he take any action to retake possession and control of the Spill Response truck or the filled drums that were in the truck and elsewhere on the site. Furthermore, he made no effort to make sure that the drums and their contents were stored and disposed of properly, believing that the proper storage and disposal of these items were now the responsibility of the new occupant of the site. He did not return to the FPR site for over a year. On or about June 6, 1995, the Department was notified (after its regular business hours) that the Spill Response truck had been discovered abandoned on the side of the road a few blocks from the FPR site. The following day,1 Ann Meador, an Environmental Specialist III with the Department, went to the location where the truck had been abandoned and served as the Department's on- scene coordinator. The truck was in poor condition and still inoperable. It had been brought (not driven) to the location by someone other than Gordon. The truck contained 37 sealed 55-gallon drums, which were in poor condition (but not yet leaking) and had oil residue on the outside. It could not be reliably determined exactly what was in the drums without removing them from the truck and examining and analyzing their contents. Meador made arrangements for OHM Remediation Services Corporation (OHM), with whom the Department had a contract to perform such services on an emergency basis, to assist in the removal of the drums from the truck. OHM personnel (with "Level B" protective clothing and equipment) responded to the scene and removed all 37 drums from the Spill Response truck. After the drums were unsealed, their contents were examined and sampled to the extent possible2 (as were the contents of three additional drums which were filled with the "Level B" protective clothing and equipment that OHM personnel had used during the cleanup operation and then discarded). Each of the drums was assigned a number for identification purposes. To save time and money, samples from some of the drums were composited. The drums were then overpacked and taken to the Department’s hazardous waste storage facility in West Palm Beach, Florida. The Department paid OHM $7,046.93 from the Water Quality Assurance Trust Fund for the services OHM performed. In requesting OHM to perform these services and in paying OHM $7,046.93 for having done so, the Department acted reasonably and prudently. The amount it paid OHM was not excessive. The Department hired Laidlaw Environmental Services (Laidlaw) to analyze the samples that OHM had collected and to then properly dispose of the drums and their contents. Laidlaw's analysis revealed the following: drums numbered 1, 2, 3, 4, 5, 9, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 34, 35, 36, 37, and 38 contained oily sludges, oil, oil mixed with water, or oily residues; drum numbered 6 contained benzene and had a flash point between 73 and 140 degrees Fahrenheit; drum numbered 29 contained benzene and lead and had a flash point of less than 73 degrees Fahrenheit; drums numbered 10 and 11 contained benzene and lead; drums numbered 7, 8, 31, 32, 33 and 39 contained benzene, lead, and cadmium. Laidlaw properly disposed of the drums based upon the results of its analysis. The Department paid Laidlaw $21,163.90 from the Water Quality Assurance Trust Fund for the services it performed. In requesting Laidlaw to perform these services and in paying Laidlaw $21,163.90 for having done so, the Department acted reasonably and prudently. The amount it paid Laidlaw was not excessive. The Department reasonably incurred other expenses (also paid from the Water Quality Assurance Trust Fund) totaling $129.82 in connection with its response to the report it had received concerning the abandonment of the Spill Response truck. The total amount the Department paid from the Water Quality Assurance Trust Fund to have the drums on the truck properly removed and disposed of was $28,340.65. It was not until Gordon received a letter from the Department advising him of the costs the Department had incurred and requesting that Spill Response and he reimburse the Department for these costs that Gordon became aware of the fact that the truck and the drums had been moved from the FPR site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department finding that it is entitled to recover from Petitioners, pursuant to Chapters 376 and 403, Florida Statutes, the $28,340.65 in costs the Department reasonably incurred in connection with its response to Incident Number 95-SE-0248. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998.
The Issue The first issue is whether Petitioner, Jacqueline M. Lane (Lane) has standing. The second issue is whether International Paper Company (IP) provided reasonable assurances it has the ability to meet the conditions of the existing industrial wastewater permit for the wastewater treatment facility at the paper mill in Cantonment, Florida, pursuant to Rule 62- 620.340(3), Florida Administrative Code. A final issue is whether Lane litigated this matter for an improper purpose.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: The Parties The Department is charged with the responsibility for determining whether to approve the Application for transfer of permit number FL0002562-002-IWF/MT from Champion to IP. IP is a corporation authorized to do business in the State of Florida. IP operates a bleach kraft fine paper mill in Cantonment, Florida, formerly operated by Champion. Lane is a citizen of the State of Florida who lives on Perdido Bay. Application for Transfer of Industrial Wastewater Permit Number FL0002526-002-IWF/MT In June 2000, IP notified the Department it was acquiring Champion as a wholly owned subsidiary. IP took over operation of the facility in Cantonment on January 1, 2001. At that time, the companies had fully merged. On January 19, 2001, IP timely submitted an Application for Transfer of a Wastewater Facility or Activity Permit (Application) and advised the Department that "the permittee name for the pulp and paper mill in Cantonment, Florida[,] has been changed from 'Champion International Corporation, Inc.' to 'International Paper Company.'" Several wastewater permit- related documents were submitted to the Department as part of this name change. The Department processed IP's Application to transfer the facility's permit pursuant to Rule 62-620.340(3), Florida Administrative Code. "The parties agree that this matter is controlled by Rules 62-4.120 and 62-620.340, F.A.C., regarding the transfer of the permit. The parties [did not agree] upon what conditions of the combined permits are applicable to determine whether the Department has received 'reasonable assurances that the conditions of the permit will be met.' Rule 62-620.340(3), F.A.C." Rule 62-620.340(3), Florida Administrative Code, provides: "The Department shall allow the transfer under subsection (2) of this section unless it determines that the proposed permittee cannot provide reasonable assurance that conditions of the permit will be met. The determination shall be limited solely to the ability of the proposed permittee to comply with the conditions of the existing permit, and it shall not consider the adequacy of these permit conditions." (Emphasis added). This proceeding does not involve an enforcement action or consideration of whether the wastewater permit, and related documents, should be renewed. Champion's renewal application is under consideration by the Department. The parties agree that the documents described in Findings of Fact 10-19, infra, set forth the conditions of the permit number FL0002526-002-IWF/MT at this time. These documents are listed below: November 15, 1995, DEP Order (combining the NPDES permit and the State- issued wastewater permit) April 22, 1996, DEP Letter (clarifying November 15, 1995, Order regarding 1983 NPDES Permit) January 3,1983, EPA NPDES Permit December 13, 1989, DER Temporary Operating Permit December 1, 1989, DER Consent Order December 12, 1989, DER Variance The Permit(s), Consent Order, Variances, and Related Permit Documents Before May 1, 1995, in order to operate the wastewater treatment facility at the mill in Cantonment, both state and federal permits were required. The Department or its predecessor agency, the Department of Environmental Regulation (DER), issued state permits pursuant to Sections 403.08 and 403.088, Florida Statutes, and applicable rules. The United States Environmental Protection Agency (EPA) issued federal National Pollutant Discharge Elimination System (NPDES) permits pursuant to 40 Code of Federal Regulation Section 124.15. As a result of EPA's delegation of its NPDES authority to the Department in 1995, only one permit is now required. The 1995 Memorandum of Agreement between EPA and the Department does not allow the Department to modify a permit that has been administratively continued. Modifications to permit limits have to be made through the permit renewal process. On or about January 3, 1983, the EPA issued a NPDES permit to St. Regis Paper Company, authorizing discharge from the facility, located at the paper mill in Cantonment to the receiving waters named Eleven Mile Creek (creek). This NPDES permit contains the federal permit conditions applicable at this time. (EPA has since used the facility as a benchmark model to develop effluent guidelines for its new cluster rule.) On December 1, 1989, the DER entered into a Consent Order with Champion International Corporation. This Consent Order was issued as a result of Recommended and Final Orders issued in Perdido Bay Environmental Association, Inc. et al. v. Champion International Corporation and Florida Department of Environmental Regulation, 12 F.A.L.R. 126 (DER Nov. 14, 1989). This Consent Order allowed the continued operation of the facility. As a compliance requirement, a study report was required to include "an evaluation of technologies and treatment alternatives . . . to determine the most environmentally sound and practicable means to correct identified water quality violations caused by Champion." The studies required by the Consent Order are needed to pinpoint sources of pollutants in the creek and Perdido Bay (bay). The Consent Order has no expiration date although it is tied to the temporary operating permit (TOP) which had an expiration date of December 1, 1994. Extensive studies have been submitted to the Department pursuant to paragraph 14.A. of the Consent Order, which are necessary to trigger "the final compliance plan." This has been an ongoing process since the Consent Order and TOP were issued. The conditions in the Consent Order and TOP apply at this time. Various discharge limitations and monitoring requirements are set forth in the TOP. On December 13, 1989, DER issued a TOP, Number IT17- 156163, to the facility, which was issued in conjunction with the Consent Order. The TOP expressly relies on the Consent Order for authorization. It contains the effective state permit conditions at this time. On December 8, 1989, DER issued a Variance from water quality standards for color (transparency), iron, zinc, and the general water quality criterion for specific conductance. The standards in the Variance are part of the TOP and are effective at this time. The mill no longer needs the Variance for iron and zinc. As to those parameters, it currently operates at lower levels than under the Variance. On November 15, 1995, the Department combined the state and federal operating permits into a single permit identified as Wastewater Permit Number FL0002526-002-IWF/MT. The TOP and NPDES permit were administratively continued when renewal applications were filed. The Department will transfer to IP the permit documents described in Finding of Fact 9, supra. The Department will also transfer the pending permit renewal applications filed by Champion. Wastewater Treatment Facility at the Paper Mill in Cantonment, Florida In the past, Champion owned and operated a 1400-ton per day bleach and kraft pulp and paper mill in Cantonment. The operation is now conducted by IP. The paper mill treats its effluent from industrial activities at an on-site wastewater treatment facility (facility). Stormwater that falls on the industrial portion of the mill is also processed through the facility. The mill is required to and takes monthly samples from the creek for a few parameters, e.g., DO and pH, to provide data to the Department for use in developing possible changes to effluent limitations in a final compliance plan. There is an installed structure that continuously measures the flow of the effluent at the end of the facility's treatment system. This point, i.e., where the flow is measured, is called the Parshall Flume which is the compliance point for the facility. The effluent at Parshall Flume is automatically sampled each day, analyzed, and reported on a monthly basis to the Department. The analyses are reviewed and compared to the effluent limitations for a particular permit. The treated effluent is discharged from the Parshall Flume through a pipe to natural wetlands. In this wetland area, the treated effluent combines with several streams, non- processed stormwater, and runoff from land south and west of the facility. Runoff from residential areas and areas west of the mill, including the City of Cantonment, also flows into this area. The IP mill is not the only source of discharge into this area. After passing through the natural wetlands, the treated effluent runs through a pipe that discharges into the creek from below the surface. This point is about a half-mile from the facility. It is called the "boil" because the water from the pipe boils up into the creek. The "boil" is not a compliance point. On occasion, a Department inspector has taken water samples at the boil. Each time, his sampling has shown water quality standards were met at the boil. At the boil, the water flowing into the creek from the pipe contains treated effluent and drainage from areas not associated with the mill. From the boil, the creek flows a distance of fourteen miles to Perdido Bay (the bay). At the boil, there is also stormwater runoff and drainage from residential areas flowing into the creek in addition to the water from the pipe. Along the sides of the creek to the bay is a large drainage basin, which includes agricultural and residential runoff that flows into the creek. The boil, which is non-processed stormwater of the creek, could be contaminated from non-IP sources. Sources of pollutants in the bay include residential and agricultural stormwater runoff, Perdido River, and the creek. The Escambia County Utility Authority (ECUA) also has a treatment plant that has a discharge into the bay. Saltwater intrusion and runoff from development are additional sources of pollutants in the bay. Lane takes samples at the boil and most recently in May and June of 2001. Her measurement of dissolved oxygen (DO) was approximately 2.6 and for specific conductance, between 1600 and 2000. Lane also samples the water at a bridge (279A) two miles down the creek from the boil. Lane testified regarding bacteriological quality at the boil or further down stream, that fecal coliforms, including the bacteria Klebsiella, were present. Lane is not a certified sampler. She does not have the required quality control/quality assurance program. Lane does not know the Department requirements to sample dissolved oxygen. She could not describe an approved standard for such sampling. Surface Water Quality Standards Unless otherwise provided through relief mechanisms, discharges into surface waters must meet the minimum water quality standards set forth in Rules 62-302, Florida Administrative Code. Relief mechanisms include variances, consent orders, and temporary operating permits. The Department has issued variances, consent orders, and temporary operating permits to allow permit holders time to respond to changes in water quality standards and related regulations that reflect changes in understanding of environmental impacts to water bodies. Permit Conditions The permit conditions do not require compliance with all the water quality criteria in Chapter 62-302, Florida Administrative Code, for water quality parameters. The Department has not yet agreed on "final treatment solutions" it can require under the Consent Order. See, e.g., Finding of Fact 49. Specific deviations from the surface water quality standards in Chapter 62-302, Florida Administrative Code, are authorized by the Consent Order, TOP, variance, and NPDES permit. The specific effluent discharge limitations in the TOP and NPDES permit, are for BOD5, TSS, iron, specific conductance, pH, and zinc. (The reference to condition 12 in paragraph 25 of the TOP has not been amended.) Several of the effluent limitations (e.g., specific conductance) were granted by the Variance. Paragraph 26 of the TOP specifies the monitoring and frequency requirements for the monitoring at the Parshall Flume. This monitoring information can be used by the Department to pinpoint sources of pollutants in the creek and in order to establish numerical, water-quality based effluent limitations for those sources. General Condition 5 of the TOP does not per se impose on the mill the duty to meet all water quality standards in Chapter 62-302, Florida Administrative Code. The TOP authorizes "a certain amount of pollution" and "certain relief." The TOP further established a "compliance schedule" for Champion to study the impacts of the discharge. However, the Department rules allow for reopening of the TOP and changing the permit conditions to reflect new evidence causing a concern regarding pollution. Here, the Department has not reopened the TOP. The permit, including the TOP and Consent Order, allows the mill a period of time to come into compliance with all minimum water quality standards. When a final permit is eventually issued, the facility will have to meet these standards absent some express relief mechanism at that time. IP Provided Reasonable Assurances of Its Ability to Meet Permit Conditions The Department employee who reviewed IP's Application to transfer the permit is an expert in environmental engineering. At the time he reviewed the Application, he was familiar with the existing permit conditions. As part of his review, he ascertained whether IP was satisfying the conditions of the permit and determined it was. The Department reviewed IP's annual report and other corporate brochures as part of its processing of the transfer Application. Information in these documents revealed IP has obtained other Federal-type NPDES permits for other companies at several other facilities. The Department was familiar with IP's local management at the Cantonment facility when it processed the transfer Application. IP brings considerable "capability and talent" to the mill. The Department performed inspections during the last six (6) months and was familiar with the facility and wastewater system. IP is an international company with greater financial resources than Champion. It has approximately $30 billion in annual sales. Champion, in comparison, generated about $5 billion a year. It is clear that that the operation of the mill and the facility would have less capital and financial support without IP. Since June 2000, IP has worked with the Department in a continuation of the Department's concept of relocating the facility's discharge to wetlands. The plan considers removal of the facility's treated effluent from the creek to wetlands on IP's land and effectively eliminates it as a point source discharge and removes the discharge from the creek. IP will have a greater ability than Champion to meet permit conditions due to greater financial sources, technical staff, and resources. IP's management is committed to resolving water quality issues like specific conductance and is willing to resolve outstanding water quality issues in the bay and creek. In the view of the former Northwest District Director who worked on water quality issues at the facility for twelve years ending March 31, 2001, the current plan to discharge to wetlands will be implemented and allow compliance with all water quality standards. He also opines that IP has the ability to comply with water quality standards under the plan to discharge to wetlands. In the Department's view, IP has provided reasonable assurances that it has the ability to meet the existing conditions of the permit sought to be transferred. IP Complies with Permit Conditions as Evidence of Ability According to the Department's expert, Mr. William A. Evans, a professional engineer with a Master's degree in civil engineering and an expert in environmental engineering, there have been no verifiable violations of permit conditions and no exceedances since January 2000, before IP took over operations of the mill. On the other hand, Mr. Evans, in reviewing a discharge monitoring report for IP for April 2001, advised, during cross-examination, that there appeared to be "an apparent violation, exceedance of the permit" for specific conductance pursuant to the 1500 micromhons per centimeter limit in the EPA's version of the permit. However, the Variance, which is part of the Application, was granted "because there is no practicable means known or available for the adequate control of the pollution involved," i.e., specific conductance. The Department applies the limit of 2500 micromhos per centimeter set forth in the Variance for specific conductance, which is a reasonable interpretation of the permit documents. When the permit documents, including the Variance are read in this light, IP is in compliance with this limit. IP is in compliance with the Consent Order, NPDES permit, and Variance. In making this finding, the undersigned is mindful of Lane's arguments and facts presented. The issue here is not black or white; violation or no violation. As noted by Mr. Evans: This permit is recognized since '89 is [sic] not meeting water quality standards. It has all these documents because it doesn't. And they're still working under those. And the Department agrees with Ms. Lane that they are not meeting water quality standards in the creek. And we're working under these documents to make improvements. And so is Champion and so is IP. But they are not, in our opinion, violating the conditions of the permit. There [sic] are complying with studying it, meeting the interim limits that are set forth in the permit. And that is what the Statutes require when a facility can not meet all the standards of a permit. The Department, while considering the renewal application, has not approved it yet because they have not received reasonable assurances that new permit conditions can be met. Champion, and now IP, are facing the continuing challenge of satisfying, among other requirements, water quality standards, which takes time, money, and know-how. The Department rightly believes that IP can best meet this challenge. The Department's review of the monthly monitoring reports submitted by the mill since Champion was purchased reveals the facility has complied with permit conditions. The most recent monthly report was submitted May 23, 2001, and includes data through April 2001. During inspections at the facility since June 2000, the Department found no violations of permit conditions. The mill, under IP's operation, has not exceeded the fecal coliform conditions of its permit. The mill has no significant contribution to fecal coliform in the creek because it treats its own domestic sewage and meets the fecal coliform limit at the compliance point. Runoff along the creek from agricultural and domestic sources could contribute to fecal and total coliform in the creek. The Department enforces the "more stringent" pH condition in the 1989 TOP and Variance which is controlling over the less stringent standard in the 1983 NPDES permit. The pH limit in the NPDES permit is 6.0-9.0. The Department reasonably interprets the freshwater stream pH rule to mean enforcement is not required if the permittee meets the range in the rule (6.0-8.5), more stringent than the 9.0 limit in the NPDES permit. The facility's pH data satisfies this range. If the Department were to enforce a limit of 6.5, instead of 8.5, IP has the ability to meet the lower limit by installing one of several available technologies to control the pH levels. IP's current proposal includes one of these technologies. The biological integrity provision in the Consent Order requires studies on biological components of the creek and pH impacts this condition. Permit Conditions Affecting the Creek and Bay The permit does not require the facility to meet all the minimum surface water quality standards of Chapter 62-302, Florida Administrative Code, in the creek and bay. That is because of the relief mechanisms in the Consent Order, TOP, NPDES permit, and Variance. The Consent Order provides a time frame for the facility to come into compliance with water quality standards in the creek and bay. In terms of the Consent Order, the Department considers IP to be at the paragraph 14.A. step of the compliance schedule since the Department has not yet "resolved or agreed on the final corrective action required under this [C]onsent [O]rder." The Department considers the facility to be in compliance with permit conditions because it is "working under a complying [sic] schedule and an order or a temporary operating permit." See Finding of Fact 49. As long as IP is meeting the "interim limits that are set forth in the permit," it is not violating conditions of the permit. The Department is aware of water quality exceedances from the standards in the creek and bay caused by the mill. This data was reported in the "fifth year surveys." This information serves as a basis for making improvements and finding "a new solution for the effluent as required by the consent order." See Finding of Fact 49. Proposal for Joint Project with ECUA IP and the ECUA are working with the Department on a plan than would result in the discharge of IP's treated effluent to wetlands, thereby removing the effluent from the creek. IP's financial capability, size, and technical human resources make this plan feasible. IP will propose a plan to satisfy the Consent Order which consists of three parts: upgrading IP's industrial wastewater treatment facility; allowing ECUA to locate an advanced domestic wastewater treatment plant on its land; and disposing the treated effluent from both facilities to wetlands on IP's land through a pipeline. The proposed plan to discharge the facility's treated effluent to wetlands is a suitable solution that will allow the mill to meet minimum water quality standards. Lane has no objection to the plan to discharge to wetlands. It will resolve all her water quality issues. She believes the plan, similar to a prior plan, is "feasible." Standing and Improper Purpose Lane admits the Department is not making any changes to existing permit conditions before transferring it to IP. Lane agrees that changing the name on the permit from Champion to IP has no adverse affect on her. Lane brought this proceeding because she is dissatisfied with the manner in which the Department is enforcing conditions in the facility's permit. According to Lane, "They haven't done their duty." Her main complaints are with the Department's failure to enforce the permit conditions and the lack of a permit that makes the permit holder comply with Florida law. Lane feels that Champion violated permit conditions in the past, and IP is currently violating permit conditions and, as a result, the permit should not be transferred because a decision to transfer is an implicit finding of compliance. In this light, Lane argues that past performance can be an indication of future ability or lack thereof. Lane acknowledges that in order to add conditions to the existing permit, the Department must provide notice to the mill and give it a chance to meet the proposed conditions. She further admits the Department has not provided such notice. Lane proved that the environmental situation attending Champion's, and now IP's, operation of the mill and the wastewater facility has been and is less than optimum and in need of positive changes. The Department agrees and so does IP. Lane's personal observations of the condition of the creek and bay are documented. However, Lane did not prove that she will suffer an "injury in fact" if the permit and related documents are transferred to IP. Lane is not otherwise substantially affected by the Department's decision to approve the transfer. Lane's evidence did not rebut IP and the Department's proof that IP has the ability to comply with the permit conditions. The preponderance of the evidence shows that the environment in and around the mill and the facility has a better opportunity for improvement if IP takes control of the mill and facility. On the other hand, based on this record, Lane did not bring this case for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be rendered as follows: Lane lacks standing to challenge the transfer of industrial wastewater permit number FL0002526-002-IWF/MT to IP because Lane did not prove that her substantial interests were being determined by the Department's transfer of the permit from Champion to IP; IP provided reasonable assurances it has the ability to comply with the conditions of industrial wastewater permit number FL0002526-002-IWF/MT; IP has complied with the conditions of industrial wastewater permit number FL0002526-002-IWF/MT, as the Department construes those conditions, since assuming control of the mill on January 1, 2001; and Lane did not participate in this administrative proceeding for an improper purpose. DONE AND ENTERED this 24th day of August, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 24th day of August, 2001. COPIES FURNISHED: Jacqueline M. Lane 10738 Lillian Highway Pensacola, Florida 32506 Terry Cole, Esquire Patricia A. Renovitch, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 1110 301 S. Bronough Street, Fifth Floor Tallahassee, Florida 32302-1110 Craig D. Varn, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
The Issue The issue presented for determination in this proceeding is whether the wasteload allocations set forth in respondent's interoffice memorandum dated September 8, 1977, constitute a rule subject to the procedural requirements of the Administrative Procedure Act, Chapter 120, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: The petitioner, a municipal corporation, applied to the respondent for renewal of its permit to operate a sewage treatment plant. The respondent gave notice of its intent to deny said application on the ground that petitioner had not met the wasteload allocations established for the upper part of the Peace River Basin. A petition for a hearing on this denial was filed by petitioner pursuant to the provisions of Florida Statutes, 120.57(1), and a hearing was originally scheduled for May 11, 1978. At the commencement of this hearing, it became apparent that petitioner was also alleging that the wasteload allocations set forth in an interoffice memorandum dated September 8, 1977, constituted a rule within the meaning of Chapter 120, Florida Statutes, and therefore must be adopted pursuant to the provisions of said chapter. The respondent not being prepared to meet this allegation and the petitioner not having filed a petition pursuant to the provisions of Section 120.56, the scheduled hearing was continued and petitioner was granted leave to file a petition pursuant to Section 120.56 challenging the validity of the wasteload allocations as an invalid rule. Petitioner properly filed its petition for an administrative determination of the validity of a rule and the two petitions were consolidated for hearing purposes. The "rule" being challenged herein contains revised wasteload allocations for four municipalities in Polk and Hardee Counties. These four include Bartow, Ft. Meade, Bowling Green and Wauchula, each of which discharges effluent into the Upper Peace River Basin. As noted above, these allocations are set forth in an interoffice memorandum dated September 8, 1977, and were not adopted pursuant to the rulemaking provisions of Chapter 120, Florida Statutes. Wasteload allocations are derived from mathematical calculations fed into a scientific model. They are based upon information pertaining to the treatment plant, the type of effluent, the physical, chemical and biological characteristics of the receiving waters and the number and nature of other discharges to the receiving waters. In developing said allocations, the respondent relies upon information received from the applicant, as well as existing water quality data from the Environmental Protection Agency, United States Geological data, local programs and university studies. The purpose of developing wasteload allocations is to determine the chemical effect of the discharge upon the receiving body of water and to determine whether a certain volume of effluent treated to a specified degree will depress water quality below the standard established for a particular class of water. Wasteload allocations are calculated by the respondent for each individual discharger to determine whether a reduction in water quality will occur. When an application for a discharge permit is made to respondent, allocations for several dischargers in close proximity affecting the same portion of a body of water may be calculated at the same time, as was done in the September 8th memorandum. However, the other individual allocations become effective and applicable only when those dischargers seek a permit from the respondent. At that time, the allocation is revisited and recalculated based upon the most recent, available information and data. The wasteload allocations have applicability only when a facility seeks a permit to discharge effluents into surfaced waters. In the State of Florida, there are approximately 1,300 domestic and municipal sewage treatment plants and 230 industrial dischargers. A uniform wasteload allocation for 1,530 dischargers would be impossible and meaningless because each has its own unique characteristics based upon the type and method of discharge and the nature of the receiving body of water. Accordingly, the wasteload allocations are established by respondent on a case by case basis in the permitting process. Approximately 1.6 million dollars in capital expenditures will be necessitated in order for petitioner to comply with the wasteload allocations established by the respondent. There would also be increases in operating and management costs for new capital improvements. Alternative methods of sewage treatment may be undertaken by the petitioner.
